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March 2, 1964

APPEAL OF TRIANGLE CONSTRUCTION COMPANY

IBCA-296

Decided March 2, 1964

Contracts: Delays of Contractor-Contracts: Unforeseeable Causes
Where official records of water levels and rates of flow in a river over

a period of 9 years show that high water occurred on 195 occasions, the occurrence of such high water on several occasions during more than a year of contract performance is not an unforeseeable cause of delay

within the meaning of Clause 5 of Standard Form 23A. Contracts: Performance Contracts: Changes and Extras—Contracts: Addi

tional Compensation Where the contractor's chosen method of performance of a contract for

construction of a bridge was the building of a dike across the river for accommodating contractor's equipment, and the impounding of the river during high water due to insufficient openings in the dike caused erosion damage to the river bank, the work of restoring the bank at the Government's direction pursuant to contract provisions requiring the contractor at his own expense to restore landscape features damaged by the contractor's operations, is not extra work. No additional compensation is

due the contractor. Contracts: Waiver and Estoppel-Contracts: Payment—Contracts: Inter

pretation-Rules of Practice: Appeals: Dismissal An appeal will not be dismissed where a waiver and exception provision in

a payment voucher omitted mention of one of the contractor's claims, but did not provide for release of all claims not excepted, where it appears that the voucher was prepared prior to the original submission of the omitted claim and the conduct of both parties at all times until the hearing of the appeal indicated an intent to preserve the claim. The presentation of such a motion to dismiss during the hearing is untimely.

BOARD OF CONTRACT APPEALS

Two claims are involved in this timely appeal, one in the amount of $4,500 for remission of liquidated damages, and the other for additional compensation of $17,303.41, representing the cost of restoring an eroded river bank.

The contract, dated February 24, 1958, was in the total sum of $678,014.10. It provided for the construction of a bridge across the James River in Virginia, with approaches and other work, as part of the Blue Ridge Parkway. The contract contained Standard Form 23A (March 1953), together with certain Special Provisions, Special Requirements, and it incorporated by reference "Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects” dated January 1957.

[blocks in formation]

Under an arrangement of several years' standing, the contract was executed and funded by the Department of the Interior, while the administration of the contract was performed by the Bureau of Public Roads, Department of Commerce.

A hearing was held on January 10 and 11, 1963, in Washington, D.C. At the hearing to outline the principal issues briefly), appellant sought to show that the delay in completion of the contract was excusable, being due principally to floods; that such floods eroded the bank of the river, and that such floods and damage were unforeseeable and without the contractor's fault or negligence.

The Government attempted to prove that the occasions of high water (rather than floods) in the river were not unusual and should have been anticipated by appellant; that the delays in performance were caused by appellant's use of a dike to assist in the construction of the bridge, with insufficient openings in the dike for passage of water, which caused overflow and washouts in the dike. The Government also introduced evidence to the effect that the improper construction and maintenance of the dike was the cause of the erosion of the river bank.

At the outset of the hearing it was stipulated by the parties that, if the Board should find that appellant was entitled to additional compensation for restoration of the river bank, the amount of such compensation should be, as claimed by appellant, $17,303.41.

The contract required the completion of the work within 375 days. With extensions of time granted for winter shutdown, less a charge of 14 days for work accomplished during the shutdown, the contract should have been completed on November 10, 1959. It was actually completed on December 10, 1959, resulting in the assessment of liquidated damages of $4,500 for 30 days' delay.

Claim No.1-Restoration of River Bank-$17,303.41 In its letter of June 30, 1958, the contractor advised the Bureau of Public Roads (hereinafter called the Bureau) that it was preparing to construct a temporary rock and earth fill across the river immediately upstream from the bridge site, to be used as a road for hauling equipment and material used in construction of the bridge. The letter further stated that a study of the flow characteristics of the river indicated a normal discharge rate of less than 2000 cubic feet per second (hereinafter designated as cfs) for the months of July through October. The letter also described plans for placing pipe culverts in the temporary road fill to accommodate the expected flow of 2000 cfs.

March 2, 1964

Any discharge in excess of this amount (the letter went on to say) will result in cresting over the temporary road. In the event of an impending storm we plan to restrict damage to the temporary road' by removing the upper portion of the fill at a point where the discharge will cause least damage to the bridge itself or any false-work, etc., in place.

Upon completion the temporary road fill, culverts, etc., will be removed. Your approval of the above is respectfully requested.

Although the contract did not require approval by the Government of the method of construction used by the contractor, the Bureau replied to the contractor's letter on July 8, 1958, by stating that

* * * it is agreeable with the Bureau of Public Roads for you to proceed with the construction of a temporary rock and earth fill *

As agreed, it is the obligation of the Triangle Construction Company to perform such post construction removal and cleanup as required for satisfac. tory restoration of the area.

On August 6, 1958, when the dike was only partially (about 60%) completed, not as yet having been extended entirely across the river, high water crested over the dike and washed away the top 2 feet of earth.” At this time, there were 3 steel culvert pipes, each 6 feet in diameter, in the lower portion of the dike. Two more such pipes were added to the dike by the time the open portion of the dike was closed at the south bank of the river about August 22-23, 1958. The James River is about 400 feet in width at the site of the work.

Further high water broke through the south end of the dike on August 26, 1958, and washed out 12 feet of the south bank completely where the dike joined the south bank. Here the dike was somewhat lower than it was elsewhere.

Mr. Tore M. Hult, President of the contractor, testified as follows concerning the planning of the dike, at Tr. 80:

A. That was mainly handled—the details in the contract that were made by Harold Hanson who is no longer with the firm, but as for a general way I know that we considered the flow of water in there. We knew of course that at times one would expect the water to go over the dyke. I remember we de. cided on this. Harold Hanson used to be a highway man. He said the same way as a highway is designed there. You don't design a highway to carry

1 The terms temporary road, work road, roadway, dyke and dike were used interchangeably throughout the hearing and in the transcript. Henceforth, in the interest of uniformity, the term "dike" will be used in this opinion except where direct quotation requires the use of other terms meaning "dike."

* Government's Exhibit B, 4 sketches of cross sections of the dike showing its condition on August 5, 6, 22-23, and 26, 1958.

traffic at Labor Day and days like that. You design it for a normal condition there and we considered this. There would [be] times when water would flow over the dyke and we picked the figure, rather he did, of whatever that was designed for.

Mr. Hult testified further as to the planning of the dike at Tr. 81:

Q. Now in connection with the so-called normal factor that it was to meet, was it also contemplated in constructing the dike that sometimes abnormal conditions would come about?

A. Well, yes, of course.
Q. You were aware that that could happen?
A. Yes.

Q. In connection with that, what provision was made insofar as the construction was concerned that any emergency steps could be taken?

A. Well we had certain areas lower and the idea was that when water flows out if you have limited flood there that water would break through the lower areas and then in rebuilding it you would go from sort of island to island.

It is apparent from the testimony of Mr. Hult that is was anticipated that there would be a limited flood condition where the dike was low, as it was at the south bank. After the damage of August 26, 1958, when the dike and the south bank had been repaired, further high water did minor damage to the south bank on October 25, 1958. On November 6, 1958, a channel was cut through the dike near the north bank. Mr. Hult testified on cross-examination (Tr. 97) that originally 8 openings (or pipe culverts) were planned for the dike. Actually, no more than 5 culverts were placed. These culverts were frequently clogged up with river debris and with material from the dike itself, because the pipes were not quite long enough to extend beyond the dike. Moreover, the culvert pipes were “squashed” somewhat by the weight of the dike above them, so that it was occasionally necessary to remove the pipes, straighten them, clear the debris, and re-lay them in the dike..

During the period of December 28–30, 1958, the river rose several feet and broke through and around the south end of the dike, flooding the south bank and undermining a number of trees and shrubs which had lined the banks for many years. Some trees and shrubs had been cleared at the site to permit operations, but no more than was necessary. The bank was eroded for a distance of about 150 to 200 yards downstream, and for a distance of about 50 feet inland at its deepest penetration."

3 Government's Exhibit C, 5 sketches of cross-sections of the dike showing its condition on September 13, October 25, November 6, December 28, 1958, and January 23, 1959.

* Testimony of Mr. Fred F. Jaeger, Government Project Engineer, at Tr. 145–146.

* Testimony of Mr. Edward Howard Burton, job superintendent for the contractor, at Tr. 13.

March 2, 1964

The next occasion of high water was on January 23, 1959, when the south bank was further eroded to a point about 8 feet short of Pier No. 6, which was about 100 feet inland from the original shoreline. Pier No. 5 was erected at the original waterline of the south bank, and these piers were 100 feet apart. Just prior to this time, two channels had been cut through the dike in an effort to accommodate the flow of the river. After the January 23d flood, a discussion took place between Mr. Jaeger, the Government Project Engineer, and a Mr. Dennis, who was employed by the contractor as a consultant. Mr. Jaeger states that he recommended to Mr. Dennis that an opening or channel 100 feet wide be cut in the dike. However, a channel of only about 50 feet was cut through the dike, with a bridge supported by cribbing filled with rock. This measure proved to be insufficient. Mr. Jaeger testified that on February 13, 1959, high water washed out the concrete slab which covered the southerly portion of the dike, and there was further erosion of the south bank (Tr. 153–154).

Additional occasions of high water took place on April 16 and June 3, 1959, when the river reached inland as far as Pier No. 6. This was the ultimate extent of the erosion damage to the south bank.?

Upon instructions from the Government, the contractor repaired the damage to the south bank, using, for the most part, the material from the dike, which it had agreed to remove on completion of the contract.

The contractor sought to show that the erosion of the south bank was caused by extensive clearing and grubbing in the area of work. However, examination of the photographs submitted by the parties (in particular the folder of photographs comprising Government's Exhibit J) do not bear out the contractor's contention. The eroded area was much more extensive than the cleared area. Also, according to the Government witness, Mr. Jaeger, there was no grubbing (removal of roots of trees) performed even at Pier No. 5.8 Mr. Hult testified on rebuttal that it would have been necessary to remove roots in the area of the cofferdam for Pier No. 5, in order to drive the steel piling for the cofferdam. He admitted, however, that he did not actually see the roots removed at that point, and he did not

& Jaeger, Tr. 150.

? Government's Exhibit E, a sketch map showing successive high water marks and erosion made by floods on August 26 and December 30, 1958, and on January 5, April 16, and June 3, 1959.

8 Tr. 250.

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