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Opinion of the Court excavated material is insufficient or not considered by the Contracting Officer to be of proper quality for fill under floor slabs the Contractor shall furnish and place approved material for the purpose.

1-11. Measurement for Payment.-(a) Excavation, space grading -Material paid for under this heading shall include all material removed as ordered or specified other than as described below, measured in its orig. inal position, based on cross sections taken before and after the work is performed. This shall include the excavation below grade of unsuitable material, where ordered_removed in writing by the Contracting Officer.

(b) Excavation for footings shall include all excavation required for footings, foundation walls, slabs on earth, utilities, or borrow for fill under slabs. Material paid for under this heading shall be paid for based on the dimensions stated in paragraph 1-03 above, except for borrow required for fill under slabs. Payment for borrow required for fill under slabs will be made only in its original position. No double payment shall be made by reason of use of excavated material removed and paid for under "Excavation, space grading", or "Excavation, for footings”, which may be available for use as fill'under slabs. However, material required and directed by the Contracting Officer to be borrowed for fill under slabs, other than excavation required for space grading or for footing excava. tion, shall be paid for at the unit price bid for "Excavation, for footings”.

(c) Backfilling.- No additional payment shall be made for earth used for backfilling of trenches or about foundation walls or footings. Replacement of unsuitable material below grade ordered to be removed, shall be paid for only if it shall become necessary to borrow additional material, as directed by the Contracting Officer, for that purpose. In that case payment will be made at the unit price bid for "Excavation for footings", and shall be measured in its original position.

1–12. Basis of Payment.-The yardage of excavation measured as provided above shall be paid for at the contract unit price per cubic yard under the items “Excavation, space grading", or "Excavation, for footings” in the bid form, as the case may be, which unit price shall be payment in full for all equipment, tools, labor and incidentals necessary to complete the work. Payment for clearing of building sites shall be included in the 801932–48_16

111 C. Cls. Opinion of the Court unit prices bid for "Excavation, space grading", and/or

“Excavation, for footings”. As shown in findings 26, 27, and 28, this amount of 1,163 cubic yards of material was used in connection with the work of grading under Group 5 buildings and, as was agreed at the time and as alleged in the petition, consisted of material left over from excavation for foundations and it had been paid for at $2 a cubic yard under bid Item 2. The amount of 4,621.5 cubic yards was used in connection with this grading work but only 2,742.2 cubic yards thereof represented original excavation for this grading work. (See finding 26.)

Plaintiff claimed payment at $2 a cubic yard under Item 1, for the entire amount of 4,621.5 cubic yards, and defendant paid it at that price under Item 1 for only 2,742.2. This action was based on the decision of the contracting officer, which was affirmed on appeal, that plaintiff was not entitled to be paid twice for excavated material and that under the terms of bid Item 1 and the applicable specifications, material for grading under and around buildings (known as space grading) was to be paid for as "excavation" removed, as specified, “measured in its original position.”

We think these decisions correctly interpreted the provisions of bid Item 1 and the specifications. Plaintiff argues, however, that all material used for "space grading,” whether as excavation or fill, was to be paid for under bid Item 1, even though such material was to be or had been paid for as excavation under bid Item 2. This contention cannot be sustained. Bid Item 1 relates to "Excavation, unclassified," and so do paragraphs 1-11, “Measurement for Payment," and 1-12, "Basis of Payment.” Paragraph 1–09 requires that all "excavated material” shall be spread so that none of it remains above finished grade and that "excavated material,” in excess of that required for "back-filling and grading,” shall be disposed of as directed by the contracting officer. It seems clear that these provisions, considered together, require that any surplus excavated material once paid for, shall, if suitable, be used, among other purposes, for space grading without additional payment.

Plaintiff is not, therefore, entitled to recover on this claim.




This claim also arises under bid Item 1. The quoted specifications and our discussion thereof are applicable here. Plaintiff made claim for payment at $2 a cubic yard under bid Item 1, for 750 cubic yards of "space grading" adjacent to certain buildings prior to October 29, 1942, when defendant took over this work. The claim was denied on the ground that no work was performed in this area for which plaintiff was entitled to payment under the contract. The proof here is not sufficient to show that the findings and decisions of the area engineer and the contracting officer, which were approved on appeal, were erroneous. On the contrary, we are compelled to reach the same conclusion on the evidence submitted. Plaintiff shows only that some earth was moved by a bulldozer and pushed up near the foundation piers of some of the buildings. Whether this was original excavation or consisted of excavated material already paid for does not appear. In addition, the proof is not sufficient to support a finding that 750 cubic yards, or any other amount of work, was performed in this area.

Plaintiff is not entitled to recover on this claim.



This claim involves a question of fact, namely, whether plaintiff sustained increased costs, and, if so, the amount thereof.

About the time plaintiff commenced performance of the work defendant decided to make a change in the drawings for certain buildings by changing the location of the toilet room in each of 27 buildings so as to place it nearer to the sanitary lines. It was not necessary under this change to prepare new floor plan drawings but the change made it necessary for plaintiff to perform this portion of the work in reverse of the manner shown on the drawings, in other words, to perform it “opposite hand.” It is not difficult for foremen or carpenters to read plans in reverse in performing such work.

111 C. Cls. Opinion of the Court Plaintiff claimed that this change would increase its costs for the buildings involved by $4,464.90, which was based on its estimate of from $25 to $155 per building, and asked for a change order increasing the contract price by that amount. The request was denied. After the work had been completed plaintiff renewed its request and submitted its claim for payment of $4,464.90. The claim was denied by the contracting officer and the head of the department on the ground that no extra costs had been incurred, and they made findings to that effect.

Neither party kept a record as to increased costs as the work progressed. Plaintiff says it was impossible to do so. Plaintiff's claim is based entirely on the assumption that the necessity of reading plans in reverse and performing work opposite hand naturally has the effect of increasing costs by at least 20 percent of the labor costs applicable to each building. E. J. Pfotzer testified that in his opinion 20 percent was a fair estimate. On the record, we cannot agree. The facts do not support the opinion that this is a fair and reasonable estimate of the amount of actual increased costs occasioned by mistakes, delay, or additional materials. We, therefore, have no proper basis for a finding that increased costs were in fact incurred. Defendant's inspector observed the work as it was being performed and his conclusion, as well as that of the area engineer, was that no actual increased costs were incurred. Plaintiff's estimate was a guess, and we are not convinced from the record that the opinion of one of the partners that the estimate of $4,464.90 was reasonable, is sufficiently supported in fact to warrant its acceptance as adequate proof on which to base a finding. The Conqueror, 166 U. S. 110, 127–133. (See findings 36 and 37.) The proof, therefore, does not overcome the administrative findings and decisions.

Plaintiff is not entitled to recover on this claim.

A few words should be said with reference to the argument of defendant that the decisions of the contracting officer and the Board of Contract Appeals, acting for the Secretary of War, were final and conclusive as to all the claims involved, under Article 15 and paragraph 1-07 of the Specifications, Section I, Part I, General Provisions, etc.



Opinion of the Court We do not agree. Article 15 of the standard contract form, entitled “Disputes,” provided in part:

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 subject to written appeal * * to the head of the department

whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the

work as directed. Under this article the finality of decision was clearly limited to questions of fact or factual issues. There was no other provision in the standard contract which "otherwise specifically provided.” But defendant argues that paragraph 1-07, supra, was a provision “in this contract” which "otherwise specifically provided.” Paragraph 1-07 read:

1-07. INTERPRETATION OF CONTRACT: Unless otherwise specifically set forth, the Contractor shall furnish all materials, plant, supplies, equipment, labor, etc., necessary to complete the work according to the true intent and meaning of the drawings and specifications, of which intent and meaning the Contracting Officer shall be the interpreter. Except when otherwise indicated, no local terms or classifications will be considered in the interpretation of the contract or the speci

fications forming a part thereof. It is true that the specifications were, by Article 1, of the printed standard form of contract, made a part thereof, but the specifications and drawings were made a part of the contract for the purpose of detailing the work to be performed and the materials to be furnished, and we think this is evidence against rather than in favor of defendant's contention. If it had been intended that a provision in a specification should override an article in the formal contract, we think such intention would have been expressed, or that the specifications would have been mentioned in Article 15. Where Article 15 mentions "this contract," it means the “Standard Form 23" and not the specifications. Otherwise all the labor and study that entered into the formulation, preparation and adoption of the standard form of Government contract by the Departmental Board of Contract and Adjustment for

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