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Reporter's Statement of the Case
5. Paragraphs 2–01 to 2–03 of the specifications provide as follows:
2-01. Concrete excavation.-All concrete removed for keys and for the placing of pipe and machinery shall be classed as concrete excavation. No blasting will be permitted. Great care shall be taken to prevent any injury to adjacent concrete.
2-02. Measurement.—Measurements for concrete excavation will be made for the actual quantity in cubic yards excavated as shown on the drawings, or such modification as directed by the contracting officer. The prices bid for excavation will also cover the disposal of the excavated material. Waste material shall be deposited in the river within 1 mile of the work as directed by the contracting officer.
2–03. Channeling.-Wherever indicated on the draw. ings, the vertical face of concrete excavation shall be made by channeling machine or suitable drilling or broaching outfits. The concrete shall be removed without disturbing the adjoining concrete and will be paid for as concrete excavation. In case of the upstream key great care shall be taken in removing the concrete adjacent to the anchor beams and rods. The work of channeling will be paid for by the square foot of
vertical area cut at the price bid for channeling. Drawing OR 29–82/21 shows the concrete excavation to be performed on Bear Trap Pier No. 1 and on the dam for the purpose of installing the tripping bar weir and the appliances and machinery for its operation.
Channeling of concrete consists of cutting a smooth groove through a solid structure with a channeling tool, or tool called a broacher, or other similar device. Excavation was performed by drilling. In the contract drawings plaintiff was instructed to remove all concrete in the lower keyway in the dam proper at two designated points.
Plaintiff seeks to recover $308.46 for channeling 308.46 square feet of concrete. The excavation for which plaintiff seeks to recover as for channeling was for a certain pipe trench at the top of the southerly pier of Bear Trap No. 1, and for the trench for the machinery pit. The machinery which was to operate the tripping bar weir was to be located
92 C. Cls. Reporter's Statement of the Case in the southerly concrete pier of Bear Trap No. 1, and on the axis of the concrete dam proper adjacent thereto. According to the specifications and drawings the piers were to be in part excavated and certain parts of the dam were to be channeled.
Plaintiff did not actually channel the pipe trench, nor did it channel the upper part of the machinery pit. The pipe trench was cut rough by drilling. Plaintiff excavated the upper part of the machinery pit, but, instead of channeling, it made forms and placed new concrete secured to the old concrete by dowel pins in order to obtain the smooth surface called for by the drawings and specifications. Other concrete required to be removed was excavated rather than channeled.
6. Plaintiff removed in all 980.46 square feet of vertical concrete surface, including a keyway made necessary because the existing pipe trench could not be located. The contracting officer allowed and made payment under contract item 4 at the rate of $1 a foot for channeling 672 square feet, and determined and found as a fact that the balance of 308.46 square feet of concrete removed was "excavation" and not "channeling” and allowed and paid for the same at $8 a square yard under contract unit price item 3. Some of the concrete removed for which payment is claimed by plaintiff had been performed prior to January 6, 1933. On that date plaintiff wrote the contracting officer that defendant, in its estimate No. 1 for progress payments, had not allowed any sums for channeling on top of Bear Trap Pier No. 1. The contracting officer, by letter of January 9, 1933, decided that no channeling was indicated or performed on top of Bear Trap No. 1 and that payment would be made for concrete excavation at $8 a cubic yard and concrete placed at $10 a cubic yard. After receipt of this decision, plaintiff did not take any appeal from such decision of the contracting officer as provided in article 15 of the contract, as follows:
Art. 15. 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 repreReporter's Statement of the Case sentative, 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 5
the work as directed. Plaintiff made no further protest or claim until the receipt of the final estimate on August 11, sixteen days after the entire contract work had been completed.
CLAIM NO. 2.-GROUTING DRAIN BOXES
7. The contract drawings showed that certain 8" by 8" drains were in place in the dam which had been placed therein by the original builder of the dam. The drawings did not disclose whether the drains were open or closed, and neither plaintiff nor defendant had knowledge that the 8" by g' drains were open or closed. The drawings did not show the exact location of the drain boxes but did show that they were parallel to the axis of the dam. Defendant did not know their exact location.
On December 20, 1932, plaintiff completed its cofferdam. It then attempted to unwater the cofferdam, under the assumption that the drain boxes were closed. The cofferdam could not be unwatered, and plaintiff concluded that the drains were open. On December 29 plaintiff wrote the contracting officer for permission to grout the drain boxes in order to prevent leakage from that source. On January 3, 1933, by letter, the contracting officer granted plaintiff permission to grout the drain boxes, and in the letter he informed plaintiff that there would be no case for payment for such work, as the drains were shown on the contract drawings, and the closure was for the contractor's convenience. Before plaintiff closed the drains it provided sufficient pumps and equipment which under normal conditions would have pumped out the water within the cofferdam within a period of approximately 30 minutes. However, the pumps were unable to remove more than 4 feet of water from the cofferdam area after pumping several days. The cofferdam seemed watertight, and there was no appreciable leakage through the cofferdam proper.
92 C. Cls. Reporter's Statement of the Case Plaintiff consulted with the contracting officer and obtained the plans of the original dam, which indicated that in the erection of the original dam 8'' drain boxes were provided under the original dam. Plaintiff then asked permission of the contracting officer to determine whether the drain boxes had been left open by the prior contractor, which permission was granted. Plaintiff employed a diver who found that the drain boxes were open. After defendant's engineer had given plaintiff their location from the plans for the construction of the original dam many years before, plaintiff attempted to locate the drain boxes, but without success since they had not been placed by the original contractor at the exact location indicated on contract drawings for the original dam. Plaintiff then drilled a number of holes before the lateral drain could be located. After the lateral drain was located, plaintiff forced grouting, under pressure, into the drain, completely filling same. High water then flooded the cofferdam and when plaintiff resumed its pumping in June 1933 it was successful in pumping out the cofferdam with the same equipment used in the beginning. When the cofferdam was unwatered, no leaks were coming through the 8" by 8" drain-a result obtained by grouting. Plaintiff took no appeal from the decision of the contracting officer in his letter of January 3, 1933, that this was not "extra work” under the contract.
8. Paragraph 20 of the General Specifications reads as follows:
Claims and protests.-If the contractor considers any work required of him to be outside the requirements of the contract, or considers any record or ruling of the inspectors or contracting officer as unfair, he shall ask for written instructions or decision immediately and then file a written protest with the contracting officer against the same within 10 days thereafter, or be considered as having accepted the record or ruling.
(See arts. 3 and 15 of the contract.) No written protest was filed by plaintiff with the contracting officer as therein provided, after the decision of January 3, 1933. The cost of investigating and grouting the drain was $310.77.
Reporter's Statement of the Case
9. Plaintiff seeks to recover $942.23 for the cost of changing the design of its cofferdam, occasioned by defendant's refusal to lower the pool level above Dam No. 29, by opening the bear traps and lowering all wickets while plaintiff was erecting its cofferdam. Navigation could not have passed the site through the locks or otherwise if the pool had been lowered as plaintiff requested. At that time it would have required about two days to lower and refill the pool.
10. The specifications provided, among other things, the following:
16. Interference. The contractor for this work shall not interfere with material, appliances or workmen of the United States. The contractor shall not obstruct the lock, beartraps or dam other than that part of the dam in which the work is being carried on, or interfere with their proper manipulation.
18. Obstruction and danger lights.-The contractor will be required to dispose his plant and to conduct the work in such manner as to obstruct navigation as little as possible. The contractor shall, at his own expense, display lights continuously each night between sunset and sunrise and during fogs, upon all cofferdams, vessels anchored, range piles driven, and other obstructions placed in the river by him during the progress of the work.
The work as a whole shall be so conducted as to permit navigation to pass the site at all times.
1-01. (a) The cofferdam shall be of the "box type” and constructed as shown on drawing 0. R. 29–91/2, except as provided in (b) below. The cofferdam shall be built to a height of at least 3 feet above normal upper pool (top of pier No. 1 at El. 501.5). The base width of the cofferdam shall be at least 20 feet, unless equal stability is otherwise provided. The inside face of the cofferdam parallel with Pier No. 1 shall not be at a greater distance than 94 feet from the face of Pier No. 1. (See also par. 2.)
(b) 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