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April 20, 1973

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the diversion ditch is the more was some conversation between Mr. credible. First, the evidence estab- Williams and one of his (Antrim's) lishes that the dike was constructed employees to the effect that the dike during the approximate period was to protect the site and the laJanuary 21 through January 31, goon from drainage from the 1968 (Tr. 79, 80, 85, 133, 205, 206). north.?? Mr. Antrim asserted that

. The Daily Construction Report, he returned to the site on Janudated January 22, 1968 (note 11, ary 31, 1968, and stopped the operasupra), indicates that earth from tion (the building of the dike) the lagoon was being deposited on which was about one-half as high as the downstream side of the diver- the project inspector wanted it (Tr. sion ditch as of that date. Second, 80, 99, 100, 104). Mr. Oldham testialthough Mr. Oldham acknowl- fied that on or about January 31, edged having several conversations 1968, he was directed by Mr. Antrim with Mr. Williams concerning dis- to place no more material on the posal of material from the lagoon, dike (Tr. 119–121). In later testihe could not recall the dates of these mony he asserted that the dike was conversations (Tr. 118, 120, 130, completed as "it is now” as of Jan132).

uary 31, 1968, although we could Mr. Antrim testified that he first have dumped another 15 or 20,000 became aware that he had to build yards on it” (Tr. 135). Mr. Wila dike which was not shown on the liams confirmed that the road plans approximately January 21, (dike) was completed as of Janu1968, when he was informed by Mr. ary 31, 1968 (Tr. 210). Oldham that he was "having to A Daily Construction Report, spend additional costs to get rid of dated January 31, 1968, signed by excess dirt.” (Tr. 79.) He admitted Mr. Williams (Tr. 213; Exh. 8), that he did nothing at that point contains the following: even though he was aware that the

Note: Mr. Antrim, advised that he had dike was not required by the con- not figured on moving the excess dirt tract. He was also aware of the fact

17 Tr. 81-83. We consider this alleged purthat changes required the approval pose of the dike to be unlikely. Although Mr. of the contracting officer. 16 When

Antrim indicated that the dike would pro

tect the site from off-site drainage to the asked as to what function the dike

north (Tr. 83, 89) we accept Mr. Oldham's

testimony that drainage north of the dike was was to serve, he recalled that there

to the north and east (Tr. 137). It therefore

appears that the dike would more readily have 18 Tr. 80. A letter from the Contracting protected the lagoon from off-site drainage Officer to the contractor, dated October 10, from areas to the northwest bad it extended 1967 (Govt's Exh. D) outlines the authority along the fence-line from Property Corner -2 of the project inspector and states, inter to Property Corner -3 (App's Exh. 1) (shown alia, that the project inspector is not author- as Property Corners -3 and -4 on Gov't ized to "* .issue any directions which in Exh. A). This purpose of the dike also seems any way affect the contract price or time, inconsistent with appellant's theory that the change any provision of the specifications or dike funneled water into the lagoon during drawings, or waive the requirements thereof." the heavy rains of July 20-22, 1968.

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from the Lagoons [sic] for any great dis- 1968, earth excavated from the tance. Since Specifications, page D-2

lagoon was placed on either side of para. B, states that: Excess exacavation

the lagoon access road to the south material from Lagoons will be disposed of in the immediate vicinity.18

and southwest of the lagoon (Tr. Mr Antrim and the undersigned agreed 103, 133, 275; App's Exh. 1). to waste the excess material, approxi- Mr. Antrim admitted that the mately 20,000 cu. yds, in the Area [sic]

dike was used as a haul road "* * * just South of the Lagoons and on both

But after this was built, we did sides of the Lagoon Access Road. [sic] This will be an area of about 200' x 500'

move some of this concrete aggreon both sides of the Access Road and will gate over this diversion dike, since be about 2'-feet [sic] deep. The Area [sic] it was there. * * *" (Tr. 49.) Howafter this waste dirt has been deposited

ever, he asserted that the dike was will be shaped so no interference with

seldom used for such purpose since natural drainage in this area will occure.

66* * * our main haulroad was else[sic]

where.” (Tr. 47.) While this latter Mr. Antrim denied entering into

assertion is supported by the record any agreement with Mr. Williams

in that base

course material to dispose of material excavated from the lagoon in an area 200 feet

(gravel) was hauled to the site from

a pit in the area to the northwest by 500 feet (Tr. 70). In fact, he

(Anegam Wash) over a road to the denied speaking to Mr. Williams on January 31, 1968 (Tr. 71, 102, 302). south of the diversion dike (Tr. 48; Mr. Oldham testified that since Mr. App's Exh. 1), we note that under Antrim had indicated that he did questioning by the hearing officer

Mr. Antrim, referring to the dike, not want to move the material any

stated: “* * * In fact, I would say great distance, he (Oldham) talked

that it was necessary in that operato Mr. Williams and asked that a spot nearer to the lagoon be desig- down there.” (Tr. 93.) Mr. Oldham

tion, almost, to have a good road nated (Tr. 119, 120). Mr. Williams

confirmed that the dike was used as insisted that he spoke to Mr. An

a haul road on occasion but denied trim on January 31, 1968, concern

that it was a necessity (Tr. 117). ing the disposal of material from the lagoon (Tr. 247, 266-268, 271,

Appellant contends that the con274). Since his testimony is con

tracting officer and the project insistent with a contemporaneous spector have misinterpreted the conmemorandum, we consider that Mr.

tract. Appellant asserts that the Williams' testimony in this respect provision relied upon by the conis the more credible. However, we

tracting officer (note 7, supra) is do not think it necessary to resolve applicable to earthwork for utilithis conflicting testimony. There is

ties and not earthwork for the no dispute that after January 31, lagoon (Tr. 94, 95; Post Hearing

Brief, p. 14 et seq.). Under cross18 The specifications do not contain examination, Mr. Williams adlanguage. Provisions relied upon are those quoted previously (note 7, supra).

mitted that it was “very possible”

this

April 20, 1973

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that he had cited the provision of on the plans. While the contractor the specifications giving the Gov- could select the sources of borrow, ernment the right to direct disposal such sources were subject to the apof the material at any place within proval of the contracting officer one-half mile of the site (note 7, (Subparagraph 2D.3.C., note 12, supra) in the conversation with Mr, supra). We assume that the conAntrim on January 31, 1968 (Tr. tracting officer would be required 246, 269–272). In other testimony, to act reasonably in exercising such he asserted that he had no knowl- approval authority.20 edge of any discussion with Mr. An- The evidence establishes that ap; trim as to which provision of the pellant hauled earth excavated from specification was controlling (Tr. the lagoon to points along the east 268, 275). At another point he as- bank of the diversion ditch between serted that the provision referred Station 0+00 and Property Corner to could have been used as a guide- -1. It is not clear whether this line (Tr. 247).

material was necessary to complete

the required embankment along the Decision

ditch to the lines and grades shown The constructive change doctrine on the plans. We conclude that apis composed of two elements, the pellant has not shown that this dischange element and the order ele- position of earth excavated from ment.19 We will consider these ele- the lagoon constituted a change in ments in the order indicated. the requirements of the contract. The contract required that an em

There is no dispute that construcbankment of compacted fill be tion of the so-called “diversion placed along the downstream (east- dike” was not a requirement of the

contract. There is also no dispute erly and northerly) side of the diversion ditch over its entire length

that appellant was obligated by the

contract to excavate the floor of the (notes 10 and 12, supra). The record

lagoon to an elevation of 1,805.50 does not reflect whether material ex

feet. The specification (note 7, cavated in forming the ditch was

supra) provides that excess material sufficient to construct this embank

was to be used “* * * for flattening ment. Assuming that material ex

the outside slopes of the pond dikes cavated from the ditch was insuffi

and increasing the height of the lap cient to form the embankment, the dikes, or as directed by the Concontractor clearly had an obligation tracting Officer.(Italics supto obtain sufficient borrow or other plied.) Once again we assume that material to construct the embank- the authority of the contracting ment to the lines and grades shown officer to direct the disposition of excess material would have to be ex- vision would certainly be for conercised reasonably. Appellant sideration in determining whether argues that the provision of the the contracting officer acted reasonspecification (Subparagraph 2C.4.c. ably in directing the disposition of note 7, supra) providing that excess excess earth from the lagoon. No material produced by grading and part of the diversion dike was in excavation shall be disposed of in excess of one-half mile from the lathe nearby vicinity (within 12 mile goon and obviously was not in exof the site) as directed is applicable cess of one-half mile from the site. to earthwork for utilities and not We conclude that although conearthwork for the lagoon. The dif- truction of the diversion dike was ficulty with this contention is that

10 Industrial Research Associates, Inc., DCAB No. WB-5 (June 12, 1968), 68-1 BCA par. 7069 at 32,685-686.

20 See Meva Corporation, IBCA-648-6–67 (August 18, 1969), 76 I.D. 205, 69--2 BCA par. 7838, footnote 80 and accompanying text.

not a requirement of the contract, "Earthwork for Lagoons" is Para- the contract expressly authorized graph 6 under Section C of the the contracting officer to direct the specification which covers “Earth- disposition of excess earth excawork for Utilities." We conclude

vated from the lagoon and that that the two provisions of the appellant has not shown that this specifications are not so readily authority was exercised unreasonseparable as appellant would have ably. It follows that appellant has us believe.

not shown that construction of the We assume that the specific pro- dike constituted a change in the revision applicable to the lagoon is quirements of the contract. controlling. However, application Assuming, arguendo, that work of the rule that a specific provision above and beyond the requirements will override a general provision is of the contract was accomplished, of little assistance here since the

we turn to the question of whether general provision applicable to all the evidence supports the concluearthwork for utilities which de- sion that this work was accomfines "nearby vicinity" as within plished by an order emanating from one-half mile of the site is more one authorized to bind the Governspecific than the "as directed by the ment. We find that the designation Contracting Officer” language of by Mr. Williams of the east bank of

” the provision applicable to the la- the diversion ditch in the northwest goon. Whe have referred to testi

corner of the project site for the dismony of Mr. Williams to the effect position of excess material from the that the one-half mile provision lagoon would constitute such an could have been used as a guideline. order provided he had authority to We consider this position to be issue it or the lack of authority was sound since it is well settled that a otherwise cured. The evidence as to contract must be interpreted as a whether an order was issued to build whole 21 and the one-half mile pro- the diversion dike is in conflict. Mr.

Williams testified that Mr. Oldham 21 Hol-Gar Manufacturing Corp. v. United States, 169 Ct. Ci, 384 (1965).

asked permission to deposit the ex

April 20, 1973

cess material along the north fence tracting officer. Appellant attempts line in order to facilitate hauling to overcome this deficiency in its the material to the east bank of the proof by alleging that the contractdiversion ditch. Mr. Oldham denied ing officer was aware that extra requesting authority to build a road work was being required 23 and citor dike, but admitted asking for ing decisions holding that work not

, areas to be designated in which to required by the contract which was deposit the excess material. Con- accomplished at the direction or intrary to the testimony of Mr. Old- stigation of subordinate officials ham, we have found that the diver- with the knowledge or acquiescence sion dike was not completed at the of the contracting officer or his autime the contractor was directed to thorized representative constituted place excess material excavated a constructive change.24 We are from the lagoon along the east bank fully in accord with the cited prinof the diversion ditch. We consider ciple and have applied it where the Mr. Williams' testimony to be the facts warranted.25 more probable in that it would be

The contention that the contractlogical for the contractor to have ing officer was aware that extra requested permission to place mate

work was being performed is based rial along the north fence line as an

primarily on the Daily Construcaid to hauling material to the em

tion Report of January 22, 1968, bankment. However, for reasons

which states material excavated hereinafter stated acceptance of the

from the lagoon was being placed contractor's version of how the dike came to be built would not alter the along the east bank of the diversion

ditch.26 For reasons previously result.

It is, of course, fundamental that stated, this did not constitute notice to commit the Government, the

that work beyond the requirements order must have been issued by or

of the contract was being perwith the approval of one having formed. However, even if it did authority to do so.22 The letter from

23 Post Hearing Brief, pp. 11-14. the contracting officer to appellant, 24 Among others, W. Southard Jones, Inc.,

ASBCA No. 6321 (October 20, 1961), 61-2 dated October 10, 1967, outlined the

BCA par. 3182. authority of the project inspector *5 Orndor i Construction Company, Inc.,

IBCA-372 (October 25, 1967), 74 I.D. 305, and clearly placed the contractor on

67-2 BCA par. 6665 at 30,924. Cf. Franklin notice that this official did not have

W. Peters and Associates, IBCA-762-1-69

(December 28, 1970), 77 I.D. 213, 71-1 BCA authority to make changes to the

par. 8615 at 40,029. contract. Mr. Antrim admitted that

28 Appellant also relies on the Daily Con. .

struction Report, dated January 31, 1968, the he was aware of the fact changes pertinent portion of which is quoted in the

text. Since even under appellant's version of required the approval of the con

the evidence, work on the dike was stopped

on January 31, 1963, it is difficult to compre. 22 See F. H. Antrim Construction Co., Inc. hend how this report could constitute notice (note 1, supra), and cases cited.

that extra work was being performed.

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