Opinion of the Court Plaintiff stated in its bid that it had "the following equipment available for prosecuting the work: Clamshell dredges with long boom, 10-yd, capacity bucket, dragline excavators. Hydraulic dredges, towboats, barges, and all other equipment necessary" and that this equipment was at that time located at New Orleans, Louisiana. After the bids had been opened plaintiff's representatives conferred with the defendant at the office of the District Engineer and discussed the use of clamshell dredges on levee work. On June 19, 1929, the plaintiff was informed that its bid would be accepted and by letter on July 3, 1929, received a formal notice from the District Engineer of its acceptance. The contract was enclosed for plaintiff's signature and there was included in the formal contract a provision to the effect that the contract would have to be approved by the Chief of Engineers of the United States Army and plaintiff was requested to execute the contract. On July 6, 1929, the contract was duly signed by the plaintiff and returned to the District Engineer. On July 15, 1929, plaintiff was notified by the District Engineer that the contract had been forwarded to the Chief of Engineers for approval and an early submission of plaintiff's program of work was requested. The District Engineer also gave notice that "on account of the emergency character of the work" plaintiff would be required to start operations at each levee. Plaintiff notified defendant that it was prepared to proceed with the work as soon as orders were received to commence. On August 5, 1929, the plaintiff was notified by wire that the contract had been approved on August 2, 1929, and work would be required to commence on each levee without delay and plaintiff's program of operations was again requested. Plaintiff was also notified by letter on the same day to commence work and the completion date of the contract was fixed as December 6, 1930, being 16 months from the date of notification. The contract contained provisions for making monthly payment on estimates of completed work and, at the discretion of the contracting officer, partial payments for incom Opinion of the Court plete embankments, and also that continuous lengths of levee of 500 linear feet might be accepted by the contracting officer when completed, the quantities named not to be varied more than 20 percent. The contracting officer was given the power to designate the exact location at which the work was to be prosecuted and, unless otherwise directed by the contracting officer, the embankment was to be started "full out to the slope stakes and be carried regularly up to the gross fill." All the existing levees were required to be left intact unless the contracting officer directed otherwise. The contracting officer was the District Engineer of the United States Army Engineer Corps. In order to use the clamshell dredges the plaintiff on August 7, 1929, requested the contracting officer to modify the borrow-pit specifications to permit dredging to a depth of 12 feet in order to provide sufficient operative flotation for the use of the clamshell dredges. Without this increased depth in the borrow pits the use of the clamshell dredges would have been impracticable. On August 21, 1929, this modification was made in the following terms: Starting at 40 feet (edge of berme) from toe of new levee, borrow pits may be deepened on a slope of 1 on 2 down to a depth of 12 feet below natural surface and extending riverward on a level grade to that point where it intersects 1 on 25 pit slope, but the back of the pit shall not be within 350 feet of the center of the existing levee. All material removed below the specified borrow pit slope of 1 on 25 must be replaced before the front levee is cut down at Fitler and before final payment is made at Valewood. On both contracts payment for equivalent yardage will be withheld until the borrow pits are restored to specified slopes. Immediately upon receipt of this permission to increase the depth of the borrow pits, plaintiff proceeded to bring its clamshell dredges from New Orleans to the site of the work. These dredges were floating equipment and were brought from New Orleans through the channel of the Mississippi River up to a point opposite the site of the work and then Opinion of the Court had to be brought through or over the bank of the river by flotation channels to old borrow pits alongside the location of the new levees. In the spring and early summer of 1929 the Mississippi River at the site of the work was higher than its banks but in the early part of July the river had receded to such a degree that the dredges had to cut their way in through the banks. The plaintiff, on August 7, 1929, requested permission to cut through at certain designated locations, one of which was through existing articulated concrete revetment work, and offered to pay the cost of replacements. The contracting officer refused this request because of the physical circumstances which applied to revetment work and the care which must be exercised where revetments of banks have been made. These revetments were concrete mats sloped from the shore over the river bank and formed a concrete side to the bank and were used for the purpose of stopping and preventing erosion of the banks. The contracting officer and plaintiff agreed to a different point of departure from the river and entry to the site for the clamshell dredges. The clamshell dredge Hercules, which had a bucket capacity of 52 cubic yards, was the one plaintiff decided to use on the Fitler loop. This dredge departed from New Orleans on August 21 and arrived opposite the site of the work on August 30, 1929. From the date of its arrival until December 7, 1929, the dredge was taken by locks and dams through river bank and old levee along borrow pits to the site of the new levee in order to be in position to begin dredging on the actual work of the contract. The process of flotation by which the dredge had to excavate a channel for itself, turning around, damming itself in, and raising the desired water level by pumping, was a slow and tedious operation. Three locks were necessary and the dredge had to raise itself by flotation to a height of about 34 feet. Plaintiff cut below the natural ground surface in making a channel through the old levee instead of making an additional lock. On the Valewood loop the clamshell dredge Cairo with a 6 cubic yard capacity bucket was used. The dredge arrived Opinion of the Court opposite the site of the work on September 6, 1929, and the same operation was necessary as that required by the Hercules. Four locks were used and the dredge was raised about 44 feet and reached the site of the work on December 24, 1929. The additional lock at Valewood avoided the necessity of cutting below the natural ground surface of the bank of the river in making a channel through the old levee. It will be seen that, although plaintiff was notified to commence work on August 2, 1929, actually the dredge did not arrive at the site of the work at Fitler until December 7, 1929, and at Valewood the dredge did not arrive in position for levee operation until December 24, 1929, or a lapse of 127 days in the first instance and 144 days in the second instance. Although plaintiff sues on many counts and during the hearing of the case a large volume of evidence was introduced and many exhibits filed, a great many of these counts have been abandoned and the plaintiff now, in its brief, confines itself to only certain specific counts which will be taken up separately in order to show clearly in each instance the nature of the claim and to solve the question of liability for the losses alleged. The claims which are now asserted are the following: (1) Excess costs paid Canal Construction, Fitler (in cluding items of "slides" and "subsidence"). (2) Excess costs paid National Dredging Co. Fitler---- $312, 312.95 67, 923. 69 100, 825. 59 27, 716. 00 2, 130.00 $510, 908. 23 Plaintiff contends that the delay in getting to the place of operation for the actual building of the levees at both Valewood and Fitler was due to the length of time taken by the Chief of Engineers, U. S. Army, to approve the contract. The approval by the Chief of Engineers was well within the time limit of the contract. Plaintiff signed the contract when it was submitted to it with this provision and it thereby waived any right it may have had to have a standard form of contract which was to be signed only by the contracting officer. Sun Ship Building Company, 76 C. Cls. 154. Opinion of the Court It is also contended by the plaintiff that when certain parts of the work were taken away this action was based on the idea that it was an emergency contract for the performance of emergency work. It is true that the geographical location of the work, being miles from the general plan and at strategic points on the river, would have cautioned any experienced engineer that it was in the nature of an emergency. Nevertheless the taking away of a portion of plaintiff's contract was not based on this reason but solely because of the fact that plaintiff was so far behind its schedule that it would be impossible to finish on the agreed contract completion date. Plaintiff admits in its brief that during the months of December and January and part of February, owing to the necessity of training the crew, the breaking-in of the equipment, adjustment of methods to meet particular situations, and the weather conditions, it could not and did not make progress at a normal rate. Because of this condition on or about the middle of February 1930 the contracting officer began to complain of the lack of progress. The plaintiff also contends that it was harassed and annoyed in the progress of its work due to the many conflicting orders issued by the contracting officer. All of these orders were reasonable and provided for in the contract, but it is unnecessary for us to go into the matter in order to disprove plaintiff's contention because it is admitted by plaintiff's witnesses that none of these orders was obeyed. On or about June 14, 1930, the contracting officer recommended to the Chief of Engineers that all or part of the work on both projects be taken away from plaintiff and let to others because of the failure of the plaintiff to make satisfactory progress in the work and it was apparent that plaintiff could not, at the rate it was operating, complete the contract within the time allowed. The Commissioner who heard the testimony in this case has found, and the Court, after a careful examination of the evidence, has confirmed his finding that the failure of plaintiff to make reasonable progress, so as to complete the work within the contract period, was due to its failure to have sufficient equipment with which to perform the work. |