CONTRACTS-Con.

CONSTRUCTION AND OPERATION

Actions of Parties

1. Where the contractor's inter-
pretation of an arguably
ambiguous construction
contract provision gov-
erning variations in inter-
nal pipe diameters would
largely nullify a limita-
tion on the length of the
pipe over which the maxi-
mum internal variation of
the pipe could extend and
where the contractor did
not protest the Govern-
ment's interpretation, but
took actions which were
only consistent with
agreement to or acqui-
escence in the Govern-
ment's interpretation, the
Board holds that a dis-
agreement with the Gov-
ernment's interpretation
first expressed over three
months after a problem
with internal pipe diam-
eters was brought to
the contractor's attention
by the rejection of a sub-
stantial quantity of pipes
was untimely and the
contractor's claim for a
constructive change

based on misinterpre-

tation of the contract was
denied...

2. Where a contract provision

prescribed a method for
the repair of airholes in
gasket bearing areas of
concrete pipe and pro-
vided that "All other re-
pairs shall be made in
accordance with the pro-
cedures of Chapter VII
of the Sixth Edition of the

CONTRACTS-Con.

CONTRACTS-Con.

CONSTRUCTION AND OPERA-
TION-Con.

Actions of Parties-Con.

Bureau of Reclamation
Concrete Manual," and
the Concrete Manual, in
addition to prescribing
methods of repair, listed
nine defects which were
normally repairable and
where the evidence estab-
lished that during con-
tract performance the
parties considered the
Concrete Manual to con-
trol not only methods of
repair but also the types
of repairable defects, re-
pair of the listed defects
was permissible notwith-
standing that the con-
tract reference was to
"procedures" of the Con-
crete Manual and the
Government's contention
that under the diction-
ary "procedures" and
"methods" have the same
meaning____

3. The Board denies a construc-
tion contractor's claim
for the cost of construc-
ting a dike which was not

Actions of Parties-Con.
was not ordered or ap-
proved by anyone having
authority to commit the
Government; and (iv) the
contractor failed to pro-
test to the contracting
officer when the alleged
extra work was per-
formed.

4. A contractor's claim for the
cost of repairing a lagoon
which was allegedly dam-
aged because a dike not
required by the contract
channeled floodwaters

from a rainstorm into the
lagoon was denied where
the evidence did not
establish Government re-
sponsibility for the ex-
istence of the dike, a
portion of the damage was
attributable to an open
sewer trench which was
the contractor's respon-
sibility and the evidence
did not establish that the
dike was a principal caus-
ative factor in flood dam-
age to the lagoon. Under
the Permits and Respon-
sibilities clause (Article
12 of Standard Form
23-A, June 1964 Edition),
the contractor is respon-
sible for the work until
completion and final ac-
ceptance..

Allowable Costs

1. Where a contractor under a

cost-plus-fixed-fee con-
tract gave notice of an
impending overrun but
proceeded with perform-
ance without being ad-
vised that additional
funds had been provided

CONTRACTS-Con.

CONSTRUCTION AND OPERA-

TION-Con.

Allowable Costs-Con.

as specified in the Limi-
tation of Cost Clause in
circumstances where the
evidence did not estab-
lish that the contractor
was directed or induced
to continue performance,
that there was any under-
standing that additional
funds would be provided,
or that a change to the
contract had occurred,
the contractor's claim for
overrun is denied on the
grounds that the con-
tractor had proceeded
with performance at his
own risk and that wheth-
er additional funds would
be provided was within

Changed Conditions (Differ-
ing Site Conditions)

1. Where a contract for the con-
struction of a road pro-
vided for the placement
of underdrain, estimated
at 3000 linear feet, a claim
by a contractor under
the Changed Conditions
clause upon encountering
water seepage, which
necessitated less than
3000 linear feet of under-
drain to be placed, was
denied, since the presence
of a wet condition should
have been reasonably
anticipated from a study
of the contractual docu-
ments and the amount of
wetness encountered was
actually less than the con-
tractor might have ex-

CONTRACTS-Con.

CONSTRUCTION AND OPERA-
TION-Con.

Changed Conditions (Differ-
ing Site Conditions)—Con.
2. Quantities of rock encoun-
tered by a road construc-
tion contractor materially
in excess of what should
have been anticipated
from the contract plans
together with the absence
of suitable material in
situ or from borrow for
finishing the road to
satisfy Government re-
quirements is found to
constitute a Category 1
Changed Condition
where the contract docu-
ments taken as a whole
and construed in the light
of the evidence of record
indicated that conditions
would be more favorable
than those actually ex-
perienced in construc-
tion_...

Changes and Extras

1. Where the contractor's in-
terpretation of an argu-
ably ambigous construc-
tion contract provision
governing variations in
internal pipe diameters
would largely nullify a
limitation on the length
of the pipe over which
the maximum internal
variation of the pipe
could extend and where
the contractor did not
protest the Government's
interpretation, but took
actions which were only
consistent with agreement
to or acquiescence in the
Government's interpreta-
tion, the Board holds that
a disagreement with the

CONTRACTS Con.

CONSTRUCTION AND OPERA-

TION-Con.

Changes and Extras-Con.

a

internal

Government's interpreta-
tion first expressed over
three months after
problem with
pipe diameters was
brought to the contrac-
tor's attention by the re-
jection of a substantial
quantity of pipes was
untimely and the con-
tractor's claim for a con-
structive change based
on misinterpretation of
the contract was denied..
2. Where the Board found that
the contracts contem-
plated that repair of listed
defects in accordance
with the Concrete Man-
ual was permissible and
the Concrete Manual
contained a provision
providing that "repairs
should not be permitted
when the imperfections or
damage are the result of a
continuing failure to take
known corrective action,"
the Board rules that a
reasonable interpretation
of the quoted provision
would permit the denial
of otherwise allowable re-
pairs if the defects or
damage were attribut-
able to the contractor's
continued or prolonged
failure to implement
measures which the con-
tractor either knows or as
a reasonably skilled con-
tractor should know
would eliminate or allevi-
ate the defects. The
evidence having estab-
lished the cause of a
particular defect and that
the defect occurred in
significant numbers of
532-404-74-

pipes over a substantial
period of time, the re-
fusal to permit such
defects to be repaired did
not constitute a change
to the contract. The
Government's refusal to
permit certain other re-
pairs which the evidence
established was based on
concern for the integrity
of any repair generally
rather than the contrac-
tor's continuing failure to
take known corrective
action did constitute a
change to the contract___
3. Where the Concrete Manual
placed limitations on the
repairable area of certain
defects and did not limit
the repairable area of
certain other defects but
the evidence established
that all such defects were
not repairable without re-
gard to magnitude and
extent, and the evidence
established that repairs
normally permitted by
the Concrete Manual
were not allowed, but
evidence of the extent
of defects on rejected
pipes was lacking, the
Board holds that the
contractor has failed to
carry its burden of proof
that pipes were improp-
erly rejected. As to
identified pipes which
appellant's expert wit-
ness testified were repair-
able in accordance with
the Concrete Manual,
the Board holds that
appellant has established
prima facie that the pipes
were improperly rejected.

Changes and Extras-Con.

4. Where the Government re-
- fused to allow repairs to
certain defects permitted
by the Concrete Manual
prior to conducting hy-
drostatic tests on the
pipes and it appeared
that at least some of the
pipes would have passed
the test and been accept-
able if repairs in accord-
ance with the Concrete
Manual had been allow-
ed, the Government by
its actions has made the
evidence unavailable and
the Board utilizes a "jury
verdict" approach to de-
termine the number of
pipes which could have
been repaired under the
Concrete Manual and
made acceptable-----

5. Where the Government re-
quired hydrostatic tests
of pipes in excess of those
specified by the contracts,
the Board rules that the
contractor's entitlement
to compensation for such
tests could properly turn
on the results of the tests
inasmuch as the Inspec-
tion and Acceptance
Clause of the General
Provisions (Standard
Form 23-A, April 1961
Edition) allows the Gov-
ernment at any time
before final acceptance of
the entire work to request
the removal of completed
work at the contractor's
expense if the work does
not conform to contract
requirements and for an
equitable adjustment to
the contractor if the work

does conform to the

6. Where the evidence failed to

support the contractor's
claim as to the amount of
extra repair work and
testing required by the
Government and the
quantity of pipe which
was improperly rejected
and there was substantial
evidence that the contrac-
tor had underbid the
work and that a signifi-
cant portion of the con-
tractor's costs in addition
to its estimates was due to
factors such as unproven
or unsuitable machinery
and equipment, improper
maintenance and inex-
perienced and unskilled
labor, justification for the
total cost method of
computing an equitable
adjustment has not been
established. The Board
holds that the equitable
adjustment due the con-
tractor may properly be
computed on the basis of
summaries of costs from
appellant's books and rec-
ords, overruling a Gov-
ernment objection to such
cost presentation made
for the first time on brief
that the books and records
from which the summaries
were prepared were not
available at the hearing,
since the record revealed
that appellant had re-
peatedly offered to make
its records available for
audit by the Government
prior to the hearing............

7. The Board denied the Gov-
ernment's motions to dis-