over

agree-

ment to or acquiescence
in the Government's in-
terpretation, the Board
holds that a disagree-
ment with the Govern-
ment's interpretation first
expressed
three
months after a problem
with internal pipe diam-
eters was brought to the
contractor's attention by
the rejection of a sub-
stantial quantity of pipes
was untimely and the
contractor's claim for a
constructive change based
on misinterpretation of
the contract was denied..

2. Where a contract provision
prescribed a method for
the repair of airholes in
gasket bearing areas of
concrete pipe and pro-
vided that "All other
repairs shall be made in
accordance with the pro-
cedures of Chapter VII of
the Sixth Edition of the
Bureau of Reclamation
Concrete Manual," and

CONTRACTS-Con.

CONSTRUCTION AND OPERA-
TION-Con.

General Rules of Construc-
tion-Con.

the Concrete Manual, in
addition to prescribing
methods of repair, listed
nine defects which were
normally repairable and
where the evidence estab-
lished that during con-
tract performance the
parties considered the
Concrete Manual to con-
trol not only methods of
repair but also the types
of repairable defects, re-
pair of the listed defects
was permissible notwith-
standing that the con-
tract reference was to
"procedures" of the Con-
crete Manual and the
Government's contention
that under the dictionary
"procedures" and "meth-
ods" have the same
meaning...

3. While Federal custom or-
dinarily prevails over
local usage when in con-
flict, in resolving a dis-
pute concerning the
reasonableness of toler-
ances permitted under a
contract for the con-
struction of a road, state
and not Federal custom
is held to govern, since
the evidence showed state
usage to be standardized
and the Federal trade
practice was not clearly
established..

4. Where the Government is
obligated to "compen-
sate" the contractor for
restoring damaged work
under a contract provi-
sion entitled "Con-
tractor's Responsibility
for Work," the word

General Rules of Construc-
tion-Con.

"compensate" is consid-
ered to have a different
and more limited mean-

ing than the words
"equitable adjustment"
used in other provisions
of the contract.

Intent of Parties

1. Where the Board found that
the contracts contem-
plated that repair of
listed defects in accord-
ance with the Concrete
Manual was permissible
and the Concrete Manual
contained a provision
providing that "repairs
should not be permitted
when the imperfections
or damage are the result
of a continuing failure to
take known corrective
action," the Board rules
that a reasonable inter-
pretation of the quoted
provision would permit
the denial of otherwise
allowable repairs if the
defects or damage were
attributable to the con-
tractor's continued
prolonged failure to im-
plement measures which
the contractor either
knows or as a reasonably
skilled contractor should
know would eliminate or
alleviate the defects. The
evidence having estab-
lished the cause of a
particular defect and that
the defect occurred in
significant numbers of
pipes over a substantial
period of time, the refusal
to permit such defects to
be repaired did not con-
stitute a change to the

or

AND OPERA-

CONTRACTS-Con.
CONSTRUCTION
TION-Con.
Intent of Parties-Con.

contract. The Govern-
ment's refusal to permit
certain other repairs
which the evidence
established was based on
concern for the integrity
of any repair generally
rather than the contrac-
tor's continuing failure to
take known corrective
action did constitute a
change to the contract...
Modification of Contracts
1. A construction contractor's
claim for an equitable
adjustment is denied
where the evidence shows
that payment for the
overlay work involved in
repairing eroded pave-
ment was provided for in
an accepted change order
and the appellant failed
to sustain its burden of
showing that
the
straitened financial cir-
cumstances in which the

contractor was in at the
time of the change order
was the result of wrongful
action by the contracting
officer or other Govern-
ment personnel admin-
istering the contract un-
der which the claim of
duress was asserted____-
Warranties

1. Under the Standard Form
Supply Contract Default
clause, a termination for
default, following accep-
tance, of a contract for
the purchase of a scan-
ning electron microscope
on the grounds it was
defective, latently, and
by virtue of various

CONTRACTS-Con.

CONSTRUCTION AND OPERA-

TION-Con.

Warranties-Con.

breaches of warranty, was
improper in the absence
of a notice preceding the
termination affording the
contractor at least ten
days within which to
cure the defects, and was,
accordingly, treated as a
termination for the con-
venience of the Govern-
ment.

DISPUTES AND REMEDIES

Burden of Proof

1. Where the Concrete Manual
placed limitations on the
repairable area of certain
defects and did not limit
the repairable area of
certain other defects but
the evidence established
that all such defects were
not repairable without
regard to magnitude and
extent, and the evidence
established that repairs
normally permitted by
the Concrete Manual
were not allowed, but
evidence of the extent of
defects on rejected pipes
was lacking, the Board
holds that the contractor
has failed to carry its
burden of proof that pipes
were improperly rejected.
As to identified pipes
which appellant's expert
witness testified were re-
pairable in accordance
with the Concrete
Manual, the Board holds
that appellant has estab-
lished prima facie that
the pipes were improperly
rejected

2. Where substantial quantities

of pipes which had been

accepted were rejected on

CONTRACTS-Con.

DISPUTES AND REMEDIES-Con.
Burden of Proof-Con.

a subsequent inspection,
and the evidence did not
establish that the pipes
did not conform to con-
tract requirements, the
subsequent rejection of
the pipes was improper
even though the initial
acceptance was not the
final acceptance contem-
plated by the contract
and even though it is a
general rule that the bur-
den is on the seller to
prove that goods re-
jected prior to accep-
tance conform to contract
requirements. The Board
holds that the initial
acceptance, in the ab-
sence of evidence to the
contrary, established that
the pipes conformed to
the requirements of the

contract.---

3. Where the Government re-
fused to allow repairs to
certain defects permitted
by the Concrete Manual
prior to conducting hydro-
static tests on the pipes
and it appeared that at
least some of the pipes
would have passed the
test and been acceptable
if repairs in accordance
with the Concrete Man-
ual had been allowed, the
Government by its ac-
tions has made the evi-
dence unavailable and the
Board utilizes a “jury
verdict" approach to de-
termine the number of
pipes which could have
been repaired under the

Concrete Manual and
made acceptable_____.

CONTRACTS-Con.

DISPUTES AND REMEDIES-Con.

Burden of Proof-Con.
4. A construction contractor's

claim for an equitable ad-
justment is denied where
the evidence shows that
payment for the overlay
work involved in repair-
ing eroded pavement was
provided for in an ac-
cepted change order and
the appellant failed to
sustain its burden of
showing that the strait-
ened financial circum-
stances in which the con-
tractor was in at the time
of the change order was
the result of wrongful
action by the contracting
officer or other Govern-
ment personnel adminis-
tering the contract under
which the claim of duress
was asserted______

evi-

5. A contractor's claim for the
cost of repairing a la-
goon which was allegedly
damaged because a dike
not required by the con-
tract channeled flood-
waters from a rainstorm
into the lagoon was
denied where the
dence did not establish
Government responsibil-
ity for the existence of
the dike, a portion of
the damage was attrib-
utable to an open sewer
trench which was the
contractor's responsibil-
ity and the evidence did
not establish that the
dike was a principal
causative factor in flood
damage to the lagoon.
Under the Permits and
Responsibilities clause
(Article 12 of Standard

Form 23-A, June 1964

CONTRACTS-Con.

DISPUTES AND REMEDIES-Con.

Burden of Proof-Con.

Edition), the contractor
is responsible for the
work until completion
and final acceptance_----

6. Expert testimony giving esti-
mates of what would be
the cost for a reasonable
contractor to restore
damage to a road project
and to finish the roadway
is not accepted where the
testimony is unclear and
ambiguous respecting
the applicable time
period, whether all ele-
ments of costs and profit
are included, and whether
the task being estimated
was comprehended by
the expert----

7. Where a contractor under a

cost-plus-fixed-fee con-
tract gave notice of an
impending overrun but
proceeded with perform-
ance without being ad-
vised that additional
funds had been provided
as specified in the Lim-
itation of Cost Clause in
circumstances where the
evidence did not estab-
lish that the contractor
was directed or induced
to continue performance,
that there was any under-
standing that additional
funds would be provided,
or that a change to the
contract had occurred,
the contractor's claim for
overrun is denied on the
grounds that the con-
tractor had proceeded with
performance at his own risk
and that whether addi-
tional funds would be
provided was within the

Burden of Proof-Con.

CONTRACTS-Con.

DISPUTES AND REMEDIES-Con.

discretion of the con-
tracting officer.

Damages

Generally

1. Where the Government is

obligated to "compen-
sate" the contractor for
restoring damaged work
under a contract provi-
sion entitled "Contrac-
tor's Responsibility for
Work," the word "com-
pensate" is considered
to have a different and
more limited meaning
than the words "equit-
able adjustment" used
in other provisions of
the contract_.

Actual Damages

1. Where the Government is
obligated to compensate
the contractor for resto-
ration of damaged work
under a contract for road
construction and actual
costs are in evidence, the
contractor's entitlement
to compensation is based
on recorded actual costs.
Liquidated Damages

1. The Board denies a Govern-
ment motion for recon-
sideration where it finds
that a diary entry con-
tained in an exhibit
offered in evidence by
the Government, to-
gether with the testimony
of a witness for the
appellant created an in-
ference that the Govern-
ment was responsible for
an indeterminate portion
of a protracted delay in
removing utility poles
from the work area on a

CONTRACTS-Con.

DISPUTES AND REMEDIES-Con.

Damages-Con.

Liquidated Damages-Con.
road construction job and
that the Government
failed to rebut such in-
ference even though in-
formation having a direct
bearing on the propriety
of liquidated damages
assessed for delayed per-
formance was apparently
within its possession or
was more accessible to
it than it was to the
appellant. The Board
therefore reaffirmed its
prior holdings that no
attempt should be made
to apportion the delay
between the parties and
that the contract time
should be extended to
the date the contract
was determined to be
substantially complete__

Measurement

1. Expert testimony giving esti-
mates of what would be
the cost for a reasonable
contractor to restore dam-
age to a road project and
to finish the roadway is
not accepted where the
testimony is unclear and
ambiguous respecting the
applicable time period,
whether all elements of
costs and profit are in-
cluded, and whether the
task being estimated was
comprehended by the
expert...

Equitable Adjustments

1. Where the Government re-
quired hydrostatic tests
of pipes in excess of those
specified by the contracts,
the Board rules that the
contractor's entitlement
to compensation for such