57 Reporter's Statement of the Case 6. After completing the inspection plaintiff submitted to the United States District Engineer a bid broken down into prices for individual sections and at the same time submitted an alternative bid naming a flat unit price per acre for all sections combined. The material part of the bid is as follows: I (we) wish to undertake not more than all sections of this work. NOTE. All amounts and totals given above will be subject to verification by the United States. In case of variation between unit bid price and totals shown by bidder, the unit price will be considered to be his bid. We will accept Sections 2-3-7-8-9-10-11 alone, as a whole for the sum of $66.10 per acre, total amount $67,554.20. We will also accept Sections 1-4-5-6 alone, as a whole for the sum of $46.35 per acre, total amount $96,408.00. 7. After submission of plaintiff's bid on September 22, 1936, plaintiff learned that there was a wide difference between the amount of its bid and the amount of the Government engineer's estimate for the work, and plaintiff's President and Col. Park, the district engineer, held a conference with the view of ascertaining whether or not plaintiff had made an error in its bid. During this conference they discussed the work to be performed and attention was called to the specifications. Plaintiff's President stated in effect that if the specifications would not be interpreted against the plaintiff with unreasonable strictness, as had been done in some other contracts with the Government, and if the specifications were correct, plaintiff was satisfied with the amount of the bid. 8. Pertinent parts of the contract and specifications, in addition to those shown in finding 3, are as follows: 679646-46-vol. 193- -6 Reporter's Statement of the Case 103 C. Cls. ARTICLE 2. Specifications and drawings.-The contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the contracting officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy in the figures, drawings, or specifications, the matter shall be immediately submitted to the contracting officer, without whose decision said discrepancy shall not be adjusted by the contractor, save only at his own risk and expense. The contracting officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided. Upon completion of the contract the work shall be delivered complete and undamaged. 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 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 9. Delays-Damages.-If the contractor refuses or fails to prosecute the work, or any separable 57 Reporter's Statement of the Case part thereof, with such diligence as will insure its completion within the time specified in article 1, or any extension thereof, or fails to complete said work within such time, the Government, may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. * *Provided, That the right of the contractor to proceed shall not be terminated or the contractor 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, acts of God, or of the public enemy, acts of the Government, acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes, if the contractor shall within 10 days from the beginning of any such delay (unless the contracting officer, with the approval of the head of the department or his duly authorized representative, shall grant a further period of time prior to the date of final settlement of the contract) notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 30 days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto. ARTICLE 15. Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions 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. SPECIFICATIONS. 1-05. Commencement, Prosecution, and Completion.-The contractor will be required to commence work under Reporter's Statement of the Case 103 C. Cls. the contract within 15 calendar days after the date of receipt by him of notice to proceed, to prosecute the said work with faithfulness and energy, and to complete it within 240 calendar days after said date of receipt of notice to proceed; provided that should the total number of acres to be paid for actually cleared under the contract exceed the number of acres for which bids will be canvassed as stated in paragraph 1-04 of these specifications, additional time will be allowed at the rate of 30 calendar days for each 122% increase in number of acres in excess of such estimated quantity. The monthly rate of progress to be maintained by the contractor will be determined by dividing the total number of acres to be cleared under his contract by eight. In case of failure on the part of the contractor to complete the work within the time thus determined and agreed upon for its completion, plus any extensions duly granted under articles 3, 4, 5 and 9 of the contract, the contractor shall pay the Government as liquidated damages the sum of $10.00 for each calendar day of delay irrespective of the number of sections included under his contract, until the work is completed or accepted. 1-08. Physical Data.-The fluctuations of the river between extreme high and low stages are approximately as follows: Junction of the Mulberry and Locust Forks, 14 feet; Fort Birmingham, 26 feet, and Cordova, 40 feet. The low water season is usually from April 1 to December 1, but occasional rises in the river and creeks may be expected during this period. Hydrographs prepared from gauge readings at Lock No. 17 are available for inspection in the U. S. District Engineer Office, Mobile, Alabama, and the U. S. Engineer Sub-Office, Tuscaloosa, Alabama. The river and creek banks are steep, as a rule, and the terrain in general is rugged. 1-11. Claims and Protests.-If the contractor considers any work required of him to be outside the requirements of the contract, or considers any record or ruling of the inspectors or contracting officer as unfair, he shall ask for written instructions or decision immediately, and then file a written protest with the contracting officer against the same within 10 days thereafter, or be considered as having accepted the record or ruling. (See Arts. 3 and 15 of contract.) 2-01. Order of Work.-The work is to be carried on at such localities and also in such order of precedence as may be found necessary by the contracting officer. The location and limits of the work to be done will be plainly 57 Reporter's Statement of the Case indicated by the contracting officer or his agents by stakes and ranges or otherwise, and gages will be established to show the stage of water with reference to the datum plans for clearing. 3-01. * * * The contracting officer will furnish on the request of the contractor all survey lines, points, and elevations reasonably necessary for the work. All expenses of inspection, surveys, and superintendence will be borne by the United States. 4-02. Method of Measurement.-The area cleared will be measured by the acre in the field by inspectors appointed by the contracting officer. The contractor is invited to be present in person or to be represented by an authorized agent during the measuring. 4-03. Work Covered by Contract Price.-The contract price per acre for clearing shall cover the cost of cutting and removing or disposing of all material, as specified in paragraphs 1-02 and 4-01 of these specifications. 9. Plaintiff commenced the work on November 25, 1936. The contract date for completion was fixed as August 1, 1937. The work was actually completed December 6, 1937. During the progress of the work under the contract, plaintiff was required by the field officer of the defendant, Mr. McCloud, representing the contracting officer, to clear, in addition to any areas lying directly on the stream, which were between elevations 244′ and 260', all areas on gullies, sloughs, and tributaries of the main streams, which lay between those elevations. Plaintiff's agent orally complained and protested to the field officer against being required to clear the areas not actually within the areas shown as shaded or dotted on the map, and claimed that such work was outside the limits shown on the map upon which plaintiff relied in making its bid. He also called on Mr. Gatlin, senior engineer, and complained about it to him. He stated to Colonel Park that he was being required to clear other areas besides those indicated on the map by shading, and Colonel Park advised him that plaintiff should file its claim, stating that he would give it consideration. Plaintiff proceeded with the work until its completion. The area cleared by plaintiff, consisting of tributaries, gullies, and sloughs, and extensions of distance along Wolf |