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May 30, 1973 appellant's inclusion of such work

Claim F in its cost computation. Examination of the plans which

The appellant alleged that the

Government are a part of this contract (Vol. I,

unreasonably reAppeal File) discloses that a typical stricted the placement of topsoil on cross section for the parkway road slopes, thus requiring extra work

for which the appellant is entitled specifies a distance of 24 feet from the center line to the back of the to an equitable adjustment of the ditch in cuts, for a total width of 48 contract. feet (Page 3 of Plans). The appel

Mr. Caldwell testified that when lant's use of 50 feet for the width of he took over personal supervision of the subgrade dried and compacted

the job in 1965, he recognized that is clearly erroneous, unless the ap

some slopes were receiving severe pellant did not comply with the

damage from the weather by erosion width specified in the plans.

and saturation of the exposed JackWe are left with the Govern- son clay (Tr. 850–51). He conment's computation of the number

ceived a plan of covering the slopes of square yards processed in cuts. with topsoil after they had been In accordance with such computa

dressed (Tr. 851-52). Mr. Caldwell tion as set forth in Government's stated that when he was ready to Exhibits AA and PP, we find that begin placing topsoil (about Šepthe appellant is entitled to addi

tember 3, 1965) Mr. Allen told him tional compensation over and above

that all topsoil placed would have that allowed by the contracting

to be grassed before the end of the officer.

grassing season on October 15 (Tr. The claim is allowed to the extent 852–53). Mr. Caldwell recalled that that the appellant is entitled to ex- he eventually got permission to tra compensation for an additional place topsoil only after agreeing to 15,140 square yards of material put temporary seeding on the topprocessed in cuts and an additional soil, then reclean the slopes in the time extension of 11 days. 29

spring and seed to the specification

(Tr. 854-55). 29 Since the issue of quantum has been re

Mr. Caldwell took photographs 30 served, we make no determination as to the proper amount of the equitable adjustment of the slopes in April of 1966 for the in either time or money. Within the framework of the findings made above with respect purpose of recording the extent of to particular elements of the claim, the total erosion over the winter (Tr. 856-57, yardage involved, the additional which the contractor may be entitled and the 862). Mr. Caldwell testified that he amount payable per square yard are all matfor determination by the contracting



was paid for the topsoil placed on officer in the first instance based upon such the slopes depicted and that he was evidence as is available or such additional evidence as the appellant cares to submit in

not required to place ad litional topsupport of the amounts claimed for these

30 Appellant's Exhibits 22 (a) through 22(g).




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soil, but was required to shape the stated that he allowed Mr. Caldwell

, slopes back up to a smooth grade. to continue to place topsoil provided The slopes were not checked to any that the topsoil was shaped and tolerance, but were accepted by eye seeded temporarily at the contracafter being shaped to a smooth tor's expense (Tr. 2284–85). Mr. grade (Tr. 858–59).

Grant expressed the opinion that Mr. Allen testified that Mr. Cald- topsoil placed on slopes without prowell first discussed placing topsoil tection of mulching and seeding sometime in the latter part of Au- would erode severely to as much as gust or in September 1965 (Tr. 50 percent (Tr. 2286), an opinion 2770), at which time he informed with which Mr. Allen concurred Mr. Caldwell that he could place (Tr. 2771–72). topsoil on any area that was prop

Decision erly dressed to receive it. Mr. Allen recalled, without checking the rec

This claim involving placement ords, that topsoil was placed off and

of topsoil on the slopes is closely on through October and possibly related to the claim regarding the into November 1965 (Tr. 2770).31

tolerance required in finishing the Mr. Grant testified that Mr. Cald- slopes (Claim C, supra). In view of well asked at the start of the grad- Mr. Grant's advice to Mr. Caldwell ing season in 1965 if it

early in 1965 that he would welcome satisfactory to place topsoil on the

placement of topsoil on the slopes slopes as soon as they were fine

as soon as they were fine graded, it graded. Mr. Grant told Mr. Cald

would appear that delay in placewell that he would welcome it and

ment of topsoil throughout most of that he preferred topsoil to be

the year was the result of the conplaced immediately and then seeded, dition of the slopes and the time which is good construction (Tr. required to bring them to grade, 2283). Mr. Grant stated that no top

rather than a restriction by the soil 'was placed by the appellant Government. Since we have held until near the end of the seeding with respect to Claim C, supra, that season (which ran through Octo

the tolerance allowed on the slopes ber 15) and that no arrangements and the means of checking it were had been made for a seeding sub

reasonable, we find no basis for a contractor or for testing seed sam

further claim involving the time ples for germination. Mr. Grant

spent in bringing the slopes to grade.

The only restriction placed by the 31 Project Diaries kept by Mr. Allen (Govt. Ex. JJJ) record placing of topsoil on Septem- Government was near the end of ber 28, 1965, October 19, 21, 22, 23, 25, 26,

the seeding season when no time re27, 28, 29 and 30, 1965 and November 1, 2, 3, 5, 11, 12, 13 and 18, 1965. Temporary seeding mained to arrange for a seeding subwas started on November 9, 1965. according

contractor nor to test seed for to the diary entry for that date. The diaries recorded that the project was under stop order germination. In view of Mr. Caldfrom September 30 through October 3, 1965,

well's testimony that the unprotectand from October 6 through 11, 1965.

May 30, 1973 ed slopes suffered considerable rap and he followed this practice on damage during the winter of 1964 Project 3-0–7. It was his decision 65 (Tr. 850–51) and the photo to build the slopes in this manner graphs he took showing damage to and he did not discuss the matter slopes the following winter (App. with Mr. Caldwell (Tr. 2053–55). Ex. 22a-g), the necessity for pro- Mr. Caldwell's testimony regardtecting slopes from the wintering his discovery that the slopes weather is clearly established. We were built wide and then cut back find that the restriction designed to to receive rip-rap contained no inprotect the slopes by permitting dication that he had ever discussed placement of topsoil with tempo- the matter with his superintendent, rary seeding, when the contractually Mr. Stinson (Tr. 476–85). required seeding could not be accomplished, was eminently reason

Decision able. The claim that the Government

Mr. Caldwell's belief that the unreasonably restricted placement Government caused extra work with of topsoil on the slopes is denied. respect to the building of rip-rap

slopes is clearly contrary to the testiClaim G

mony of the appellant's superin

tendent, Mr. Stinson, as narrated The appellant alleged that the

above. Government provided erroneous

The claim is therefore denied. offset distances to the appellant for slopes on which rip-rap was to be

Claim A placed, thereby causing extra work for which the appellant should be The appellant alleged that the entitled to an equitable adjustment. Government caused extra work by

Mr. Allen testified that the slope requiring dumping of A-6 matestakes were set to the finished slope rial or topping on the subgrade and line and no allowance was made for pushing it ahead by bulldozer. rip-rap as far as staking was con- Mr. Caldwell testified that this cerned (Tr. 2773). Mr. Allen so in- was a small item as far as the total formed Mr. Stinson (Tr. 2773). Ac- job was concerned, but he estimated cording to Mr. Allen's testimony, that production was cut in half by Mr. Stinson told him that he was an operation of this type (Tr. 867). going to build the slopes out to the Mr. Caldwell acknowledged that a approximate finish line so he would subgrade of Jackson clay would have firm ground to work on when move when heavy equipment was he finished the slopes to receive the put on it (Tr. 864–67) but he felt rip-rap. (Tr. 2774.)

that the subgrade would also move Mr. Stinson testified that it was when a superior material is dumped his practice to build slopes wide and on the subgrade and pushed ahead then cut them back to receive the rip- with a bulldozer or rubber tired dozer, so the procedure was un- 2793). Mr. Allen regarded the necessary (Tr. 865-66). Mr. Cald- method of dumping and pushing well alleged that delay occurred ahead as a means of speeding up the when a truck or scraper dumped operation when distortion occurred material and the following machine on the subgrade (Tr. 2793). He had had to wait for a bulldozer to spread no recollection of having ever dithe material before the next load rected the contractor to push matecould be dumped (Tr. 867–68). rial ahead (Tr. 2793).

Mr. Allen testified that the sole Mr. Grant testified that it was his purpose for dumping and pushing impression that the procedure was ahead was to protect the subgrade of benefit to the contractor when it (Tr. 2791) and that he considered was first discussed and the method the method employed to be a satis- was used thereafter when soft spots factory way of accomplishing the were found in the subgrade (Tr. purpose (Tr. 2794). The operation 2293–94). According to Mr. Grant did not require additional equip- the dumping and pushing ahead ment or personnel since the material method was agreeable to both parwould require spreading regardless ties (Tr. 2291, 2294). of the method of dumping (Tr.

Decision 2791-92). Mr. Allen further stated that the appellant usually had four

Although Mr. Cardwell estior five trucks engaged in hauling mated that production was cut in from a pit around a mile or a mile

half when this method of operation and a half away so there was ample

was used, his opinion was not shared time to spread the material dumped by any other witness. Both Mr. by one truck before the following Grant and Mr. Allen testified that truck arrived (Tr. 2792).

the procedure was beneficial to the Mr. Allen also stated that the appellant in allowing the construconly time dumping and pushing tion to proceed when soft material ahead was used was when there was

was encountered in the subgrade. difficulty with the hauling equip

The appellant has failed to show ment on the subgrade (Tr. 2794). by a preponderance of the evidence The method was used on other proj- that the dumping and pushing ects on the Natchez Trace (Tr. 2792

ahead method was required by the 93). Rather than dumping and

Government. It rather appears that pushing ahead in areas that showed

the method was adopted as an acdistortion of the subgrades, the

ceptable means of showing a comcontractor could have stopped

mon problem. 32 dumping and plowed and regraded

Accordingly, the claim is denied. the soft area of the subgrade, or he could have obtained lighter equip


32 R. E. Hall Construction Company, IBCA

No. 465-11-64 (September 26, 1967), 67-2 ment to haul over the subgrade (Tr.

BCA par. 6597.

May 30, 1973
Claim 1

that, after issuance of such change

order, the Government refused to The appellant alleged that the

approve material for Case 2 borrow Government refused to approve ma

which met the A-6 soil classificaterial for Case 2 borrow until after

tion. such material became practically

FP-61, Section 102-1.3(e) prounavailable because of the flooding vides as follows: of the reservoir near the project, thus causing extra work for which

(e) Borrow, Case 2Borrow, Case 2,

shall consist of the excavation of mathe appellant is entitled to an equit

terial from borrow pits selected by the able adjustment of the contract.

contractor and approved by the engineer, Page 4 of the plans (Appeal File, from which sources the contractor shall Volume I) specifies the following obtain the rights from the owners to for the layer of plating: "2'4" Bor

procure material. He shall pay all royal

ties and bear all expense of developing row Excavation, Case 2, within

the sources and of handling, hauling, and these limits shall meet the require- placing the material. ments for soils of the A-4 group, AASHO-M145 classification, where

FP-61, Article 6.1(a) provides as

follows: directed."

Article 6.1 Furnishing Materials, Mr. Stinson testified that the bor

Material Sources: row material placed in the fills in 1964 was not tested for use as plat

(a) Furnishing materials.-Unless ing (Tr. 2056–57). He further

otherwise called for on the plans or in

the special provisions, the contractor stated that he and Mr. Cowan did

shall furnish all materials required for some drilling when looking for plat

the performance of the contract work ing but it was after the project was from sources of his choice, except as shut down for the winter in 1964 provided in 6.1(b) below. All materials (Tr. 2057).

shall comply fully with the specifications

and the contractor shall satisfy himself Mr. Caldwell testified regarding

as to the kind and amount of work that a number of tests conducted in 1964

may be necessary in furnishing the (Tr. 269–71, 314) but did not testify materials. that the Government refused to ap

Decision prove material which met the speci

The Court of Claims, in dealing fication for the A-4 group of soils.

with provisions similar to those in Change Order No. 5, dated Janu

FP-61 set forth above, has delineary 25, 1965, relaxed the require-ated the rights and duties of the ment for A4 borrow on page 4 of parties to such an agreement in the plans and provided that 1-6

W.R.B. Corporation v. United soils could also be used (Appeal States, 183 Ct. Cl. 409, 461 (1968) : File, Volume II). This change was initiated by Mr. Grant without a re

In the first place, it was clearly the

responsibility of the plaintiff, under paraquest from the appellant (Tr. 2311

graph 1-7 of the contract specifications, 12). No testimony was presented to locate and select the borrow areas. The

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