Findings of Fact 117 C. Cls. flow of water from the reservoir was controlled by gates; (2) the outlet channel, lined with concrete, and extending 200 feet from the downstream end of the outlet conduit to a point where the outlet channel emptied into the spillway channel; (3) the spillway channel, a concrete-lined structure beginning at a point higher up on the right abutment, extending downstream 2,800 feet and through which the flow of flood water from the reservoir was controlled by means of gates at the upstream end; (4) the stilling basin, a concrete structure at the downstream end of the spillway channel through which the water flowing from the spillway channel and outlet channel passed before discharging into the river; and (5) a cut-off trench under the impervious section of the dam, backfilled with impervious materials, and also containing a concrete cut-off wall at each abutment. The control house is located on the crest of the dam above the outlet channel and in this house are located the controls of the gates in the outlet conduit. 8. The earth-filled portion of the embankment consists of a mixture of clay, sand, and gravel obtained from the excavations for required structures and from borrow pits in the vicinity. Such materials were to be spread upon the embankment in not more than six-inch lifts after compaction, brought to optimum moisture content either by drying or sprinkling as necessary, and compacted by 12 passages of a tamping roller. Earth borrow pit areas were shown on the contract drawings, located on the right and left banks of the Pine River facing downstream in the reservoir basin above the dam. The area on the right of the river was later designated as Borrow Pit No. 1 and that on the left as Borrow Pit No. 2. 9. Martin Wunderlich, plaintiff's general manager, visited the site of the work two different times prior to the opening of bids. He stated that on his second visit he was accompanied by George Leonard as Assistant Superintendent; and that they were shown over the site by Charles A. Burns, an employee of the defendant, who later became the defendant's construction engineer for the contract. Mr. Wunderlich further stated that Mr. Burns pointed out to them on the ground the location of the earth borrow pit area on the right 92 Findings of Fact of the river, and that they inquired of him whether such area included lower ground between such point and the River, to which inquiry Mr. Burns replied that it did not and that plaintiff would not be required to obtain borrow material from such low area. Mr. Burns testified and denied not only making such statement but denied having accompanied Mr. Wunderlich on such inspection tour and further denied ever having seen Mr. Leonard prior to the signing of the contract. It seems probable that the said Mr. Wunderlich did address to some employee of the defendant, upon the occasion in question, an inquiry as to the limits of Earth Borrow Area No. 1, and that he may have received a reply to the effect that at that time it was not anticipated that there would be need to obtain borrow in the low areas. It is unreasonable, however, to conclude that any employee of the defendant at that time would have stated unequivocally that no such need would arise. Plaintiff's organization at the site was under the direction of its construction superintendent F. H. Stewart, under him as foreman were John New and Floyd Helm. Mr. Wunderlich visited the job at intervals, coming over for one- to three-day periods. George P. Leonard was plaintiff's assistant and general superintendent. He visited the job only two or three times during the entire performance period of work. Theodore Wunderlich, the brother of Martin Wunderlich, came on the job the summer of 1939, as foreman of the dragline; later he accompanied defendant's field inspector and took notes. 10. The defendant's contracting officer, as stated above, was S. O. Harper, who was acting chief engineer, and later Chief Engineer, Bureau of Reclamation, and was stationed at Denver, Colorado. As field representative of the contracting officer, Charles A. Burns was the construction engineer and had under his charge at the site an organization consisting of a chief clerk, a field engineer, an office engineer, a resident engineer, laboratory aides and a field inspector. J. R. Walton was the field engineer and earth-work inspector of the defendant. During the progress of the work he was in constant contact with plaintiff's representatives and Findings of Fact 117 C. Cls. consulted with them almost daily. The relationship between plaintiff's employees at the site and defendant's field force was at all times cordial and cooperative. 11. Operations began in May 1938 on the right side of the river as that seemed to be the feasible plan of operation. The first work consisted of building the camp and clearing and stripping the site of the dam foundation and spillway areas. Then the contractor began excavating the cut-off trench, outlet conduit and diversion channel. A large sand pocket, encountered in the area of the diversion channel, was wasted. Substantially all stripping in the construction area had been completed in 1938. Excavation of the diversion channel was completed and the river was diverted about the end of September 1938. Excavation progressed in the spillway and cut-off trench and part of the concrete cut-off wall had been constructed. Approximately 730,000 cubic yards of embankment had been placed in 1938. Operations were shut down because of the severe weather in December of that year. In the following year, operations began in April 1939 and continued until December when unfavorable weather again caused the work to be shut down. In 1940 the work was resumed in the spring and continued until November 1940. At that time the larger portion of the earth work had been completed and the major portion of the contractor's equipment was moved off the job site at the close of the season. In the year 1941 considerable concrete work was finished, operating machinery was installed, and the top course of the embankment was completed. 12. The contract provided in part as follows: ARTICLE 3. Changes.-The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. No change involving an estimated increase or decrease of more than Five Hundred Dollars shall be ordered unless approved in writing by the head of 92 Findings of Fact the department or his duly authorized representative. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered; Provided, however, That the contracting officer, if he determines that the facts justify such action, may receive and consider, and with the approval of the head of the department or his duly authorized representative, adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed. ARTICLE 4. Changed conditions.-Should the contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in the work of the character provided for in the plans and specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall, with the written approval of the head of the department or his duly authorized representative, be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions. ARTICLE 5. Extras.-Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the contracting officer and the price stated in such order. * ARTICLE 15. Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning question of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed. * 911794-51- -9 Findings of Fact 117 C. Cls. Article 21. Definitions.-(a) The term "head of the department" as used herein shall mean the head or any assistant head of the executive department or independent establishment involved, and the term "his duly authorized representative" shall mean any person authorized to act for him. (b) The term "contracting officer" as used herein shall include his duly appointed successor or his authorized representative. 13. Scheduled prices, made a part of the specifications (spec. 705), are listed for 59 items of work. Of these items 1, 46, and 47 are lump-sum prices; all of the other items are unit prices for designated items of work. The ultimate price paid under the contract as determined by work actually performed was $2,220,965.30 including extra Work Orders 1 to 8 and Change Orders 1 to 6. 14. The specifications provide in part as follows: 5. Quantities and unit prices.-The quantities noted in the schedule 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. 6. Staking out work. The work to be done will be staked out for the contractor who shall, without cost to the Government, provide such material and give such assistance as may be required by the contracting officer. 10. Extras.-The contractor shall, when ordered in writing by the contracting officer, perform extra work and furnish extra material, not covered by the specifications or included in the schedule, but forming an inseparable part of the work contracted for. Extra work and material will ordinarily be paid for at a lump sum or unit price agreed upon by the contractor and the contracting officer and stated in the order. Whenever in the judgment of the contracting officer it is impracticable because of the nature of the work or for any other reason to fix the price in the order, the extra work and material shall be paid for at actual necessary cost as determined by the contracting officer, plus 10 percent for superintendence, general expense, and profit. The |