Carlo Bianchi and Company v. United States, 466-54.

Decision Date14 January 1959
Docket NumberNo. 466-54.,466-54.
Citation169 F. Supp. 514
CourtU.S. Claims Court

Robert W. Knox, Washington, D. C., for plaintiff. Robert F. Bradford, Boston, Mass., and William H. Matthews, Washington, D. C., were on the briefs.

Martin E. Rendelman, Chevy Chase, Md., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.

MADDEN, Judge.

The plaintiff claims that in performing a contract with the Corps of Engineers of the War Department, it encountered changed conditions within the scope of Article 4 of its contract which caused it to incur extra expense for which the Government should have paid but did not.

The contract was made in July 1946. The plaintiff was to build an earthen dam across Canacadea Creek at Almond, Steuben County, New York. One item of the work was the blasting through rock of a tunnel some 710 feet long. The blasted area was to be approximately 17 feet in diameter and the finished bore after the construction of the concrete lining was to be 13 feet in diameter. All of the work under the contract was completed on time, the contract completion date, as extended, being June 30, 1949.

The Army Engineers had made test borings in the area through which the tunnel was to be built. The invitation for bids, upon which the plaintiff had acted in submitting its bid, contained the standard provisions requiring the bidder to investigate the site and learn all that could be learned about the conditions which would be encountered in the performance of the contract. The plaintiff made a thorough examination of the nature of the rock, wherever it was exposed in the area, and of the logs of the test borings made by the Army Engineers. The logs of the borings indicated that, except for a distance of about fifty feet at each end of the tunnel, over which the rock covering would be relatively shallow, the rock through which the tunnel would pass would be "unweathered" rock, i. e. rock without seams in which clay or mud had accumulated. The importance of the unweathered condition of the rock is that such rock would better remain in place in the roof of the tunnel without vertical support when the tunnel was blasted through.

The specifications contemplated instability of the rock for fifty feet at each end of the tunnel. They provided for the insertion in these locations of strong steel ribs set four feet apart, with steel "liner plates" one-eighth of an inch thick on top of them.

The plaintiff's excavation subcontractor, experienced in tunnel work, blasted out the tunnel. A good deal of rock fell from above the required height of the tunnel. The fall from the blasting and the overbreak was "mucked" out by the night crew. No cribbing or other temporary protection against falling rock was used at this stage of the work. The blasting through of the tunnel was begun in December 1946 and finished by March 12, 1947, all in winter weather.

Because of the considerable excess fall of rock while the tunnel was being blasted through, the plaintiff requested the Government's resident engineer to authorize the installation of steel ribs and liner plates through the entire length of the tunnel, this additional material to be paid for by the Government. The resident engineer replied that unless there were indications that the tunnel would cave in, such authority would not be given.

The plaintiff, in correspondence during the next several months, repeated its request, which the Government repeatedly denied. The plaintiff caused the situation to be examined by several experts. They found that, throughout the length of the tunnel, the rock contained seams filled with mud and clay; that these seams were saturated with water and offered little resistance to the fall of the rock when its vertical support had been removed. Since the tunnel had been blasted through in the winter when no moisture could enter the ground from the surface, which was about 100 feet above the tunnel, the rock was relatively stable at that time. When the ground at the surface thawed and the spring rains came, the saturation of the seams in the rock occurred or was increased, as was the instability of the overlying rock.

In the disputation in the writings of the parties, the Government took the position that all that was needed was "temporary protection" sufficient to enable the workmen to safely clear out the tunnel and construct the concrete lining. If that was all that was needed, it was no more than the plaintiff had contracted to do, at its own expense. Such protection would, apparently, have been wooden cribbing, sufficiently strong to prevent a relatively small volume of rock from crashing to the floor of the tunnel.

The plaintiff's contention was, and is, that the rock above the tunnel was so unstable that unless "permanent protection" was installed, of a kind which would have to remain imbedded in the concrete lining of the tunnel, not only would the workmen be endangered but the tunnel could not be completed because of the danger of large falls of rocks which would make it impossible or impracticable to properly construct the concrete lining.

On May 5, 1947, the contracting officer formally notified the plaintiff that it was his decision that no additional steel tunnel lining would be authorized to be placed at the expense of the Government. The plaintiff, on May 29, filed an appeal from the contracting officer's decision. It also renewed its request to the contracting officer for approval of the steel permanent protection which it proposed to use. On June 13, 1947, the contracting officer advised the plaintiff that it might install the proposed steel protection if it chose to do so, but that the Government thought that the installation was more expensive than was necessary; that nothing more than temporary protection, which the plaintiff was under a duty to furnish, was necessary; and that the Government would not pay the cost of either kind of protection. This letter suggested and recommended...

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5 cases
  • Utah Construction and Mining Company v. United States
    • United States
    • U.S. Claims Court
    • 12 Marzo 1965
    ...decision had been to receive evidence de novo, we would continue to do so. We reiterated this position in Carlo Bianchi & Co. v. United States, 169 F.Supp. 514, 144 Ct.Cl. 500 (1959), 157 Ct.Cl. 432 (1962); but the Supreme Court reversed and held that in the determination of this question w......
  • Perini Corporation v. United States
    • United States
    • U.S. Claims Court
    • 20 Julio 1967
    ...157 Ct.Cl. 409, 416 (1962); Appalachian Floor Co. v. United States, 144 Ct.Cl. 11, 17 (1958); Carlo Bianchi & Co. v. United States, 169 F. Supp. 514, 516, 144 Ct.Cl. 500, 504-505 (1959), vacated and remanded on other grounds, 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Carman v. Uni......
  • United States v. Carlo Bianchi and Company
    • United States
    • U.S. Supreme Court
    • 3 Junio 1963
    ...decision (as affirmed by the Board) cannot be said to have substantial support,' and thus 'does not have finality.' 169 F.Supp. 514, 517, 144 Ct.Cl. 500, 506. On the question whether it was limited in its consideration to the evidence before the Board, the court 'In our opinion in Volentine......
  • Construction Management Corp. v. Brown & Root, Inc.
    • United States
    • New York Supreme Court
    • 7 Enero 1964
    ...Inc., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652, reversing that of the Court of Claims which had allowed a trial de novo (169 F.Supp. 514, 144 Ct.Cl. 500) finally resolved the conflict, although it came after both trial and post trial submission by the parties here. The following are apt ......
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