the diversion ditch is the more credible. First, the evidence establishes that the dike was constructed during the approximate period January 21 through January 31, 1968 (Tr. 79, 80, 85, 133, 205, 206). The Daily Construction Report, dated January 22, 1968 (note 11, supra), indicates that earth from the lagoon was being deposited on the downstream side of the diversion ditch as of that date. Second, although Mr. Oldham acknowledged having several conversations with Mr. Williams concerning disposal of material from the lagoon, he could not recall the dates of these conversations (Tr. 118, 120, 130, 132).

Mr. Antrim testified that he first became aware that he had to build a dike which was not shown on the plans approximately January 21, 1968, when he was informed by Mr. Oldham that he was "having to spend additional costs to get rid of excess dirt." (Tr. 79.) He admitted that he did nothing at that point even though he was aware that the dike was not required by the contract. He was also aware of the fact that changes required the approval of the contracting officer.16 When asked as to what function the dike was to serve, he recalled that there

18 Tr. 80. A letter from the Contracting Officer to the contractor, dated October 10, 1967 (Govt's Exh. D) outlines the authority of the project inspector and states, inter alia, that the project inspector is not authorized to " issue any directions which in any way affect the contract price or time, change any provision of the specifications or drawings, or waive the requirements thereof."

502-314-3

was some conversation between Mr. Williams and one of his (Antrim's) employees to the effect that the dike was to protect the site and the lagoon from drainage from the north.1 Mr. Antrim asserted that he returned to the site on January 31, 1968, and stopped the operation (the building of the dike) which was about one-half as high as the project inspector wanted it (Tr. 80, 99, 100, 104). Mr. Oldham testified that on or about January 31, 1968, he was directed by Mr. Antrim to place no more material on the dike (Tr. 119-121). In later testimony he asserted that the dike was completed as "it is now" as of January 31, 1968, although "we could have dumped another 15 or 20,000 yards on it" (Tr. 135). Mr. Williams confirmed that the road (dike) was completed as of January 31, 1968 (Tr. 210).

A Daily Construction Report, dated January 31, 1968, signed by Mr. Williams (Tr. 213; Exh. 8), contains the following:

Note: Mr. Antrim, advised that he had not figured on moving the excess dirt

17 Tr. 81-83. We consider this alleged purpose of the dike to be unlikely. Although Mr. Antrim indicated that the dike would protect the site from off-site drainage to the north (Tr. 83, 89) we accept Mr. Oldham's testimony that drainage north of the dike was to the north and east (Tr. 137). It therefore appears that the dike would more readily have protected the lagoon from off-site drainage from areas to the northwest had it extended along the fence-line from Property Corner -2 to Property Corner -3 (App's Exh. 1) (shown as Property Corners -3 and 4 on Gov't Exh. A). This purpose of the dike also seems inconsistent with appellant's theory that the dike funneled water into the lagoon during the heavy rains of July 20-22, 1968.

from the Lagoons [sic] for any great distance. Since Specifications, page D-2 para. B, states that: Excess exacavation material from Lagoons will be disposed of in the immediate vicinity.15

Mr Antrim and the undersigned agreed

to waste the excess material, approximately 20,000 cu. yds, in the Area [sic] just South of the Lagoons and on both sides of the Lagoon Access Road. [sic] This will be an area of about 200' x 500' on both sides of the Access Road and will be about 2'-feet [sic] deep. The Area [sic] after this waste dirt has been deposited will be shaped so no interference with natural drainage in this area will occure. [sic]

Mr. Antrim denied entering into any agreement with Mr. Williams to dispose of material excavated from the lagoon in an area 200 feet by 500 feet (Tr. 70). In fact, he denied speaking to Mr. Williams on January 31, 1968 (Tr. 71, 102, 302). Mr. Oldham testified that since Mr.

Antrim had indicated that he did not want to move the material any great distance, he (Oldham) talked to Mr. Williams and asked that a

spot nearer to the lagoon be desigspot nearer to the lagoon be designated (Tr. 119, 120). Mr. Williams insisted that he spoke to Mr. Antrim on January 31, 1968, concerning the disposal of material from the lagoon (Tr. 247, 266–268, 271, 274). Since his testimony is consistent with a contemporaneous memorandum, we consider that Mr.

Williams' testimony in this respect

is the more credible. However, we do not think it necessary to resolve this conflicting testimony. There is no dispute that after January 31,

18 The specifications do not contain this language. Provisions relied upon are those quoted previously (note 7, supra).

1968, earth excavated from the lagoon was placed on either side of the lagoon access road to the south and southwest of the lagoon (Tr. 103, 133, 275; App's Exh. 1).

Mr. Antrim admitted that the dike was used as a haul road "* * * But after this was built, we did move some of this concrete aggregate over this diversion dike, since it was there. * * *” (Tr. 49.) However, he asserted that the dike was seldom used for such purpose since 66*** our main haulroad was elsewhere." (Tr. 47.) While this latter assertion is supported by the record in that that base course material (gravel) was hauled to the site from a pit in the area to the northwest (Anegam Wash) over a road to the south of the diversion dike (Tr. 48; App's Exh. 1), we note that under questioning by the hearing officer Mr. Antrim, referring to the dike, stated: "*** In fact, I would say that it was necessary in that operation, almost, to have a good road down there." (Tr. 93.) Mr. Oldham

confirmed that the dike was used as a haul road on occasion but denied that it was a necessity (Tr. 117).

Appellant contends that the contracting officer and the project inspector have misinterpreted the contract. Appellant asserts that the provision relied upon by the contracting officer (note 7, supra) is applicable to earthwork for utili

ties and not earthwork for the

lagoon (Tr. 94, 95; Post Hearing Brief, p. 14 et seq.). Under crossexamination, Mr. Williams admitted that it was "very possible"

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that he had cited the provision of the specifications giving the Government the right to direct disposal of the material at any place within one-half mile of the site (note 7, supra) in the conversation with Mr. Antrim on January 31, 1968 (Tr. 246, 269-272). In other testimony, he asserted that he had no knowledge of any discussion with Mr. Antrim as to which provision of the specification was controlling (Tr. 268, 275). At another point he asserted that the provision referred to could have been used as a guideline (Tr. 247).

Decision

The constructive change doctrine is composed of two elements, the change element and the order element.19 We will consider these elements in the order indicated.

The contract required that an embankment of compacted fill be placed along the downstream (easterly and northerly) side of the diversion ditch over its entire length (notes 10 and 12, supra). The record does not reflect whether material excavated in forming the ditch was sufficient to construct this embankment. Assuming that material excavated from the ditch was insufficient to form the embankment, the contractor clearly had an obligation to obtain sufficient borrow or other material to construct the embankment to the lines and grades shown

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

on the plans. While the contractor could select the sources of borrow, such sources were subject to the approval of the contracting officer (Subparagraph 2D.3.c., note 12, supra). We assume that the contracting officer would be required to act reasonably in exercising such approval authority.20

The evidence establishes that appellant hauled earth excavated from the lagoon to points along the east bank of the diversion ditch between Station 0+00 and Property Corner -1. It is not clear whether this material was necessary to complete the required embankment along the ditch to the lines and grades shown on the plans. We conclude that appellant has not shown that this disposition of earth excavated from the lagoon constituted a change in the requirements of the contract.

There is no dispute that construction of the so-called "diversion dike" was not a requirement of the contract. There is also no dispute that appellant was obligated by the contract to excavate the floor of the lagoon to an elevation of 1,805.50 feet. The specification (note 7, supra) provides that excess material was to be used "*** for flattening the outside slopes of the pond dikes and increasing the height of the lap dikes, or as directed by the Contracting Officer." (Italics supplied.) Once again we assume that the authority of the contracting officer to direct the disposition of ex

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.

cess material would have to be exercised reasonably. Appellant argues that the provision of the specification (Subparagraph 2C.4.c. note 7, supra) providing that excess material produced by grading and excavation shall be disposed of in the nearby vicinity (within 12 mile of the site) as directed is applicable to earthwork for utilities and not earthwork for the lagoon. The difficulty with this contention is that "Earthwork for Lagoons" is Paragraph 6 under Section C of the specification which covers "Earthwork for Utilities." We conclude that the two provisions of the specifications are not so readily separable as appellant would have us believe.

We assume that the specific provision applicable to the lagoon is controlling. However, application of the rule that a specific provision will override a general provision is of little assistance here since the general provision applicable to all earthwork for utilities which defines "nearby vicinity" as within one-half mile of the site is more specific than the "as directed by the Contracting Officer" language of the provision applicable to the lagoon. Whe have referred to testimony of Mr. Williams to the effect that the one-half mile provision could have been used as a guideline. We consider this position to be sound since it is well settled that a contract must be interpreted as a whole 21 and the one-half mile pro

21 Hol-Gar Manufacturing Corp. v. United States, 169 Ct. Cl. 384 (1965).

vision would certainly be for consideration in determining whether the contracting officer acted reasonably in directing the disposition of excess earth from the lagoon. No part of the diversion dike was in excess of one-half mile from the lagoon and obviously was not in excess of one-half mile from the site. We conclude that although contruction of the diversion dike was not a requirement of the contract, the contract expressly authorized the contracting officer to direct the disposition of excess earth excavated from the lagoon and that appellant has not shown that this authority was exercised unreasonably. It follows that appellant has not shown that construction of the dike constituted a change in the requirements of the contract.

Assuming, arguendo, that work above and beyond the requirements of the contract was accomplished, we turn to the question of whether the evidence supports the conclusion that this work was accomplished by an order emanating from one authorized to bind the Government. We find that the designation by Mr. Williams of the east bank of the diversion ditch in the northwest corner of the project site for the disposition of excess material from the lagoon would constitute such an order provided he had authority to issue it or the lack of authority was otherwise cured. The evidence as to whether an order was issued to build the diversion dike is in conflict. Mr. Williams testified that Mr. Oldham asked permission to deposit the ex