97 Reporter's Statement of the Case the sheet steel piling installed by them at the defendant's orders to remedy the defect in the existing dam was damaged by flood and had to be repaired; (6) they also sue under the Act of July 23, 1937 (50 Stat. 533, chapter 520), because the defendant failed to supply qualified labor under the labor clauses of the contract, resulting in excess cost in the performance of the contract. The court, having made the foregoing introductory statement, entered special findings of fact as follows: 1. Plaintiffs, Enos L. Seeds and John Derham, Jr., are citizens and residents of the State of Pennsylvania, and constitute the partnership of Seeds & Durham, which has its principal place of business at No. 25 Maplewood Avenue, Philadelphia, Pennsylvania. 2. On or about the 5th of December 1935 plaintiffs entered into a contract with the defendant for certain alterations to the Emsworth Lock and Dam on the Ohio River. It provided for the construction of a dam on the upstream side of and parallel to and abutting the old dam. The contract and specifications, plaintiffs' exhibits Nos. 1 and 2, respectively, are made a part hereof by reference. 3. Defects in old dam. The Ohio River, at the point where the dam was to be constructed, was separated by an island into two channels, one designated as the main channel, and the other as the back channel. The dam was to be built in four successive cofferdams, the first of which had been constructed previously by another contractor but had not been dewatered. It was specified that the old or existing dam should act as the lower arm of each cofferdam to be constructed. 4. When plaintiffs undertook to pump the water out of the first cofferdam, it was discovered there were large holes underneath the old dam, which made it impossible for it to be used in its then condition as the lower side of the cofferdams. This was a latent condition below the surface of the water, unknown to both parties when the contract was signed. After conferences between plaintiffs and defendant's contracting officer on steps to be taken to remedy this condition, it was determined to build a steel sheet pile cutoff wall parallel with the old dam and one foot upstream 291825-41-CC-vol. 92- -9 Reporter's Statement of the Case 92 C. Cls. from it and to fill in the space with concrete. This necessitated moving the location of the new dam one foot upstream. These changes were embodied in change order No. 1, dated January 31, 1936. This change order, after setting out the unit prices for doing the work and providing for an extension of time "on account of the foregoing modification of said contract," provided: It is further understood and agreed that all other items and conditions of said contract shall be and remain the same. The estimated cost of the proposed change is $110,159.66. This change order was in the form of a letter signed by the District Engineer. It concluded with this paragraph: Therefore, if the foregoing modification of said contract is satisfactory, please note your acceptance thereof in the space provided below. It was accepted by the plaintiffs in the following words: The foregoing modification of said contract is hereby accepted. 5. This change order was issued pursuant to articles 3 and 4 of the contract, which read as follows: ART. 3. Changes.-The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and (or) specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. No change involving an estimated increase or decrease of more than $500 shall be ordered unless approved in writing by the head of the department or his duly authorized representative. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered, unless the contracting officer shall for proper cause extend such time, and if the parties cannot agree upon the adjustment the dispute shall be determined as provided in article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed. 97 Reporter's Statement of the Case ART. 4. Changed conditions. Should the contractor encounter, or the Government discover during the progress of the work, subsurface and (or) latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, the attention of the contracting officer shall be called-immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they ma terially differ from those shown on the drawings or indicated in the specifications, he shall at once, with the written approval of the head of the department or his representative, make such changes in the drawings and (or) specifications as he may find necessary, and any increase or decrease of cost and (or) difference in time resulting from such changes shall be adjusted as provided in article 3 of this contract. The plaintiffs were paid $110,159.66 for this work, which they accepted without protest. However, on May 14, 1937, more than a year after the date of the change order, the plaintiffs presented a claim for $94,586.56 for compensation for the delays suffered in the work in the main channel in cofferdams 1 and 2 on account of this change order and on account of other things. Plaintiffs' claim stated: This claim is presented in accordance with the decision of the Court of Claims of the United States filed December 7, 1936, holding that under circumstances such as exist in this case the contractor is entitled to be compensated for the losses that he has suffered. We have prepared the claim in strict accordance with the decision in that case, (see article Engineer News Record, page 256, Feb. 18, 1937). At the request of the contracting officer, they itemized this claim in a letter dated June 3, 1937. The contracting officer on August 3, 1937, disallowed the claim for delay in connection with change order No. 1. He stated that the figure of $110,159.66 paid for the extra work covered by change. order No. 1 "included no definite provision for payment for idle equipment and labor that was forced to stand by," but that the plaintiffs had been allowed * * $6,391.13 more than the actual cost of the plant to you. This indicates that this office made an ex Reporter's Statement of the Case 92 C. Cls. tremely liberal allowance for the plant under change order No. 1, and it cannot be seen that you are entitled to additional payment therefor. On the other hand, he found that the allowance for overhead was $1,753,28 less than the amount that should have been allowed, and that the cost of weekly labor made idle was $362.38. He concluded that the plaintiffs had been allowed $4,275.47 more than the total of the idle plant rental, overhead, and labor made idle. For this reason and because the plaintiffs had "accepted change order No. 1 as a basis for payment for the work performed and this change order is, therefore, binding as a part of the contract," he disallowed the claim. He found that the reasonable daily idle plant rental was $338.43 a day, and that the total overhead cost a day was $148.84, and that the weekly labor made idle was $362.38. 6. Article 15 of the contract provides: * Except as otherwise specifically provided in this contract, all disputes concerning questions arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto as to such questions. In the meantime the contractor shall diligently proceed with the work as directed. An appeal was taken by plaintiffs from the foregoing finding of the contracting officer, but his decision was affirmed. 7. On January 25, 1938, the plaintiffs requested an additional payment of $13,770.09 for losses due to delay in work done in the back channel in cofferdams 3 and 4 pursuant to change order No. 1. The contracting officer replied on April 14, 1938, disallowing the claim because he found the plaintiffs had been paid $6,617.44 more than their idle plant rental, overhead, and labor on account of this work, and also because the plaintiffs had "accepted change order No. 1 as a basis for payment of the work." Plaintiffs did not appeal from this finding. 8. The contracting officer extended the time for the performance of the contract approximately 80 days on account of the extra work required by change order No. 1. Plaintiffs 97 Reporter's Statement of the Case were actually delayed in the performance of the work specified in the original contract approximately 107 days on account of the extra work necessary to be done under change order No. 1. Plaintiffs' daily idle plant rental was $338.43 a day, and its overhead cost was $148.84 a day. The weekly labor made idle was $362.38. 9. Cost of pulling and redriving steel sheet piling. Before the steel sheet piling in the cut-off wall had been completely installed there was a big flood of the Ohio River beginning on March 17, 1936. Some of the piling already installed was damaged, and it was necessary to remove it, repair it, and reinstall it. The plaintiffs claim the sum of $2,540.29 for the doing of this work. Paragraph 1-13 of the specifications provides: Damage.-Damage to Government property due to failure of the contractor to take reasonable precaution, and all loss or deterioration of or damage to the permanent work by flood, accident, or exposure prior to final acceptance shall be made good by the contractor without expense to the United States, other than as specified in paragraph 1-08 hereof. Paragraph 1-08 of the specifications provides in part: * In event that work remains to be done and is actually in progress within the furnished cofferdam or those constructed under this contract to resist a stage of 27 feet on the upper gage at Emsworth Locks, which gage has its zero at elevation 690.072, and a rise in the Ohio River overtops the cofferdams, where built by the contractor to full height, an allowance of $3,000.00 will, subject to conditions stated hereafter, be made to the contractor upon full resumption of the work within the cofferdam. Only one allowance will be made for one rise. An allowance was made the contractor of $3,000 on account of this flood, but his claim for $2,540.29 for the expense of pulling and redriving the steel sheet piling was disallowed by the contracting officer. On appeal, the Chief of Engineers of the United States Army affirmed the decision of the contracting officer. 10. Increasing height of piers six feet. · On March 17, 1936, an unprecedented flood occurred on the Ohio River at the location of the Emsworth Lock and |