92 C. Cls. Reporter's Statement of the Case On June 29, 1934, plaintiff requested of the Supervising Architect an extension of time to date of acceptance of the entire project. On the same day the lamp standards and their installation were accepted as satisfactory. July 31, 1934, plaintiff wired the Supervising Architect as follows: We have not yet received final acceptance on Bingham Canyon Postoffice. This delay in acceptance is unwarranted since all work has been satisfactorily completed since June 20th. This delay is costing us insurance on building and interest on withheld capital. Please wire what date final acceptance will be made. Our proposal for the costs of your delay will be revised after we have received final acceptance. Again, on September 10, 1934, the plaintiff advised the Supervising Architect by letter that expenses in maintaining insurance, interest on delayed payment, and other delay costs were continuing, and that payment was expected for all costs incurred by reason of the Government's delay in acceptance of the project. On September 22, 1934, the Treasury Department authorized final settlement, so notified the plaintiff, and on September 27, 1934, authorized the plaintiff to cancel the insurance in connection with its contract. 15. The plaintiff has suffered no deduction of liquidated damages for delay. The building was substantially completed the fore part of December 1933, the keys were turned over to the Government December 20, 1933, and on that date plaintiff's organization was permitted to leave and did leave the premises. On and after January 1, 1934, the building was exclusively occupied by the Government, and no more work was done by plaintiff on the building except of a minor and inconsiderable nature. The work required to install the lamp standards was very slight. There is no satisfactory evidence of the amount of damage that the plaintiff sustained on account of delays in furnishing the models for the lamp standards. 571 Opinion of the Court The court decided that the plaintiff was entitled to recover. GREEN, Judge, delivered the opinion of the court: On October 13, 1932, the plaintiff entered into a contract with the United States whereby, for a consideration of $52,150, plaintiff agreed to furnish all labor and materials and perform all work required for the construction of a Post Office at Bingham Canyon, Utah, in accordance with the specifications, schedules and drawings made a part of the contract. The contract provided that the work should be commenced as soon as practicable after the date of receipt of notice to proceed, and should be completed within 360 calendar days after the receipt of such notice. On November 11, 1932, plaintiff received notice to proceed with the work. The date for completion was subsequently extended until December 5, 1933 became the date for completion. The contract provided that the work should be performed under the supervision of the defendant's construction engineer, who arrived at the location the latter part of November 1932, and at which time the work was commenced. The building was substantially completed in December 1933 and turned over to the Government on December 20, 1933. From and after January 1, 1934, the building was occupied by the defendant and no more work was performed by the plaintiff. The plaintiff seeks to recover on four items of alleged damages. The first of these items is the increased costs of excavating material of a rock-like nature. This excavating was done for the placing of foundations and for that purpose a power shovel was placed on the premises. Paragraph 66 of the specifications attached to the contract specified the extent of the excavations. Paragraphs 67 and 68 of the specifications read as follows: 67. The basis of bidding shall be that all other material to be removed is earth. Material which it is practicable to remove and handle with pick and shovel or by hand or to loosen and remove with a power shovel shall be classed as earth. 68. If excavation of other materials becomes necessary the additional expense will be determined by the contracting officer. Opinion of the Court 92 C. Cls. The findings show that excavation was done in the winter when the ground was frozen, the freezing extending downward to approximately three feet below the surface. They further show that 2,430 cubic yards consisted of boulders, dirt, natural debris, timbers, and junk, dumped there in the process of back-filling voids left in gold-mining operations or in the abandonment of old flumes. This heterogeneous material was frozen together and could not be removed without blasting. The plaintiff wrote a letter to the Supervising Architect, January 23, 1933, describing the situation, quite particularly as shown in Finding 6, and asking an increase in the contract price for this excavation. Several communications passed between the Supervising Architect and the plaintiff. The Supervising Architect finally notified the plaintiff that a report of the construction engineer did not bear out the contention that solid rock was encountered or that any of the material could not be loosened without a pick or power shovel, and this decision was affirmed on appeal to the Secretary of the Treasury. The defendant relies largely on Article 15 of the contract which reads as follows: Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor within thirty days to the head of the department concerned, whose decision shall be final and conclusive upon the parties thereto as to such questions of fact. In the meantime the contractor shall diligently proceed with the work as directed. The defendant also says that the plaintiff was slow in commencing the work and in its prosecution, but that the ground was frozen about December 1st and remained so frozen to an approximate depth of three feet until the following first of April. The delay on the part of the defendant in sending its construction engineer to the work prevented any substantial amount of the work being done until after the first of December, when the ground was frozen. Even if the work had not been delayed it would not have been practicable to 571 Opinion of the Court remove with pick and shovel, or power shovel, the material encountered as above described. The defendant contends that the character of the material to be removed is a question of fact and that the decision of the contracting officer thereon, subject to appeal, was final. If this was a matter as to which there was some doubt this would be true, but it is clear that when the definition of "earth", set out in specification 67, is considered, the holding of the contracting officer with reference to the material which plaintiff encountered is grossly erroneous and shows such bias and prejudice as to be purely arbitrary and to imply bad faith. We are therefore justified in disregarding his decision under the repeated holdings of this court. It would not be "practicable" to remove such material in the manner described in the specifications even if the ground had not been frozen, and the evidence shows that it was not the fault of plaintiff that the work had not been commenced earlier and finished before freezing weather set in. The contract provided that the defendant might make changes in the work required, but as was said in Rust Engineering Co. v. United States, 86 C. Cls. 461 (a case in which the facts were quite similar and exactly the same provisions were in the contract), this does not prevent recovery for changes based upon conditions which are unknown and materially different from anything contemplated by the parties when the contract was executed. See also Maurice H. Sobel v. United States, 88 C. Cls. 149, and Stapleton Construction Co. v. United States, No. 43527, decided December 2, 1940. We think it is satisfactorily shown that the plaintiff has a just claim for the excavation of material which could not be classed as "earth" under Specification 67. The testimony as to the additional cost of removing this material consists of cost sheets of plaintiff which were introduced in connection with oral testimony as to the nature of the material, and plaintiff's president testified that the amount which was claimed was the actual additional cost over the cost of removing earth. Moreover, in the extensive correspondence had between the parties the defendant made no defense based upon the value of the work. The claim was denied solely on the ground that the material was not of the nature Opinion of the Court 92 C. Cls. claimed by plaintiff, which, as we have said above, is grossly erroneous and directly contrary to the uncontroverted evidence. We find that the plaintiff is entitled to recover additional compensation for 2,430 cubic yards at $1.25 per yard, or $3,037.50. Plaintiff also claims damages by reason of the alleged delay by defendant in reaching a decision on the footings and foundation changes, also for the additional work in relation thereto. With relation to the additional work we find that in February 1933 the plaintiff advised the Supervising Architect that "a very unsatisfactory soil condition had been encountered" in making the excavations for the foundations and suggested that "a survey be made and all footings be redesigned." The defendant made the survey requested and found the situation to be as described. The defendant's superintendent then directed the contractor to stop work on account of unsatisfactory footings and soil conditions, causing a delay to the building of 28 days, and a total of 30 days pending a decision by the defendant as to what changes should be made in the footings. The construction engineer devised plans for the changes in the footings and March 4, 1933, the plaintiff offered to revise the footings in accord with the new design for the sum of $1,064, with 20 days' extension of contract time for the additional work made necessary. March 15, 1933, the Assistant Secretary of the Treasury sent plaintiff a telegram to the effect that it was ordered to "proceed with the work on the footings * * * at cost plus ten percent overhead ten percent profit, total not exceeding figure named by you, with twenty additional days all subject consent surety The plaintiff completed the footings as modified and reported to the construction engineer a daily record of the labor cost. On April 24, 1933, the plaintiff reported this cost to the Supervising Architect as $1,225.62, and adding thereto 10 percent for overhead, and 10 percent on the aggregate for profit, made a total of $1,482.99 which the plaintiff asked to be allowed. The Assistant Secretary of the Treasury disallowed this claim on the ground that the work had been ordered at an upset price of $1,064, the figure named by plain |