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92 C. Cis. Reporter's Statement of the Case subparagraph (a) above, and that the cost to the United States shall not exceed the contract rate for the type proposed in these specifications.

1-02. Approval of plans.-The contractor shall submit for approval of the contracting officer, prints, in duplicate, showing plans of the cofferdam he proposes before making any provision for its construction, but approval of such plans will not relieve the contractor

of the responsibility for the adequacy of the cofferdam. 11. On October 22, 1932, prior to the acceptance of the contract herein, plaintiff enclosed a plan for building a cofferdam, which plan, under the specifications herein provided, was approved by the contracting officer on October 26, as stated in finding 4.

Contract drawing 91/2 showed the general plan suggested by defendant's engineers for the construction of the cofferdam. The cofferdam proper was to be constructed to an elevation of 501.5 feet, which was the elevation of Bear Trap Pier No. 1. The normal stage of the upper pool was 498.5 feet. Such plan also showed the construction of cribs to be placed at the upper and lower corners of the cofferdam toward the navigable pass and cribs adjacent to the upper and lower corners of the cofferdam at the bear trap pier. The cribs which were to be filled with stone were for the purpose of protecting the cofferdam against the current when the facilities of Dam 29 were being operated or manipulated to regulate the pool above the dam. The cribs were to be built to an elevation of 493 feet (5 feet below the normal level of the upper pool and 8.5 feet lower than the top of Bear Trap Pier No. 1). Inasmuch as Crib No. 2 above the dam and toward the center of the river from Bear Trap Pier No. 1 would at such height be below normal pool level, unless the upper pool level was lowered so it could be placed, and since this crib as planned would not extend to the wickets on the dam, plaintiff decided that it would not be possible to project the cofferdam through the standing wickets.

12. On November 9, 1932, plaintiff for the first time mentioned and suggested that the pool above the dam be lowered until the cofferdam was placed. It was thereupon informed by defendant's engineer in charge that the pool Reporter's Statement of the Case above Dam 29 would not be lowered during the course of operation. On November 9 plaintiff wrote the contracting officer stating that without lowering the pool plaintiff could not build according to its plan which had been submitted on October 22, 1932. On November 12 the contracting officer, by letter, stated that under plaintiff's submitted plan the sheeting of the cofferdam would come at the spaces between the wickets. This letter was as follows:

Reference is made to your letter dated November 9, 1932, on the subject of a cofferdam for constructing tripping bar weir at Dam No. 29, Ohio River. I do not feel justified in authorizing the lowering of the pool, because it will interfere with navigation.

In the plan of cofferdam proposed by you (your drawing No. 206–1) you will note that, on the approved blueprint, a copy of which was returned to you on October 26, 1932, it is indicated in red that the wickets must remain standing. These wickets are four feet wide, with spaces of about four inches between adjacent wickets. The cofferdam shown on your plan is such that the sheeting will come at the spaces between wickets.

If the construction of the cofferdam is undertaken when the dam is down, due to a natural stage of the river, the wickets within the area to be inclosed in the cofferdam may be left in a down position, provided that the construction of the closing section (Section No. 3 of your plan) is completed before the river falls to pool stage.

However, this office deems it advisable to warn you that the fall in the river may be so rapid that the completion of Section No. 3 of the cofferdam will be impossible without interfering with navigation. You would then be at the necessity of tearing out all you had done under that plan and changing to another plan.

Your suggestion to extend Sections No. 2 and No. 4 down and up stream, respectively, to meet at the line

of the wickets, appears wise. In that event it would have been possible to build the cofferdam according to plaintiff's original plan without lowering the pool. The contracting officer, in this letter of November 12, 1932, approved plaintiff's suggestion to raise the cribs to pool heights and to extend the arms of the cribs down and up stream, respectively, which enabled plaintiff to build 92 C. Cls. Reporter's Statement of the Case its cofferdam without lowering the pool. On November 14 plaintiff submitted its drawing for the change of plan and stated that it was plaintiff's suggestion for "additional work.” On November 17 the contracting officer, by letter, advised plaintiff as follows:

With reference to your letter dated November 14, 1932, enclosing prints of your drawing #206-7, it is noted that in the first paragraph of your letter you refer to "additional work required in order to avoid lowering Dam #29 pool.” It must be understood that the “additional work” referred to will not come under the head of Extra Work (Para. 9 of the specifications).

Para. 1–01 (b) provides: "If the above-described cofferdam is not satisfactory to the contractor, he may, with the approval of the contracting officer, build any other type of cofferdam, provided, however, that the substituted structure shall have stability at least equal to that specified in subparagraph (a) above and that the cost to the United States shall not exceed the contract rate for the type proposed in these specifications." Para. 1–02

Approval of such plans will not relieve the contractor of the responsibility for the adequacy of the cofferdam.”

Your blueprint #206–7 is returned approved, subject to the decision as to “Additional work" and to the fore

going provisions of the specifications. 13. On November 23, 1932, plaintiff wrote the contracting officer asking him to reconsider his decision. On November 26 the contracting officer, in a letter to plaintiff, adhered to the decision set forth in his letter of November 17 and stated that consequently no extra compensation would be allowed for constructing and placing the cofferdam. Plaintiff took no appeal from this decision of the contracting officer within 30 days, nor did plaintiff appeal to the chief of engineers until in 1935, after final payment had been made under the contract.

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CLAIM NO. 4-REMOVAL OF SILT FROM COFFERDAM

14. Plaintiff seeks to recover $1,270.11 on this claim, which amount represents the cost incurred in June 1933 of removing sand and silt deposited in its cofferdam by reason of the same being overtopped by high waters of the Ohio River on a number of occasions and for long periods between December

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Reporter's Statement of the Case 24, 1932, and June 1, 1933. The basis of the claim is that defendant so delayed plaintiff as to prevent it from completing the work called for by its contract prior to December 24, 1932. The defendant did not delay plaintiff contrary to any provision of the contract or specifications so that plaintiff could not complete its work prior to the overtopping of its cofferdam.

Near the end of December 1932 plaintiff, with the consent of the United States, abandoned further work until June 15, 1933. On December 24, 1932, the cofferdam was overtopped and remained filled with water until June 1933, and during that period it was overtopped several times. When plaintiff began pumping operations in June 1933, the cofferdam was found to be filled with silt and sand in an amount of 695 cubic yards, which plaintiff pumped out of the cofferdam at a cost of $1,270.11. The amount of silt so deposited was normal for that section of the Ohio River. In the circumstances obtaining, it was reasonable to anticipate that the Ohio River would rise and flood the cofferdam prior to the completion of the work under this contract. Under the terms of the contract the risk of such overtopping was assumed by plaintiff, save only as to the stated allowance of time for interruptions of work.

June 23, 1933, plaintiff wrote the contracting officer claiming an extra charge for the removal of the silt and fine sand. June 29 the contracting officer wrote plaintiff stating that this could not be allowed as an extra. June 30 plaintiff wrote the contracting officer asking him to reconsider to the extent of allowing plaintiff additional time in which to complete the contract. July 3, 1933, the contracting officer refused to allow any extension of time on account of the time required to pump out the cofferdam. After receipt of this letter plaintiff did not take any appeal from the decision of the contracting officer to the chief engineer, nor was such an appeal had prior to the date of final settlement.

CLAIM NO. 5-REBUILDING OF CRIB NO. 1

15. In connection with the building of the cofferdam, the suggested plan which was submitted by plaintiff, as stated in finding 4, was approved by the contracting officer, but

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92 C. Cls. Reporter's Statement of the Case on the condition that such approval would not relieve the contractor of responsibility for the adequacy of the cofferdam. As a part of the cofferdam structure there were certain cribs, the purpose of which was to reinforce the cofferdam. Plaintiff built Crib No. 1, as shown on contract drawing 91/2, and placed the crib within 12 feet of the bear traps on the upstream side of Bear Trap Pier No. 1. As so placed this crib was not anchored to the cofferdam or to Crib No. 2 at the southeast corner of the cofferdam. The crib, however, was filled with rock. Crib No. 1 was washed out in December 1932 by the current which came through Bear Trap No. 1. Shortly after Crib No. 1 was put in place defendant's officers lowered Bear Trap No. 1, which was immediately adjacent to said crib, causing suction and a sudden rush of water which caused Crib No. 1 to be destroyed as it went through the trap.

Plaintiff notified the contracting officer, in a letter of December 22, 1932, that the crib had been destroyed, which letter is as follows:

On December 14th we received a wire from our field office concerning the washing out of #1 crib, as shown on our drawing 206-1, dated October 21, 1932, in connection with the cofferdam for tripping bar weir, Dam #29, Ohio River.

As soon as we received the wire, our Engineering Department made some calculations on the crib and found the total weight of the crib, filled, did not exceed ten tons, and consequently, we are of the opinion that if the crib were replaced that it would meet with the same fate as the first crib; i. e., it would be washed out as soon as the trap was lowered.

It is our opinion that it would be unwise to replace this crib, and we are further of the opinion that it will not be required in connection with the completion

of the contract at Dam #29. December 23, 1932, the contracting officer wrote plaintiff as follows:

Reference your letter of Dec. 14, 1932, relative to the washing out of Crib No. 1, as shown on your drawing 206-1, dated October 21, 1932, in connection with the cofferdam for the tripping bar weir, Dam #29, Ohio River.

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