1 Reporter's Statement of the Case Twenty-third cause of action.-When the rock excavation required the use of dynamite for its accomplishment and the defendant, without reasonable justification, restricted the plaintiffs in their use of dynamite by limiting the plaintiffs to use of dynamite of less than normal strength plaintiffs may recover the additional costs of doing the work under the restriction, if such costs are reasonably proved. United States 70 (2) Twenty-ninth cause of action.-Where under a contract which provides that for a stated price the plaintiffs at termination of the work would sell to the defendant certain specified installations placed by plaintiffs at the site of the work and the plaintiffs placed units different from those specified but which served the same purpose as those specified, it would be so unjust to permit such a substitution to alter the agreement that a court should strive to hold that the substituted items were covered by the agreement and when the agreement specifies "railroad track and other railroad transportation facilities, except trucks and rolling stock, and including any tramways," the plaintiffs' fixed installations of a conveyor system were covered by the agreement but the belts used on the fixed installations were not so covered. United States 70 (1) The Reporter's statement of the case: Mr. Samuel T. Ansell for the plaintiffs. Messrs. Burr Tracy Ansell, M. C. Masterson and Samuel T. Ansell, Jr., were on the brief. Mr. John B. Miller, with whom was Mr. Acting Assistant Attorney General Newell A. Clapp, for the defendant. The court made special findings of fact as follows upon the evidence and the report of a commissioner: 1. Plaintiffs are, and during the time in controversy were, Silas Mason Company, Inc., a corporation organized and existing under the laws of the State of Delaware, of the city of New York, New York; Walsh Construction Company, a corporation organized under the laws of the State of Iowa, of the city of Davenport, Iowa; and Atkinson-Kier Company, a partnership consisting of Guy F. Atkinson, George H. Atkinson, William E. Kier, and Elmer L. Kier, of the city of San Francisco, California. Reporter's Statement of the Case 116 C. Cls, 2. July 16, 1934, plaintiffs entered into a contract with the United States, represented by R. F. Walter, Chief Engineer, Bureau of Reclamation, as contracting officer, to furnish labor and materials, and perform all work required for construction of Grand Coulee Dam and Power Plant as covered by items 1 to 85 inclusive, of the schedule of Specifications No. 570, Columbia Basin Project, Washington, for the consideration of $29,339,301.50, in strict accordance with the specifications, schedules, and drawings. The contract and specifications are filed in evidence and made part hereof by reference. 3. The schedule attached to Specifications No. 570 (pages 3 to 12, inclusive) contains 85 separate items of work. The prices for which the work was to be done, except items 1, 83, 84, and 85, were based on designated units of measurement and estimated quantities. The four items just mentioned were lump-sum prices for all of the work covered thereby. Paragraph 5 of Specifications No. 570 reads as follows: QUANTITIES AND UNIT PRICES.-The quantities noted in the schedules are approximations for comparing bids, and no claim shall be made against the Government for excess or deficiency therein, actual or relative. Payment at the prices agreed upon will be in full for the completed work and will cover materials, supplies, labor, tools, machinery, and all other expenditures incident to satisfactory compliance with the contract, unless otherwise specifically provided. 4. The Grand Coulee Dam was built across the Columbia River about 95 miles west and north of Spokane, Washington. Of all the rivers in the United States the Columbia River is exceeded only by the Mississippi River in volume of water carried. In potential power the Columbia River far exceeds that of any other river in the United States, and has within it one-sixth of all the hydroelectric power possible of capture in the entire country. Much of the water in this river comes from the melting snow and ice of the Canadian Rockies, with the result that high water occurs during the months of May and June at a time when the water of all other rivers in the country usually is low. The water impounded by the high dam (Finding No. 13) 1 Reporter's Statement of the Case extends 151 miles to the Canadian Boundary. At the dam site the river flows north. 5. The contract required that the work commence within 30 days after receipt of notice to proceed and be completed within 1,650 calendar days from the date of receipt of such notice. Notice to proceed was received by plaintiffs on September 25, 1934, thereby fixing the date of completion as April 2, 1939. Actual construction work started October 4, 1934, and the contract was completed and accepted by defendant on March 21, 1938, one year and 12 days prior to the contract completion date. 6. The office of the contracting officer was in Denver, Colorado, and he was rarely at the site of the work. F. A. Banks, construction engineer and representative of the contracting officer on the job, was on the site for some time prior to the letting of the contract and was there during the period of work under the contract. 7. Before the contract was let the nearest railroad to Grand Coulee Dam was about 30 miles south through a station named Coulee City, on the Northern Pacific Railroad. There were practically no houses near the site of the dam to accommodate the great number of workmen to be employed on the dam. Plaintiffs first built a town for the accommodation of its workmen on the east side of the river just below the dam called Mason City, which was known as the contractor's town. This required about three months, and by the first of the year 1935 was well occupied by plaintiffs' employees, who at the peak were over 5,000, working in three 8-hour shifts daily, to wit: from 12 midnight to 8, the graveyard shift; from 8 to 4, the day shift; and from 4 to 12, the swing shift. To house defendant's employees of between 500 and 1,000, the defendant built a town on the west side of the river just below the dam called Grand Coulee Dam, which was known as the Government town. 8. The specifications required the construction of a west cofferdam, an east cofferdam, and cross-river cofferdams. The plan was to build the west abutment section within the west cofferdam and then after that section was built, to build cofferdams up and down stream and turn the water over the west section. By June 1935 the west cofferdam had been 891357-50- -3 Reporter's Statement of the Case 116 C. Cls. completed and a large amount of earth excavation and some rock excavation had been done within this cofferdam. There had also been some rock excavation in the east abutment area. At the time of the change order (June 5, 1935) referred to in Finding No. 11, plaintiffs had much equipment on the site, had more than 3 million dollars invested in the job, and also had large commitments outstanding. 9. Paragraph 18 of Specifications No. 570 reads in part as follows: Description of dam.-The general plan for the Grand Coulee dam provides for progressive development involving two principal stages of construction and the successive installation of power units. Plans for the ultimate development include a concrete straightgravity dam about 500 feet high above the lowest point in the foundation, with a crest length of about 4,000 feet, and a power plant containing eighteen 105,000 kilowatt units. The river channel section of the dam will have an overflow spillway 1,800 feet long, at each side of which, and immediately below the dam abutments, 9 units of the power plant will be installed. The first development, which is covered by these specifications, includes the main portion of the excavation for the high dam, the construction of a concrete straightgravity dam to an elevation about 200 feet below that planned for the high dam, construction of a permanent downstream cofferdam, and the construction of a power plant at the extreme left of the dam, as shown on the drawings. The permanent cofferdam, located below the toe of the low dam, will be constructed to form the toe of the high dam and the downstream portions of future powerhouses. * 10. Paragraph 25 of Specifications No. 570 reads in part as follows: Termination of contract.-If at any time within the contract period, the construction of the Grand Coulee dam to the full height contemplated for the ultimate development of the project is authorized, the Government shall have the right to terminate the contract under these specifications upon thirty (30) days' notice in writing to the contractor, and, in such event, the contractor shall turn over to the Government, free of encumbrance, all plant, tools, and equipment of the contractor, including camp and appurtenances, which 1 Reporter's Statement of the Case are installed at the time of such termination or contracted for in writing, in use or to be used exclusively in the work under these specifications, and, at the option of the contractor, shall include consumable supplies of the contractor, on hand or in transit on the date of the notice of termination, including explosives, fuel, lubricants, and materials of construction not incorporated in the work, but shall not include commitments for the purchase of consumable supplies or construction materials extending beyond the date of the notice of termination. If the contract is thus terminated by the Government the total payment made to the contractor under the contract shall be the total actual cost, less revenues from rentals, leases and concessions, incurred by the contractor to the date of such termination, including labor, plant, tools, equipment, overhead costs, and such consumable supplies as may be turned over to the Government as herein provided, plus ten (10) percent of such total cost 11. Sometime during the spring of 1935 the contracting officer decided to construct Grand Coulee Dam to its full height and discussed a change order with plaintiffs. On June 5, 1935, a change order, designated as Order for Changes No. 1, with accompanying drawings, was sent to plaintiffs. Plaintiffs' contract was for the construction of the low dam, or the first development of the high dam, referred to in paragraph 18 of the specifications set out in Finding No. 9. Order for Change No. 1 abandoned the construction of the low dam and directed plaintiffs to construct the lower part of the high dam. The part of the high dam that plaintiffs were directed to construct by the change order was a structure of greater volume than the structure provided for in plaintiffs' contract, which increased the money consideration of the contract to approximately $40,000,000, exclusive of material furnished by the defendant. Plaintiffs immediately proceeded to work in compliance with the change order. The change order is in evidence and made part of these findings by reference. The first two and last two paragraphs thereof read as follows: Additional information having become available, it is found desirable, in pursuance of the provisions of Ar |