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92 C. Cls.

Opinion of the Court

and two intermediate piers are located on each side of the canal.

The plaintiff, with the approval of the defendant, entered into a subcontract with the Blakeslee-Rollins Corporation, a Massachusetts corporation, to do all the excavation work required, and to furnish and provide the cofferdams for the four main channel piers at Bourne and Sagamore, including the placing of the seal concrete, material for which was to be furnished by plaintiff. Promptly after receipt of notice to proceed, plaintiff commenced work, prosecuting it skillfully and diligently, and through the agency of its subcontractor completed the work undertaken to be performed by it. Plaintiff was paid the contract price of the work as modified by the various change orders, less the sum of $1,000 which was retained by the defendant as liquidated damages under Article 9 of the contract. Upon receipt of payment plaintiff executed to the United States a release of all claims arising under the contract except the items here sued on.

The plaintiff claims it has sustained damages in connection with the construction of the two highway bridges involved, as follows: (1) Excess cost of constructing the four main channel piers over and above what would have been the cost had the subsurface conditions encountered been as represented and warranted by the defendant in the specifications, including a reasonable profit of 10 percent thereon, $231,485.24; (2) Excess cost of endeavoring to eliminate or reduce sand-streaking in the concrete, including a reasonable profit of 10 percent, $55,785.02; (3) Cost of removing certain power lines, pursuant to orders of the defendant's officers, $1,272; (4) Cost of maintenance and operation of three complete concrete units for a period of 89 days covering the period during which the construction of the four main channel piers was delayed because of subsurface conditions, including a reasonable profit of 10 percent thereon, $79,018.02; and (5) The amount retained by the defendant as liquidated damages, $1,000; or a total of $368,560.28.

The first item of the claim is one in which plaintiff has no personal interest but is prosecuted by it solely for the benefit of its subcontractor, the Blakeslee-Rollins Corpora

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tion. That corporation prior to the submission of bids in this case and the acceptance of plaintiff's bid by the defendant, had examined the site of the work, the plans and specifications, the boring maps and data, and had submitted a bid for the work of constructing the substructures of the two bridges to one of the unsuccessful bidders for the entire job. When the plaintiff was awarded the contract it took over the bid submitted to the unsuccessful bidder by the Blakeslee-Rollins Corporation and entered into a contract with that corporation for the construction by it of the substructure of the two bridges for the sum of $260,000. The plaintiff, through its subcontractor, submitted to the defendant's contracting officer the plan of the cofferdam method that it proposed to follow in the construction of the four main channel piers. The proposed method was approved by the Government's engineers and its contracting officer.

Almost from the beginning of the work the subcontractor encountered difficulties in driving the sheeting. Nested and compacted boulders, forming an almost impenetrable barrier, were encountered. In endeavoring to penetrate them the surrounding soil became agitated and mixed with water, with the result that a fine free-flowing sand was produced, an inevitable consequence of the excessive driving of the sheeting. Early in March 1934, the subcontractor notified defendant's contracting officer that it would be impossible to construct these piers by the cofferdam method, and that it would not be possible to rest them upon undisturbed natural soil at the elevations specified. The Government at the time insisted that the work proceed in accordance with the provisions of the specifications, but the excessive hammering and the drastic measures necessary to remove the boulders, added to the dangerous condition of the ground by disturbing its stability, and the outside pressure which forced water and sand into the cofferdams, made the work hazardous and expensive. These conditions, as the work progressed, resulted in frequent conferences between plaintiff, its subcontractor, and representatives of the defendant in regard to the situation. As a result of these conferences the defendant determined in June 1934, that be

92 C. Cls.

Opinion of the Court

cause of the disturbed conditions of the soil caused by the excessive hammering in driving the steel sheeting and the removal of boulders, and the likelihood that such conditions might continue until the bottom of the required depth was reached, the elevations prescribed should be changed thus relieving plaintiff of carrying the excavation to the required depth. Appropriate change orders were issued providing that excavation might be stopped at elevation 55 instead of elevation 48, and that a suitable foundation would be prepared by driving bearing piles into the soil at the bottom of the excavation. As a result of these change orders three of the four piers as finally constructed rest upon an artificial foundation created by the driving of a large number of wood bearing piles, and the fourth pier rests upon a ledge of solid rock formed by the nesting and compacting of numerous heavy boulders.

Prior to the issuance of the various change orders referred to plaintiff's subcontractor had expended in the construction of the four main channel piers $210,441.13 in excess of the amount plaintiff and the subcontractor had estimated such costs would be at that stage of the work. It is contended by plaintiff that this excess cost of the work in connection with the construction of the main channel piers and the resulting loss and damage to its subcontractor was caused by misleading and deceptive representations made by the defendant as to the subsurface conditions at the site of the piers.

Plaintiff's subcontractor, the Blakeslee-Rollins Corporation, and C. W. Blakeslee & Sons were the prime contractors, under a contract similar to the one here in question, to furnish all labor and materials and perform all work required for the construction of the substructure of the Vertical Lift Railway Bridge over the Cape Cod Canal, at Buzzards Bay, located approximately three-quarters of a mile from the sites of the highway bridges. Upon completion of the work C. W. Blakeslee & Sons and the Blakeslee-Rollins Corporation brought suit in this court claiming that defendant's responsible officers in inviting bids made deceptive and misleading representations as to subsurface conditions at the site of the railway bridge and that by reason of reliance upon these misrepresentations they suffered damages

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in that the actual cost of doing the work was over and above the estimate in their bid. In an opinion carefully analyzing both the facts and the law involved, the late Judge Williams denied the claim that officers of the defendant possessed superior knowledge as to the distribution of boulders throughout the area of the canal or at the site where the piers were constructed. C. W. Blakeslee & Sons, Inc., et al. v. United States, 89 C. Cls. 226; certiorari denied by the Supreme Court, 309 U. S. 659.

Plaintiff herein contends that it was misled by failure of defendant's contracting officer to inform plaintiff or its subcontractor that the consulting engineers on the railway bridge had recommended use of the core-boring method to test subsurface conditions and that no method other than the caisson method be used in specifications for construction of the railway bridge piers; that dynamite had been used in making the wash borings at the railway bridge site; that a dredging company had abandoned its contract because of encountering unfavorable subsurface conditions; and that wash borings had been made at the railway bridge sites and data reported thereon.

Officers of the Blakeslee-Rollins Corporation not only knew of the existence of the railway bridge boring data but had studied it in preparation of its bid for the railway bridge work and, in fact, utilized this information in estimating the cost of constructing the highway bridge piers. Other facts relied upon by plaintiff to show misrepresentation by withholding of material facts are the same facts asserted by the Blakeslee-Rollins Corporation and C. W. Blakeslee & Sons in its claim with respect to the railway bridge contract. In his opinion denying recovery Judge Williams considered in detail allegations here advanced by plaintiff. We quote in full from his opinion beginning at page 245:

It is urged by plaintiffs that the consulting engineers, by reason of the fact that they had superintended the construction of the original canal, possessed superior knowledge as to the subsurface conditions throughout the area of the canal and knew that boulders large and small were distributed throughout the entire area, and that their recommendations that the core-boring

Opinion of the Court

92 C. Cls.

method be used in testing the subsurface conditions at the site of the work and that the caisson method be used in the construction of the piers were based on this superior knowledge, all of which, if made known to the plaintiffs, would have influenced their judgment to the extent that they would neither have submitted a bid nor undertaken to construct the main channel piers by the cofferdam method.

The proof does not support the claim that the consulting engineers of the defendant possessed superior knowledge as to the distribution of boulders throughout the area of the canal or at the site where the piers in question were constructed. They knew, of course, that boulders large and small were distributed throughout the entire area of the canal and that they might be encountered at any point in varying numbers and sizes. This knowledge was likewise in the possession of plaintiffs. One of the officers of the plaintiff companies had been engaged in the vicinity of the proposed bridge in work similar to that called for in the present contract and in the construction of the old railroad bridge approximately 75 feet distant from the piers involved, and also in construction of other bridges at the Cape Cod Canal some distance from the site of the present work. The plaintiffs possessing the same knowledge in respect to the distribution of boulders throughout the area of the canal as that possessed by the consulting engineers of the defendant were therefore neither damaged nor misled by the failure of the contracting officer to inform them as to the recommendations made by the consulting engineers as to the methods that should be adopted in the performance of the work.

In respect to the contention that plaintiffs were misled by the failure of the defendant to inform them that dynamite was used to get by boulders while making the borings it need only be pointed out that wash-boring maps show only the stratification of materials in various holes shown on the plans and do not show the methods employed in getting the borings down. The method of making the borings and the fact that dynamite was used and similar information is recorded in the log book. Plaintiffs knew this but made no effort to consult the log book, which was available to them. Plaintiffs therefore have no one but themselves to blame for the fact that at the time they submitted their bid they did not know that dynamite had been used by the defendant in making the borings and cannot be heard to com

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