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May 30, 1973

was no delay attributable to the Government at Station 179.

According to the unrefuted testimony of Mr. Grant, the appellant did not produce a feasible proposal for a detour in Exhibit J. We conIclude that the most feasible method of proceeding at Station 19+10 would have been for the appellant to construct the relocated county road in accordance with the plans. We find that the appellant has not sustained its burden of proof with respect to this claim.

The claim is therefore denied.

Claim L

The appellant alleges that during the period July 11 to July 27, 1966, when no trucks were available on the project, it was not allowed to substitute scrapers for hauling plating material over the topping already in place from Station 242 to 285, thereby causing extra work for which it is entitled to an equitable adjustment.

Mr. Caldwell testified that trucks were absent from the project from June 15 to July 26, 1966, due to a truck driver's strike (Tr. 895). Although he had not planned to use scrapers to haul plating material from the lagoon borrow pit at Station 215, he did plan to use scrapers beginning on July 11, 1966, but was told he couldn't do so by Mr. Allen (Tr. 896). Mr. Caldwell stated that there is no spillage of material out of the scraper or off its tires after 100 feet from the point where it is loaded and he saw no reason for

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page 45 of the claim brief of June 28, 1968 (Volume II, Appeal File) which showed his estimate that roadside cleanup for 30.44 acres was 95 percent complete at the time of termination of the contract (Tr. 881-82). He stated that the figures were compiled mostly from memory and if he had any doubt, he put it down in the belief that the engineers would have records to show if he was wrong (Tr. 881).

Mr. Grant testified that the project diaries (Government Exhibit JJJ) show six days when some type of roadside cleaning took place (Tr. 2339). The dates were September 15, 16 and 17, 1965, and April 8, 9 and 12, 1966. Mr. Grant conceded that the appellant possibly did some picking up of the larger debris (Tr. 2340).

Mr. Allen testified that he found only two days when what he would consider roadside cleanup occurred, on May 18 and 19, 1965 (Tr. 280809).

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acres involved or the degree of completion of the roadside cleanup for those areas.

In view of the nature of the work, it does not appear that roadside cleanup is dependent on any other construction operation. We therefore find that no extension of time is warranted for the time spent in roadside cleanup and that the amount of compensation to be allowed rests solely upon the number of acres cleaned up and the degree of completion accomplished.

The claim is allowed to the extent indicated.

Claim N

The appellant alleged that the average haul of material from borrow pits increased from its original estimate of 1,195 feet to an actual average haul of 4,680 feet. 39 The appellant attributed this increase to the Government's refusal to approve bottom land pits for Case 2 borrow, the unexpected amount of undercut directed to be performed, the unexpected unavailability of the Hazel Wood property as a source of A-2 material and the Government's requirement that material in the cut at Station 65 be hauled toward the available borrow pit.

Mr. Caldwell testified that the borrow on this project had a pay item only for the yardage used and it was necessary for a bidder to determine an average haul in order to establish a price for the borrow (Tr. 801-02). The borrow primarily

Appeal File, Volume II, Claim Brief of June 28, 1968, p. 46.

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in question is the Case 2 borrow shown on the bid sheet as involving 330,000 yards (Tr. 802). Mr. Caldwell stated that he did not keep his original calculations, but he reworked his calculations and obtained a figure of 1,195 feet for the average haul for borrow (Tr. 802). Mr. Caldwell offered appellant's Exhibits 20 and 21 in support of his computation, although he stated that Mr. Pugh prepared the exhibits and did some of the calculations under his direction. The computations were made in the spring of 1968 (Tr. 810-12). Mr. Caldwell stated that the increased average haul occurred from August 11, 1965 through the default date, March 1, 1967 (Tr. 835-36). He testified earlier that he based his bid for A-2 topping material on a quotation from Mr. John H. Moon who offered to deliver the material to the site for $1.15 per cubic yard and his bid of $1.25 per cubic yard included ten cents per yard to place the material on the road (Tr. 221).

Mr. Grant testified that he did not refuse to approve a bottom land pit or any other pit if the material met the specifications. He stated that the appellant could have placed common borrow or the specified A-4 borrow at any time the road was ready to receive it and if the appellant could make arrangements for material meeting the specifications for borrow (Tr. 2342).

Decision

This claim, insofar as it relates to the alleged refusal of the Gov

ernment to approve bottom land pits for borrow, is governed by our finding under Claim I that the appellant failed to prove that the Government refused to approve borrow which met the specifications (Pages 46 and 47, supra).

The allegation of an unexpected amount of undercut directed to be performed is apparently based on excavation for the 2 foot 4 inch layer of plating which Mr. Caldwell referred to as undercut throughout the hearing. However, in view of the cross section on page 4 of the plans (Volume I, Appeal File) which shows the 2 foot 4 inch layer, we find that such excavation, whether described as undercut or otherwise, is not unexpected but typical.

Whether or not the Hazel Wood

property was available as a source of A-2 material is irrelevant in view of Mr. Caldwell's testimony at Tr. 221 that his bid for A-2 material was actually based on another

source.

The provisions of section 1021.3(e), FP-61 are clear and unambiguous in placing the responsibility for selecting borrow pits for Case 2 borrow on the contractor and in providing that the contractor shall bear the expense of handling, hauling and placing the material. Mr. Caldwell acknowledged this contractual provision when he testified that borrow is paid for only by the yard (Tr. 801) but he advanced no contractual basis for avoiding the effect of such provision. Section 1051.1, FP-61, specifically excludes Case 2 Borrow from payment for

overhaul as contained in Pay Item No. 105(1).10

We find no basis in the record for concluding that the appellant is entitled to additional compensation for whatever increase in average haul occurred over what may have been anticipated.

was dated October 29, 1963 (Appeal File, Volume II).

On this record, we find that the concrete subcontractor was not delayed by the fact that the letter of approval was sent on October 29, 1963, since the clearing work in the area in question had not been com

Accordingly, the claim is denied. pleted when the concrete subcon

Claim O

tractor moved some equipment on the job site on October 24, 1963.

Claim O was withdrawn by the Moreover, the appellant failed to appellant (Tr. 2196).

Claim P

The appellant alleged that the Government unreasonably delayed approval of its concrete subcontractor, for which it is entitled to an equitable adjustment of one day of contract time.

The project diary maintained by Mr. Grant discloses that appellant moved one bulldozer to the bridge site at Station 202+50 on October 24, 1963 and began clearing the site. The proposed concrete subcontractor moved some concrete forms and a dragline to that station on the same date but did no work. Excavation for the bridge by the proposed subcontractor began October 25, 1963 (Government Exhibit JJJ).

on

Mr. Caldwell's letter dated October 19, 1963, requesting approval of the concrete subcontractor was stamped as received by the Bureau of Public Roads on October 28, 1963 (Government's Exhibit C). The letter approving the subcontractor

40 Appeal File, Volume I, the Contract.

submit a timely written request for approval "1 of the proposed subcontract.

The claim is denied.

Claim Q

The appellant alleged that a strike of truck drivers occurred in June and July of 1966, which was beyond its control and without its fault or negligence, and for which it is entitled to a time extension of twentysix days.

Mr. Caldwell testified that he made an agreement with Mr. Huey Stockstill to haul borrow material, under which Mr. Stockstill and his truck drivers were to be placed on the appellant's payroll but Mr. Stockstill would use his own equipment (Tr. 883). It was Mr. Cald

41 Although the preconstruction conference was held on October 11, 1963, the appellant's written request to approve John H. Moon & Sons as a subcontractor was not submitted until October 19, 1963 (ie., some 8 days later). Action by the Government within one day of the receipt of the written request on October 28, 1963, corroborates the Government's statement at the preconstruction conference that an investigation of Moon would not be necessary. See page 47, of claim brief of June 28, 1968 (Appeal File, Volume II).

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well's opinion that because of difficulties related to the availability of borrow and the wetness of the pits, Mr. Stockstill was not taking in enough money to finance his operation (Tr. 883-86). None of the trucks and drivers showed up for work on June 15, 1966 (Tr. 886-87). When Mr. Caldwell inquired about the reason, he was told that the drivers were not getting enough time and they were going to other work (Tr. 887). Mr. Caldwell stated that he "threatened him (Mr. Stockstill) pretty heavy" and five of the six drivers returned to work and remained until June 22, 1966, when they stopped work for about two hours, complaining of dusty conditions (Tr. 888). Mr. Caldwell stated he did not believe the drivers struck because of the dusty conditions but rather they were looking for an excuse to leave (Tr. 888-89). Mr. Caldwell did not testify as to the date when Mr. Stockstill's trucks and drivers finally left the job, but he stated that he was able to make other arrangements and get trucks back on the job by July 26, 1966 (Tr. 895).

Decision

The well-established definition of a strike is that it is a combined effort on the part of a body of workmen to enforce a demand on their employer by stopping work in a body and refusing to return to work until the demand is met. National

Labor Relations Board v. Illinois Bell Tel. Co., 189 F.2d 124 (7th Cir. 1951). Conversely, it is not a strike if employees quit work collectively without any intention to return to the employment, whatever their motivating reason for so doing may have been.42

In the present case, the truck drivers advised they were going to other work after their initial failure to appear on the job. Their return under duress and their subsequent departure after complaining of dusty conditions are regarded as action taken in furtherance of their intention announced earlier to go to other employment.

Based upon the evidence of record, we find that no strike existed; nor is there anything in the record to indicate that the case presented can otherwise be regarded as constituting an excusable cause of delay. The situation confronting the appellant between June 15 and July 26, 1966, was simply that he was unable to retain or replace the truck drivers and trucks required for the performance of the contract work. The rule is well established, however, that the contractor's bid is an unqualified representation that the contractor has the supervision, personnel, equipment, skill and ability to do the contract work.43 The con

42 See Deshler Broom Factory v. Kinney, 2 N.W. 2d 332, 334 (Neb. 1942).

43 American Ligurian Co., Inc., IBCA-492-465 (January 21, 1966), 73 I.D. 15, 22, 66–1 BCA par. 5326, at 25,028.

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