Saddler v. United States

• Citation: 287 F.2d 411,152 Ct. Cl. 557
• Decision Date: 01 March 1961
• Docket Number: No. 202-57.,202-57.
• Parties: P. L. SADDLER v. UNITED STATES.
• Court: Court of Federal Claims

152 Ct. Cl. 557, 287 F.2d 411 (1961)

P. L. SADDLER v. UNITED STATES.

No. 202-57.

United States Court of Claims.

March 1, 1961.

Robert F. Murray, Wenatchee, Wash., for plaintiff.

Thomas J. Lydon, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.

DURFEE, Judge.

This is a claim for contract damages based on a change order issued by defendant which the plaintiff maintains required work to be done which was outside the scope of the contract. The contract in suit, entered into on April 23, 1951, required the plaintiff to provide the materials and labor necessary for the construction of a levee embankment on the Methow River, near Twisp, Washington. As originally written, it was a unit price contract calling for the placing of estimated quantities of embankment, backfill, and stone riprap. The quantities and unit prices are set out in Finding No. 2. The total contract price was $12,575.

Plaintiff began performing the contract within a few days of its execution and June 8, 1951, was established as the contract completion date. Some of the work called for in the contract had been completed by May 13, 1951, when a severe flood inundated the worksite and forced abandonment of the work until July 11, 1951. It became apparent that a levee built to the specifications called for in plaintiff's contract would be inadequate to withstand a subsequent flood of the same magnitude. It was necessary, therefore, that the levee be redesigned to provide the bank protection intended and desired when the original contract was let. On June 21, 1951, defendant's resident engineer forwarded technical provisions and a revised drawing dated June 18, 1951, which amended the original specifications to provide for changes in length, alignment, and profile of the levee, which changes increased the quantity of earth to be placed. Plaintiff's bid proposal on the new quantities in response to the technical provisions provided for the same unit prices as did the original contract.¹ Instead of the 5,500 cubic yards of embankment estimated in the original contract, the new specifications called for 7,950 yards. Plaintiff's letter accompanying his bid on the new quantities also requested a reasonable adjustment of the unit price for the riprap if he should be required to incur unanticipated exploration costs in locating a site to supply the amounts of stone required by the job specifications.

Plaintiff resumed work on the contract on July 21, 1951. The completion date was extended to September 12 by which date the work was actually completed. During the course of the resumed work a proposed change order, reciting the newly determined amounts of work to be done, was submitted to plaintiff but no action was taken on it by him. On September 1, the defendant was notified that plaintiff was proceeding under protest and had been so operating for three weeks. Notwithstanding his bid proposal in response to the June 18 technical changes, the plaintiff expressed a reluctance to place any materials beyond the quantities called for in the original contract.

The proposed change order was withdrawn and reissued as change order No. 1, dated October 17, 1951. The quantities of materials and unit prices under that change order are set forth in Finding No. 9. It will be seen that 13,264.8 cubic yards of embankment were required under the change. The total contract price under the change order became $17,916.90. The unit prices were the same as in the original schedule but the quantities of materials had been changed. Basically, the change order provided for a slight change in the alignment and profile of the levee and added approximately 735 feet to its original length. The change of alignment required the abandonment of 300 feet of embankment already in place, thus effectively adding over 1,000 feet to the total length of the levee. Plaintiff signed the change order in February 1953 and accepted the final contract payment at that time.

Although the length of the levee was approximately doubled by the change order (including the section abandoned), the total cubic yardage contained in the design as changed was more than doubled. The reduction in quantity of both backfill and riprap, and the change in the total prices for these items was not substantial. However, under the original contract riprap work accounted for approximately 60 percent of the estimated total price while the riprap work after the change order accounted for only 40 percent of the total.

In August 1952, plaintiff filed a claim with the Corps of Engineers contending that the change order constituted a breach of contract entitling him to additional compensation and claiming damages of over $21,000.

The contracting officer denied plaintiff's claim and he appealed that decision to the Corps of Engineers Claims and Appeals Board which determined that the contract had not been breached but that plaintiff would be entitled to an equitable adjustment with respect to the riprap if he had been put to additional expense in obtaining it. The contracting officer again declined to make any adjustment in the contract price and the Claims and Appeals Board sustained him on the ground that plaintiff had not been put to any expense in obtaining the riprap beyond that contemplated at the time the contract was originally entered into.

Plaintiff's claim for damages is premised on the following theory. His original contract was for approximately $12,575. He worked until $12,575 worth of work had been completed on a per unit basis. This occurred on or about August 10, 1951, and it is plaintiff's position that that completed his original contract. All the costs he incurred from that date until the job was completed he claims emanated from the change order.

Article 3 of the original contract permits the contracting officer to make changes in the contract specifications provided they are within the general scope of the contract. The plaintiff's theory of damages for contract breach relies on the changed specifications being outside of the scope of the contract. Should changes in the contract which are within its scope have resulted in an increase in the amount of work required, the defendant would have been obligated to make an equitable adjustment in the contract price. However, damages, such as sought by Saddler, can only be recovered where the changes are outside of the scope of the contract and amount to a breach.

The Government insists that the change order did not alter the quality, character, nature or type of work contemplated by the contract and, moreover, it was actually designed to achieve the purpose of the contract. Yet it acknowledges that the point at which a change must be considered to be beyond the scope of the contract and inconsistent with the "Changes" article is a matter of degree varying from one contract to another. We think that a determination of the permissive degree of change can only be reached by considering the totality of the change and this requires recourse to its magnitude as well as its quality.

The number of changes is not, in and of...