Fehlhaber Corporation v. United States

• Decision Date: 05 June 1957
• Docket Number: No. 49316.,49316.
• Citation: 151 F. Supp. 817,138 Ct. Cl. 571
• Parties: FEHLHABER CORPORATION v. The UNITED STATES.
• Court: U.S. Claims Court

151 F. Supp. 817

138 Ct. Cl. 571

FEHLHABER CORPORATION v. The UNITED STATES.

No. 49316.

United States Court of Claims.

June 5, 1957.

John W. Gaskins, Washington, D. C., for plaintiff. King & King, New York City, were on the briefs.

John F. Wolf, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant. Herbert M. Canter, Washington, D. C., was on the brief.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and LARAMORE, Judges.

LARAMORE, Judge.

This suit arises as the result of a contract entered into by plaintiff, Fehlhaber Pile Co., Inc.,¹ a New York Corporation, with the defendant, acting through the War Department, for the construction of the substructure for the Chesapeake City Highway Bridge located at Chesapeake City, Maryland. Plaintiff alleges that during operations under the contract it encountered subsurface conditions which differed materially from those contained in the specifications and as a result thereof incurred additional expenditures in driving interlocking steel sheet piles for a cofferdam needed in the construction; in excavating for the pier designated Pier 1-N which was constructed within the cofferdam; and in driving steel H piles to support the pier. Plaintiff contends it is entitled to payment for the added expenditures in an amount in excess of $100,000 pursuant to the Changed conditions article of the contract. Plaintiff also seeks the return of liquidated damages assessed against it in the amount of $10,000 because of its failure to complete the contract on time.

The contract which called for the construction of 32 piers and 2 abutments for a bridge over the Delaware Canal included standard Delays-Damages and Disputes articles as well as the standard Changed conditions provision and was awarded after the publication of an Invitation for Bids which provided in part as follows:

"Bidders should carefully examine the drawings and specifications, visit the site of work, and fully inform themselves as to all conditions and matters which can in any way affect the work or the cost thereof. * * *"

Defendant employed an architectural-engineering firm to make borings and compile boring logs showing the subsurface conditions at the various pier locations. This analysis, which also noted the number of blows per lineal foot required to drive the sampling spoon at the various depths, was made available to prospective bidders and indicated the type of materials that could be expected to be found to below elevation—100 feet, and was part of defendant's specifications for the job. For various reasons, including inconsistencies in the number of blows required to penetrate similar type materials, the number of blows on the sampling spoon was considered of little value to prospective bidders in determining the ease or difficulty with which the work at the subsurface could be accomplished.

As pertains to Pier 1-N, the subject of this suit, two borings, designated 1-NE and 1-NW, were made. Boring 1-NE showed no hard materials of any kind to elevation -50 to -51 where there was a foot of soft sandstone. At elevation -55.7 to -57.4, 1.7 foot, sandstone core was encountered and shown on the boring logs. Possible sandstone stratum was indicated at -90 to -91 feet.

Boring 1-NW showed soft sandstone from -44.3 to -45.2 and particles of sandstone between -45.2 and -52.0. From -53.9 to -54.9, sandstone, no core was reported. Pieces of sandstone were reported from -83.4 to -85.8. There were no other evidences of hard materials in the subsurface which would cause any difficulty during construction according to the boring logs.

The contract drawings showed the bottom of the footing for Pier 1-N at elevation -48, which would require excavation to be performed to that depth. The materials described on the contract borings to that elevation would have been easy to excavate, and from an engineering standpoint, nothing in the boring logs could reasonably have been construed as indicating that difficulty in the performance of the excavation would be experienced.

Plaintiff based its bid upon the information contained on the contract drawings and upon the conclusion that the materials to be encountered could be readily excavated.

Below -48, steel H piles were to be driven to support the pier. The materials described in the boring logs, both above and below the sandstone layers below that depth, should not have been difficult to penetrate. Resistances on the sampling spoon did not suggest or reveal materials which would cause high resistances to H piles driven by a heavy and powerful hammer. The soft sandstone at elevation -50 in boring 1-NE and -53.9 in boring 1-NW would offer little, if any, more resistance to H piles than would any other unconsolidated materials in the subsurface. The sandstone from -55.7 to -57.4 was not considered by plaintiff to be difficult to penetrate if the conditions underlying it were substantially as reported, such underlying conditions being reported as unconsolidated materials.

Concerning these borings, the contract and the specifications contained the following provisions:

"Article 1. Statement of work —The contractor shall * * * perform the work * * * in strict accordance with the specifications, schedules, and drawings, all of which are made a part hereof and designated as follows: * * *"

Paragraph SC-7 of the Special Conditions of the Specifications provided in part as follows:

"SC-7 Physical Data. The information and data furnished or referred to below are not intended as representations or warranties but are furnished for information only. It is expressly understood that the Government will not be responsible for the accuracy thereof or for any deduction, interpretation, or conclusion drawn therefrom by the Contractor.

* * * * * *

"d. Foundation Conditions.— The contract plans show the results of borings and test piles driven at the site. Any conclusions drawn therefrom by the contractor as to the surface and subsurface materials to be encountered, the methods required to complete the construction shown on the plans, and the necessary lengths of piles are at the contractor's risk. The Government assumes no responsibility for the accuracy of the borings and tests above referred to or the published results thereof, nor does it represent that materials other than or in proportions different from those shown will not be encountered. Samples of materials removed from the bore holes may be seen at * * *."

Paragraph GC-2 of General Conditions of the Specifications provided as follows:

"GC-2. Site Investigations and Representations. The Contractor acknowledges that he has satisfied himself as to the nature and location of the work, the general and local conditions, particularly those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, roads and uncertainties of weather, river stages, tides or similar physical conditions at the site, the conformation and condition of the ground, the character, quality and quantity of surface and subsurface materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the work and all other matters which can in any way affect the work or the cost thereof under this contract. Any failure by the Contractor to acquaint himself with all the available information concerning these conditions will not relieve him from responsibility for estimating properly the difficulty or cost of successfully performing the work. * * *"

The plaintiff did examine the site of the proposed construction and the physical samples that defendant acquired from its borings. It did not, however, make borings of its own because of the limited time allowed for bidding and because the existence of regularly scheduled traffic in the channel would have made such an attempt impracticable. The record also discloses that it was not contemplated that prospective bidders would conduct boring operations and in fact it was not done. Plaintiff prepared its bid on the basis of the plans and specifications submitted by defendant, was subsequently awarded the bid and ordered on June 3, 1946, to commence operations. The contract called for completion by December 22, 1946. For various reasons, none of which were granted expressly for changed conditions, extensions were granted which pushed the contract completion date up to June 7, 1948. The defendant did not consider the contract substantially complete until July 27, 1948, and, therefore, assessed liquidated damages for 50 days at the rate of $200 per day as called for in the contract and in the total amount of $10,000.

Plaintiff had on numerous occasions during the period of construction notified defendant that it intended to make, and in fact was making, claim for excessive costs in accordance with the Changed conditions article of the contract, its contention being that the excess costs arose because the subsurface conditions materially differed from those shown on the contract drawings and specifications.

Defendant first denied such relief by letter from the contracting officer on September 15, 1947, wherein he referred to plaintiff's oral request for changed conditions relief during a telephone conversation on September 4, 1947, and advised that an investigation showed no changed conditions existed. He further notified plaintiff that no written contentions had been received and suggested procedure under article 15, the Disputes provision, within the next 30 days.

Written application had already been made by plaintiff, however, on September 12, 1947. By letters of October 3, October 10, and November 5, 1947, plaintiff set forth the details and extent of the excess costs claimed to have been incurred in the driving of the sheet piling and excavation for the pier base.

By letter of November 25, 1947, plaintiff submitted to the district engineer its claim for...