Opinion
No. 44604.
April 2, 1945.
Theodore B. Benson, of Washington, D.C., for plaintiff.
E.E. Ellison, of Washington, D.C., and Francis M. Shea, Asst. Atty. Gen. (Brice Toole and Milton Kramer, both of Washington, D.C., on the brief), for defendant.
Before WHALEY, Chief Justice, and LITTLETON, WHITAKER, JONES, and MADDEN, Judges.
Action by Central Engineering Construction Company against the United States to recover balance allegedly due on a construction contract.
Judgment for plaintiff.
Plaintiff sues under a contract with defendant to recover $3,555.30 allowed for extra work under art. 5 by defendant's contracting officer and the head of the department, on the basis of the unit-price provision of the contract, as compensation for the excavation by plaintiff of 507.9 cubic yards of rock, which excavation it held was not, under the terms of the contract provisions, included in the lump-sum bids and contract price.
The Comptroller General refused to authorize payment of the amount so allowed in addition to the lump-sum contract price on the ground that the contract, as interpreted by him, did not authorize such allowance.
The question presented is therefore whether, under the facts as established by the evidence, the contracting officer and the head of the department, or the Comptroller General, properly interpreted the contract.
Plaintiff relies upon the interpretation of the contract by it, and the contracting officer and counsel for defendant seek to sustain the decision of the Comptroller General to the contrary.
Special Findings of Fact.
1. Plaintiff, a Rhode Island corporation with principal office at Pawtucket, was the successful bidder under defendant's invitation for bids, specifications, and drawings for the construction at Schoodic Point, Maine, of five certain naval radio buildings complete, as called for in the specifications and drawings.
The invitation for bids and the specifications, as hereinafter set forth, called for the submission of lump-sum bids for each structure, certain alternate lump-sum bids, and a separate bid of unit prices under certain specified classifications, which unit prices were to be used in connection with increases or decreases in the lump-sum price through changes, unforeseen conditions, and in connection with any work, the compensation for which the contract, specifications, and drawings did not contemplate or provide should be included in the lump-sum bid.
Plaintiff's lump-sum bids totaling $123,760 and its bid of unit prices of sixty cents per cubic yard under the heading "Earth Excavation" and $7.00 per cubic yard under the heading "Rock Excavation" were accepted, and a contract, dated July 19, 1933, was entered into with the Department of the Interior, National Park Service. The contracting officer signing the contract for defendant was Oliver G. Taylor, Chief, Eastern Division, Branch of Engineering. Upon being executed the contract was approved August 1, 1933, by the Secretary of the Interior acting through Oscar L. Chapman, assistant secretary.
2. Art. 1 of the contract provided as follows:
"Statement of work. — The contractor shall furnish all labor and materials, and perform all work required for
"(a) Five Naval Radio Station Buildings, having plumbing, heating and electrical systems; all complete and ready for use, —
"(b) A complete water supply system, including pump, motor, and pipe lines from Government well to Apartment Building and Intercept Building, —
"(c) Electric service lines to the five Naval Radio Station Buildings and the two Radio Towers from the Main Panel Board in the Power House —
for the consideration of One hundred twenty-three thousand seven hundred sixty dollars ($123,760.00) in strict accordance with the specifications, schedules and drawings, all of which are made a part hereof and designated as follows:
"Specifications No. 160.
"Drawings Nos. 1 to 31, inclusive (Revised June 28, 1933) and Nos. 32 to 37, inclusive.
"The work shall be commenced within ten (10) calendar days after date of receipt of notice to proceed and shall be completed within three hundred and sixty-five (365) calendar days from that date."
The contract was the Standard Construction Contract, Form No. 23. Art. 2 provided that "Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern."
Art. 3 was the usual provision authorizing changes in the drawings or specifications and calling for an equitable adjustment in the amount due under the contract, if such changes should be made.
Art. 4 was the standard provision with reference to the encountering by the contractor or the discovery by the Government, during prosecution of the work, of "subsurface and (or) latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications," and calling for an equitable adjustment if the contracting officer should find such differing conditions to exist.
Art. 5 was the usual provision concerning "extras" and provided that "Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the contracting officer and the price stated in such order."
Art. 15 provided for final determination by the contracting officer of all disputes concerning questions of fact arising under the contract, subject to appeal to the head of the department.
3. The five buildings whose construction was required under this contract were an apartment building, a powerhouse, a pump house, an intercept building, and a radio compass station. The buildings, except the apartment building and power house, were located at distances of several hundred feet from each other, the entire group being situated on Big Moose Island near the southern end of Schoodic Peninsula, Hancock County, Maine. To the south, southeast, and southwest the island's coastline consists mostly of rock formations. These three coastlines are shown in three photographs, defendant's exhibits E, E-1, and E-2 attached to and forming a part of a stipulation filed, which exhibits are made a part of this finding by reference.
The terrain from the coastline has an upward slope for a considerable distance and from a short distance from the coastline the land is entirely covered by a heavy growth of spruce woods, and only at some spots within the wooded area are there outcroppings of rock. However, outcroppings of ledge rock are common but not uniform on Big Moose Island, and fragments of ledge rock were exposed on the surface of the ground at or near the site of the Radio Station Apartment Building.
The Apartment Building had a basement and was the largest building in the group of buildings or structures called for, and the principal amount of excavation indicated on the drawings and in the specifications related to this building and the sewer trench leading from this building to manhole no. 1. All other trench excavation was to be done by the Government, including necessary excavation for the sewer line or trench from manhole no. 1 to the shore of Arey Cove, a distance of approximately 700 feet. The appropriate drawings indicated and showed with respect to each structure to be erected by plaintiff the extent and depths of excavations therefor, but the specific or principal provisions concerning the matter of rock excavation were set forth in paragraphs numbered 10 and 11 of the apartment building specifications. The excavation provisions of the specifications as to the other four structures were general and, by a note, general reference was made to the earlier apartment building specifications.
4. The site or location of the apartment building was 750 feet from the coastline at the mouth of Arey Cove, southeast of the building. The site of the powerhouse was near the southeast corner of this building and the line of the sewer trench ran between these two structures to the coastline. The apartment building was I-shaped in northeast and southwest directions from its center. The site of the radio compass station was 500 feet northwest of the western end of the apartment building; the site of the intercept building was 700 feet north, northwest of the apartment building; the site of the pump house was 1,800 feet north, northeast of the apartment building.
Before preparing the estimate of cost of the work and submitting the bids for each of the buildings and systems, plaintiff's president went to the site where the structures were to be erected, found the site where the apartment building was to be constructed, which had been partially cleared by defendant, and made an examination of that site and looked over the surrounding area, as hereinafter set forth.
5. Before preparing the drawings defendant's representatives had made examinations of the area where the structures were to be located and erected, and had dug five or more test pits at the sites of the apartment building, the powerhouse, and the upper portion of the trench for the sewer line. These test pits were about two or three feet deep. The information or data obtained from these examinations and test pits was considered and used in connection with the preparation of the drawings for foundations and excavations.
6. Paragraph 6(a) of the general conditions of the specifications, entitled "Omissions and Descriptions," provided as follows:
"The omission from the contract, including the drawings, specification, or other papers attached thereto and forming a part thereof, or the misdescription therein of any details of work, the proper performance of which is evidently necessary to carry out fully the general intention expressed in the specification, shall not operate to release the contractor from performing such work, but it shall be fully and properly performed in the same manner as if fully and correctly described, indicated, and required in and by the contract, and without expense to the Government in addition to the contracting price. This shall not be interpreted to cover additions, substitutions, improvements or other changes; these are otherwise provided for."
Subsection (c) provided in part that "except where specifically provided to the contrary, the Standard Government Form of Contract is to govern in case of any discrepancy or inconsistency between it and the other Contract Documents."
Paragraph 16 of the general conditions of the specifications, entitled "Examination of Site," which was a standard provision, was as follows:
"Information respecting the site given in the drawings and specifications and the accompanying plot plans, has been obtained by Government representatives and is believed to be reasonably correct, but the Government does not warrant either its completeness or accuracy. Intending bidders are expected to examine the site and acquaint themselves with working conditions."
No information or data sheet, or drawing, was supplied.
Paragraph 21 of the General Conditions provided that the Government would build suitable roads for hauling materials to the sites of the structures called for, and that the contractor would begin work within ten days after notice that such roads were available for use.
Paragraph 29 of the General Conditions provided that
"No changes shall be made in this contract, except by written agreement by and between the parties thereto, stating the work to be performed or omitted, the extension or reduction of the contract time of completion, and the addition to or deduction from the amount to be paid for the performance of the contract. This supplemental agreement shall be entered into prior to the performance of any work involved in the change."
No changes within the meaning of this provision were made.
Paragraph 37(c) of the General Conditions provided that "The Government will excavate and backfill all trenches outside of buildings, excepting such trenches as are required for sewer and drainage lines in the vicinity of the Apartment Building leading as far as manhole number one."
Paragraph 41(a) and (b) of the General Conditions, entitled "Unit Prices," was as follows:
"(a) The Contractor shall submit with his bid the following unit prices for use upon any or all work:
"a. Excavation (earth) in bulk per cu. yd.
"b. Excavation of rock and boulders over ½ cu. yd. per cu. yd.
"c. Concrete in piers and walls, per cu. yd.
"d. Reinforcement rods per pound.
"e. Concrete wall forms per sq. ft.
"f. Concrete pier forms per sq. ft.
"(b) Such prices will be used as a basis for correlation with articles 3 and 4 of the Standard Government Form of Contract."
7. The specification provisions relating specifically to the apartment building contained under the "Heading of Excavation and Masonry" the note that "All work included under this heading shall be subject to the General Conditions of the Contract, * * * and the Contractor is required to refer especially thereto." A like "note" was contained in the specifications relating to each of the other structures.
Paragraph 1 of the Apartment Building Specifications, and the same paragraph relating to each of the other structures, provided, under the heading "Scope of the Work," as follows:
"The work under this heading shall consist of furnishing all labor and materials and appliances for the complete execution of all work of every description mentioned herein, and any other labor and materials as may be reasonably inferred as needed to make the work under this heading complete."
The specifications relating to each structure, other than the apartment building, contained a "note" that "All workmanship, materials and their installation, wherever specified or shown in this building, shall be as described in the Specification of the Apartment Building, unless otherwise specifically mentioned hereinafter."
Paragraph 2 of the Apartment Building Specifications provided that "work omitted" consisted of
"(a) All trenching, including backfilling, for the installation of all electric, telephone, water and sewage lines outside the buildings, excepting sewage and drainage trenches leading from the Apartment Building as far as and including manhole number one.
"(b) All finished grading will be done by the Government."
8. The specifications relating to the apartment building under the heading of "Excavation and Masonry" and under the sub-heading of "Excavation" provided in paragraphs 9 to 13, inclusive, as follows:
"9. Remove all vegetable matter (top soil) from the area occupied by the building and stack at the site where directed.
"10. Remove all rock to depths as shown, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundations, and 5 inches below finished floors of the Basement.
"11. In case the actual conditions of rock differ from those shown on the drawings, an adjustment in the contract price will be made, based on a unit price basis to be submitted with the estimate.
"12. This Contractor shall excavate to the dimensions and depths indicated or necessary for all foundation walls, interior bearing walls, pier footings and trenches for interior piping as shown on the plumbing Drawings.
"13. Excavate for the footing drains shown along the North East side."
Paragraphs 14 and 15 relating to "Footing Drains" and the specifications in paragraphs 16 and 17 provided, under the heading "Excavation and Masonry" and the subheadings "Superfluous Earth" and "Top Soil," respectively, as follows:
"16. This Contractor shall spread or dump all superfluous excavated material around the immediate vicinity of the building at a distance not greater than 80 feet as directed.
"17. Material from the excavation suitable for topsoil shall be deposited in piles separate from the other excavated material. Piles of topsoil shall be located so that the material can be readily used for finished surface grading and shall be protected and maintained until the completion of the General Contract."
Paragraph 26 under the general heading "Excavation and Masonry" and sub-heading "Materials" provided as follows:
"Stone for exterior of outside walls shall be local field stone, random size and shape, generally `one man' stones with weathered faces exposed wherever practicable. Spalls of Pinnors may be used quite freely. Broken or freshly quarried faces may be exposed except in the case of white or very light gray stone, which may be used for backing. The Contractor may obtain a large amount, if not all, of the wall stone on or near the site from rock excavation for buildings and trenches, the existing stone pile near the Pump House site and stone lying along the beach, particularly to the South East of the Apartment Building site. In this last case he is not to take all the stone from any one location but is to select it more or less evenly along the entire length of the beach, as directed by the Officer in Charge. If enough stone is not obtainable from the above sources, he may, himself, quarry the balance from surface ledges on Schoodic Point or nearby, as directed by the Officer in Charge, or obtain it from local quarries or elsewhere. All expense for the collection, transportation, blasting and any other necessary protection involved is to be borne by the Contractor."
9. The only provision in the specification for the power house with reference to "Excavation" was paragraph numbered 2 under that heading which provided: "Excavate to the required depths, as shown on drawings." The identical provision under the same heading was contained in paragraph 2 of the specifications relating to the pump house. Paragraph 2 of the specifications relating to the intercept building under the heading "Excavation" provided: "Excavate to the required depths and dimensions as shown on drawings, for footings, walls, piers, Boiler Room and exterior steps." Par. 2 of the specifications relating to the radio compass station under "Excavation" provided: "Remove the top soil and excavate the rock to dimensions and depths as shown." Par. 7 under "Masonry" provided that "Stone blasted from the excavation may be used as backing stone."
10. The specifications under the heading "Plumbing" provided in par. 1 that "The work consists of (a) an outside sewer and drainage system, as far as outlet to manhole No. 1 (the sewer between manhole No. 1 and Arey Cove and the sewer between the Intercept Building and Manhole No. 1 is not a part of this contract), downspout connections and manhole; (b) an outside water system including * * * pump and water line connections from pump to Apartment and Intercept buildings * * *; (c) a complete plumbing system for the Apartment Building and the Intercept Building, including where indicated sewer, soil, drain waste, vent, and hot and cold water piping, cold water storage tank, air compressor, plumbing fixtures and accessories, * * *. (Earthwork required in connection with the plumbing is specified under other sections.) The Government will provide the earthwork for the water main from the pump house to the Apartment Building and Intercept Building and the contractor will furnish and install the water main, * * *."
Par. 5(a) relating to "Water piping buried in the ground" provided that "The two 2-inch lines leading from the Cold Water Storage Tank to the outside of the building shall be carried in trenches 3½ feet deep or to the depth of top of ledge rock, and back-filled. This applies to the portion under the building as well as outside."
Par. 1 of the specifications relating to the "Heating System: For the Apartment Building and Power House" set forth the "general requirements" as to this system and contained the statement that "Earthwork required in connection with the heating system is specified elsewhere herein."
11. The provisions of the specifications set forth in the preceding findings were all the provisions therein having any relation to excavation.
12. The defendant's drawings which accompanied the specifications, among which were certain excavation drawings, and which were a part of the contract, have not been filed as exhibits in the case, but the parties stipulate as facts that the drawings show that the depths of the excavations below the natural surface of the ground, which were required for the various buildings and the sewer trenches under said contract, were as follows:
"Apartment building, from 6 inches to 5½ feet.
"Intercept building, 3½ feet.
"Power house, 1½ feet.
"Pump house, 1½ feet.
"Radio compass station, 1 foot to 3 feet.
"Sewer trench adjacent to apartment building, 4 feet to 6 feet.
"Sewer trench from apartment to Arey Cove, 3 feet to 14 feet."
The foundation drawing, sheet 21, for the apartment building contained the notation with reference to the basis of the foundation columns for this building: "To be carried to bedrock or at contractor's option he may use spread footings."
13. Under the terms of the specifications, hereinbefore set forth, the contractor was not required to do certain of the above excavation, particularly that for the "sewer trench from apartment [manhole no. 1] to Arey Cove."
14. The parties further stipulated that the contract drawings did not include a sheet of borings or test pit data, nor any other sheet reflecting the conditions of the subsurface at the site of the work, and that they did not show or attempt to show that rock, earth, gravel or any other material existed below the surface of the ground at the site of the work.
15. Defendant's invitation for bids was issued June 1, 1933, and the standard bid form, entirely written by defendant with blank spaces for prices, provided that the bidder proposed to furnish all labor and material and perform all work required for the construction of the five buildings and systems, mentioned in finding 2, "in strict accordance with the specifications, schedules, and drawings, for the consideration of prices submitted on attached `Bid Schedule.'" This bid schedule called for lump-sum bids for each building "complete," and for certain alternate bids as to each building under the alternate provisions of the specifications; the water supply system complete, and all service electric lines outside of buildings. Following this, the bid schedule called for bids of "Unit Prices" for the following:
"Excavation (earth) in bulk; per cu. yd.
"Excavation of rock and boulders over ½ cu. yd.; per cu. yd.
"Concrete in piers and walls; per. cu. yd.
"Reinforcement rods; per pound.
"Concrete wall forms; per sq. ft.
"Concrete pier forms; per sq. ft."
16. Plaintiff, after a visit to the site as hereinafter mentioned, submitted bids as called for, among which were unit-price bids of $0.60 per cu. yd. for excavation of earth and $7 for excavation of rock.
Prior to submission of its bids Howard C. Fisher, president and treasurer of plaintiff corporation, examined the site of the proposed buildings with reference, among other things, to the construction of the buildings and their foundations. The site was covered at that time with very thick spruce woods, but a partial clearing had been made at the site of the apartment building.
Fisher found four or five test holes, or pits, that had been dug by defendant. He examined each hole carefully, prodded into each with a pole and found loose stones and gravel at the bottom of each hole, with perhaps two or three inches of water. The test holes were about two or three feet deep and the workmen present told Fisher that they were at the site of the apartment building.
At the time of his visit to the site, and before the bids were submitted, Fisher also examined the specifications and drawings, and found no note, tracing nor mention of rock on any of the drawings, except that on one sheet relating to the radio compass building there was a small detail which showed a method of anchoring to ledge rock; and on a drawing relating to the apartment building there was a note that the columns were to be carried to bed rock or, at the contractor's option, he might use spread footings.
17. Fisher knew when the bids of plaintiff were prepared and submitted that under the specifications and drawings plaintiff would be required to perform all excavation work called for, and not excluded by the specifications, to the extent and to the depths shown in each instance on the drawings; but in reliance upon the specifications, particularly pars. 10 to 13, inclusive, and the drawings, as he interpreted them, he included in his lump-sum bids amounts which totaled $1,500 on the basis of earth excavation for all excavations shown and required of the contractor, in the belief that if rock was encountered and excavated to the lines and dimensions shown the plaintiff would be paid therefor at the unit-price bid for excavation of rock. The basis for the interpretation and belief of plaintiff was the language of pars. numbered 9 to 13, inclusive (finding 8), of the specifications and the absence of any note, tracing, or mention on any drawing as to conditions of rock in connection with the excavation shown thereon. In the construction industry it is one of the recognized practices to solicit bids involving excavations on the basis of earth excavation, leaving the matter of payment for excavation of such rock as may be encountered and necessary to be removed to adjustment on the basis of unit-bid prices for rock. Plaintiff's president was familiar with this rule and so interpreted the defendant's specifications and drawings. The contracting officer and the head of the department likewise so interpreted the specifications and drawings, as hereinafter set forth.
18. After work was commenced and while the work of making excavations for the foundations, etc., for the various structures and installations was proceeding, plaintiff encountered ledge rock on August 15, 1933, above the elevations or depths of the excavations called for and shown on the drawings. On August 28, after more information with reference to this condition of rock had been obtained, plaintiff wrote and forwarded to the contracting officer a letter, the material portion of which was as follows:
"As you probably know, we have encountered rock in our excavation which was not shown on the drawings. That being the case, there will be an `extra' for this item. As I understand it, the rock is being surveyed before the blasting is done and will be surveyed after it is removed. We will then have the actual quantities taken out. Should I ask for an `extra' for this item at this time or when the actual quantities are available?"
19. After consideration of plaintiff's letter making claim for excavation of rock as an "extra" the acting contracting officer, C.D. Monteith, wrote plaintiff as follows:
"I have your letter of August 28 advising that you have encountered rock in the excavation for foundations.
"This matter of rock excavation is covered in Articles 10 and 11, page 14, of the Specifications, under the heading of Excavation. In accordance with Article 10 you are required to `remove all rock to depths as shown' and `in all cases at least 6" below the existing grade of ledge rock.' The limit of excavation as shown on the elevations of the buildings therefore indicates in line with this article, the rock conditions, referred to in Article 11, that were expected to be encountered. When the plans were drawn the depths of foundations were determined by the elevation of rock as shown by a series of test pits. These pits were afterwards left uncovered with the rock exposed to serve as a guide to bidders in calculating the amount of rock excavation that would be necessary.
"If you should be required to excavate rock to greater depths than indicated in the drawing you would then, in accordance with the provisions of Article 11, be entitled to extra payment on the basis of Item 29 of your bid schedule."
20. A substantial portion of the rock had been removed by September or October 1933, and practically all of the total quantity of 507.9 cubic yards of rock herein involved was removed prior to February 3, 1934.
21. In a report dated October 4, 1933, to the contracting officer, defendant's superintendent of construction, J.R. Thrower, stated with reference to rock excavation, in part, as follows:
"The contractors' viewpoint is that the Specification (par. 10) calls for the removal of rock to depths as shown. Naturally, this means to the bottom of footings or below basement floor slabs.
"Par. 11, says that if actual conditions of rock differ from those shown on drawings, an adjustment in the price will be made, whereas no rock is shown on either plans or elevations. They claim the test pits did not show the true conditions in that some were full of water and others showed a gravel bottom. Manhole No. 1, and the trench leading to it, had no indication of subsurface conditions.
"I would like to know your attitude, so that I could advise the Contractors. In the meantime, I am checking on the quantities. Later on there will be excavation for the oil tank. I have in mind to get some of Mr. Hadley's crew to make some test holes for it, in hopes of striking a spot free of rock."
22. October 11, the contracting officer wrote Thrower asking him for further comments with reference to the specifications and drawings concerning the matter of excavation of rock within the excavation lines and dimensions shown on the drawings, and on November 17, 1933, Thrower replied in a letter to the contracting officer as follows:
"In your letter of Oct. 11, you requested my comments on the rock excavation discussed by Mr. Monteith in a letter to the Central Engineering Construction Co. of Sept. 1, 1933.
"The test pits, as a guide to bidders, and to serve the purpose of showing sub-surface conditions, cannot be construed as guides for rock calculations necessary. There is no question but what all bidders were aware of rock conditions after a visit to the site and knew that rock would be encountered. The question is whether rock excavation is to be included as part of the contract price, or as an extra. The specifications assume rock and its removal.
"The Contractor would assume rock excavation, as an extra, for the following reasons:
"1. The unit prices asked for on the Bid Schedule.
"2. The well established custom of Architects and Engineers in separating rock excavation from the rest of the contract.
"3. Par. 11, page 14, the first part of which conflicts with the plans, the second part reassuring the Contractor of payment in case rock was found, other than shown on plans.
"4. The failure of the plans to show evidence of any rock. An estimator, without a knowledge of the site, and taking quantities from the plans and specifications, would not assume any rock whatever, as none was shown on the plans except on the Radio Compass Station, where the detail wall section showed the wall anchors into rock. But the depth of rock is not given. Therefore, in case rock as (sic) [is] later encountered, par. 11, page 14, would protect his assumption.
"My interpretation is that the Specifications were intended to include all rock excavation within the contract price, based on:
"1. Par. 10, page 14.
"2. Par. 11, page 14.
"3. Examination of site, including test holes.
"However, the plans were not coordinated with par. 11, page 14, and are faulty in that they do not show the rock limits for estimating purposes. The lower limits, such as foundation walls and basement floors, are shown, but the upper limits are undetermined except from test pit calculations.
"Therefore, while the intent of the Government is clear, the degree to which this fact has been made clear to the Contractors is gravely doubted."
23. When plaintiff encountered ledge rock, and after it had made claim on August 28 for extra payment for excavation thereof, it was directed by defendant to proceed with excavation to the depths shown in each instance on the drawings, and subsequently a conference was had prior to March 1, 1933, between plaintiff and a representative of the Legal Department of the National Park Service, Interior Department, with reference to the matter of payment, under the terms of the contract, for rock excavation at the contract unit price for excavation of rock. The contracting officer agreed with the claim made by plaintiff and decided that under the proper interpretation of the contract documents plaintiff was entitled to be paid for the number of cubic yards of rock actually excavated as an extra at the contract unit price of seven dollars per cubic yard. Accordingly, Oliver G. Taylor, Contracting Officer, prepared and signed "Extra Work Order No. 2" on March 1, 1934, and this order was accepted and signed by plaintiff March 2. The extra work order was as follows:
"To: Central Engineering and Construction Company
"Pursuant to and in accordance with Article 5 of the Standard Form No. 23 of the Contract for the construction of the Naval Radio Station Buildings, dated July 19, 1933, you are hereby ordered to perform the following work:
"Remove all rock to depths as shown on drawings, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundation, and 5 inches below the finished floor of the basement.
"Payment for this extra work will be made in accordance with Articles 27 and 29, page 9 of the specifications and at the unit rate of $7.00 per cubic yard as listed under Item 29 of your Bid Schedule.
"It is estimated that the work to be performed under this order will cost approximately $3,570."
24. The extra work order and related papers were submitted to the Director of National Parks, Buildings, and Reservations, and were transmitted by him to the head of the department with the following memorandum recommending that the Order be approved:
"There is transmitted herewith for your approval and signature Extra Work Order No. 2 in connection with Contract #1-1p-1601, dated July 19, 1923, between this Department and the Central Engineering and Construction Company, covering the erection of the five buildings of the Naval Radio Station at Schoodic Point, Maine.
"This extra work order provides for extra work as follows:
"`Remove all rock to depth as shown on drawing, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundation, and 5 inches below the finished floor of the basement.'
"This extra work order is made solely in the interest of the Goverment and involves the excavation of rock in foundation which was not anticipated and not indicated on drawings and which forms such an inseparable part of the work originally contracted for as to render it reasonably impossible of performance by other than the original contractor. The cost of the work is estimated at approximately $3,570 which is considered just and reasonable.
"It is respectfully recommended that the Extra Work Order be approved."
The extra work order was approved and signed March 19, 1934, by Oscar L. Chapman, Assistant Secretary of Interior, as head of the department under art. 18(a).
The contracting officer sent this order to plaintiff with a letter of March 21, 1934, "I am handing you herewith Extra Work Order No. 2 covering excavation of rock in foundations of buildings of Naval Radio Station * * *. I have signed your estimate No. 7 and am forwarding same for payment."
25. The rock excavated and included in the extra work order as determined and certified by defendant's engineer as the work progressed was as follows:
Apartment Building: C.Y. Removed
Within Bldg. lines ............ 283 Soil pipe under basement ...... 5 Steps (N.E. side) ............. 22
Trenches:
Sewer and Manhole #1 to front of Apartment ............... 109.9 Manhole No. 1 to Power House Apartment ................ 15 Sewer on Garage side (Apt.) .. 41 Oil tank (Apt.) ................ 7 Radio Compass Station .......... 20 Other Buildings: None Passage from gate to Battery room ......................... 5 ___ Totals ..................... 507.9
26. After approval by the head of the Department on March 19, 1934 of Extra Work Order No. 2, the Government, through the contracting officer, paid plaintiff by monthly payment vouchers approved under art. 16(a) of the contract for all rock excavation within the dimensions and lines shown on the drawings at the contract unit price of seven dollars per cubic yard. The total amount of rock so excavated was 507.9 cubic yards, as above stated, and the total of the amounts so paid was $3,555.30. The last monthly payment voucher was paid October 31, 1934.
27. The contract work was completed and accepted September 22, 1934, and on November 2, 1934, the contracting officer approved and signed the final voucher for payment of $12,829.82, representing the retained percentage of ten percent under art. 16(b) of each of the fourteen monthly payment vouchers which had been issued under art. 16(a) of the contract. In accordance with regular practice this approved final voucher was forwarded to the General Accounting Office for pre-audit prior to payment. The Comptroller General on March 21, 1935 certified the voucher for $9,274.52 and disallowed the amount of $3,555.30 charged under Extra Work Order No. 2, and issued the following "preaudit difference statement":
"Item #6 of the schedule of costs given [gives] contractor's figure for all excavation as $1,500 and is included in the lump sum price bid for the entire work.
"In view of the plain and unambiguous requirements of the specifications, it is clear that there is no legal basis for payment to the contractor of any amount as extra work for the excavation of any rock encountered above the depth shown on the drawings and in the specifications. Such excavation was not extra work under the contract but was work included therein.
"Payment under extra Work Order No. 2 is not authorized."
28. A check in the amount thus certified was issued by the Treasury Disbursing Officer March 28, 1935, to plaintiff and was cashed by it on the same date, without reservation or protest. April 19, 1935, plaintiff presented its claim for $3,555.30 to the General Accounting Office. The claim was disallowed July 31, 1935. Upon review of such disallowance, requested by plaintiff November 7, 1935, the Comptroller General sustained same by a decision of May 22, 1936.
29. During the time the matter of payment for excavation of rock as an extra was under consideration, and at the time Extra Work Order No. 2 was issued, no consideration was given to the question of whether, in the circumstances, the additional amount due plaintiff under the contract for rock excavated should be adjusted or reduced by an equivalent amount of earth displaced by rock, at the unit price of 60 cents per cubic yard for excavation of earth, since plaintiff's bid and the lump-sum contract price were based on excavation of earth and gravel. That question was not raised. However, on November 7, 1934, the plaintiff, in prosecuting its claim made to the Comptroller General for payment of the amount allowed by the contracting officer, after setting forth that in making its bid it set the cost of $1,500 for all excavation on the basis of earth and gravel in reliance upon par. 11 of the specifications, which stated that rock conditions differing from those shown on the drawings would be paid for as an extra, stated that "in view of this fact, we should reduce the amount of our claim somewhat. Since we figured to take out all gravel, we very likely should not claim the 60¢ per cubic yard quoted for gravel excavation. If this is so, we would be glad to do this and reduce our claim $304.75, which is 507.9 yards at 60¢ per yard." Plaintiff sent a copy of this letter to the contracting officer.
Plaintiff and defendant, represented by its contracting officer, Oliver G. Taylor, Chief of the Eastern Engineering Division, National Parks, Buildings, and Reservations, Department of Interior, entered into a contract dated July 19, 1933, under which plaintiff agreed to construct "(a) Five Naval Radio Station Buildings, having plumbing, heating, and electrical systems; all complete and ready for use, (b) A complete water supply system, including pump, motor and pipe lines from Government well to Apartment Building and Intercept Building, (c) Electric service lines to the five Naval Radio Station Buildings and the two Radio Towers from the Main Panel board in the Power House." The contract was signed by plaintiff shortly before August 1, 1933; it was signed by defendant by the contracting officer and approved by the head of the department August 1, 1933. The executed contract was delivered to plaintiff August 4, 1933, and notice to proceed with the work was thereafter given.
The buildings, systems, and installations referred to, including the excavations and other work in connection therewith, to be done by plaintiff and by defendant were described and explained in those provisions of the specifications referred to in the findings herein. The site of the structures was on Big Moose Island at the southern end of Schoodic Peninsula, on the coast of Maine, and their locations were from 750 to 1400 feet northwest from the coastline at the mouth of Arey Cove. The terrain had an upward slope from the coastline, and the area where the buildings were to be constructed was covered with a very thick growth of spruce woods. Outcroppings of ledge rock are common on Big Moose Island, and fragments of ledge rock were at places exposed on the surface of the ground at or near the site of the Apartment Building, which was the largest structure called for by the contract.
Plaintiff sues to recover $3,555.30 allowed by the contracting officer and the head of the department as an extra under the contract for 507.9 cubic yards of rock excavated by plaintiff at a unit price of $7.00 per cubic yard; and the question presented is whether, under the terms and conditions of the contract, specifications, and drawings, as written and as intended by the parties, this allowance or any part of it was authorized and proper.
After approval by the head of the department on March 19, 1934, of Extra Work Order No. 2, quoted in finding 23, the Government through the contracting officer paid plaintiff by monthly payment vouchers approved under art. 16(a) of the contract for all the rock excavated within the dimensions and lines shown on the drawings at the contract unit price of $7.00 per cubic yard. The total amount so excavated was 507.9 cubic yards, and the total of the amounts so paid was $3,555.30. On November 2, 1934, after the contract work had been completed and accepted on September 22, plaintiff and the contracting officer prepared and signed a final voucher for payment of $12,829.82 representing the retained percentage on previous monthly payments under art. 16(b).
This final payment voucher, which also disclosed all payments which had been made under change orders and extra work orders, was sent to the General Accounting Office for preaudit before payment of the amount of retained percentage. The Comptroller General disallowed, as being unauthorized, the entire amount of $3,555.30 and deducted it from the $12,829.82 shown on the vouchers. The Comptroller General wrote three opinions, the first set forth in finding 27. He held that Extra Work Order No. 2 was unauthorized and without consideration "in view of the plain and unambiguous requirements of the specifications." He lightly passed over par. 11 of the specifications, saying, in effect, that the absence of any indication on the drawings as to conditions of the rock rendered par. 11 of no consequence. He relied upon the preceding paragraph, numbered 10, and concluded since that provision, as well as others, mentioned rock and stated that the contractor should remove all rock to the depths shown, and that since such depths were shown on the drawings, such rock excavation as might become necessary was required to be included in the lump-sum bids and lump-sum contract price for all work complete, and that if plaintiff did not include the cost of the rock excavation in its lump-sum bids it had simply submitted bids that were too low and the Government could not be held responsible therefor. Counsel for defendant seek to sustain the Comptroller General's decision.
The formal printed contract signed by the parties, which made the specifications and drawings a part of it, was the Standard Government Form of Construction Contract. The defendant's specifications and drawings were prepared especially for this construction project and in view of the language and the many provisions of the specifications concerning excavation, including rock, to the depths shown for the basements and foundations of the buildings and facilities, and the fact that none of the drawings relating to excavations contained any note, tracing, or indication as to "rock conditions," the intention of the parties to the contract concerning the matter of payment for rock excavation becomes important, i.e., whether they intended by the provisions of the contract documents that such payment was required to be included in the lump-sum bids for each building and in the total lump-sum contract price, or whether such rock excavation as might be found to be necessary in order to conform to the excavation lines and dimensions shown on the drawings should be paid for as an extra at the unit price of $7.00 per cubic yard bid and included in the contract in connection with excavation of rock. The specifications are clear that the contractor would be required to perform the specified excavation work, whether it consisted of earth or rock, and it is also clear from the language of the specifications that they anticipated or contemplated that some rock excavation would probably be necessary. This, however, does not, as the Comptroller General thought, answer the question presented. The specifications and drawings were not clear as to the matter of whether the lump-sum bids required for each of the five buildings and each of the two systems should be based upon and include the amounts to be paid for excavation of all material, whether earth or rock, to the depths shown; or whether the lump-sum bids might or should be based on excavation of earth, leaving the matter of payment for such rock excavation as might be found necessary to adjustment on the basis of the unit price called for and submitted with the lump-sum bids.
After examining the site and considering the specifications and the drawings, plaintiff interpreted them as last above mentioned and computed his seven lump-sum bids, totaling $123,760, on the basis of earth excavation only to the depths shown according to the lines and dimensions entered on the excavation drawings, the total amount included for such excavation being $1,500; and under the unit-price provisions of the specifications and bid form, plaintiff submitted, among others, a unit-price bid of $7.00 per cubic yard for excavation of rock. We think this interpretation of the contract documents was a reasonable one.
The specification provisions most directly pertinent to the matter of excavation and as to how the bids might be computed and made are paragraphs numbered 9 to 13, inclusive; 16 and 17 relating to the Apartment Building; and 41 of the General Conditions. These paragraphs are as follows:
"Excavation
"9. Remove all vegetable matter (top soil) from the area occupied by the building and stack at the site where directed.
"10. Remove all rock to depths as shown, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundations, and 5 inches below finished floors of the Basement.
"11. In case the actual conditions of rock differ from those shown on the drawings, an adjustment in the contract price will be made, based on a unit price basis to be submitted with the estimate.
"12. This Contractor shall excavate to the dimensions and depths indicated or necessary for all foundation walls, interior bearing walls, pier footings and trenches for interior piping as shown on the Plumbing Drawings.
"13. Excavate for the footing drains shown along the North East side."
"Superfluous Earth
"16. This Contractor shall spread or dump all superfluous excavated material around the immediate vicinity of the building at a distance not greater that 80 feet as directed.
"Topsoil
"17. Material from the excavation suitable for topsoil shall be deposited in piles separate from the other excavated material. Piles of topsoil shall be located so that the material can be readily used for finished surface grading and shall be protected and maintained until the completion of the General Contract."
"Unit Prices
"41. (a) The Contractor shall submit with his bid the following unit prices for use upon any or all work.
"a. Excavation (earth) in bulk per cu. yd.
"b. Excavation of rock and boulders over ½ cu. yd. per cu. yd.
"c. Concrete in piers and walls, per cu. yd.
"d. Reinforcement rods per pound.
"e. Concrete wall forms per sq. ft.
"f. Concrete pier forms per sq. ft.
"(b) Such prices will be used as a basis for correlation with articles 3 and 4 of the Standard Government Form of Contract."
The drawings applicable to excavations for the different structures and installations showed the dimensions and depths of excavations, which, so far as required of plaintiff, were from six inches to 5½ feet for building, and from 4 to 6 feet for sewer trench adjacent to Apartment Building, but none of the drawings showed or indicated "conditions of rock" by a note, tracing, or statement. The specifications were apparently written before the defendant had examined the site and dug the test pits. Par. 11 rather clearly indicates that its intention was that the drawing would indicate the rock conditions to the extent that the contractor should include same in his lump-sum bids called for in the Bid Form, and that rock conditions not so indicated which might be encountered would be paid for as an extra at the contract unit price called for in the bid. (See art. 1 of the contract, finding 2.)
A reading of paragraphs 10 and 11 together, as they must be read because both were dealing with rock conditions, and a consideration of the excavation drawings in the light of the natural meaning of the language of those paragraphs reasonably supports plaintiff's interpretation that the absence of any indication on the drawings as to rock conditions meant that if rock should be encountered and had to be excavated, such "actual conditions of rock" would "differ from those shown on the drawings," and would call for "an adjustment in the contract price * * *, based on the unit price basis to be submitted with the estimate."
The contracting officer and the head of the department agreed with plaintiff's interpretation of the intent and meaning of the specifications and drawings, and any ambiguity which might otherwise appear on the face of the documents is therefore now of no moment. The interpretation of a contract by the parties to it before it becomes the subject of controversy is deemed by the courts to be of great, if not controlling, weight. City of Baltimore v. Baltimore Ohio Railroad Co., 10 Wall. 543, 19 L.Ed. 1043; Brooklyn Life Insurance Co. of New York v. Dutcher, 95 U.S. 269, 24 L.Ed. 410; Old Colony Trust Company v. City of Omaha, 230 U.S. 100, 33 S.Ct. 967, 57 L.Ed. 1410. "* * * the meaning of the contracting parties is the agreement." Whitney v. Wyman, 101 U.S. 392, 396, 25 L.Ed. 1050. "The intent of the parties is the contract, and whenever that is ascertained, however inartificially expressed, it is the duty of courts to give it effect." George v. Tate, 102 U.S. 564, 570, 26 L.Ed. 232; North Pacific Emergency Export Association v. United States, 95 Ct.Cl. 430, 448, 449.
Aside from the interpretation of the contract as evidenced by the issuance of Extra Work Order No. 2, there is other direct evidence which shows such intent. When plaintiff encountered rock and found that a considerable amount would have to be removed in excavating to the dimensions and depths shown on the drawings, it made claim for payment therefor as an "extra," and the acting contracting officer promptly replied and, after quoting the substance of par. 10 of the specifications, stated that "The limit of excavation as shown on the elevations of the buildings, therefore, indicates, in line with this article [para.] 10, the rock conditions, referred to in art. [para.] 11, that were expected to be encountered." Further in this letter he stated that "When the plans [drawings] were drawn the depths of foundations were determined by the elevation of rock as shown by a series of test pits. These pits were afterwards left uncovered with rock exposed to serve as a guide to bidders in calculating the amount of rock that would be necessary." This letter indicates why the Government did not insert on the drawings any note or tracing of "conditions of rock" as contemplated by par. 11, and that this omission was because the depths of foundations were determined by the test pits. Plaintiff's president was uncertain in his testimony how deep these test pits were; he stated that they were from about two to three feet deep, but the above letter indicates that some of them were probably five feet deep. The maximum depth of excavations required of plaintiff was six feet, and for the most part the depths were from one and one-half to five and one-half feet.
In addition to the foregoing, the evidence shows that it is one of the recognized customs in the construction industry to base specifications and bids with reference to excavation on earth excavation, which is easy of calculation, leaving the matter of payment for such excavation of rock as may be necessary to adjustment on the basis of separate unit prices, or by some other method. It is obvious that the contracting officer considered this custom and the reasonableness of plaintiff's interpretation of the specifications and drawings in reaching his decision to issue Change Order No. 2. The Government frequently adopts that practice. Schmoll et al. v. United States, 93 Ct.Cl. 572, 575; Union Engineering Co., Ltd., v. United States, 97 Ct.Cl. 424, 429, 430; John M. Whelan Sons, Inc., v. United States, 98 Ct.Cl. 601, 617; Rego Building Corp. v. United States, 99 Ct.Cl. 445, 452, 459.
The evidence further shows that when submitting the Extra Work Order No. 2 to the head of the department for approval, the statement was made that the order for payment as an extra "involves the excavation of rock in foundation which was not anticipated and not indicated on the drawings" and that the extra work order "is made solely in the interest of the Government."
In view of the specific provisions of the specifications and the interpretation of the parties, the Standard "Examination of the site" provision, contained in par. 16 of the General Conditions of the Specifications, is not controlling here.
The allowance of payment for the 507.9 cubic yards of rock excavated as an extra does not result in a double payment to plaintiff for "excavation" since plaintiff based its bid on earth and gravel excavation. However, in view of the evidence, plaintiff is not entitled to recover the full amount of $3,555.30 claimed and computed at $7.00 per cubic yard since this rock excavation displaced an equal amount of earth excavation which plaintiff did include in its lump-sum bids and which it would have been required thereunder to excavate if rock had not been encountered within the dimensions and lines shown on the drawings. The deduction from the total of $3,555.30 of $304.75, representing 507.9 cubic yards of displaced earth at the unit price of sixty cents per cubic yard, gives plaintiff under the contract a net of $7.00 per cubic yard for rock, or $3,250.55 in addition to the lump-sum contract price. Rego Building Corporation v. United States, supra.
Judgment will be entered in favor of plaintiff for $3,250.55. It is so ordered.
MADDEN and WHITAKER, Judges, concur.
I cannot agree with the majority opinion.
We are dealing with a lump-sum contract. The three cases cited in the majority opinion as upholding the custom of the Government in dealing with contracts of this nature are not apposite because the contracts in those cases were not lump-sum contracts. They specifically provided for payment of rock excavation as an extra, not to be included in the amount bid. The contract under consideration provided for payment for "extra rock excavation" which plainly showed that some rock excavation was included in the amount in the contract. Double payment for the same work was not intended and, in my judgment, cannot be allowed. To permit recovery is allowance of double payment.
In July 1933 plaintiff entered into a contract with the Department of the Interior, National Park Service, to construct an apartment building, a powerhouse, pump house, interceptor building, and a radio compass station complete with plumbing, heating and electrical systems, a complete water supply system and certain electric service lines, for a lump sum of $123,760.00.
These buildings were to comprise a Naval Radio Station on Big Moose Island at the southern tip of Schoodic Peninsula, on the coast of Maine. The coastline of this island consisted mostly of rock formation. Outcroppings of ledge rock are common to Big Moose Island and fragments of ledge rock were exposed on the surface of the ground at and near the radio station site.
The contract required that plaintiff visit the site and make its own examination before bidding. The site was visited by the plaintiff and it found shallow pits, which defendant had dug, appearing to be test holes but plaintiff did not find any ledge rock disclosed therein. The drawings did not indicate whether or not there was ledge rock. The specifications clearly and distinctly notified plaintiff that there was certain information given on the drawings, specifications, and accompanying plans, which had been obtained by the Government and which was believed to be reasonably correct but that the Government did not warrant its completeness or accuracy and the prospective bidders were warned to make their own examinations.
This was a lump-sum contract containing under article 41 of the specifications, a provision requiring plaintiff to submit specific prices which it would charge for the removal of extra earth excavation and rock excavation.
Paragraph (b) of Article 41 of the specifications above provided:
"Such prices will be used as a basis for correlation with articles 3 and 4 of the Standard Government Form of Contract."
Article 3 provides for an equitable adjustment where changes are made and for the contract to be modified accordingly.
Article 4 provides for "changed conditions."
The specifications for the excavation for the apartment building provided:
"9. Remove all vegetable matter (topsoil) from the area occupied by the building and stack at the site where directed.
"10. Remove all rock to depths as shown, in all cases at least 6 inches below the existing grade of ledge rock, to provide level, clean beds to support the foundations, and 5 inches below finished floors of the Basement.
"11. In case the actual conditions of rock differ from those shown on the drawings, an adjustment in the contract price will be made, based on a unit price basis to be submitted with the estimate." [Italics mine.]
The specifications with respect to the powerhouse, pump house, and interceptor building provided for excavation "to the required depths, as shown on drawings," and for the radio compass station, "remove the topsoil and excavate the rock to dimensions and depth as shown."
The difference between these two expressions is simply that with respect to the powerhouse, pump house, and interceptor building the depths shown are those on the drawings; with respect to the apartment house and the radio station, the words "on the drawings" are lacking.
The only place that the depths could be shown would be on the drawings and the drawings provided that the excavations to be made by the plaintiff under its lump-sum contract were from 6 inches to 5½ feet below the natural surface of the ground for the buildings and from 3 feet to 14 feet for certain sewer trenches.
There was no test pit data nor was there on the drawings any reflection of the sub-surface conditions or the material which existed below the ground.
During the course of the work in August 1933, plaintiff encountered ledge rock in excavating the foundations of the various buildings and requested of the contracting officer in writing extra pay for this work. In September the contracting officer advised the plaintiff that the specifications required him to "remove all rock to depths as shown" and "in all cases at least six inches below the existing grade of the ledge rock." Plaintiff was advised that, if the excavations had to be made to a greater depth than shown on the drawings, an adjustment would be made according to the provisions of Article 11 of the specifications.
Practically all of the total quantity of rock herein involved was removed prior to February 3, 1934, and in March 1934 an extra work order was issued by the defendant allowing payment for extra work in accordance with Articles 27 and 29 of the specifications at the unit rate of $7.00 per cubic yard, an estimated total of approximately $3,570.00. This extra work order was approved by the Assistant Secretary of the Interior. Defendant's survey of the rock excavation on November 27, 1934, showed a total of 507.9 cubic yards.
Plaintiff was paid the sum of $3,555.30 by the disbursing officer and, when the contract was completed and the final settlement applied for to the General Accounting Office, the Comptroller General deducted the amount which had been paid under the Extra Work Order on the ground that the plaintiff had a lump-sum contract and no work had been done which was not included in the amount of plaintiff's bid; and that the Extra Work Order was for the identical work which was required by plaintiff's contract.
There is nothing to show in the agreed facts that the plaintiff excavated below depths shown on the drawings.
The dispute in this case is not on any question of fact but on the validity and effect of the so-called "Extra Work Order" issued by the contracting officer. Defendant claims that it is invalid. This is the sole issue.
The only difference between the specifications and the Extra Work Order is that the specifications provide "remove all rock to depths as shown" and the Extra Work Order provides "remove all rock to depths as shown on drawings."
The only place that the depths are shown is on the drawings and when plaintiff made its bid it had the drawings and knew, or should have known, that the drawings required that excavation should be at least six inches to 5½ feet below the natural surface of the ground for the buildings and from 3 feet to 14 feet for certain sewer trenches. The adding of the words in the Extra Work Order "on the drawings" did not clarify or make more plain the specifications which provided that the excavations should be made "as shown."
Any contractor of experience or engineer of even limited experience would have naturally gone to the drawings to ascertain the depths to which the excavations would have to be made.
Therefore, there was no difference between the Extra Work Order and the contract specifications as to the work involved. The work described was identical.
Article 11 of the Specifications, quoted in Finding No. 7, providing that in case the actual conditions of rock were different from those shown on the drawings the contract would be adjusted, is not important because the drawings did not show the rock conditions. The Government made no representations as to subsurface conditions. It specifically required that the plaintiff should make its own examination and notified it that the data which the Government possessed was not, and should not be taken as, a warranty of the subsurface conditions. There was no agreement as to whether they would encounter earth or rock except in the specifications, where under Article 10 there is mention of "existing grade of ledge rock," and the existing grade was to be ascertained by the plaintiff in his own examination of the site.
In my opinion, insofar as Extra Work Order No. 2 is concerned, it attempts to increase the contract price, and is plainly without consideration, for it was a duplication of the work which the plaintiff was required to do under the contract and included in the lump-sum bid. To allow payment on this Extra Work Order would constitute double payment for the same work performed by the contractor.
Whether or not it was a mistake to issue this Extra Work Order, it could not create a liability. In the case of Bausch Lomb Optical Co. v. United States, 78 Ct.Cl. 584, 607, the court said:
"In these circumstances the contract of March 8, 1919, was one the contracting officer, Major Hawkins, had no authority to make and the United States was not bound by it. William Tod Wilcox v. United States, 56 Ct.Cl. 224. If the plaintiff's claim against the War Department for one-fourth part of the cost of the extra guards was based on a contract, express or implied, the contract of March 8, 1919, added nothing to plaintiff's legal rights. If the claim was not based on such a contract it was invalid and unenforcible against the United States and could not be vitalized into a legal claim by a subsequent contract. Agents and officers of the Government have no authority to give away the money or property of the United States, either directly or under the guise of a contract that obligates the Government to pay a claim not otherwise enforcible against it."
In my judgment the petition should be dismissed.
JONES, Judge, took no part in the decision of this case.