Binghamton Construction Co. v. United States

1-31.Wage and Labor Provisions.(a) The Secretary of Labor has determined the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work. In accordance with Article 17 of the contract, employees at the site shall be paid not less than these wages as listed below:

"Article 17.Rate of wages(in accordance with the act of August 30, 1935,49 Stat. 1011(U.S. Code, title 40, sections 276a and 276a-1 [40 U.S.C.A. §§ 276a, 276a-1]), this article shall apply if the contract is in excess of $2,000 in amount and is for the construction, alteration, and/or repair, including painting and decorating, of a public building or public work within the geographical limits of the States of the Union or the District of Columbia). —

"(a) The contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics; and the scale of wages to be paid shall be posted by the contractor in a prominent and easily accessible place at the site of the work. The contracting officer shall have the right to withhold from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractors, or their agents.

"(b) In the event it is found by the contracting officer that any laborer or mechanic employed by the contractor or any subcontractor directly on the site of the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid as aforesaid, 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 a failure to pay said required wages and prosecute the work to completion by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby."

"There is no authority in law for this office to question the correctness of any determination made by the Secretary of Labor pursuant to the provisions of the above cited act [49 Stat. 1011]. Therefore, I find that the wage rates as established by the Secretary of Labor, and incorporated in the contract specifications, were the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work."

"A determination as to the accuracy of the specified wages is not necessary to a decision in this case. The contract by Article 17 and by paragraphWest Page 7161-31 of the specifications provides that wages not less than those specified shall be paid. The contract makes no representation as to the availability of labor nor as to the actual wage scales that would be in effect. The alleged increased costs did not result from your contract obligation but from economic conditions which are ordinary contingencies contemplated under the terms of the contract. No reason has been shown which would warrant modification of the previous decision dated August 5, 1941."

"Investigation of Conditions.— Bidders are expected to visit the locality of the work and to make their own estimates of the facilities needed, the difficulties attending the execution of the proposed contract, including local conditions, availability of labor, uncertainties of weather, and other contingencies. In no case will the Government assume any responsibility whatever for any interpretation, deduction, or conclusion drawn from the examination of the site. At the bidder's request, a representative of the Government will point out the site of the proposed operations. Failure to acquaint himself with all available information concerning these conditions will not relieve the successful bidder of responsibility for estimating the difficulties and costs of successfully performing the complete work,"

(b) The contractor shall be responsible for trespassing upon, or damage to, public and private lands and roads, bridges, buildings, chimneys, and utilities in or adjacent to the work and access areas resulting from any act or omission on his part, including damage caused by disturbance of foundations while conducting any operation within the work area. The contractor shall take special precautions to prevent injury to existing structures while working in the vicinity of the Hygeia plant, Brand building, greenhouse, gas regulation house, private dwellings, and all other buildings and structures located at or close to the edge of the work area. He shall take similar precautions in the vicinity of the pole line crossing the levee at West Hudson Street, the water main at approximate Station 176+37, all power facilities at the Hygeia plant, and any other utilities which will not be relocated.

"(d) The garage and other property of the Hygeia Refrigerating Company are within the work area, and the activities of this company will be carried on during construction of the project. The contractor shall cooperate with this company during allWest Page 717construction operations in order to preserve its access and permit its operations to be conducted with a minimum of interference by the contractor. The contractor shall perform the necessary construction on the company's property in the least practicable time. He shall provide bracing or other protection satisfactory to the contracting officer for the garage wall against which the new wall is placed. The garage and other property within the work area shall be restored to a condition satisfactory to the contracting officer upon completion of the permanent work in that area.

"(b) Procedure.(1)General.Excavation — Common shall be performed in accordance with subparagraph 3-01(c). Excavation around bridge piers and abutments, existing walls, buildings, chimneys, transformers, power lines, utilities, sewers, culverts, and other existing structures shall be executed with all due precautions, satisfactory to the contracting officer, for safeguarding the structures. (See paragraph 1-14.) Where special work is required to prevent undermining existing structures, it shall be done in accordance with detailed plans prepared by the contractor and approved by the contracting officer, but such approval shall not relieve the contractor of responsibility for damages which may result from the failure of the temporary protection. Where excavation operations endanger the stability of existing or new structures, sheeting and shoring shall be installed at the locations indicated on the drawings or directed by the contracting officer. The contractor shall be responsible for the safety of such structures. (See subparagraph (3) below and paragraph 3-06.) * * *

"(3)Sewers, Culverts, and Drains.— The contractor shall furnish and install sheeting and shoring in all trenches where the depth exceeds 6 feet. * * *

"3-06.Sheeting and Shoring.— (a)General.— The contractor shall furnish and place such sheeting, shoring, bracing, or other approved supports as are indicated on the contract drawings or directed by the contracting officer for the protection of the worker or adjoining property. The right is reserved to order the installation of sheeting and shoring where its use is considered advisable for the safety of the work, and to require such sheeting and shoring to remain in place when its removal is considered inadvisable.

"(b) Procedure.— All sheeting and shoring shall be designed by the contractor and approved by the contracting officer prior to installation, but such approval by the contracting officer shall not relieve the contractor of sole responsibility for damages resulting from the inadequacy or lack of any sheeting and shoring. The sheeting and shoring shall be built to provide adequate clearances for minimum interference with construction operations, proper bracing for stability, and safe conditions around the work. If, in the opinion of the contracting officer, any methods or measures of the contractor constitute a hazard in any way or are otherwise improper or inadequate, the contracting officer will notify the contractor of that fact in writing. If the contractor fails to provide immediately such remedial measures as are deemed necessary by the contracting officer, such measures will be provided by the contracting officer at the expense of the contractor. When sheeting and shoring have served their purpose and their removal is approved by the contracting officer, they shall be removed and disposed of. Whether sheeting and shoring are removed or left in place, all cavities shall be adequately filled. When approved by the contracting officer, sheeting and shoringWest Page 718may be used in lieu of excavation to full pay lines.

"(c)Measurement.— Sheeting and shoring will be measured by the square foot of protected area.

"(d)Payment.— Except as specified below, payment for all costs of furnishing and placing sheeting and shoring indicated on the contract drawings or directed by the contracting officer, and of its removal and disposal when not left in place, will be made at the contract unit price for "Sheeting (Including Shoring)," Item No. 7. Where sheeting and shoring are used at the contractor's option and with the approval of the contracting officer, separate payment will not be made for the sheeting and shoring, but payment will be made for excavation to the pay lines shown on the contract drawings as though the cut had been made to such pay lines."

"1-05.Quantities.— The following estimate of quantities is given only to serve as a basis for comparison of bids and for determining the amount of consideration of the contract. Within the limits of available funds, the contractor will be required to perform the entire quantity of work necessary to complete the work specified in paragraph 1-02 hereof, be it more or less than the amounts herein estimated.

"Item No. 7 Sheeting (Including Shoring) 9,200 Sq. Ft."

"In computing pay quantities the following methods were used by this office.

"Sheeting — Computations based on field measurements of length and height of sheeting placed."

"* * * by ascertaining the square footage of the area protected by the work performed under this item, pursuant to paragraph 3-06 subdivision (c) and that we be paid therefor at the unit price of said item. * * *"

"You allege that the method used by the contracting officer in computing the pay quantities for sheeting (including shoring) was incorrect. Paragraph 3-06(c) of the contract specifications states that sheeting and shoring, `* * will be measured by the square foot of protected area.' The record shows that the pay quantities of sheeting placed adjacent to existing structures were determined by measurements to specific payment lines where such lines are shown on the drawings. Where specific payment lines were not indicated, the quantities were computed by using the length of the area actually sheeted and the difference in elevation between the top of the sheeting and the bottom elevation of the adjacent structures. The pay quantities for sheeting not placed adjacent to any existing structure were computed by multiplying the difference in elevation between the ground surface and the bottom elevation of the trench by the length of the area sheeted. You assert that because of the liability imposed by paragraph 1-14(b) of the specifications for damages to structures in or adjacent to theWest Page 720work, including damages caused by disturbance of foundations, that the term `protected area' as used in paragraph 3-06(c) must be construed to mean the ground area occupied by the adjacent structures and that the computation of pay quantities for sheeting placed to protect such structures must be based on the area thereof. As noted above the payment lines shown on the drawings for sheeting and shoring placed adjacent to the structures clearly indicate that the parties did not intend that payment should be made on the basis of the ground area of the buildings. Furthermore, the estimates [sic] pay quantity of sheeting was only 9,200 square feet, approximately 10% less than the quantity of 10,152 square feet for which payment was made and only about 30% of the quantity for which payment is claimed. The contract does provide, as contended by you, that the quantities specified are only estimates. However, the buildings which were to be protected were clearly indicated on the contract drawings. The combined ground area of the buildings alone, aside from the other locations where the plans indicated sheeting was to be placed, is about 2 1/2 times the total area for which it was estimated sheeting would be required. The payment lines indicated on the drawing and the discrepancy between the ground area of the buildings and the estimated quantity of the sheeting should have put you on notice that the Government did not intend that the pay quantities of sheeting and shoring placed adjacent to existing structures would be computed on the basis of the ground area of such structures. No objection has been made of the method employed by the contracting officer in computing pay quantities for sheeting not placed adjacent to structures. As the ground area occupied by a structure has no direct relation to the cost of placing sheeting and shoring adjacent to it, there would appear to be no reason to compute the pay quantities of sheeting placed adjacent to such structures on the basis of the ground area occupied and to compute the pay quantities of sheeting not so placed on an entirely different basis. Under paragraph 1-14(b) of the specifications you are liable for damages to land as well as to structures. If your contention that the pay quantities of sheeting placed adjacent to existing structures must be computed on the basis of the ground occupied by said structures were to prevail, it would logically follow that the pay quantities for sheeting not placed adjacent to any existing structure should be computed on the basis of the land area protected, even though such area might conceivably comprise many acres. Such as [sic] interpretation is obviously absurd. It is my finding that the methods employed by the contracting officer for computing the pay quantities of sheeting and shoring were correct."

"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."

"1-20.Claims, Protests, and Appeals.— (a) If the contractor considers any work demanded of him to be outside the requirements of the contract or if he considers any action or ruling of the contracting officer or of the inspectors to be unfair, the contractor shall without undue delay, upon such demand, action, or ruling, submit his protest thereto in writing to the contracting officer, stating clearly and inWest Page 721detail the basis of his objections. The contracting officer shall thereupon promptly investigate the complaint and furnish the contractor his decision, in writing thereon. If the contractor is not satisfied with the decision of the contracting officer, he may, within thirty days, appeal in writing to the Chief of Engineers, whose decision shall be final and binding upon the parties to the contract. Except for such protests or objections as are made of record in the manner herein specified and within the time limit stated, the records, ruling, instructions, or decisions of the contracting officer shall be final and conclusive.

"(b) The Chief of Engineers has been designated by the Secretary of War as his duly authorized representative to make final decision and to take other action where the terms of the contract require that such decision or action shall be `by the Head of the Department concerned or his duly authorized representative.' All appeals from decisions of the contracting officer authorized under the contract shall, therefore, be addressed to the Chief of Engineers, U.S. Army, Washington, D.C. The appeal shall contain all the facts or circumstances upon which the contractor basis his claim for relief and should be presented to the contracting officer for transmittal within the time provided therefor in the contract."

"(2)Control.— The exact proportions of all material entering into the concrete shall be as directed by the contracting officer. The contractor shall provide all equipment necessary to positively determine and control the actual amounts of all material entering into the concrete. The proportions will be changed whenever, in the opinion of the contracting officer, such change becomes necessary to obtain the specified strength and the desired density, uniformity and workability, and the contractor will not be compensated because of such changes, except for an increase in the specified minimum unit paste content, as provided herein as follows: In the event it is determined by the contracting officer that concrete of the desired quality cannot be obtained with the specified gradation of aggregates conforming fully to the specifications and the specified minimum unit cement content, he may direct an increase in the unit paste content by the addition of Portland cement, in which case compensation will be made therefor at the cost to the contractor of the cement delivered F.O.B. carrier at the site of the work, plus $0.40 per barrel.

"7-05.Details of Construction.— (a)Forms.— * * *

(4)Removal.— Forms shall not be removed without the approval of the contracting officer, and all removal shall be accomplished in such manner as will prevent injury to the concrete. Forms shall not be removed from walls and vertical faces before the expiration of 2 days, except when specifically authorized by the contracting officer. When, in the opinion of the contracting officer, conditions on the work are such as to justify it, forms may be required to remain in place for longer periods.

"(d)Finishing.— Immediately following removal of forms all form tie holes shall be filled, protruding fins or other surface irregularities removed by carborundum stone and all other defects repaired. Where necessary to obtain a suitable surface finish, the contractor shall remove the forms and finish the surfaces when and as directed by the contracting officer at no additional cost to the United States. The curing specified in subparagraph 7-05(e), following shall be temporarily suspendedWest Page 722during such repairing or finishing as directed. The finished surfaces shall be free from sand streaks or other defects and the plastering over of such surfaces will not be permitted. Defective concrete shall be repaired by cutting out the unsatisfactory material and placing new concrete which shall be formed with keys, dovetails, and anchors to attach it securely to the other work. This concrete shall be drier than the usual mixture and shall be thoroughly tamped into place. All surfaces of concrete, not covered by forms, that are not to be covered by additional concrete or backfill shall have a wood float finish without additional mortar, and shall be true to elevations as shown on contract drawings. Striking-off and finishing shall follow closely the placing operation in order to insure completion before the initial set has taken place. The contractor will not be permitted to start a pour unless a sufficient number of qualified finishers are available to fulfill the above requirements. Care shall be taken to see that all excess water is removed before making the finish. Other surfaces shall be brought to the specified finished elevation and left true and regular as approved by the contracting officer. Where considered necessary by the contracting officer, or where indicated on the drawings, joints shall be made carefully with a jointing tool. Every precaution shall be taken by the contractor to protect finished surfaces from stains or abrasions. No fire shall be permitted in direct contact with any concrete at any time. Concrete surfaces or edges likely to be injured during the construction period shall be properly protected by leaving the forms in place or by erecting covers satisfactory to the contracting officer."

"1-11.Work Covered by Contract Price.— The contractor shall, under the contract prices, furnish and pay for all materials, equipment, and labor for all permanent, temporary, and incidental work, furnish all accessories, and do everything which is necessary to carry out the contract in good faith, which contemplates everything completed, in proper working order, of good materials with skillful workmanship, accurately fitted, properly assembled, and connected."

"(e) The approval as indicated above is predicated on producing a finishedWest Page 723concrete surface as contemplated in contract specifications, and the right is reserved to require necessary revisions in your form construction to provide uniform finished surfaces on all exposed faces."

"Reference is made to Par. 7-05(d), Finishing of Concrete Surfaces, of your Contract No. W-321-eng-261 for the construction of the Elmira Flood Protection Project, Section 1.

"I have examined the concrete work constructed to date under your contract and find that it has not been finished in accordance with the provisions of the contract specifications. You are directed to correct these deficiencies at once. My field representatives will indicate the defective work and furnish details of the required corrective measures."

"The surface to be treated will be scrubbed with a wire brush where necessary to clean out defective areas.

"Mix one part portland cement with two parts fine sand (similar to that used on the project from which particles retained on the No. 16 sieve has been removed) with water sufficient to produce a grout having the consistency of very thick paint. If necessary, white portland cement shall be added, replacing an equal quantity of standard cement, in a quantity sufficient to give a color equal to the concrete in the project. A test of the procedure and color will be made on a panel which is to be covered with backfill. This mixture shall be carefully worked out so that no difference in color will result from the grout. This mixture shall be allowed to set for 45 minutes before being used. The surface of the concrete to be treated shall be thoroughy wet, after which the grout shall be applied with a brush or cloth completely filling air bubbles and holes. Immediately after applying the grout scour the wall vigorously with a cork or wood float. The grout shall then be allowed to set partially for an hour or two, depending on the weather, until it has hardened sufficiently so that it can be scraped from the wall with the edge of a steel trowel without removing the grout from the small air holes. Next allow the surface to dry thoroughly one to two hours or more depending on the weather until the initial set occurs and rub it vigorously with a burlap bag to completely remove any dried grout. There shall be no visible film of grout remaining after this rubbing. The entire cleaning operation for any monolith shall be completed the same day it is started. The entire exposed surface of the monolith shall be treated in this manner. If any dark streaks or spots remain after this operation they shall be rubbed lightly with a fine carborundum stone. This rubbing must be carefully done to avoid changing the texture of the concrete.

"After the grout has become thoroughly set (24 hours in warm weatherWest Page 724and 48 hours in cold weather) curing will commence and continue for at least seven days. Curing shall be accomplished by covering finished surfaces promptly with damp burlap or cotton quilts. (Heating will not be necessary on old walls.)"

"The forms on work that is to be exposed shall be removed as soon as it is possible to do so without injury to the concrete. In warm weather (minimum 65° F, average 75° F) this will be approximately 24 hours after the completion of placing. In colder weather the forms should be allowed to remain in place approximately 48 hours.

"Immediately after the forms have been removed all fins or other projections shall be broken off with a carborundum stone or other suitable tool which will remove the projections without marring the surrounding surfaces. Filling of form tie holes shall be concurrent with the removal of fins, etc. This operation shall be separate from general finishing and shall be accomplished with retempered mortar. This mortar shall have the same sand-cement ratio as the concrete in the original work. Sufficient water shall be added to make a dry mixture. This mortar shall be thoroughly mixed, allowed to set for one hour and then remixed before being used. The material shall be thoroughly tamped into the tie holes and care shall be taken not to smear or deface the surrounding surfaces. Other patching of honeycomb or similar defects shall also be accomplished with sand-cement mortar as described above. All patches shall bond with the steel reinforcement and shall, if feasible, be dovetailed to the existing work. Dish shaped patches with sloping sides shall not be permitted.

"Upon completion of repair work as outlined above, the entire exposed surface shall be treated as follows:

"A thing sand-cement mortar shall be applied to the entire surface with a steel trowel. This mortar shall be composed of one part cement and two parts sand to which water shall be added until the mortar has the consistency of very thick paint. If necessary, white cement shall be used replacing an equal quantity of regular cement so that the dry mortar will have the same color as the concrete in the structure. Panels shall be experimented with on concrete surfaces which will be covered in order to assure this similarity in color. This application shall be sufficiently vigorous to insure the complete filling of all pock marks or other blemishes. The sand for this mortar shall be the sand as regularly [sic] used in the concrete work except that the sizes retained on a No. 16 sieve shall be removed. The mortar applied to the concrete surface shall be allowed to set for one hour and the surplus shall then be removed by scraping the surface lightly with the edge of a steel trowel or steel float. After the lapse of sufficient time to allow initial set or hardening of the mortar, the surface shall be vigorously rubbed with Clean Dry Burlap which shall entirely remove the mortar on the surface of the concrete. Initial curing shall be commenced immediately after this operation and shall consist of covering the finished surface with Clean Wet Burlap. Normal water curing will commence 12 hours later. Finishing of concrete surfaces shall be completed in the minimum possible time and in no case shall the finishing be extended over more than a 12 hour period. (This is specified because the color of the finished surface may vary with atmospheric conditions and make blending with adjacent finished surfaces difficult.)"

"Receipt is acknowledged of your letter of October 29th relative to certain finishing which you desire us to do on the concrete already placed on this project. It seems wise at this time toWest Page 725review briefly, for the record, the procedure which has previously taken place and which must therefore be responsible for the appearance of these concrete walls. Before reviewing this procedure, let me state that we are already proceeding to do as directed in your letter of October 29th, and that we will at all times proceed with any of your instructions, our desire, however being, of course, that we be protected insofar as the matter of reimbursement to us, for any expenses plus normal profit incurred in carrying out any such instructions, is concerned.

"The aggregates used in the Elmira work, gravel, sand, and cement, were all previously approved by your representatives and accepted for this work. The water is the same as that used by the people of Elmira for drinking water and has also been approved by your representatives. The characteristics of the mixture, insofar as the proportion [sic] of the component parts, was set by your representatives after exhaustive tests on their part. The form lining used was approved by your representatives and the forms themselves compare in construction very favorably as to strength, appearance, etc., with any used in the district, and this we have on the authority of the Acting Chief of Operations. We come, therefore, to the mixing and placing of the concrete, and at all times these procedures have been directly and completely under the control of your representatives. No latitude has been allowed us for the carrying out of any opposing ideas we may have had in this work, ideas which may or may not have secured a better result, but in any event we were not allowed to try them out. We must, therefore, in view of all the above, respectfully suggest that the responsibility for any result which may not appeal to you, does not lie on our shoulders.

"It is our understanding that costs are being kept by your representatives as well as by ourselves on the additional expense that is now accruing because of the finishing operations which you have directed, and that on the conclusion of these operations a satisfactory settlement will be reached to reimburse us for this expense. If this understanding is not in accordance with yours, we should appreciate being advised at once.

"Your consideration and advice on all the above will be appreciated."

"I find that the finishing treatment required on your job is well within the intent of paragraph 7-05(d), and I cannot consider additional payment for this work."

"As a result of a conference held this morning with the District Engineer, Mr. Samples, and myself, my understanding of the conclusions reached at this conference is outlined below.

"1. I understand that our company is not giving up any of our rights to future consideration of our claim for the cost of the treatment of the walls constructed during 1941 by reason of not appealing at this time the decision of the District Engineer outlined in his letter of December 10th.

"2. That consideration will be given to payment by the United States for any increase in our costs because of any change in the kind of aggregates composing the concrete mixtures or because of any change that may be prescribed in handling the concrete.

"3. That the treatment of the walls in the future will be modified, in that treatment will be required only on the land side of the walls except that at bridge approaches where treatment shall be on both sides of the walls for a distance of three or four monoliths from the bridge approach; such treatment shall immediately follow the removal of the forms and shall consist of rubbing the concrete with carborundun [sic] stone and brushing with a light coat of mortar if required. It will also, of course, be necessary for us to block the holes at the form tie rods.

"We would appreciate knowing as to whether your understanding is in general accordance with the above."

"Reference is made to your letter dated December 15, 1941, regarding your understanding of conclusions reached at a conference in my office on December 15, 1941, on concrete construction at the Elmira Flood Protection Project, Section No. 1, Contract No. W-321-eng-261.

"Using the same numerical index as used in your letter you are advised that conclusions reached in the conference were as follows:

"1. Your right of appeal from my decision on payment for wall treatment is established in Article 15 of the contract.

"2. Any redesign of concrete mixtures or required changes in methods of handling concrete not within the scope of specifications which causes increased cost will be cause for consideration of increased payments to you.

"3. Treatment of walls will be required on the landside of all walls and on the streamside of walls approximately 100 feet upstream and downstream of all bridges, approaches, or other similar places where relatively close scrutiny is easily attained. In addition to the above treatment regular patching of tie rod holes, replacing unsatisfactory spots, repair of honeycombs, etc., will be required on all surfaces in accordance with specification requirements."

"In view of the fact that your letter and this reply are repetitions of previous protests and decisions, and that no progress is apparent in the settlement of this dispute, it is suggested that, in event you elect to prosecute this matter further, you arrange to present detailed facts, computations, etc., either by letter or at a conference in this office."

"* * * in a manner and to an extent not required by the contract plans and specifications. * * *"

"Receipt is acknowledged of your letter dated February 24, 1943, transmitting executed copies of standard release form for Contract No. W-321-eng-261, and an application for reconsideration of a previous appeal, addressed to the Chief of Engineers, relative to minimum wage rate.

"Reference is made to the exceptions listed in your formal release to Contract No. W-321-eng-261, and you are advised, as follows, as to the action takenWest Page 727by this office relative to the various claims.

"(a) The decision relative to additional payment for work in connection with treatment of concrete surfaces, was given in letter from this office dated December 10, 1941. Reference is made to letter from this office dated December 29, 1941, informing you of your right to appeal the decision of this office as established in Article 15 of the contract. As no appeal was made as per Article 15 of the contract, it is considered that your right to appeal has been forfeited.

"(b) A decision relative to the other exceptions to the release; namely, payment of Sheeting (Including Shoring) Contract Item No. 7; payment of Copper, Contract Item No. 28, and payment of Contract Item No. 6, Removal — Walls, Slabs, Paving, Building Foundations (Concrete or Masonry) was given in letter from this office dated February 18, 1943.

"Your right of appeal from my decision on payment of the items covered in paragraph (b) above is established in Article 15 of the contract. The time allowed for appeal will expire thirty days from date of this letter.

"You are further advised that a voucher is being prepared for your signature for the partial estimate now due, less $100.00, as requested in your letter of February 19, 1943."

"4. With reference to finishing concrete surfaces (paragraph 3aabove), the contractor was required, in accordance with the contract specifications, to finish exposed concrete wall surfaces. The contractor offered verbal and written protests all of which were duly considered prior to the District Engineer's decision dated December 10, 1941 (Exhibit F), which denied the contractor's request for additional payment. After a conference in the District Engineer's office on December 15, 1941, the contractor forwarded the letter of the same date which he quotes on page 8 of his appeal. The District Engineer in turn with letter dated December 29, 1941 (Exhibit G), replied to the contractor's letter of December 10, 1941, and denied his request for additional compensation. The contractor was advised of his further rights of appeal under Article 15 of the contract. Records of this office do not disclose any further correspondence on this item of complaint prior to receipt of the final release (Exhibit Q), which was returned with letter dated February 24, 1943 (Exhibit D)."

"1. The following facts concern that portion of the contractor's appeal pertaining to the finishing of concrete surfaces and is supplementary to the facts presented in paragraph four of Findings of Fact, dated 2 June 1943.

"2. Operations under the subject contract were commenced on 3 June 1941. Placement of concrete commenced on 19 August 1941 and a total of 955 cubic yards of Class A concrete, Item 20, was placed through 24 October 1941, the date concrete operations were suspended for the winter season. During the first season the contractor after the removal of forms did not attempt to patch holes or remove surface irregularitiesWest Page 728from the exposed concrete surfaces as required by paragraph 7-05d of the contract specifications. The District Engineer on 15 October 1941 inspected the site of the work and verbally directed that immediate action be taken to remedy the unsightly condition presented by the unfinished concrete surfaces. The contractor was formally directed by letter dated 20 October 1941 (attached as Inclosure No. 1) to correct the surface deficiencies in a manner to be indicated by the resident engineer. The resident engineer by letter dated 29 October 1941 (see page 10 of contractor's appeal) furnished the contractor a complete set of instructions for the guidance of the contractor. Two procedures were outlined: the first pertained to finishing concrete placed and cured under the contract prior to the issuance of said instructions, the second procedure outlined a more timely method of finishing to be applied on subsequent work. The contractor complied with the instructions as outlined and by letter dated 27 November 1941 (attached as Inclosure No. 2) presented a bill in the amount of $864.07 for finishing 5,330 sq. ft. of concrete surface. The District Engineer by letter dated 10 December 1941 (Exhibit F of Findings of Fact) denied the contractor's request for additional payment on the grounds that the work performed was within the intent of the specification. The subsequent history is as outlined in paragraph 4 of the original Findings of Fact dated 2 June 1943."

"You claim additional compensation in the amount of $7,082.74 for finishing concrete in a manner allegedly not required by the contract specifications. It is not now contended by you that an appeal was taken within thirty days from the date of the contracting officer's decision denying your claim in the amount of $862.42 for finishing concrete erected in 1941 as required by paragraph 1-20 of the contract specifications. Thus further consideration of this item is precluded. In regard to the item of $6,220.32 for finishing concrete erected in 1942, the only question involved is whether instructions issued by the Contracting Officer for said work exceed the requirements of the contract. An examination of the applicable provisions of the specifications and the instructions issued by the contracting officer clearly show that the claim for this item was properly denied. Paragraph 7-05(d) of the specifications requires you to finish the concrete surfaces, `* * * as directed by the contracting officer * * *' without any compensation in addition to that provided in the contract unit prices for concrete. This provision does not obligate you to comply with arbitrary instructions issued by the contracting officer. It does require you, however, to comply with any reasonable instructions of the contracting officer and to finish the concrete in a sightly and workmanlike manner. The instructions issued by the contracting officer for finishing `new concrete work' are reasonable and represent the minimum requirements for a workmanlike job. Your appeal for additional compensation for finishing concrete is therefore denied.

"Investigation of Conditions.— Bidders are expected to visit the locality of the work and to make their own estimates of the facilities needed, the difficulties attending the execution of the proposed contract, including local conditions,availability of labor,uncertainties of weather, and other contingencies. * * * Failure to acquaint himself with all available information concerning these conditions will not relieve the successful bidder of responsibility for estimating the difficulties and costs of successfully performing the complete work." (Italics supplied.)

"1-31.Wage and Labor Provisions.(a) The Secretary of Labor has determined the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work. In accordance with Article 17 of the contract, employees at the site shall be paid not less than these wages as listed below:

Laborers, unskilled ................... 0.50 Laborers, Concrete Puddlers ........... 0.50

"* * * The record shows that the pay quantities of sheeting placed adjacent to existing structures were determined by measurements to specific payment lines where such lines are shown on the drawings. Where specific payment lines were not indicated, the quantities were computed by using the length of the area actually sheeted and the difference in elevation between the top of the sheeting and the bottom elevation of the adjacent structures. The pay quantities for sheeting not placed adjacent to any existing structure were computed by multiplying the difference in elevation between the ground surface and the bottom elevation of the trench by the length of the area sheeted. * * *"

"(d)Finishing.— Immediately following removal of forms, all form tie holes shall be filled, protruding fins or other surface irregularities removed by carborundum stone and all other defects repaired. Where necessary to obtain a suitable surface finish, the contractor shall remove the forms and finish the surfaces when and as directed by the contracting officer at no additional cost to the United States. The curing specified in subparagraph 7-05(e) following shall be temporarily suspended during such repairing or finishing as directed. The finished surfaces shall be free from sand streaks or other defects and the plastering over of such surfaces will not be permitted. Defective concrete shall be repaired by cutting out the unsatisfactory material and placing new concrete which shall be formed with keys, dovetails, and anchors to attach it securely to the other work. This concrete shall be drier than the usual mixture and shall be thoroughly tamped into place. * * *"

(d), Finishing of Concrete Surfaces, of your Contract No. W-321-eng-261 for the construction of the Elmira Flood Protection Project, Section 1.

"I have examined the concrete work constructed to date under your contract and find that it has not been finished in accordance with the provisions of the contract specifications. You are directed to correct these deficiencies at once. My field representatives will indicate the defective work and furnish details of the required corrective measures."

"* * * Where necessary to obtain a suitable surface finish, the contractor shall remove the forms and finish the surfaces when and as directed by the contracting officer at no additional cost to the United States. * * *"