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Our records indicate that the contractor was delayed in the performance of such contract not only by reason of the circumstances specified in H. R. 5356, but also because of breaks in the existing sewer line. The existing sewer was located, at some places, within the same right-of-way as the line to be constructed and excavations for the new line caused breakages in the existing line, cave-ins, and wet excavation, thus creating much more difficult working conditions and more extensive work. In many instances it was necessary to repair or rebuild portions of the old line before work could proceed on the contract.
In view of the unusual circumstances of this particular case and the fact that the work, which was essential to the war effort, was undertaken by the Southern Bitumen Co. through negotiations with this Agency when all other available contractors were unwilling to undertake the work, it is recommended that H. R. 5356 receive favorable consideration by the Congress.
A copy of the petition submitted by the contractor for the waiver or abatement of liquidated damages, penalties, and other charges is transmitted herewith.
I am advised by the Bureau of the Budget that the submission of this report is in accordance with the program of the President. Sincerely yours,
BAIRD SNYDER 3d,
FEDERAL WORKS AGENCY
PETITION FOR WAIVER
OR ABATEMENT OF LIQUIDATED DAMAGES, PENALTIES,
AND OTHER CHARGES
In Re Docket ALA. 1-160(F) Anniston Outfall Sewer, Anniston, Alabama, Filed
by Southern Bitumen Company, a Corporation, Contractor Comes the above-named contractor and petitions the Federal Works Agency to authorize the extensions of time requested by the contractor at the time the work was in progress; or, to waive, or abate, any and all liquidated damages, penalties, and other charges assessed, and sets forth the following facts in support of the peition:
1. Sixty-six days delay, account of labor shortage caused by adjacent Government projects and defense plants.
2. Thirty-three days' delay, account of materials and repair parts, due to low priority rating.
3. Twenty-one days' delay, account of city's failure to provide right-of-way on Burton and Stewart property-Inability to secure.
4. Seventeen days' delay, account of right-of-way on Highway 78 requiring relocation of project.
5. Twelve days' delay, account of city's failure to meet its obligation with respect to engineering data, stakes and levels.
6. Fourteen days' delay, account of breaks in old sewer line. 7. Fifteen days' delay, account of rock slippage, causing additional excavation, 8. Forty-five days' delay, account of unforeseeable subsurface conditions.
In June 1942, invitations to bid for the award of the contract to construct the sewer covered by the project were extended by publication in newspapers of general circulation and also by mailing the same to a large number of contracting firms. Sullivan, Long & Haggerty, of Bessemer, Ala., was the only bidder. The amount of this bid was $297,000.
This bid was $57,000 more than the estimate of the cost as prepared by the architect-engineer. The bid was rejected. Diligent efforts were made by all concerned to procure other bids. None were forthcoming. On account of the desperate need, due to the condition of the old, degenerated terra cotta pipe, now suddenly so grossly overloaded by reason of the influx of thousands of soldiers quartered at Fort McClellan, adjacent to Anniston, and their families, that raw sewage had been for months forced up through the manholes and emptying into the streets, and appeals were made personally by the architect-engineer, the mayor of Anniston and many interested citizens to induce contractors to bid. Still no bids were forthcoming. Finally, by appealing to the patriotism of this contractor, and by the assurance given by the architect-engineer that the job could be done
for $240,000, a bid was finally secured from the undersigned for $267,000. However, the undersigned was unable to make bond after the bonding companies had checked his figures and his bid, in light of the contractual obligations that would have to be assumed. At this juncture, appeal was made to a publicspirited citizen of Alabama who owned and operated a plant for the manufacture of concrete pipe at Anniston, Mr. Roberts Blount, to endorse as guarantor and surety for the undersigned. Finally, in reliance upon the assurances given by the architect-engineer, Mr. Blount guaranteed the performance of the contract. Only so was the construction of the highly important and desperately needed sewer begun.
General Noble and other prominent citizens of Anniston were demanding from a health standpoint relief from this situation, which was primarily caused by Camp McClellan.
1. Of course, before making the bid, we had discussed the availability of the necessary labor with the Hod Carriers and Common Laborers Union of Anniston.
It was stipulated that only union labor could be used on the job and this union, of which Mr. L. J. Dugas was the head and spokesman, was the only source of the kind of labor we had to use. This is substantiated by the following quoted letter: Mr. C. E. EDGE, President, Southern Bitumen Co.,
Ensley, Ala. DEAR SIR: In discussing the labor situation here at Anniston, Ala., in August 1942, with you and your superintendent, Mr. Austin Smith, you will recall that I gave you every assurance that the union could furnish the necessary labor for the Anniston sewer project which you contemplated placing a bid for.
About the time, or shortly thereafter, that you actually started work on the sewer project, the Anniston Ordnance Depot, Eastaboga Air Base, and Fort McClellan opened up additional projects to be completed in a specified length of time. Our labor situation changed practically overnight and in addition to the above-mentioned projects, Camp Sibert at Attalla, Ala., 30 miles away, was opened up for work and a good portion of our labor was drawn from this district to be used there.
We were sincere in our assurance to you that we would furnish necessary labor, but in view of the many projects mentioned, starting work about the time that your project started, we were unable to cope with the situation insofar as labor was concerned.
Between the dates of October 5 and March 31 we wrote you numerous letters after receiving requests from you for additional labor, advising that there was no labor available, even though we extended all efforts to assist you.
We were unable to furnish labor for your job, as the other projects mentioned carried a higher rating as defense jobs in this area. Yours truly,
L. J. Dugas. We also respectfully submit a letter from Mr. Charles W. White, manager of the United States Employment Office. The original letter hereto attached has reference to the acute labor situation in the Anniston area, which, as this time also had been designated a critical labor area. However, this letter has no reference to union labor, for the United States Employment Service had only nonunion labor, which we were bound not to use on this job, but is further evidence of the labor shortage.
In the early part of October 1942, the War Department let a contract for the construction of the Eastaboga Air Support Base, which was a rush job by the Army Corps, in charge of Army engineers, and was given an AA-3 priority while ours was an A-4.
In addition to the above, in October, Camp Sibert at Attalla, Ala., 28 miles distant, was designated by the Army as a rush job and the outfall sewer line there was to be built immediately in preparation for receiving troops in that camp.
In addition to the above, Fort McClellan and the Anniston Ordnance Depot at Bynum made extensions and additions to their original contracts and the labor situation being so very short, in order to procure labor, made very flexible classifications of employees. That is to say, common labor was offered skilled or semiskilled classifications as carpenters and carpenters' helpers at a much higher pay than was fixed by the Government for the sewer project. There also were inducements to labor with promises of longer hours and overtime which made labor on all of these other projects receive far more every pay day than the same men had received when they had worked on the Anniston sewer project.
Additional contracts for war matériel were being awarded very frequently to the Kilby Steel Co., of Anniston and the several soil pipe and foundry companies in Anniston which made the demand greater and greater for labor. Plus all of this, the Coosa River ordnance plant at Talladega, Ala., 20 miles from Anniston, and the Alabama Ordnance Works at Childersburg, Ala., a distance of 38 miles, were continuously absorbing not only the local labor in the Anniston area, but also draining the labor market for a hundred miles around. The contractor attempted to bring in labor, but the housing situation was so bad that it was impossible to find shelter for outside labor. The contractor conferred with six or eight other contractors trying to sublet the unfinished portion of the line in the hope thus to · get more labor. This was impossible and only one contractor, namely, LedbetterJohnson, of Rome, Ga., at considerable expense to the contractor, agreed to furnish labor and his organization to further prosecute and expedite the job. This firm, although experienced and of excellent reputation, found it impossible to get labor under the then-existing labor conditions, and abandoned the sincere attempt they made.
From the foreman's time book we quote: "Six men reported to work at 7:30 a. m., but need 20 more. One came at 12 p. m.
Struck another spring in bottom of ditch. More water than ever. Laid five joints of pipe. Sheeted one section.”
Such conditions as those shown by this quotation handicapped and delayed us every day from October 5 until the completion of the job.
Based on our daily record we were short an average of approximately 69 men daily. The records of construction show that it consumed 178,000 man-hours to complete the job, and in order to complete the job with the specified time of the contract, it would have required 140 men working 8 hours a day, 5 days a week. In spite of our best efforts, we fell short of this requirement for the 120 days of the contract work time, approximately 115,000 man-hours. That shortage of labor had only permitted us to use 63,000 man-hours, although the weather was good during this entire time.
On October 5 the labor-supply picture changed drastically and began to delay us by the disastrous shortage. We hereby refer you to letters attached from the Hod Carriers Union of October 5, 19, 26, November 20, December 3, 17 of 1942, and subsequent letters of January 10, 24, February 14, March 15, 23, 24, and 31 of 1943.
For the actual time from beginning of construction until completion we estimate the unavoidable delay due to labor shortage alone at 66 days.
2. The Anniston sewer project carried a priority rating of A-4 which was very low considering the high priority ratings of other projects being carried in this neighborhood for the Federal Government. Under this low priority it was impossible to secure repair parts for machines and other supplies. One instance of this is that it required 3 weeks to get parts for a bulldozer which was used in back filling the trench. In support of this, we attach a copy of letter from the Young & Vann Supply Co., of Birmingham, Ala. This same condition existed with all supply houses for materials on this job.
Further demands were made upon the same concrete pipe company, furnishing pipe for the Anniston sewer job, to furnish pipe for the Camp Sibert sewer line also. Since their preference rating was so much higher than the Anniston outfall sewer line, they took preference and caused the delay in the manufacture and delivery of the pipe for which we had contracted so that the Anniston sewer job was delayed 33 days on this account. In the meantime, the labor situation which had been set up by the Government as a union project had gone from bad to worse insofar as securing labor was concerned. Þelays were encountered daily from October 5 to the completion of the job, on account of the inability of the union to furnish men as evidenced by letters attached.
See attached copy of letter from Southeastern Sand & Gravel Co., stating that pipe was taken away from the sewer job, delaying this project.
3. Construction was begun on September 4, 1942. Ample labor was supplied us by the union for approximately thirty days, or until October 5. The weather was good and the sewer line was constructed steadily and rapidly up to the Stewart and Burton properties, but then and there the work was stopped by order of the owners of the land because the city had failed to comply with its obligation under its agreement with the Federal Government to acquire the necessary rights-of-way. The city assured us that their default in tnis respect would be made good at once, but, although in daily expectation, this part of the right-of-way was not acquired until we had been at a standstill for the 21 days from September 26 to October 16. 4. For a distance of approximately three-quarters of a mile, the sewer line paralleled the United States Highway 78. The contractor was unaware of the fact that the architect-engineer or the city of Anniston had not been granted permission from the State Highway Department of Alabama to construct a sewer line on the highway right-of-way. As soon as operations began on this right-of-way, the division engineer of the State highway department issued instructions that work cease until such time as permission was granted. After a delay of 17 days, the contractor was allowed to ceed as the architect-engineer and the highway department agreed to move the line east 2 feet, but for which there was no change order issued. This delay, as stated above, is directly due to the failure to comply with contract obligation to obtain for us such permission. In addition to the delay, our two machine operators were retained in this enforced idleness because of our hope that the delay would be terminated by the permission to proceed being granted any day, and also because of the certainty that if released they could not be induced to return to us, nor could they be replaced; so we paid their $110 per week ($330 for the 3 weeks).
5. In the early part of construction, the architect-engineer in charge had only one resident engineer on the project and often it was impossible to make progress due to the fact that it was impossible to get grade stakes set by the engineer, although under the contract it was the obligation of the Government to set grade stakes. The contractor at his own expense carried a foreman-engineer to assist the resident engineer set grade stakes and expedite the work. This was done by the contractor at his own expensefor 8 months at a cost to him of approximately $1,700. We were not obligated to do this at all, but we were compelled to do so to minimize our delays due to the default of the architect-engineer. Also, it was the obligation of the city to furnish grade stakes and their failure to meet this obligation caused further delay. On numerous occasions gangs were ordered for morning work, and upon arriving at the job, they found no engineer and before the stakes could be set, our record of lost time on men standing idle amounted to over $6,000. The delay sustained, insofar as completing same with contract time, amounted to 12 days.
6. Another item which caused 14 days of delay for which we have been charged with a penalty of $50 per day, was due to the fact that for a distance of approximately 3,000 feet, the new sewer line paralleled both Highway 78 and the old Anniston sewer line along the right-of-way of Highway 78. The proximity of the new line to the old sewer line, caused the new excavation to the cut so close within 3 feet--of the old sewer line, that due to its decadent condition the pressure would break the old sewer line and flood the ditch of the new sewer line, necessitating repairs made by us at a cost of $300 approximately.
In the excavating along Highway 78, we encountered innumerable unforseeable subsurface difficulties, such as springs and slides which had to be sheeted with cross-bracing every 4 feet, and it made it necessary to use a great deal of hand excavation due to the fact of slides and slippage of the adjacent ground under the highway, as well as under buildings along the highway. This necessitated considerable hand work, and the use of cross bracing that prevented machine work, creating tremendous excess expense to the contractor in the form of labor cost.
7. The excavation through solid rock on this line had been estimated by the architect-engineer at 2, 200 cubic yards, but due to the rock formation which was lying in strata separated by crevices there was removed 50 percent of additional rock, or a total of 3,300 yards for which the architect-engineer allowed no overage whatsoever. The necessity for moving the additional 1,100 yards was due to the fact that as the rock, loosened by blasting, was removed from the ditch, the rock from the walls of the ditch would creep or slip into the ditch. At the agreed unit price per yard there should have been allowed us $13,475 for the removal of this excess 1,100 cubic yards of rock. This also caused a delay of 15 days in the completion of the job, for which we have been charged with a penalty of $750.
8. From this point to the point of completion of the job, the terrain was an old marsh land, filled with trash, much of which was composed of brickbats, cinders, plaster refuse, etc. Concealed in this mass were subterranean springs. None of these difficulties were, nor could have been, foreseen. This part of ditching would require only 15 days, but actually consumed 60 days. Thus we sustained a delay of 45 days for which we are charged with a penalty of $2,250.
Aside from the penalty, this section of the job cost the contractor $20,000 over and above contract price. The entire distance had to be sheeted and even with
sheeting in a number of instances, it would force the walls in and the crossbracing made machine work impossible, so that the greater part had to be completed by hand labor. No allowance for sheeting was allowed except in one short space.
In addition to anticipated excavating, a great amount of material slid or slipped into the ditch. In several places, in lieu of patching the pavement for which the contractor was paid, it was necessary for him at his own expense to replace whole sections of the sidewalk,
Having encountered the numerous unavoidable delays enumerated above and exceeding the time limit due to the above conditions, the contractor in extending the number of working days allocated into January, February, and March encountered freezing weather and rain and although some men were on the job, at payroll costs, they were unable to accomplish any progress on the project. The joints were of asphalt compound and, as they had to be poured at boiling point, freezing weather would not permit the laying of pipe due to the fact that the joints could not be sealed under freezing-weather conditions. One fair day during the contract time is equal to many days during the rainy and freezing
A copy of the weather report is herewith attached. We feel that consideration should be given due to the fact of the labor situation which developed during the contract time.
When construction was practically completed and preliminary inspections were being made by the field representatives of the Architect Engineer, it became a custom of these field engineers to traverse the sewer line, removing manhole covers and leaving the manholes uncovered. School children would throw debris of all descriptions into these manholes. Complaint would be made by the engineer's representatives to our foreman of this condition. In response to the complaint we placed a number of men in the outfall line to crawl on their knees and scoop up the debris in sacks, and in this manner clean the lines. Such leaving of manholes uncovered occurred no less than a half dozen times.
The expense of performing this cleaning work was necessitated by the indifference of the engineer's representatives and their failure to cooperate with the contractor in keeping manhole covers in place. The above accounts for some of the excess man-hours consumed and for which we are penalized, though an exact estimate thereof is not feasible.
A number of men were employed who could have been at work prosecuting the job to completion in cleaning out that portion of the line which had been completed in preparation for final inspection and acceptance of that portion, or about half, of the line already completed, but when same was made ready, the contractor was notified that he would have to await the completion of the whole line and necessarily had to rework that portion which had been completed. This consumed many man-hours.
The regional Atlanta office has also penalized or assessed the project with $4,000 for excess infiltration.
The architect-engineer had on file a report from the Pittsburgh testing laboratories of Birmingham, Ala., that the amount of infiltration was not excessive. The architect-engineer had made the statement that as far as the line as a whole was concerned the infiltration was of no serious or damaging consequence, and that his recommendation was a minimum of $500 or a maximum of $1,000. However, the regional director has assessed a penalty of $4,000.
At the time that the final settlement was made, $37,000 was being withheld on which interest was running against the contractor and in order to effect a settlement, the contractor agreed to the settlement of $4,000 in order to receive the payment of $25,000 moneys due on work performed which were being held for several months.
The contractor feels that this penalty was not justified and is excessive and prays for relief from this penalty. It was agreed to under duress of the attendant circumstances.
We feel that we have been unjustly penalized for de'ays utterly unexpected and beyond our control. The Government got a good, serviceable sewer that has now served nearly a year without interruption or complaint. We lost some $41,805 on this contract in out-of-pocket cash. We respectfully request that the superadded penalties of $13,700 be abated.