Slike strani

defendant's personnel had no obligation statements misled the appellant. to the plaintiff in this respect, except to However, we find no evidence to act reasonably in the matter of approving or disapproving borrow sites located and

support a conclusion that the apselected by the plaintiff. When the con

pellant conducted sufficient tests in tracting officer responded to the plaintiff's

the areas to be flooded to disprove request for assistance in October 1958 by the existence of A-4 material in furnishing a map that showed a couple those areas. In this connection we of prospective borrow areas, the contract

note that appellant's Superintending officer was rendering a gratuitous

ent Stinson testified that he and Mr. courtesy to the plaintiff, rather than discharging a contractual obligation that

Cowan did not drill for plating rested upon the defendant. The defendant until after the project was shut is not chargeable with a breach of con- down for the winter in 1964 (Tr. tract in connection with an act which is

2057).34 not required by the ontract, which is done for the benefit of the contractor,

The claim is therefore denied. and which is taken advantage of by the contractor. B-W Construction Co. v.

Claim J United States, 97 Ct. Cl. 92, 122 (1942) ; Vogt Brothers Mfg. Co. v. United States, The appellant alleged that it ensupra, 160 Ct. Cl. at page 697.

countered subsurface and latent Although the present claim is not physical conditions in the Hazel for breach of contract, the rights Wood cut that were unusual and and duties are similar. Since the materially different from those in

. appellant has failed to produce any dicated in the contract documents evidence that the Government re- and from a reasonable pre-bid infused to approve material which vestigation, and that these condimet the specifications for Case 2 tions materially altered the charborrow, we must conclude that the acter and nature of the work and Government acted reasonably. 33 The appellant also introduced 34 The following colloquy occurred during May 30, 1973 changed the sequence of the appel- dition, which was within the roadlant's work.

the course of the examination of Mr. Grant testimony relating to statements

by appellant's counsel : made by Mr. Grant to Mr. Cowan Q. When did you first tell the contractor

that the bottom land in the lake area that regarding the availability of A 4

would later be covered with water was not material in bottom lands (Tr. 58–

suitable as A-4 material ?

A. I never told him because it would have 63) which were to be flooded by the

been erroneous. reservoir in the winter of 1964–65,

Q. The material in the bottom of the lake

that was still dry at the time could have been apparently on the theory that such

A. In certain areas, yes, sir. 33 The appellant's reliance upon the portion of FP-61 (Article 4.2 Changes) quoted in the claim brief of June 28, 1968 at page 34 (“It

Q. Had the contractor been seeking to use is mutually agreed that it is inherent in the A-4 material? nature of highway construction that some A. No, sir, he had not. changes in the plans and specifications may Q. Because he hadn't taken out any two be necessary during the course of construc- feet four inches ? tion to adjust them to field conditions * * *) A. He had made no provision to use it. is misplaced. See Appeal of John H. Moon & As far as I am concerned he had not discussed Sons, IBCA-815-12-69 (July 31, 1972), 79 it with us, he had made no effort to get any I.D. 465, 497, 72-2 BCA par. 9601, at 44,876. area ready for it (Tr. 155–56).

used for A-4 material?

way prism, five or six times during The pre-bid investigation on be- the next three years (Tr. 2322). He half of the appellant was conducted described the problem as not a by Mr. Cowan who testified that he spring, but a seepage of water over looked at the Hazel Wood cut in an extended area (Tr. 2320). question although he did not walk Item 520(1) of the contract (Volthe entire center line (Tr. 50-55). ume I, Appeal File) contains an He did not see a spring there before estimate of 3000 linear feet of he started grading (Tr. 86). Mr. 6-inch perforated concrete pipe unCaldwell testified regarding the derdrain for which the appellant events that occurred after construc- bid $2 per linear foot. Exhibit I to tion started which formed the basis the contracting officer's finding of for the claim of changed conditions fact (Volume I, Appeal File) (Tr. 416-31). Mr. Caldwell stated shows the total amount of underthat the cut was started on July 22, drain placed by the appelant to be 1964, and excavation continued 2097.2 linear feet, with an addithere until July 31, 1964. After tional 768.9 linear feet placed by the work in the cut had commenced, a completition contractor, for a total wet condition was encountered on of 2866.1 linear feet of underdrain the high side of the hill and the for Project 3-0-7. further the excavation proceeded,

Decision the wetter it got (Tr. 418). The contractor was able to work in the cut

While the category of changed again on September 14, 15, 16, 22

condition that appellant is claimand 24, 1964, but performed no ing is not entirely clear, we have other work in the cut during that considered the claim under both year (Tr. 418).

categories of the clause. In Perini By letter of April 21, 1965, Mr. Corporation v. United States, 180 Grant authorized placement of Ct. Cl. 768, 778-80 (1967), it was 2,244 linear feet of underdrain in held that to qualify as a changed the cut (Tr. 427-28; Appeal File, condition, the unknown physical Volume II). The underdrain was

condition must be one that could not completed with considerable diffi

be reasonably anticipated by the culty, on August 19, 1965, and the

contractor from his study of the excavation in the cut was completed contract documents, his inspection on August 30, 1965 (Tr. 429). of the site and his general experi

Mr. Grant testified that he had ence as a contractor in the area. observed a “muddy quagmire” in

Mr. Caldwell testified as to his the area of the Hazel Wood cut in experience as a contractor in the 1960 before the center line of the

area (Tr. 194–98). To a contractor roadway was staked (Tr. 2321–22). of his extensive experience, the esHe also observed this muddy con- timate of 3000 feet of underdrain to

be placed on the project should have amount less than that estimated in been ample warning of a substan- the contract. . tial drainage problem. Mr. Cowan's The claim is therefore denied. testimony that he did not see a spring, when he looked at the Hazel

Claim K Wood cut in his pre-bid inspection, The appellant alleged that the falls short of stating that there was Government failed to provide and no water problem in the area, par- allow detours for county crossroads ticularly in view of Mr. Grant's at Stations 242, 179 and 19+10, testimony that the problem was not thus requiring the appellant to pera spring, but widespread seepage. form extra work.

This Board has held that place- Page D-1, Special Provisions of ment of substantially less under- the Contract, provides as follows: drain on a project than was esti

Section 4.-Scope of Work. 4.3 is mated in the bid schedule is almost

amended and supplemented as follows: conclusive evidence that conditions The parkway will be closed to public trafwere better than anticipated.36 In

fic. The construction and later obliterathe present case, the fact that the

tion of detour roads will be paid for at

the contract unit prices for the pay items appellant placed only 2097.2 linear

involved. feet of underdrain in the Hazel

FP-61, Article 4.3 states the followWood cut and that a total of 2866.1

ing: feet was placed on the entire project is evidence that conditions actually

4.3 Construction and Maintenance of encountered were approximately

Detours. Any existing road, while under

going improvement, shall be kept open to what had been anticipated when the

traffic by the contractor, provided that contract was awarded. We are not

when approved by the engineer or indipersuaded by the appellant's evi- cated on the plans or in the special providence that a reasonable study of the

sions the contractor may bypass traffic contract documents and an adequate

over a detour. The contractor shall keep

the entire length of road under contract inspection of the site would not have

or the detour, as the case may be, continualerted the contractor to the exist

ously in such condition that traffic will be ence of conditions substantially adequately accommodated during the ensimilar to those forming the basis tire contract period. The contractor shall

provide and maintain in safe condition of the present claim. We find that

temporary approaches and crossings and the appellant could not reasonably

shall keep open and safely passable inhave anticipated a sequence of work tersections with trails, roads, and highunimpeded by placement of under- ways; provided, however, that snow drain and that conditions were not

removal will not be required of the con

tractor for accommodation of traffic. The changed when it became necessary contractor shall bear all the expense of to place such underdrain in an constructing and maintaining such roads,

detours, approaches, intersections, and 86 Serrice Construction Corp., IBCA NO.

any accessory features without direct 678–10–67 (January 12, 1970), 70-1 BCA


as provided be par. 8068.

low, ..



May 30, 1973 On pages 10, 16 and 17 of the fore grading could proceed, some plans, relocations of the county preparation had to be made to pump roads in question are shown, to- out the water and give the area time gether with a note on each of the to dry (Tr. 946).

( existing county roads which states: Mr. Caldwell testified that he first

Existing County Road to be obliterated discussed the problem of detours after 3 completion of Box Bridge. with Mr. Grant in June 1964 (Tr.

The only temporary detour 406–07). Although he was denied shown on the plans (page 9) is not permission to build detours, he did involved in this claim.

not submit a written request for apMr. Caldwell testified that failure proval of the detours (Tr. 651). At of the Government to approve de

the hearing, Mr. Caldwell drew tours at the three stations indicated

sketches of the detours he would was one of the major delays on the have built at Stations 19+10 and job (Tr. 339). The cut at Station 236

236 if he had been granted permiscould not be completed while the ex

sion (Govt. Exhibits I and J; Tr. isting county road remained in 1301-02). place (Tr. 343). The bridge for the Mr. Grant stated that he rerelocation at Station 242 was com

ceived no request for a detour (Tr. pleted on May 16, 1964 (Tr. 341). 2216) but if the request for the deThe fill at Station 179 could not be tours shown in Mr. Caldwell's completed while the county road re

sketches had been presented to him, mained (Tr. 348–50). The structure he would not have granted permisfor the relocation of this road was sion to build them, since he concompleted on May 9, 1964 (Tr. 350). sidered the sketches showed soluMr. Caldwell attached less impor- tions that were not feasible from an tance to the problems encountered at engineering standpoint or were danthe fill at Station 19+10. In view of gerous (Tr. 2217–30). previous delays there was very little Mr. Grant stated that the situadelay or damage there (Tr. 409-10). tion at the county road at Station Mr. Caldwell stated that the re- 179 did not require a detour, since located crossroad at Station 242 the appellant was allowed to build was completed on September 8, 1965 a ramp as high as he built his fill and all three relocated crossroads in 1964 in order to maintain traffic were finished before the winter sea- and the relocated road was graded son. He also stated that his subcon- and traffic turned on it in 1965 betractor for concrete worked ahead of fore


further work was done on the grading operation, excavated the fill (Tr. 2216). The appellant for bridges, and created a situation would probably have been allowed where water would accumulate un- to increase the height of the ramp if less a drainage ditch were cut. Be- the fill had been built higher but the

matter wasn't even discussed (Tr. 36 On Sheet 10 of the plans the word "upon" is used in lieu of the word “after."

2216-17, 2229).


Mr. Grant testified that the pur- roads, as well as the box bridges, pose of including relocations of the must be completed before obliteracounty crossroads in the design of tion of the existing county roads. the parkway was to permit traffic Supporting this view is the fact to be maintained during construc- that the plans make no provision tion (Tr. 2218–19).

for temporary detours at those He stated the normal sequence of locations. operations would have been to The Government was entitled to grade the county road first, then have the relocations of the county build the bridge (Tr. 2219-22,

2219–22, roads built to maintain traffic with2235). At Station 242, the bridge out the necessity for the additional subcontractor dug a hole and built expense of temporary detours to the bridge before the county road serve the same purpose. The burden was graded. No drainage was pro- was on the appellant to show suffivided and water and mud accumu- cient reason for deviating from the lated to a depth of about a foot in- method of construction apparently side the box bridge (Tr. 2233). The contemplated by the contract as well drainage which was provided in as by the normal sequence of con1965 to enable completion of the struction. Both Mr. Caldwell and county road could have been accom- Mr. Grant agreed that the construcplished as easily in 1964, according tion of the bridge at Station 242 to Mr. Grant (Tr. 2234). Mr. Grant ahead of the grading operation, averred that no effort was made to without providing drainage in the finish the county roads in 1964, area, caused a condition which which he attributed to poor plan- interfered with construction. Such ning (Tr. 2219-22).

a condition is clearly not attribut

able to the Government since the Decision

sequence of operations was under

the control of the appellant. It is axiomatic that a contract should be considered as a whole,

With respect to the situation at

Station 179, the appellant's conduct with all parts of the contract being

was not consistent with the asserinterpreted together.37 When the

tion that this was a major problem. requirement in FP-61, Section 4.3

The appellant did not submit a that existing roads shall be kept written request for a detour and the open and passable is read in con

record reveals no attempt to reverse junction with the notes on pages 10, the alleged oral refusal of permis16, and 17 of the plans that existing county roads are to be obliterated

sion for a detour at that location. In after completion of the box bridges, view of Mr. Grant's testimony that

, the only conclusion warranted ap

a detour was not necessary and that pears to be that the relocated county a ramp would have been allowed as

high as the appellant cared to con87 Lane Co., Inc. v. United States, 193 Ct. Cl. 203 (1970).

struct the fill, it appears that there

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