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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. Paragraph 24 of Specifications No. 570 provided as follows:

Right to change location and plans.-When additional information regarding foundation or other conditions becomes available as a result of the excavation work, further testing, or otherwise, it may be found desirable to change the location, alignment, dimensions, or design of the dam or power plant to meet such conditions. The Government reserves the right to make such reasonable changes as, in the opinion of the contracting officer, may be considered necessary or desirable, and the contractor shall be entitled to no extra compensation because of such changes, except that any increase in the amount of excavation, concrete, or other required work, for which items are provided in the schedule, will be paid for at the unit prices bid therefor in the schedule. The contractor's plant shall be laid out and his operations shall be so conducted as to accommodate any reasonable change in the location and design of the dam and power plant, or any part thereof, without additional cost to the Government.

Some time 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' original contract was for the construction of the low dam, which was the first development of the ultimately projected high dam, and was described in paragraph 18 of the specifications set out in finding 9. Change Order 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 by the change order to construct was a structure of a greater mag

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nitude than the structure provided for in plaintiffs' original contract, and the change ultimately increased the money consideration paid to plaintiffs under 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 is made a part of these findings by reference. The first two and the last two paragraphs thereof read as follows:

Additional information having become available it is found desirable, in pursuance of the provisions of Article 4 of the contract with you dated July 16, 1934 (Symbol No. 1-2r-4359), and in pursuance of the provisions of paragraph 24 of specifications No. 570 forming a part thereof, to change the dimensions and design of the Grand Coulee Dam and power plant to meet such conditions. In the opinion of the contracting officer those changes are necessary and desirable.

In lieu of constructing the Grand Coulee Dam and the appurtenant works in accordance with the drawings and specifications No. 570 you are directed to construct the dam and appurtenant works in accordance with the revised designs as shown on the attached general drawings Nos. 222-D-751, 752, and 753. Other drawings showing additional details will be furnished for construction purposes. The principal changes involved are as follows:

All work shall be done under the detailed instructions contained in specifications No. 570 where these are applicable as determined by the contracting officer and otherwise in accordance with the detailed instructions and drawings which will be furnished by the contracting officer.

Compensation for the work involved as a result of this order shall be made in pursuance of the provisions of paragraph 24 of specifications No. 570 and (or) the provisions of Article 4 of the contract. The time within which to submit claims for adjustment of compensation shall be 60 days from the date of receipt of this order, unless the contracting officer for proper cause shall extend such time.

12. On August 23, 1935, plaintiffs submitted their claim for adjustment of compensation. Negotiations between representatives of the plaintiffs and of the defendant for an ad

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for such protests or objections as are made of record in the manner herein specified and within the time limit stated, the records, rulings, instructions, or decisions of the contracting officer shall be final and conclusive. Instructions and/or decisions of the contracting officer contained in letters transmitting drawings to the contractor shall be considered as written instructions or decisions subject to protest or objection as herein provided.

16. During the progress of the work plaintiffs' representatives often discussed matters of controversy arising during the progress of the work or complained orally to the inspectors and the construction engineer regarding the manner in which the inspection was conducted, or alleged extra contractual requirements. When such discussions or oral complaints were made, it usually resulted in the construction engineer and an officer or officers of the plaintiffs meeting to thresh matters out and to settle the controversy. Sometimes an agreement was reached and at other times not. On a few occasions when no agreement was reached plaintiffs notified the construction engineer that claims for damages would be made. These complaints and discussions were more or less informal, without attempting to comply with the limitations prescribed in paragraph 14 of Specifications No. 570; and, with few exceptions, no appeals were taken within the 30-day period provided in Article 15, to the head of the department.

17. On November 22, 1937, plaintiff's submitted to the Secretary of the Interior, who was the head of the department which had made the contract, a number of claims for additional compensation. These claims were referred by the head of the department to the contracting officer, to whom, under Article 15 of the contract, the head of the department thought they should have been first presented. Up to February 14, 1938, there were presented to the contracting officer 28 claims for additional compensation, including the claims of November 22, 1937. All these claims were originally involved in this suit. Some of them have now been abandoned. Subsequent to the submission of the detailed statement on all the claims on February 14, 1938, plaintiffs submitted to the contracting officer statements of damage on each of the claims at various dates from March 4, 1938, to May 3, 1938.

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18. The findings of fact and decisions of the contracting officer on plaintiffs' 28 claims were made on December 5, 1938, and on the following day his findings were sent to counsel for plaintiffs. They are in evidence as plaintiffs' Exhibit J, and are made a part hereof by reference. On each of the claims the contracting officer made findings of fact and a decision; and on each claim, except claims 13, 27, and 28, the contracting officer concluded his findings in the following language:

The contractor is entitled to no additional compensation by reason of this claim and the contractor's claim is denied.

As to claim 13, the contracting officer found the contractor entitled to remission of penalty of $1,099.80, but the balance of the claim was denied. Claims 27 and 28 were also denied.

19. The contracting officer did not refuse to consider any one of the 28 claims on the ground that plaintiffs did not make timely protest under paragraph 14 of Specifications No. 570. See finding 16. In some of the findings of fact on these claims the contracting officer referred to the exchange of letters and protests, giving dates, and using language which, in its context, showed that he meant that the plaintiffs had not complied with the requirements of the contract and specifications as to making timely protests. At no place did he specifically state in his findings on any claim that the claim was denied because of plaintiffs' failure to file a timely written protest.

20. After November 22, 1937, and before January 4, 1939, there was an exchange of letters and telegrams between counsel for plaintiffs and the Secretary of the Interior which contained the respective differing views of the parties as to the proper approach and speed for the consideration of the claims then pending before the contracting officers.

In a letter dated August 11, 1938, from plaintiffs' counsel to the Secretary of the Interior, in which counsel complained at being required to wait for a decision on the claims by the contracting officer, counsel said:

This situation can be remedied by you and it is your duty to do so. You can appoint a representative to con

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duct a hearing and advise you as to the propriety of our claims. If this representative be not a lawyer himself, it is suggested that he be afforded competent legal advice and assistance.

We respectfully insist that such a representative be appointed by you; that we be permitted to present to him our evidence of the facts and our views of the law and the contracting officer be permitted to do likewise; and that each party be permitted to hear and examine the other's witnesses.

21. January 4, 1939, counsel for plaintiffs wrote a letter to the Secretary of the Interior, as follows:

For and on behalf of Silas Mason Company, Inc., Walsh Construction Company and Atkinson-Kier Company, contractors for the first unit of the Grand Coulee Dam (Symbol No. 12r-4359), appeal is hereby taken to you as Secretary of the Interior from the "Findings of Fact" of the contracting officer.

The "Findings" ignore pertinent and controlling facts, contain frequent misstatements of fact, are so vague as to make their intent and meaning a matter of conjecture and are predicated upon many misconstructions of the contract. The "Findings" so far exceed the ordinary bounds of legal consideration as to constitute them arbitrary and capricious action on the part of the officer responsible therefor.

This appeal is taken without recognition of any supposed requirement therefor and with full reservation of the contractor's rights to have all issues adjudicated by the proper courts. In view of the protracted delay of the contracting officer in making these "Findings" it is respectfully requested that disposition of the several questions be expedited.

22. January 19, 1939, the Secretary of the Interior wrote a letter to counsel for plaintiffs, as follows:

I have received your letter of January 4 which is in the nature of an appeal from the decision of the contracting officer on the claims made by Silas Mason Company, Walsh Construction Company, and Atkinson-Kier Company pursuant to their contract, symbol 12r-4359, dated July 16, 1931, for the construction of the first unit of the Grand Coulee Dam. You allege that the action of the contracting officer in making his decisions on the 28 claims filed by you was arbitrary and capricious.