contradict the Government's evidence as to the nonremoval of roots in the adjacent work areas (Tr. 279). According to the Government's Exhibit H, entitled "Work Progress," work on Pier No. 5 was commenced in November 1958, and some erosion had already taken place in the high water of August 26 and October 28, 1958. Photographs of the vicinity, taken before any great amount of erosion had occurred, show large numbers of trees of considerable size, indicating that previous high water or floods had not damaged the banks of the river for many years except for the recent erosion of the south bank at the point of its junction with the dike, and for a distance of about 150 to 200 yards downstream from that point. Once the river had flooded the south bank so that it flowed around and behind the trees and shrubs, it was able, through the violence of its flow, to undermine the root systems which had hitherto protected the bank from erosion. The trees and shrubs then toppled into the river, leaving the bank vulnerable to more extensive erosion. In the opinion of the Board, the principal cause of the flooding (and consequent erosion) was the manner of construction of the dike by the contractor. It is plain to see that there was insufficient provision for passage of water through the dike, in the light of previous records of high water (which will be discussed infra). The build-up of the water behind the dike was sometimes as much as 2 feet above the level of the river on the downstream side of the dike. This condition, coupled with the low height of the dike at its junction with the south bank, served to create a "mill-race" when the water flowed over and broke through the south end of the dike. The violence and turbulence of the water flow at that point is clearly visible in the photographs. Although the contractor maintained that his construction of the dike was the only feasible method of building the bridge, Government witnesses testified to the contrary. The contractor had considered, but rejected the possibility of using pontoon barges because of uncertainty as to navigability of the James River downstream from the bridge site. The river was about 10 feet deep at the site. However, as Mr. Edward Stuart Burch testified (Tr. 211) it would have been possible to transport barges by highway. Also, it should have been possible to use a series of piers (consisting of cribbing filled with rocks) connected by several bridges. Mr. Hult testified that cribbing was not adopted because of the rocky bottom of the Mr. Burch was the Assistant Project Engineer on the project. March 2, 1964 river, with no anchorage. However, cribbing was eventually used for the supporting piers of the one bridge in the dike. Moreover, it is apparent that the period of use of the dike as anticipated by the contractor was much too brief. The contractor's letter of June 30, 1958, requesting approval of the construction of a dike, describes the period studied for flow characteristics of the river as being from July through October. Mr. Hult testified concerning that period as follows (Tr. 99): A. We probably had anticipated a length of use [of the dike] which of course was then too short. The contractor continued to use the dike until the contract was virtually completed. It is also apparent that the assumption by the contractor of a rate of flow normally "substantially less than 2,000 cfs" was too optimistic, even for the comparatively dry season of July through October. Bulletins No. 17 and 25,10 of the State of Virginia, entitled "Surface Water Supply of Virginia, James River Basin," cover respectively the years of 1951 to 1955 and 1956 to 1960. The Board has held that a period of 10 years is acceptable for establishing a pattern of weather behavior.11 The contracting officer's decision dated July 17, 1961, analyzes the data for the months of July through October in the Bulletins to show that the average maximum rate of discharge (at Holcombs Rock, the gaging station nearest the work site) for the period of October 1950 to September 1959, varied from 2,836 cfs for July to 6,576 cfs for October. During July 1958, when the dike was started, there was a maximum flow of 3,680 cfs. On the occasion of the first erosion, August 26, 1958, the rate was 6,360 cfs. On December 28-30, 1958, when the first major erosion occurred, the maximum flow was 9,440 cfs on December 30, when the gage height reached 8.95 feet. On April 16, 1959, the discharge rate was 13,000 cfs and the river level rose to 10.52 feet. On June 3, 1959, the rate of discharge was 23,900 cfs with a river level of 14.14 feet. During the period of 1950-59, the river rose to a stage of 9.5 feet on a total of 195 occasions, or an average of once every 17 days. If appellant had anticipated the possibility that the use of the dike would be prolonged only as long as through November and December of 1958, 10 Bulletin No. 25 was introduced by appellant as Appellant's Exhibit No. 5. Bulletin No. 17 is Government's Exhibit I. 11 Allied Contractors, Inc., IBCA-265 (September 26, 1962), 69 I.D. 147, 1962 BCA par. 3501, 4 Gov. Contr. 512; Triangle Construction Company, IBCA-232 (March 14, 1962), 69 I.D. 7, 1962 BCA par. 3317, 4 Gov. Contr. 316(c). a study of the data in the bulletins described above would have revealed that the river rose to a stage of 9.5 feet no less than 18 times during those months in the eight-year period just prior to 1958. The specifications in the last paragraph of Article 7.8 "Protection and Restoration of Property," of FP-57, provide, in substance, that in the event of damage to public or private property due to the contractor's fault, he shall restore the property at his own expense to its condition before the damage.12 Appellant's brief cites Article 7.11 of FP-57 as being a modification of the liability imposed on the contractor by Article 7.8.13 We cannot agree with that contention. Article 7.11 clearly deals with the contractor's responsibility for the work performed under the contract (in this case, the bridge), while Article 7.8 is just as clearly concerned with the preservation of property in the vicinity of the contract work. We perceive no ambiguity between these distinctly separate provisions. It has been held that where no ambiguity exists, there is no need to construe the contract.14 Moreover, even if we accept appellant's argument that the damage to the river bank was caused by an act of God or by action of the elements, Article 7.11 would not excuse the contractor from responsibility, under the facts of this case. The excusability clause in Article 7.11 also provides that such causes shall be unforeseeable and without the fault or negligence of the contractor. We consider that the conclusion is unescapable that the contractor did not construct 12 The paragraph referred to reads as follows: "When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect, or misconduct in the execution of the work, or in consequence of the nonexecution thereof on the part of the contractor, he shall restore or have restored, at his expense, such property to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding, or otherwise restoring same, or he shall make good such damage or injury in some other acceptable manner." 13 7.11 Contractor's Responsibility for Work. Until notified by the engineer of the satisfactory completion of the work, in accordance with article 5.6, the contractor shall have the charge and care thereof and shall take every precaution against injury or damage to any part thereof by the action of the elements, or from any other cause, whether arising from the execution or from the nonexecution of the work. The contractor, at his own expense, shall repair, restore, and make good all damages to any portion of the contract work except those damages due to unforeseeable causes beyond the control of and without the fault or negligence of the contractor. Such unforeseeable causes shall include but shall not be restricted to acts of God or of the public enemy, acts of the Government, extraordinary action of the elements, unavoidable slides, and ordinary wear and tear on any section of the road opened to traffic by order of the engineer. "In case of suspension of work for any cause whatever, the contractor shall be responsible for all materials, and shall properly store them, if necessary, and shall provide suitable drainage of the roadway and erect necessary temporary structures at his expense. He shall properly and continuously maintain all living material in newly established plantings, seedings, and soddings furnished under his contract, and shall take adequate precautions to establish and protect against injury new tree growth and other important vegetative growth." 14 Hongkong & Whampoa Dock Co., Ltd. v. United States, 50 Ct. Cl. 213 (1915). March 2, 1964 the dike in a proper manner, and, that it did not plan the dike so as to accommodate the flow of the river at rates of discharge which it should have anticipated. Hence, the causes were neither unforeseeable nor without the fault or negligence of the contractor.15 The cases cited in appellant's brief (such as, Chesapeake & Ohio R. Co. v. Meriwether, 120 Va. 55, and Crawford v. Rambo, 44 Ohio St. 279) are not relevant to the issues in this appeal, since they do not apply the law of contracts, but are based principally on the respective riparian rights of owners of land bordering a common stream. During the hearing, Government Counsel moved for the first time to dismiss appellant's appeal as to all claims except the claim for setting aside the assessment of liquidated damages, on the ground that a "pre-trial" payment voucher signed by appellant had omitted reservation of the claim for restoration costs. The voucher had been prepared prior to the submission of the omitted claim; hence, a reservation as to that claim could not have been included in the voucher when it was prepared by the Government. Moreover, the conduct of both parties at all times until the hearing, including full consideration by the contracting officer of the restoration claim on the merits, indicated an intent to recognize and preserve the claim. The hearing official denied the motion on the ground that it was not timely, and for the further reason that the basis of the motion was insufficient. In any event, we hold that the contractor is responsible for restoration of the river bank under the clear requirements of Article 7.8 of FP-57, the erosion damage having been caused by the acts, omission or neglect of the contractor in the construction and maintenance of the dike. Accordingly, the appeal is denied as to Claim No. 1 for cost of restoration of the river bank. Claim No. 2-Liquidated Damages-$4,500 The contractor's claim for setting aside the assessment of liquidated damages for 30 days' delay in completion of the contract has its principal basis in the same set of facts as to floods, which, it was alleged, excused the contractor from responsibility for the erosion damage to the river bank. However, the contractor also claims that 15 See Carman v. United States, 143 Ct. Cl. 747 (1958). the Government was responsible for delay in approval of redesign of the bridge. Prior to the construction of the dike, certain administrative delays on the part of the contractor were already accumulating. The contracting officer's findings and decision contains an analysis of these delays. The contract had been awarded on February 24, 1958. On April 17, 1958, the contractor received notice to proceed. On May 12, 1958, the contractor requested authority to redesign the superstructure of the bridge, in order to permit the use of more readily available stock sizes of steel forms and pre-stressing steel. The contract provided for consideration of alternate designs, but did not provide for additional time for redesign. On May 29, 1958, the contractor received Bureau instructions to proceed with the redesign. On July 23, 1958, the contractor submitted design drawings for approval. The Bureau approved the drawings, subject to minor corrections on August 1, 1958. There followed further requests for approval of final designs, corrections, resubmissions, final approval and, ultimately, delivery of redesigned steel to the site on September 19, 1958. The contracting officer's analysis shows that out of a total of 207 days of elapsed time from the award of the contract to the delivery of steel on September 19, 1958, the Bureau used 33 days for its work. The remainder of 174 days (except for a stop order of 14 days duration) was used by the contractor, or by its design consultant and suppliers. We consider that the time taken by the Bureau for its work in this activity was reasonable. The contractor has not furnished any evidence to the contrary. Under paragraph (c) of Clause 5, "Termination for Default-Damages for Delay-Time Extensions" of Standard Form 23A, it is provided that the contractor shall not be charged with liquidated damages because of any delays in the completion of the work: * due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, * floods * * Appellant's argument is, in substance, that the occurrence of a flood, ipso facto, precludes the imposition of liquidated damages. This was originally the view (with one dissent) taken by the Court of Claims in Brooks-Callaway Co. v. United States.16 This view, however, violates the grammatical sense of the proviso by holding that floods and other events listed in the clause are always unforeseeable. That decision was reversed by the Supreme Court 17 in a land mark 16 97 Ct. Cl. 689, 698 (1942). 17 United States v. Brooks-Callaway Co., 318 U.S. 120 (1943). |