May 30, 1973 appellant's inclusion of such work in its cost computation. Examination of the plans which are a part of this contract (Vol. I, Appeal File) discloses that a typical cross section for the parkway road specifies a distance of 24 feet from the center line to the back of the ditch in cuts, for a total width of 48 feet (Page 3 of Plans). The appellant's use of 50 feet for the width of the subgrade dried and compacted is clearly erroneous, unless the appellant did not comply with the width specified in the plans. We are left with the Government's computation of the number of square yards processed in cuts. In accordance with such computation as set forth in Government's Exhibits AA and PP, we find that the appellant is entitled to additional compensation over and above that allowed by the contracting officer. The claim is allowed to the extent that the appellant is entitled to extra compensation for an additional 15,140 square yards of material processed in cuts and an additional time extension of 11 days.29 Since the issue of quantum has been reserved, we make no determination as to the proper amount of the equitable adjustment in either time or money. Within the framework of the findings made above with respect to particular elements of the claim, the total yardage involved, the additional time to which the contractor may be entitled and the amount payable per square yard are all matters for determination by the contracting officer in the first instance based upon such evidence as is available or such additional evidence as the appellant cares to submit in support of the amounts claimed for these items. Claim F The appellant alleged that the Government unreasonably re stricted the placement of topsoil on slopes, thus requiring extra work for which the appellant is entitled to an equitable adjustment of the contract. Mr. Caldwell testified that when he took over personal supervision of the job in 1965, he recognized that some slopes were receiving severe damage from the weather by erosion and saturation of the exposed Jackson clay (Tr. 850-51). He conceived a plan of covering the slopes with topsoil after they had been dressed (Tr. 851-52). Mr. Caldwell stated that when he was ready to begin placing topsoil (about September 3, 1965) Mr. Allen told him that all topsoil placed would have to be grassed before the end of the grassing season on October 15 (Tr. 852-53). Mr. Caldwell recalled that he eventually got permission to place topsoil only after agreeing to put temporary seeding on the topsoil, then reclean the slopes in the spring and seed to the specification (Tr. 854-55). Mr. Caldwell took photographs 30 of the slopes in April of 1966 for the purpose of recording the extent of erosion over the winter (Tr. 856-57, 862). Mr. Caldwell testified that he was paid for the topsoil placed on the slopes depicted and that he was not required to place additional top 30 Appellant's Exhibits 22 (a) through 22(g). 508-212-73- -5 soil, but was required to shape the slopes back up to a smooth grade. The slopes were not checked to any tolerance, but were accepted by eye after being shaped to a smooth grade (Tr. 858-59). Mr. Allen testified that Mr. Caldwell first discussed placing topsoil sometime in the latter part of August or in September 1965 (Tr. 2770), at which time he informed Mr. Caldwell that he could place topsoil on any area that was properly dressed to receive it. Mr. Allen recalled, without checking the records, that topsoil was placed off and on through October and possibly into November 1965 (Tr. 2770).81 Mr. Grant testified that Mr. Caldwell asked at the start of the grading season in 1965 if it was satisfactory to place topsoil on the slopes as soon as they were fine graded. Mr. Grant told Mr. Caldwell that he would welcome it and that he preferred topsoil to be placed immediately and then seeded, which is good construction (Tr. 2283). Mr. Grant stated that no topsoil was placed by the appellant until near the end of the seeding season (which ran through October 15) and that no arrangements had been made for a seeding subcontractor or for testing seed samples for germination. Mr. Grant 31 Project Diaries kept by Mr. Allen (Govt. Ex. JJJ) record placing of topsoil on September 28, 1965, October 19, 21, 22, 23, 25, 26, 27, 28, 29 and 30, 1965 and November 1, 2, 3, 5, 11, 12, 13 and 18, 1965. Temporary seeding was started on November 9, 1965, according to the diary entry for that date. The diaries recorded that the project was under stop order from September 30 through October 3, 1965, and from October 6 through 11, 1965. stated that he allowed Mr. Caldwell to continue to place topsoil provided that the topsoil was shaped and seeded temporarily at the contractor's expense (Tr. 2284-85). Mr. Grant expressed the opinion that topsoil placed on slopes without protection of mulching and seeding would erode severely to as much as 50 percent (Tr. 2286), an opinion with which Mr. Allen concurred (Tr. 2771-72). Decision This claim involving placement related to the claim regarding the of topsoil on the slopes is closely tolerance required in finishing the slopes (Claim C, supra). In view of Mr. Grant's advice to Mr. Caldwell early in 1965 that he would welcome placement of topsoil on the slopes as soon as they were fine graded, it would appear that delay in placement of topsoil throughout most of dition of the slopes and the time the year was the result of the conrequired to bring them to grade, rather than a restriction by the Government. Since we have held with respect to Claim C, supra, that the tolerance allowed on the slopes and the means of checking it were reasonable, we find no basis for a further claim involving the time spent in bringing the slopes to grade. The only restriction placed by the Government was near the end of the seeding season when no time remained to arrange for a seeding subcontractor nor to test seed for germination. In view of Mr. Caldwell's testimony that the unprotect May 30, 1973 Project 3-0-7. It was his decision to build the slopes in this manner and he did not discuss the matter with Mr. Caldwell (Tr. 2053-55). ed slopes suffered considerable rap and he followed this practice on damage during the winter of 196465 (Tr. 850-51) and the photographs he took showing damage to slopes the following winter (App. Ex. 22a-g), the necessity for protecting slopes from the winter weather is clearly established. We find that the restriction designed to protect the slopes by permitting placement of topsoil with temporary seeding, when the contractually required seeding could not be accomplished, was eminently reasonable. The claim that the Government unreasonably restricted placement of topsoil on the slopes is denied. Claim G The appellant alleged that the Government provided erroneous offset distances to the appellant for slopes on which rip-rap was to be placed, thereby causing extra work for which the appellant should be entitled to an equitable adjustment. Mr. Allen testified that the slope stakes were set to the finished slope line and no allowance was made for rip-rap as far as staking was concerned (Tr. 2773). Mr. Allen so informed Mr. Stinson (Tr. 2773). According to Mr. Allen's testimony, Mr. Stinson told him that he was going to build the slopes out to the approximate finish line so he would have firm ground to work on when he finished the slopes to receive the rip-rap. (Tr. 2774.) Mr. Stinson testified that it was his practice to build slopes wide and then cut them back to receive the rip Mr. Caldwell's testimony regarding his discovery that the slopes were built wide and then cut back to receive rip-rap contained no indication that he had ever discussed the matter with his superintendent, Mr. Stinson (Tr. 476–85). Decision Mr. Caldwell's belief that the Government caused extra work with respect to the building of rip-rap slopes is clearly contrary to the testimony of the appellant's superintendent, Mr. Stinson, as narrated above. The claim is therefore denied. Claim H The appellant alleged that the Government caused extra work by requiring dumping of A-6 material or topping on the subgrade and pushing it ahead by bulldozer. Mr. Caldwell testified that this was a small item as far as the total job was concerned, but he estimated that production was cut in half by an operation of this type (Tr. 867). Mr. Caldwell acknowledged that a subgrade of Jackson clay would move when heavy equipment was put on it (Tr. 864–67) but he felt that the subgrade would also move when a superior material is dumped on the subgrade and pushed ahead with a bulldozer or rubber tired dozer, so the procedure was unnecessary (Tr. 865-66). Mr. Caldwell alleged that delay occurred when a truck or scraper dumped material and the following machine had to wait for a bulldozer to spread the material before the next load could be dumped (Tr. 867-68). Mr. Allen testified that the sole purpose for dumping and pushing ahead was to protect the subgrade (Tr. 2791) and that he considered the method employed to be a satisfactory way of accomplishing the purpose (Tr. 2794). The operation did not require additional equipment or personnel since the material would require spreading regardless of the method of dumping (Tr. 2791-92). Mr. Allen further stated that the appellant usually had four or five trucks engaged in hauling from a pit around a mile or a mile and a half away so there was ample time to spread the material dumped by one truck before the following truck arrived (Tr. 2792). Mr. Allen also stated that the only time dumping and pushing ahead was used was when there was difficulty with the hauling equipment on the subgrade (Tr. 2794). The method was used on other projects on the Natchez Trace (Tr. 279293). Rather than dumping and pushing ahead in areas that showed distortion of the subgrades, the contractor could have stopped dumping and plowed and regraded the soft area of the subgrade, or he could have obtained lighter equipment to haul over the subgrade (Tr. 2793). Mr. Allen regarded the method of dumping and pushing ahead as a means of speeding up the operation when distortion occurred on the subgrade (Tr. 2793). He had no recollection of having ever directed the contractor to push material ahead (Tr. 2793). Mr. Grant testified that it was his impression that the procedure was of benefit to the contractor when it was first discussed and the method was used thereafter when soft spots were found in the subgrade (Tr. 2293-94). According to Mr. Grant the dumping and pushing ahead method was agreeable to both parties (Tr. 2291, 2294). Decision Although Mr. Cardwell estimated that production was cut in half when this method of operation was used, his opinion was not shared by any other witness. Both Mr. Grant and Mr. Allen testified that the procedure was beneficial to the appellant in allowing the construction to proceed when soft material was encountered in the subgrade. The appellant has failed to show by a preponderance of the evidence that the dumping and pushing ahead method was required by the Government. It rather appears that the method was adopted as an acceptable means of showing a common problem.32 Accordingly, the claim is denied. 32 R. E. Hall Construction Company, IBCA No. 465-11-64 (September 26, 1967), 67-2 BCA par. 6597. May 30, 1973 Claim I The appellant alleged that the Government refused to approve material for Case 2 borrow until after such material became practically unavailable because of the flooding of the reservoir near the project, thus causing extra work for which the appellant is entitled to an equitable adjustment of the contract. Page 4 of the plans (Appeal File, Volume I) specifies the following for the layer of plating: "2′4′′ Borrow Excavation, Case 2, within these limits shall meet the requirements for soils of the A-4 group, AASHO-M145 classification, where directed." Mr. Stinson testified that the borrow material placed in the fills in 1964 was not tested for use as plating (Tr. 2056-57). He further stated that he and Mr. Cowan did some drilling when looking for plating but it was after the project was shut down for the winter in 1964 (Tr. 2057). Mr. Caldwell testified regarding a number of tests conducted in 1964 (Tr. 269-71, 314) but did not testify that the Government refused to approve material which met the specification for the A-4 group of soils. Change Order No. 5, dated January 25, 1965, relaxed the requirement for A-4 borrow on page 4 of the plans and provided that A-6 soils could also be used (Appeal File, Volume II). This change was initiated by Mr. Grant without a request from the appellant (Tr. 231112). No testimony was presented that, after issuance of such change order, the Government refused to approve material for Case 2 borrow which met the A-6 soil classification. FP-61, Section 102-1.3 (e) provides as follows: (e) Borrow, Case 2-Borrow, Case 2, shall consist of the excavation of material from borrow pits selected by the contractor and approved by the engineer, from which sources the contractor shall obtain the rights from the owners to procure material. He shall pay all royalties and bear all expense of developing the sources and of handling, hauling, and placing the material. FP-61, Article 6.1(a) provides as follows: Article 6.1 Furnishing Materials, Material Sources: |