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May 30, 1973 was no delay attributable to the denying permission to the Government at Station 179.

scrapers (Tr. 900). According to the unrefuted testi- Mr. Grant testified that from mony of Mr. Grant, the appellant years of experience he had found did not produce a feasible proposal that there is considerable spillage for a detour in Exhibit J. We con- from scrapers, particularly with wet clude that the most feasible method material such as that from the of proceeding at Station 19+10 lagoon pit, and not just within a would have been for the appellant short distance of loading. In addito construct the relocated county tion, Mr. Grant expressed the view road in accordance with the plans. that the bouncing impact of the

We find that the appellant has heavily loaded scrapers would cause not sustained its burden of proof hidden damage to materials under with respect to this claim.

the one foot topping layer (Tr. The claim is therefore denied. 2335).

Decision
Claim L

We note that it was the absence The appellant alleges that during of trucks on the project which the period July 11 to July 27, 1966, caused the appellant to seek to use when no trucks were available on scrapers for hauling the plating. the project, it was not allowed to The decision to deny permission to substitute scrapers for hauling plat- use scrapers to haul plating mateing material over the topping al- rial over topping material already ready in place from Station 242 to in place appears to have been based 285, thereby causing extra work for on substantial considerations for which it is entitled to an equitable protection of the roadway.38 adjustment.

Accordingly, the claim is denied. Mr. Caldwell testified that trucks were absent from the project from

Claim M June 15 to July 26, 1966, due to a truck driver's strike (Tr. 895). Al

The appellant alleged that it perthough he had not planned to use

formed roadside cleanup for which

it was not paid as provided in the scrapers to haul plating material from the lagoon borrow pit at Sta

unit price schedule of the contract. tion 215, he did plan to use scrapers

Pay Item No. 112(1) of the con

tract sets forth an estimated quanbeginning on July 11, 1966, but was told he couldn't do so by Mr. Allen

tity of 50 acres of roadside cleanup (Tr. 896). Mr. Caldwell stated that

at $10 per acre.

Mr. Caldwell testified that he there is no spillage of material out of the scraper or off its tires after compiled the figures set forth on 100 feet from the point where it is

38 See Mr. Grant's letter of July 18, 1966 loaded and he saw no reason for

(Appeal File, Volume II).

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page 45 of the claim brief of

acres involved or the degree of comJune 28, 1968 (Volume II, Appeal pletion of the roadside cleanup for File) which showed his estimate

those areas. that roadside cleanup for 30.44 acres In view of the nature of the work, was 95 percent complete at the time it does not appear that roadside of termination of the contract (Tr. cleanup is dependent on any other

( 881–82). He stated that the figures construction operation. We therewere compiled mostly from memory fore find that no extension of time and if he had any doubt, he put it is warranted for the time spent in down in the belief that the engineers roadside cleanup and that the would have records to show if he amount of compensation to be alwas wrong (Tr. 881).

lowed rests solely upon the numMr. Grant testified that the proj- ber of acres cleaned up and the deect diaries (Government Exhibit gree of completion accomplished. JJJ) show six days when some type The claim is allowed to the exof roadside cleaning took place (Tr. tent indicated. 2339). The dates were September 15,

Claim N 16 and 17, 1965, and April 8, 9 and 12, 1966. Mr. Grant conceded that

The appellant alleged that the the appellant possibly did some

average haul of material from borpicking up of the larger debris (Tr.

row pits increased from its original 2340).

estimate of 1,195 feet to an actual Mr. Allen testified that he found

average haul of 4,680 feet. 39 The aponly two days when what he would

pellant attributed this increase to consider roadside cleanup occurred, the Government's refusal to apon May 18 and 19, 1965 (Tr. 2808

prove bottom land pits for Case 2 09).

borrow, the unexpected amount of Decision

undercut directed to be performed, Examination of the

the project

the unexpected unavailability of the

Hazel Wood property as a source diaries kept by Mr. Allen discloses

of A-2 material and the Governthat cleanup designated variously as minor, miscellaneous, or cleaning up

ment's requirement that material in

the cut at Station 65 be hauled todebris took place on the dates noted

ward the available borrow pit. by Mr. Grant. Roadside cleanup occurred on May 18 and 19, 1965 as

Mr. Caldwell testified that the Mr. Allen stated.

borrow on this project had a pay We find that roadside cleanup oc

item only for the yardage used and curred to some extent on the six days it was necessary for a bidder to denoted by Mr. Grant and the two

termine an average haul in order to days noted by Mr. Allen, as shown

establish a price for the borrow by Mr. Allen's project diaries. The

(Tr. 801–02). The borrow primarily incomplete nature of the record pre

* Appeal File, Volume II, Claim Brief of cludes a finding as to the number of

June 28, 1968, p. 46.

May 30, 1973 in question is the Case 2 borrow ernment to approve bottom land shown on the bid sheet as involv- pits for borrow, is governed by our ing 330,000 yards (Tr. 802). Mr. finding under Claim I that the apCaldwell stated that he did not keep pellant failed to prove that the Govhis original calculations, but he re- ernment refused to approve borrow worked his calculations and ob- which met the specifications (Pages tained a figure of 1,195 feet for the 46 and 47, supra). average haul for borrow (Tr. 802). The allegation of an unexpected Mr. Caldwell offered appellant's amount of undercut directed to be Exhibits 20 and 21 in support of his performed is apparently based on computation, although he stated excavation for the 2 foot 4 inch layer that Mr. Pugh prepared the exhibits of plating which Mr. Caldwell reand did some of the calculations un- ferred to as undercut throughout der his direction. The computations the hearing. However, in view of the were made in the spring of 1968 cross section on page 4 of the plans (Tr. 810–12). Mr. Caldwell stated (Volume I, Appeal File) which that the increased average haul oc- shows the 2 foot 4 inch layer, we curred from August

from August 11, 1965 find that such excavation, whether through the default date, March 1, described as undercut or otherwise, 1967 (Tr. 835–36). He testified ear- is not unexpected but typical. lier that he based his bid for A-2

Whether or not the Hazel Wood topping material on a quotation property was available as a source from Mr. John H. Moon who offered

of A-2 material is irrelevant in view to deliver the material to the site for of Mr. Caldwell's testimony at Tr. $1.15 per cubic yard and his bid of 221 that his bid for A-2 material $1.25 per cubic yard included ten

was actually based on another cents per yard to place the material

source. on the road (Tr. 221).

The provisions of section 102Mr. Grant testified that he did 1.3(e), FP-61 are clear and unamnot refuse to approve a bottom land biguous in placing the responsibility pit or any other pit if the material

for selecting borrow pits for Case met the specifications. He stated that

2 borrow on the contractor and in the appellant could have placed providing that the contractor shall common borrow or the specified A-4

bear the expense of handling, haulborrow at any time the road was ing and placing the material. Mr. ready to receive it and if the ap- Caldwell acknowledged this conpellant could make arrangements

tractual provision when he testified for material meeting the specifica- that borrow is paid for only by the tions for borrow (Tr. 2342).

yard (Tr. 801) but he advanced no

contractual basis for avoiding the Decision

effect of such provision. Section 105– This claim, insofar as it relates 1.1, FP-61, specifically excludes to the alleged refusal of the Gov- Case 2 Borrow from payment for

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overhaul as contained in Pay Item was dated October 29, 1963 (Appeal No. 105(1).40

File, Volume II). We find no basis in the record for On this record, we find that the concluding that the appellant is en- concrete subcontractor was not detitled to additional compensation layed by the fact that the letter of for whatever increase in average approval was sent on October 29, haul occurred over what may have 1963, since the clearing work in the been anticipated.

area in question had not been comAccordingly, the claim is denied. pleted when the concrete subcon

tractor moved some equipment on Claim o

the job site on October 24, 1963. Claim 0 was withdrawn by the Moreover, the appellant failed to appellant (Tr. 2196).

submit a timely written request

for approval “1 of the proposed Claim P

subcontract. The appellant alleged that the

The claim is denied. Government unreasonably delayed

Claim Q approval of its concrete subcontractor, for which it is entitled to an

The appellant alleged that a strike

a equitable adjustment of one day of

of truck drivers occurred in June contract time.

and July of 1966, which was beyond The project diary maintained by its control and without its fault or Mr. Grant discloses that appellant negligence, and for which it is enmoved one bulldozer to the bridge titled to a time extension of twentysite at Station 202+50 on Octo- six days. ber 24, 1963 and began clearing the

Mr. Caldwell testified that he site. The proposed concrete subcon

made an agreement with Mr. Huey tractor moved some concrete forms

Stockstill to haul borrow material, and a dragline to that station on the

under which Mr. Stockstill and his same date but did no work. Ex

truck drivers were to be placed on cavation for the bridge by the pro

the appellant’s payroll but Mr. posed subcontractor began on

Stockstill would use his own equipOctober 25, 1963 (Government Ex

ment (Tr. 883). It was Mr. Caldhibit JJJ). Mr. Caldwell's letter dated Octo

41 Although the preconstruction conference ber 19, 1963, requesting approval

was held on October 11, 1963, the appellant's

written request to approve John H. Moon & of the concrete subcontractor was Sons as a subcontractor was not submitted stamped as received by the Bureau until October 19, 1963 (i.e., some 8 days

later). Action by the Government within one of Public Roads on October 28, 1963

day of the receipt of the written request on (Government's Exhibit C). The October 28, 1963, corroborates the Govern

ment's statement at the preconstruction conletter approving the subcontractor

ference that an investigation of Moon would

not be necessary. See page 47, of claim brief 40 Appeal File, Volume I, the Contract.

of June 28, 1968 (Appeal File, Volume II).

>

May 30, 1973

42

well's opinion that because of dif- Labor Relations Board v. Illinois ficulties related to the availability Bell Tel.Co., 189 F.2d 124 (7th Cir. of borrow and the wetness of the 1951). Conversely, it is not a strike pits, Mr. Stockstill was not taking if employees quit work collectively in enough money to finance his op- without any intention to return to eration (Tr. 883–86). None of the the employment, whatever their motrucks and drivers showed up for tivating reason for so doing may work on June 15, 1966 (Tr. 886–87). have been. When Mr. Caldwell inquired about In the present case, the truck the reason, he was told that the drivers advised they were going to drivers were not getting enough other work after their initial failure time and they were going to other to appear on the job. Their return work (Tr. 887). Mr. Caldwell stated under duress and their subsequent that he "threatened him (Mr. Stock- departure after complaining of still) pretty heavy" and five of the dusty conditions are regarded as acsix drivers returned to work and re- tion taken in furtherance of their mained until June 22, 1966, when intention announced earlier to go to they stopped work for about two other employment. hours, complaining of dusty condi- Based upon the evidence of rections (Tr. 888). Mr. Caldwell stated ord, we find that no strike existed; he did not believe the drivers struck nor is there anything in the record because of the dusty conditions but to indicate that the case presented rather they were looking for an ex- can otherwise be regarded as concuse to leave (Tr. 888–89). Mr. stituting an excusable cause of deCaldwell did not testify as to the lay. The situation confronting the date when Mr. Stockstill's trucks appellant between June 15 and July and drivers finally left the job, but 26, 1966, was simply that he was unhe stated that he was able to make able to retain or replace the truck other arrangements and get trucks drivers and trucks required for the back on the job by July 26, 1966 performance of the contract work. (Tr. 895).

The rule is well established, howDecision

ever, that the contractor's bid is an

unqualified representation that the The well-established definition of contractor has the supervision, pera strike is that it is a combined ef

sonnel, equipment, skill and ability fort on the part of a body of work- to do the contract work.43 The conmen to enforce a demand on their

Broom Factory v. Kinney, 2 employer by stopping work in a body and refusing to return to work American Ligurian Co., Inc., IBCA-492-4

65 (January 21, 1966), 73 I.D. 15, 22, 66-1 until the demand is met. National

BCA par. 5326, at 25,028.

42 See

hle
N.W. 2d 332, 334 (Neb. 1942).

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