shall provide adequate pumping equipment and shall do all pumping necessary to remove water from the excavation and to keep it free from water while construction therein is in progress. He shall do all trenching, damming, and underdraining necessary to accomplish this.

It would be difficult to make the language of the quoted provisions plainer, or its purpose clearer. The contract required the contractor to provide all cofferdams. The contract drawings indicated a tentative design for a cofferdam. The word "tentative" is defined in Webster's New International Dictionary as meaning " Of, pertaining to, or based on, a trial; experimental." The word "provisional" is given as a synonym. Under the word "provisional" is found the further definition "That is tentative which is of the nature of a trial or experiment." Applying those definitions to the specifications, it is plain that the contractor was put on notice that he was required to furnish a cofferdam as necessary; that the design indicated in the drawings was experimental, or in the nature of a trial; that the entire responsibility for the sufficiency, size, strength, stability, and effectiveness of the cofferdam was upon the contractor. The Government specifically disclaimed responsibility for any conceivable failure of the cofferdam indicated. When it developed that the open cofferdam was not suitable or effective, the contractor was not only "authorized ", as stated by the officer in charge, but he was required by the plain language of the contract, to change to some method of operation effective to the proper performance of the work. Regardless of what caused the necessity for such change, the contractor would not be entitled to additional compensation.

2. The location of the shaft too near the pumphouse well. The shaft here mentioned was the shaft for the cofferdam at Drydock No. 2 for the connection of the culvert to the pumphouse well. Drawing no. 9845, section A-A, showed that the east wall of the cofferdam would interfere with the operation of a standard gauge railroad track operated to Pier No. 5. The specifications provided that the Government would remove all obstructions such as railroad tracks, surface lines, paving, etc., in the vicinity of Drydock No. 2 pump well which would interfere with the construction of the cofferdam. The contractor contends that for the benefit of the Government, and in order not to interfere with the ordinary handling of traffic to Pier No. 5, and under the supervision and direction, and with the approval of the officers of the Government, he located the shaft for the cofferdam just west of the track, and 1 foot nearer the pumphouse well wall, and that, according to the drawings and specifications, no artificial obstruction would be encountered by reason of such changed location. Drawing no. 9627, section B-B, and drawing no. 9628, section C-C, showed the distance between the cofferdam sheet piling and the outside of the pumphouse well

wall as 2 feet. Upon such showing the cofferdam could be moved. 1 foot west (as was done), still leaving a clearance of 1 foot between the sheet piling and the pumphouse well wall. However, when the shaft was sunk at that point, the contractor encountered the artificial obstruction of the pumphouse footing. The officer in charge has stated that the drawings were in error, in that the thickness of the pumphouse wall was shown as 9 feet, 6 inches, without brick covering, whereas the wall was 10 feet thick, and had a brick covering of 9 inches, making a total difference of 15 inches. It is apparent, therefore, that when the steel shaft was driven 1 foot nearer the pumphouse wall, it struck the brick covering of said wall 3 inches beyond the outside.

There appears some contradiction between the contractor and the officer in charge as to the responsibility for the location of the shaft 1 foot west of the point shown on the specifications. The contractor contends that it was done under the supervision and direction of the officer in charge. The officer, on the other hand, stated:

The yard did not locate the shaft cofferdam. In fact, the contractor was advised that the responsibility was his. Before submitting his drawing, yard no. 10099, drawing of modified cofferdam, the matters of size and location were discussed. The contractor wanted to reduce the size to save excavation, and it is believed the cofferdam was moved one foot west primarily to save the railroad track although the contractor was given to understand that it was entirely up to him whether he should move it or not, as the Public Works officer had laid out a plan for moving the railroad track to clear the cofferdam and maintain connection with Pier 5.

The statement of the officer in charge is more in line with the contract and specifications. The authority of the officer in charge was measured by paragraph 2 of the general provisions, paragraph 1-03 of the specifications, and paragraph 26 of the general provisions. The first provided that:

A resident officer of the Corps of Civil Engineers, United States Navy, or other officer or representative of the Government, known as the officer in charge, will have immediate charge and supervision of the work and of all details thereof, including inspection.

Under that provision it was the duty and responsibility of said officer to supervise and inspect the work, to see that every detail was performed in a satisfactory manner and in accordance with the specifications. No authority was conferred on him to change the specifications in any way. Paragraph 1-03 of the specifications has its place in section 1—general clauses. It provides:

1-03. Location.-The work shall be located at the Puget Sound Navy Yard, Bremerton, Washington, approximately as shown on the drawing. The exact location will be indicated by the officer-in-charge.

The contractor contends that under that paragraph the officer in charge was authorized to approve, supervise, and direct a relocation of the cofferdam different from that shown in the specifications

and drawings; that he did in fact so approve, supervise, and authorize such different location, and, therefore, that the Government is responsible. The quoted provision is not to be so interpreted. The work was to be located at the Navy Yard. The Navy Yard covers many acres and is the locus of varied activities connected with the United States Navy. Paragraph 1-01 of the specifications provided that it was the intention and purpose to secure the drainage culvert between Dry Dock No. 1 and the pumphouse well of Dry Dock No. 2, together with the necessary connections to existing construction at both ends. Paragraph 1-02 informed the contractor that the connection at Dry Dock No. 1 consisted of a short section of concrete construction and included the removal of a temporary timber bulkhead now located in the dry dock well, and that the connection at Dry Dock No. 2 consisted of a specially designed 4-way concrete duct chamber leading to 4 existing pump intakes. It would appear that when Dry Dock No. 1 and the pumphouse well of Dry Dock No. 2 were constructed the drainage culvert was in contemplation and provision was made for its subsequent connection. Between those two fixed points was the "exact location" which was to be indicated by the officer in charge. Thereafter, the work was to proceed according to the specifications and drawings.

Paragraph 26 of the general provisions provided that:

No oral statement of any person whomsoever shall be allowed in any manner or degree to modify or otherwise affect the terms of the contract. The stipulation is all inclusive. It applies to the officer in charge and to the specifications which were made part of the contract terms. It is clear that if, as the contractor contends, the officer in charge did undertake to direct or consent to change of the location of the shaft, he acted without authority and, it would appear, in disregard of his duty to see that the work was done in accordance with the specifications, and the Government could not be bound thereby. The only person authorized to make changes in drawings or specifications was the contracting officer, and even by him changes. could be made only in writing and as prescribed by the contract. Any unfortunate results of departure from the provisions of the specifications, undertaken by the contractor with or without the oral consent of the officer in charge, must be borne by the contractor. 3. Error in measurements of drawings nos. 9627, 9628, and 9645 which caused contractor to strike an artificial obstruction not indicated on the drawings.

It is manifest from what has been said that the alleged errors. in the drawings cannot be made the basis for a claim. If the contractor had not changed the location of the shaft from that shown on the drawings, such artificial obstruction would not have been

encountered. Since such change was without the authority of the contract any damage or increased cost caused by striking the artificial obstruction must fall upon the contractor and not the Government. Little discussion of this item appears necessary. However, in order to dispose of the matter fully, the item may be considered from an angle equally applicable to the other two. Paragraph 2-02 of the specifications provided that bids should be based on the assumption that subsurface conditions were as indicated, and that no pipes or other artificial obstructions, except those indicated, would be encountered. It further provided that in the event actual conditions did differ from those stated or shown, an adjustment in contract price would be made in the same manner as that provided under article 4 of the contract. Article 4 and its requirements have been set out hereinabove. The article provided the only way in which the contractor could obtain increased compensation and his failure to observe contract requirements would be fatal in any event to his right to recovery. Plumley v. United States, 226 U. S. 545. It is to be observed further that the work here involved could not be considered as extra work under the contract. The contract required the complete construction of the culvert, to which the cofferdam was incidental and necessary, and the construction of the cofferdam was not extra work not required under the contract.

It is evident that the subsurface conditions were as shown on the drawings and in the specifications; that the change in location of the shaft was without authority of the contract; that the fact that the contractor encountered the artificial obstruction was attributable to such unauthorized change, and he must bear the burden of additional expense caused thereby; that the contractor performed no work not required under the contract; and that the Government received no benefit for which it had not contracted. It is evident, also, as a matter of law, that any possible right to additional compensation the contractor might otherwise have had was lost by his failure to comply with contract requirements.

Upon the law and the facts there appears no legal basis for the payment to the contractor of any amount in addition to the contract price by way of extra compensation, and the disallowance of April. 25, 1934, must be and is sustained.

(A-59022)

CONTRACTS-PROCESSING TAXES

Bidders were put on notice of the processing tax on cotton from and after July 14, 1933, date of Presidential approval of the proclamation of the Secretary of Agriculture pursuant to the Agricultural Adjustment Act of 7556-35-34

May 12, 1933, 48 Stat. 31, and under a contract providing that only those taxes imposed after the date set for opening of bids would be charged to the Government, there is no authority for payment to a contractor of any amount in addition to the bid price to reimburse him for the processing tax, where the bids were opened after July 14, 1933, even though the bids were submitted prior to said date and the tax was made effective thereafter. Comptroller General McCarl to Captain J. H. Knapp, United States Navy, January 4, 1935:

By second indorsement of November 27, 1934, the Judge Advocate General of the Navy transmitted to this office your letter of November 8, 1934, as follows:

1. Reconsideration is requested of the action of the Audit Division of the General Accounting Office in disallowing a payment of $158.06 as processing tax under voucher #40409 in my April 1934 accounts.

2. Contract no. 32596 with the Minnesota Mining and Manufacturing Company contains the following clause:

"Prices bid herein include any Federal tax heretofore imposed by the Congress, which is applicable to the material on this bid. Any sales tax, duties, imposts, revenues, excise, or other taxes which may hereafter (the date set for the opening of this bid) be imposed by the Congress and made applicable to the material on this bid will be charged to the Government and entered on invoices as a separate item."

3. The regulations relating to processing tax on cotton and cotton products were approved by the President of the United States 14 July 1933 but were not published by the Treasury Department until 29 July 1933 and did not become effective, as provided for in the regulations until 1 August 1933.

4. The bid upon which the contract in question was awarded was opened 25 July 1933 and the contract awarded thereunder was dated 9 August 1933. As the date of opening of bids antedated the date of the publication of the regulations relating to the cotton processing tax and the effective date thereof it must be assumed that no tax was imposed or in effect that would be applicable to the material called for in the bids opened 25 July 1933.

5. The payment was disallowed for the following reason: Contract provides that price quoted includes all taxes imposed by Congress up to and including the date of opening of bid, July 25, 1933. The processing tax on cotton and cotton products having been imposed July 14, 1933, payment of same is unauthorized.

6. It is therefore requested that the disallowance be removed.

The statement contained in the bid of the contractor, as quoted in your letter, was that the prices paid included any Federal tax imposed, etc., prior thereto, and that any taxes imposed and made applicable to the materials after the date set for the opening of the bid would be charged to the Government. The date when such stipulation was effective was set by that provision as July 25, 1933, the date of the opening of the bids, rather than any date prior thereto upon which the bid might have been submitted.

You contend that while the proclamation of the Secretary of Agriculture relating to processing tax on cotton and cotton products was approved by the President on July 14, 1933, 11 days before the opening of the bids, it was not published until July 29, 1933, and did not become effective until August 1, 1933; and that, as the date of opening of the bids, July 25, 1933, antedated the publication of the proclamation and the effective date thereof, it must be assumed that no tax was imposed or in effect that would be applicable to