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required at the time it prepared and submitted its bid price, and that, because of the omission of specific reference to such tasks in the invitation for bids and the contract documents, they constituted additional work and consequently additional costs for which it now seeks compensation.

The work to be performed was described in the invitation for bids and in the contract itself, as follows:

Work to be performed: Laying a 14-inch underlayment and 1/8-inch asphalt tile floor in 44 mobilization type barracks, including removing and replacing quarter round where required, contractor will furnish and pay for all material, equipment and labor and all permanent, temporary and incidental work, furnish all accessories and do everything that may be necessary to carry out the work specified within the intent and scope of these specifications and drawings.

Subsequent to the time of receiving the contract, plaintiff's president and general manager (sometimes hereinafter referred to as "plaintiff"), visited the barracks and observed that 13 of the buildings were partitioned with a long corridor in the center giving off to a number of small administrative offices which were furnished with desks and typewriters, and were obviously in use at that time. He also observed that the other 31 buildings were occupied by troops and were furnished with footlockers and cots, and that each of the buildings had a recreation room with a pool table, a pingpong table, and a barber's chair.

Plaintiff complained to defendant's resident engineer about the difficulties in working under the conditions which he had observed, and protested that the partitioning of the large spaces into small offices was not indicated on the contract drawings, and that the specifications contained no information that the buildings were furnished, nor that they would be occupied by personnel while the required work was under way. The resident engineer stated that all this information was available to plaintiff, if plaintiff had visited the site before submitting its bid. Plaintiff had not visited the site before submitting its bid, because it did not deem such a a visit necessary, for the reason that the plan of a barracks building (the contract drawing) showed only completely blank floor spaces, and the specifications were silent as to the

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144 C. Cls.

occupancy of the buildings and the necessity of moving furniture in performance of the work called for by the contract. Thereafter, on May 10, 1955, while the work was in progress, plaintiff wrote to the contracting officer as follows:

This office has been notified by our field superintendent on the above captioned project, that work is being performed by beyond the requirements of plans and specifications such as: moving furniture and installing tile in areas with many partitions which is conflicting with drawing #700–1165.

We shall proceed with this work as you direct and a claim for additional moneys will be submitted by us at a later date.

The contracting officer's response to this letter reads, in pertinent part, as follows:

*This contract calls for performance of "everything that may be necessary to carry out the work specified within the intent and scope of the specifications and drawings."

The Post Engineer, this Depot, who has been designated to decide all questions which may arise as to the interpretation of the specifications and of drawings used and as to the fulfillment of this contract on the part of the contractor, has advised that the work being done on this contract is within the scope of the specifications and drawings.

Plaintiff subsequently filed a claim for $6,538 for work performed beyond the requirement of the contract. The contracting officer rejected plaintiff's claim on the ground that all of the work performed was required by the contract and specifications, and the claim thereafter came before the Armed Services Board of Contract Appeals, in Washington, D. C., on November 9, 1955.

At a hearing on appeal plaintiff was represented by counsel, and gave testimony by its president and general manager. Its claim was presented in three parts, one of which was for $2,600 additional costs for labor and materials involved because of the partitioning in 13 buildings which was not revealed on the contract drawings of the floor plans; the second and third parts, in the respective amounts of $1,034 and $2,904, were presented as additional costs involved in the moving of footlockers and cots, and in the restriction

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of its operations to one-half of a floor at a time because of occupancy of the premises by the military personnel. The Armed Services Board of Contract Appeals sustained plaintiff as to the first part of the appeal, but denied the second and third items. Settlement of plaintiff's claim for the $2,600 item was effected in accordance with the Board's decision by payment of that sum to plaintiff in July 1956.

Plaintiff says that the partitioning in the 13 buildings, and the presence of furniture and personnel in the buildings, would have been equally obvious to an observer who visited the site before bidding and that because of this fact the Appeals Board was inconsistent in allowing the part of plaintiff's claim which pertains to the partitioning, and denying the part which pertains to the presence of furniture and occupancy of the buildings. This approach to the problem is not deemed to be valid, and it is not accepted.

The basis of the Appeal Board's favorable decision on plaintiff's claim with respect to the partitioning, is obviously that the dividing of large spaces into a number of small offices by wall partitions constitutes a structural change which should properly have been shown on the structural drawings of the floor plans, and that defendant's failure to show the structural alterations on the contract drawing gave sufficient merit to that part of plaintiff's claim to warrant its acceptance by defendant. With respect to the presence of furniture, and the fact that the buildings were occupied by military personnel, the Appeals Board denied plaintiff's claim, and upheld the decision of the contracting officer that these were matters which were not inherent in the structure of the buildings, and so did not constitute a changed condition. They were no more than a nuisance obstruction, the existence of which was quite apparent to any bidder who visited the site.

Unless the decision of the Armed Services Board was "fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence" the decision becomes "final and conclusive." Act of May 11, 1954, 68 Stat. 81, 41 U. S. C. (1952 Ed., Supp. II) § 321-322; Public Law 356, 83rd Cong., Chap. 199.

554378-61-3

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It appears that the Board's decision was based upon a hearing transcribed in a 75-page record, plus certain documents and papers. Plaintiff appeared by the same counsel as in the case here, who made an opening statement and a summation, in neither of which did he intimate that he was unable to present, or had been hindered from adequately presenting, plaintiff's case. He made no complaint of nonproduction by the Government of documents or witnesses, nor of the Board's procedures. Plaintiff's counsel thanked the Board for its patient and careful consideration.

Plaintiff introduced only one witness, its president Charles J. Auditore, at the conclusion of whose testimony its counsel stated, "That is all for the direct case of Appellant." Plaintiff placed in evidence only two documents, the drawing or floor plan and original schedule of work entitled "disposition form." Since plaintiff's appeal was from the decision of the contracting officer, the record before the Board not only included that decision but also 12 attached documents, letters and other papers, all of which are before the court as exhibits. Plaintiff introduced no rebuttal testimony.

Defendant introduced one witness, the military post construction engineer, Louis D. Shope, who testified that much of the furniture was moved by military personnel, testimony which plaintiff's counsel confirmed on cross-examination. A review of the transcript discloses that most of the questions, answers and discussion concerned the basis for and costs of the claim for $2,600 in the 13 administrative barracks on account of the numerous partitions not shown on the floor plan. On the costs constituting the other two claims, plaintiff's testimony was very brief, constituting only one typewritten page of the transcript.

With respect to the items claimed, $1,034 and $2,904 for (1) moving furniture about, and (2) occupancy during the flooring operations, plaintiff presented to the Board two oral "estimates" of $23.50 and $60 per building.

In its argument in summation of its claims before the Armed Services Board, plaintiff specifically stated that it did not accuse the Government of "misrepresentation" in the case. Although alleged in the general language of the statute in the petition, plaintiff offered no evidence at the trial

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which established that the Board's decision was tainted with any of the statutory evils, including those of being erroneous, capricious, arbitrary, or fraudulent. No facts were proved or pleaded to "show that the departmental decision was intolerable" as being within the "derogatory language of the statute." Volentine & Littleton v. United States, 136 C. Cls. 638, 643.

Plaintiff says, in effect, that the presence of furniture which had to be temporarily moved as the work progressed, and the fact that the buildings would be occupied during the work period, should have had specific mention in the contract documents, and that, not being specifically mentioned in the contract documents, they constituted a changed condition. Neither of these things were, by their nature, unusual or formidable obstructions which could not reasonably have been anticipated or discovered by visual inspection of the site of the proposed work. The contracting officer correctly held that they were incidental to the performance of the floor-laying which was the substance of the contract, and were embodied in the contract in the work description by the phrase, "together with everything that may be necessary to carry out the work." Clarification of this phrase, if it required clarification, was readily available to plaintiff's president if he had visited the site or made inquiry before submitting his bid. He did not choose to do either.

1

Plaintiff has cited a number of cases 1 in support of the claim for an equitable adjustment for certain additional work performed, but not anticipated when the bid, which resulted in the award of a contract, was submitted. These cases have been examined and are not accepted as furnishing a proper basis for favorable action here. The cases cited do not involve facts or circumstances comparable to what existed in the instant claim. Plaintiff has cited the cases generally without any detailed analysis or comparison.

This is not a case wherein the defendant concealed or withheld from plaintiff certain facts or information not avail

1Utah, Nevada & California Stage Co. v. U.S., 39 C. Cls. 420; cert. denied 199 U.S. 414; Ruff v. U.S., 96 C. Cls. 148; R. C. Huffman Construction Co. V. U.S., 100 C. Cls. 80; Central Engineering and Construction Co. v. U.S., 103 C. Cls. 440; Albert & Harrison, Inc v. U.S. 107 C. Cls. 292; cert. denied 331 U.S. 810; Walsh Bros. v. U.S., 107 C. Cls. 627; Peter Kiewit Sons' Co. v. U.S., 109 C. Cls. 290.