Reporter's Statement of the Case 103 C. Cls. Creek, Cane Creek, and Burnt Cane Creek, comprised a total acreage of approximately 1,446 acres of land, much of which was difficult to clear. The larger pieces of this acreage are shown in red on the map of the area. The map is in evidence as plaintiff's exhibit No. 2, and made a part hereof by reference. The actual cost of clearing this acreage was $78.00 per acre which was reasonable for the work. The Government had estimated that there were 3,102 acres to be cleared, in all. Plaintiff actually cleared 3,733.23 acres. Included in this total number of acres were the 1,446 acres described above. 10. As the work progressed plaintiff was paid either monthly or semimonthly by voucher upon each of which was described accurately the number of acres in each section for which plaintiff was to be paid for work performed during the previous month or half month; the total amount to be paid plaintiff in each voucher having been calculated upon the basis of the aggregate number of acres cleared during the period covered by the voucher multiplied by the unit price of $51.85 per acre. Plaintiff signed each of the fifteen progress vouchers upon which was noted immediately above the signature of its corporate representative the words: "I certify that the above bill is correct and just and that payment therefor has not been received." The fifteenth voucher and the Government check for its payment were dated December 8, 1937, or two days after the work was completed. That and the previous fourteen vouchers covered all work performed between November 25, 1936, and November 30, 1937. The sixteenth or final voucher was prepared on January 18, 1938, covering work performed on 91.56 acres between November 30 and December 6, 1937, amounting to $4,272.64. Upon the final voucher plaintiff endorsed "Signed under protest." 11. Plaintiff was granted 49 days' extension of time on account of clearing 631.23 acres in excess of the 3,102 acres estimated by the specifications. Plaintiff also was granted three additional days on account of excessive rains and two additional days on account of interference with work by landowners. The sum of $730.00 was deducted from the final payment as liquidated damages on account of delay of 57 Reporter's Statement of the Case 73 days net in completing the work beyond the extended completion date. The contracting officer's findings as to the facts and extent of the delays in question, including the finding that plaintiff was responsible for 73 days of delay, were duly communicated to plaintiff who never at any time appealed therefrom. An aggregate of $193,567.97 was paid plaintiff under this contract. 12. At no time during the progress of the work when the acreage measurements were being made in the field and monthly progress vouchers thereon were being prepared, did plaintiff protest in writing to the contracting officer that any part of the work it had performed lay outside of or beyond the shaded areas shown on the map. Plaintiff had complained orally as set forth in finding 9. It also filed a claim as set forth in findings 13 and 14. 13. On September 27, 1937, plaintiff filed a claim with the contracting officer as follows: We wish to file the following claim for damages or adjustment on our clearing contract above lock 17 on the Warrior River. On or about September 17th, 1936, after looking over the project by means of motorboat on the lower part of work and by automobile on the upper part and guided by the enclosed map that was furnished to us as a prospective bidder to show lands to be cleared, we filed bid covering price on each section and also combination of sections. Our bid was much below the Government estimate which caused the writer T. J. Clarke to call on Colonel Park and stated to him that it must have been that we did not understand what was required to fulfill this contract. The Colonel asked if I had looked over the work and my answer was yes, he also asked how I had planned to peform the work and I explained my plans to him. It seemed as though we understood each other and I told him that I would go ahead with the work. However it seems that we took for granted that the map given us as prospective bidders, showed the entire area to be cleared but we find it did not show a great number of gulleys and sloughs with an area of approximately one thousand (1,000) acres and a combined length of forty one (41) miles. These Gulleys and Sloughs were covered with heavy timber and brush, with steep Reporter's Statement of the Case 103 C. Cls. banks. (Enclosed please find typical section.) There were no open fields or corn fields in this area to help out the general run of work as in sections one and four located on lower portion of work on main river, but was more like sections nine and ten located on upper end of project. Now, our section price bid on sections nine and ten was $80.00 and $75.00 respectively per acre and our bid on sections one and four was $45.00 and $48.00 respectively per acre, therefore we are requesting you to pay unit price of $78.00 per acre on all of these Gulleys and Sloughs which were not shown on map given prospective bidders. We feel this is just and right for had we known that these Gulleys and Sloughs were included in the contract we would have bid each area at $78.00 per acre and in turn would have raised our unit price on whole contract which was $51.85 per acre. Having lost quite a bit of money on this contract, we beg of you to give this claim much study and attention. Would be pleased to consult with you on this matter. Colonel Park, the contracting officer, acknowledged receipt of the claim on October 6, 1937, as follows: Reference is made to your letter of September 27, 1937, in which you submitted a claim for damages or adjustment on your contract for clearing above Lock #17 on the Warrior River. Before your claim can be given proper consideration by this office it will be necessary for you to submit it in a more definite form. You should state the location and number of acres in each parcel of land for which you are claiming additional pay. The locations should be such that each parcel can be definitely located on the maps. Your claim as presented in your letter of September 27 is very indefinite and does not bring out either one of the points that were discussed with you on your recent visit to this office. It was understood, at that time, that you were of the opinion that you should be paid for clearing all the area between contour 244 and the upper limit of the clearing regardless of whether contour 244 was above or below the low water line, and also that you should be paid a higher price per acre for lands cleared on creeks where the location map accompanying the specifications did not show definitely that །ཐ Reporter's Statement of the Case clearing work was necessary. You were informed, at that time, that a claim submitted by you on these two points would be given careful consideration by this office, but your claim will have to be presented in a more definite form than is contained in your letter of the 27th. This office will take prompt action on your claim when it is submitted in the proper form. On October 6, 1937, plaintiff wrote the contracting officer as follows: We understand that inspectors are now measuring acreage cleared by us under our contract with United States Government. We request that in arriving at the amount of clearing to be paid for under our contract with U. S. Government, that the measurements shall be taken as surface measurements in place of horizontal measurements, and it shall cover all surface between the 244' Contour and the 260′ Contour as per our contract. To this letter, Major Shaw for the contracting officer, replied on October 11, 1937, as follows: Reference is made to your letter of October 6, 1937: By letter from this office of October 6, 1937, you were informed that the claim for damages by you in your letter of September 27, 1937, could not be handled in the form in which it was submitted and it was suggested that you submit your claim in more detail in order that the various items claimed by you could be carefully checked by this office in order to permit a decision to be made. It is noted that in your letter of October 6 you mention two items that were referred to in letter from this office of October 6, but you still do not give detailed information, such as number of acres involved in your claim, the locations where measurements were not taken to your satisfaction, or the location of the acreage where the clearing work extended above the shaded area shown on the location map that was furnished you with the proposal. You are requested to consolidate all of your claims in one letter and give full information concerning each. This information is essential in order for this office to weigh your claim against facts as actually found in the field and against the requirements of the specifications. Reporter's Statement of the Case 103 C. Cls. On October 11, 1937, plaintiff furnished some additional data, stating as follows: In reply to your letter of the 6th, in which you ask that our Claim for damages or adjustment be submitted in a more definite form, wish to advise that we are attaching a list of each parcel with the location and the approximate acreage to accompany our claim on September 27th, 1937. 14. On November 1, 1937, plaintiff sent to the contracting officer a combined statement of its claims as follows: We wish to file the following claims for damages or adjustment on our clearing contract above Lock 17 on the Warrior River. Claim #1 On or about September 17th, 1936, after looking over the project by means of motorboat on the lower part of work and by automobile on the upper part and being guided by the enclosed map and paragraph 1-03 of the specifications which states, "The extent of the area to be cleared is shown on map marked, Black Warrior and Tombigbee Rivers, Alabama, Crest Gates Dam No. 17 Proposed Bank Clearing," that was furnished us as a prospective bidder to show lands to be cleared, we filed bid covering price on each section and also combinations of sections. Our bid was much below the Government estimate which caused the writer T. J. Clarke to call on Colonel Park and stated to him that it must have been that we did not understand what was required to fulfill this contract. The Colonel asked if I had looked over the work and my answer was yes, he also asked how I had planned to perform the work and I explained my plans to him. It seemed as though we understood each other and I told him that I would go ahead with the work. However, it seems that we took for granted that the map given us as prospective bidders, showed the entire area to be cleared, but we find it did not show a great number of large sloughs, gulleys, and extension of sections with an area of 1,096 acres, and an approximate |