Claim A

The appellant alleges in its complaint that the Government required unreasonable tolerances of one inch and later three inches in undercut areas and in corresponding elevations in fills, causing extra

work for which it is entitled to an equitable adjustment (Complaint, par. 2A). In its claim brief of June 28, 1968, to the contracting officer, the appellant had also alleged that the time required to set blue top stakes and check the grade with a string line caused the material to be exposed to the elements for long periods of time and made it difficult to achieve the close tolerance required by the Government.

The evidence introduced by the appellant to support this portion of its claim consisted primarily of a repetition of the allegations in the claim brief by Mr. Edward Caldwell, Executive Vice President of the appellant firm. Mr. Caldwell first defined undercut as removal of unsuitable material from a roadway to make a space to put more suitable material back (Tr. 721, 722) then expanded his definition to include any excavation below the top of the road grade or planned profile (Tr. 722). Although he observed that the term undercut was used in only one instance in the plans, the note at page 7, Mr. Caldwell interpreted the information set forth on page 2 and page 4 of the plans as requiring undercutting.

Mr. Caldwell asserted that in 30 years of experience in grading construction in Tennessee, Kentucky,

Alabama and Mississippi, he had never known of a situation where blue top stakes were placed at the bottom of an undercut for use in

string line checking of the grade (Tr. 748). Mr. Caldwell objected to imposition of tolerances at the bot

tom of undercut areas as contrary to established practice in the industry.

Mr. Caldwell's objection to the application of a one-inch tolerance at the bottom of the excavation in cuts and at the corresponding elevation in fills led to a conference on

April 20, 1966, with Regional Engineer G. A. Wilkins, District Engineer Roderick S. Banks and Resident Engineer Oscar Grant. As a result of the conference, the Government relaxed the tolerance from 1 inch to 3 inches, but the resident engineer continued to set blue top stakes and to use string lines to check the 3-inch tolerance. Mr. Caldwell continued to object, insisting that it was not customary practice to impose tolerances at the bottom of undercut areas by means of blue tops and string lining.

In support of Mr. Caldwell's assertions as to custom and usage with respect to tolerances in undercut areas, the appellant introduced a number of photographs of undercut areas on the completion contract for the purpose of showing that the Government reverted to normal procedures and did not require blue topping and string lining at the bottom of such areas (App. Exhibits 3(a) through 3 (ccc)).

Mr. Roderick S. Banks, District Engineer, defined undercutting as

any excavation below the grade line (Tr. 1926), but he stated that when there is a specified depth of undercut, that is a portion of the design (Tr. 1918). Controls were applied when the undercut was part of the design, but not when it was merely removal of soft or unsuitable material found in the road during construction. Mr. Banks testified that responsibility for determining the tolerances to be applied rested with his Resident Engineer on the project, Mr. Grant. Although he did not set the tolerances initially imposed, he considered them reasonable and opposed relaxation of those tolerances at the conference on April 20, 1966.

Mr. Grant defined the undercutting generally referred to in construction as the removal of unsuitable material described in Article 102-3.9, Standard Specifications FP-61 (Tr. 2145). In layman's terms, Mr. Grant described this operation as removal of soft spots in the road until stable material is located, then, without dressing to any special line or grade, backfilling with unclassified excavation or borrow. This type of operation wasperformed in several places on Project 3-0-7 (Tr. 2147). On the other hand, Mr. Grant did not consider excavation for the 2'4" layer of plating material to be undercutting since the cross sections showed every station where such plating was superimposed on the subgrade.

Mr. Grant testified that he had supervised 10 large grading jobs involving 65-70 miles of the Natchez

Trace Parkway in the years immediately prior to October 1963, and had never even had a serious discussion with any other contractor concerning tolerances (Tr. 2110). On those projects, he applied 1/4-inch tolerance at the top of the topping, 1/4-inch at the top of the base, 1/8-inch at the top of the pavement and 1-inch on bridge decks (Tr. 2111). The pavement structure on these projects was normally 20 inches thick, consisting of one foot of topping and eight inches of base. On Project 3-0-7, however, the typical pavement structure was four feet thick, having a 2′4′′ layer of plating below the topping and above the subgrade. Since he considered the drainage and load distribution to be less critical at a distance of four feet below the profile grade, Mr. Grant determined that a one-inch tolerance would be more reasonable than the 14-inch tolerance he normally applied at the top of the subgrade.

The Government presented testimony from an experienced engineer, who was not involved in the present dispute, on the question of custom and usage in grading construction in appellant's home state of Tennessee. Mr. Garland Ryals Champion, Highway Operations Engineer and Supervisor of the Department of Construction, Maintenance, Secondary Roads and Traffic Engineering in the Tennessee Department of Highways (Govt. Exhibit DD), who had 40 years' experience with the Tennessee Department testified that when he assumed the position

of State Construction Engineer in 1961, he sought to standardize the tolerances applied on road-building projects throughout the state. Allowable tolerances were the subject of letters of June 15, 1961 (Govt. Exhibit EE) and January 6, 1965 (Govt. Exhibit FF), from the Department of Highways to the engineers on construction. These letters set forth the allowable tolerance for grading on both primary and secondary roads as 0.10 foot. Mr. Champion stated that grading in this context means excavation only, making cuts and fills to the elevation called for in the plans (Tr. 2166). The sub-grade elevation and the top of the grading are the same thing (Tr. 2167). Engineers on construction were instructed in both letters to set blue tops for grading on all jobs and also to use the blue tops or reset them for capping on primary roads. Mr. Champion testified that string lining from the blue tops was a customary method of checking the grade. If center blue tops are set, the string line is used to establish the outside grade and if blue tops are set on both sides, a string line would be used to check the crown (Tr. 2181).

Mr. Champion expressed his opinion that if a road design in Tennessee called for a layer of special material 2'4" below the capping, the same tolerance should apply at the bottom of the layer as if no special material were added, 110 of a foot (Tr. 2176-77). According to Mr. Champion, both cuts and fills should be blue topped to control

the thickness of the special material in order to determine how much of the material should be paid for (Tr. 2177).

When asked on cross examination what tolerance he would apply to the bottom of an undercut, Mr. Champion stated that undercut in Tennessee means removal of soft or bad material and replacing it with better material (Tr. 2185). Undercut is not designated by station number on the plans since where it will develop cannot be determined in advance. He noted, however, that the terminology was different on the Natchez Trace, since the plans designated undercut to a particular thickness (Tr. 2186).

Mr. Russell H. Giles, Field Superintendent for the appellant from April to December 1965 (Tr. 2995), who had worked on construction since 1928, drew a distinction between spot undercut for removal of soft material which is not graded to any specific level (Tr. 3008-09), and roadway undercut for base material (Tr. 3008) or linear grading undercut (Tr. 3014-15) which was part of the rough grading. Mr. Giles stated that a tolerance of .1 to .2 foot up or down was reasonable for such rough grading.

Decision

This claim for extra work rests entirely on the question of the reasonableness of the one-inch tolerance applied before the conference on April 20, 1966, and the three-inch tolerance applied thereafter. No tolerances are specified in the plans

for the level of construction to which these tolerances of one and three inches were applied. While trade practices cannot be relied upon to vary the terms of an unambiguous contract provision, it has been held that imposition on a contractor of tolerances not set forth in a contract and in excess of those normally employed on jobs of a similar character is an unwarranted interference in the performance of the contract, entitling the contractor to an equitable adjustment of the contract.1

Before determining the tolerances normally employed on jobs of similar character we must first establish

the character of this job. The level

at which the tolerances of one inch

and three inches were applied is the bottom of the 2′4′′ layer of plating, but the parties use different terms in relation to this level. The appellant refers to the operation required to reach such level in cuts as undercut, while the Government considers it to be merely unclassified excavation necessary to conform to the plan grade and cross section. The word undercut is not used in the plans with reference to the bottom of the plating. The photographs introduced by the appellant as showing undercut on the completion contract 3 are not identified by any testimony relating the pictures

1 WRB Corp. v. United States, 183 Ct. Cl. 409 (1968).

2 The word undercut appears but once in the plans, on page 7, and refers to an area where topping but no plating is specified. Volume 1, Appeal File.

Appellant's Exhibit 3(a) through 3 (ccc).

to the design elevation at the bottom of the plating.*

The primary question remaining, however, is whether the tolerances applied at the bottom of the plating were reasonable. The Government suggests that Federal custom and usage developed in more than 20 years of construction on the Natchez Trace should prevail in determining the reasonableness of the tolerances. While we agree with the general proposition that Federal custom, when clearly established, should prevail over state or local

5

usage, we are constrained to observe that the Government selected, as its

only expert on the question of tolerance, an official from the Tennessee Department of Highways.

Mr. Champion's testimony was concise and fully documented as to the statewide standardization of tolerances allowed since 1961, for the various levels of highway construction in appellant's home state of Tennessee. No such written standardization was present on the Natchez Trace, where the tolerances to be applied were left to the judgment of the resident engineer on dent engineer on this project may each project. The fact that the resi

The testimony of Government Inspector Horace Allen was that most of the photographs depicted spot undercutting, the extent of which was dictated by the amount of soft or unsuitable material found in the grading and not by the design of the road. In some pictures, the material being used for backfill was the same as that found underneath. In neither case was a design level of the road involved and controls were not used (Tr. 2966-92). This testimony stands unrefuted. Government's Posthearing Brief, pp. 187-,

88.

have applied similar tolerances on other projects does not preclude the possibility that other tolerances were applied by other engineers and does not meet the test for establishing a trade custom.

Since the appellant may properly be charged with knowledge of clearly established trade customs in his home state, we find that the trade customs prevailing in road construction in Tennessee form a suitable basis for determining whether the tolerances imposed here were reasonable.

The terminology varies slightly from Tennessee to the Natchez Trace but the various layers are clearly comparable. The layer below

the base course in Tennessee is called capping, while on the Natchez Trace it is called topping. There is no layer in Tennessee comparable to plating, but plating, topping and capping all fall within the definition of subbase adopted by the American Association of State Highway Officials (AASHO), and subbase is the lowest layer of the pavement structure, which in turn rests on the top surface of the subgrade. We find that a tolerance of

See Eder Electric Co. v. United States, 205 F. Supp. 305 (E.D. Pa. 1962).

↑ Government Exhibit Q, AASHO Highway Definitions adopted by the American Association of State Highway Officials.

"Pavement structure.-The combination of subbase, base course, and surface course placed on a subgrade to support the traffic load and distribute it to the roadbed.

"Subgrade.-The top surface of a roadbed upon which the pavement structure and shoulders are constructed.

"Subbase. The layer or layers of specified or selected material of designed thickness placed on a subgrade to support a base course."

0.1 foot is reasonable at the top surface of the subgrade, which plane is also the bottom of the plating, where plating is required, and the bottom. of the topping elsewhere. We further find that inspection of the top surface of the subgrade with string lines from the blue top stakes was reasonable and in accord with trade custom.

The appeal is allowed to the extent that the appellant was required to grade the level at the bottom of the plating to a tolerance closer than 0.1 foot prior to April 20, 1966.8 The appeal is denied with respect to that portion of the claim involving grading to a three-inch tolerance after April 20, 1966.

We make no finding as to the number of yards graded to the oneinch tolerance, nor do we make a finding as to the amount of time or degree of difficulty involved in achieving the one-inch tolerance as opposed to the 0.1-foot tolerance we find to be reasonable. These matters go to quantum and such issue was reserved by agreement of the parties.

Claim B

This claim involves an allegation that the Government required excessively close tolerances on the subgrade below the topping. The tolerances allowed were one-fourth

8 The date of the conference referred to in the text supra at which the reasonableness of the tolerances being imposed was discussed.

According to the AASHO definitions (Note 7, supra) the level at the bottom of the topping would be subgrade only where no layer of plating was required. Mr. Caldwell uses the terms "level below the topping" (Tr. 766) and "subgrade" (Tr. 775) interchangeably in his testimony.