
    P. L. SADDLER v. THE UNITED STATES
    [No. 202-57.
    Decided March 1, 1961]
    
      
      Robert F. Murray for tbe plaintiff.
    
      Thomas J. Lydon with whom was Assistant Attorney General George Goohran Daub, for the defendant.
   Dureee, Judge,

delivered the opinion of the court:

This is a claim for contract damages based on a change order issued by defendant which the plaintiff maintains required work to be done which was outside the scope of the contract. The contract in suit, entered into on April 23, 1951, required the plaintiff to provide the materials and labor necessary for the construction of a levee embankment on the Methow Eiver, near Twisp, Washington. As originally written, it was a unit price contract calling for the placing of estimated quantities of embankment, backfill, and stone rip-rap. The quantities and unit prices are set out in Finding No. 2. The total contract price was $12,575.

Plaintiff began performing the contract within a few days of its execution and June 8,1951, was established as the contract completion date. Some of the work called for in the contract had been completed by May 13, 1951, when a severe flood inundated the worksite and forced abandonment of the work until July 11, 1951. It became apparent that a levee built to the specifications called for in plaintiff’s contract would be inadequate to withstand a subsequent flood of the same magnitude. It was necessary, therefore, that the levee be redesigned to provide the bank protection intended and desired when the original contract was let. On June 21, 1951, defendant’s resident engineer forwarded technical provisions and a revised drawing dated June 18, 1951, which amended the original specifications to provide for changes in length, alignment, and profile of the levee, which changes increased the quantity of earth to be placed. Plaintiff’s bid proposal on the new quantities in response to the technical provisions provided for the same unit prices as did the original contract. Instead of the 5,500 cubic yards of embankment estimated in the original contract, the new specifications called for 7,950 yards. Plaintiff’s letter accompanying his bid on the new quantities also requested a reasonable adjustment of the unit price for the riprap if he should be required to incur unanticipated exploration costs in locating a site to supply the amounts of stone required by the job specifications.

Plaintiff resumed work on the contract on July 21, 1951. The completion date was extended to September 12 by which date the work was actually completed. During the course of the resumed work a proposed change order, reciting the newly determined amounts of work to be done, was submitted to plaintiff but no action was taken on it by him. On September 1, the defendant was notified that plaintiff was proceeding under protest and had been so operating for three weeks. Notwithstanding his bid proposal in response to the June 18 technical changes, the plaintiff expressed a reluctance to place any materials beyond the quantities called for in the original contract.

The proposed change order was withdrawn and reissued as change order No. 1, dated October 17, 1951. The quantities of materials and unit prices under that change order are set forth in Finding No. 9. It will be seen that 13,264.8 cubic yards of embankment were required under the change. The total contract price under the change order became $17,-916.90. The unit prices were the same as in the original schedule but the quantities of materials had been changed. Basically, the change order provided for a slight change in the alignment and profile of the levee and added approximately 735 feet to its original length. The change of alignment required the abandonment of 300 feet of embankment already in place, thus effectively adding over 1,000 feet to the total length of the levee. Plaintiff signed the change order in February 1953 and accepted the final contract payment at that time.

Although the length of the levee was approximately doubled by the change order (including the section abandoned), the total cubic yardage contained in the design as changed was more than doubled. The reduction in quantity of both backfill and riprap, and the change in the total prices for these items was not substantial. However, under the original contract riprap work accounted for approximately 60 percent of the estimated total price while the riprap work- after the change order accounted for only 40 percent of the total.

In August 1952, plaintiff filed a claim with the Corps of Engineers contending that the change order constituted a breach of contract entitling him to additional compensation and claiming damages of over $21,000.

The contracting officer denied plaintiff’s claim and he appealed that decision to the Corps of Engineers Claims and Appeals Board which determined that the contract had not been breached but that plaintiff would be entitled to an equitable adjustment with respect to the riprap if he had been put to additional expense in obtaining it. The contracting officer again declined to make any adjustment in the contract price and the Claims and Appeals Board sustained him on the ground that plaintiff had not been put to any expense in obtaining the riprap beyond that contemplated at the time the contract was originally entered into.

Plaintiff’s claim for damages is premised on the following theory. His original contract was for approximately $12,575. He worked until $12,575 worth of work had been completed on a per unit basis. This occurred on or about August 10,1951, and it is plaintiff’s position that that completed his original contract. All the costs he incurred from that date until the job was completed he claims emanated from the change order.

Article 3 of the original contract permits the contracting officer to make changes in the contract specifications provided they are within the general scope of the contract. The plaintiff’s theory of damages for contract breach relies on the changed specifications being outside of the scope of the contract. Should changes in the contract which are within its scope have resulted in an increase in the amount of work required, the defendant would have been obligated to make an equitable adjustment in the contract price. However, damages, such as sought by Saddler, can only be recovered where the changes are outside of the scope of the contract and amount to a breach.

The Government insists that the change order did not alter the quality, character, nature or type of work contemplated by the contract and, moreover, it was actually designed to achieve the purpose of the contract. Yet it acknowledges that the point at which a change must be considered to be beyond the scope of the contract and inconsistent with the “Changes” article is a matter of degree varying from one contract to another. We think that a determination of the permissive degree of change can only be reached by considering the totality of the change and this requires recourse to its magnitude as well as its quality.

The number of changes is not, in and of itself, the test by which it should be determined whether or not alterations are outside of the scope of a contract. This court decided in Magoba Construction Co. v. United States, 99 Ct. Cl. 662 (1943) that the Government had not breached a construction contract in which it had made 62 separate changes. On the other hand, obviously, a single change which is beyond the scope of a contract may be serious enough to constitute an actionable breach of that contract.

In discussing the liability of the Government for ordering a change in a construction contract which eliminated a whole building from a hospital complex and which occasioned a ten percent reduction in the contract price, this court said in General Contracting and Construction Co., Inc. v. United States, 84 Ct. Cl. 570, 579 (1937):

* * * Certainly the authority vested in the contracting officer by this article of the contract to make “changes in the drawings and (or) specifications of this contract and within the general scope thereof” did not vest him with the authority to eliminate entirely from the contract Building No. 17. If he could eliminate one building from the contract under the guise of making changes in the drawings and specifications he could likewise eliminate two or any number of buildings and thus entirely change the contract. The elimination of Building No. 17 amounted to a cardinal change or alteration of the contract itself, a thing that could only be consummated with the consent of both parties to the contract. The elimination of Building No. 17 from the work to be performed under the contract without the consent of the plaintiff was a plain breach of the contract by the defendant.

The plaintiff believes that the change which resulted in more than doubling the amount of earth to be placed was a cardinal change in the contract into which he had entered. We must agree with this contention.

The general purpose set forth in the contract was simply to construct a levee “on the right bank of the Methow River, below Twisp, Washington.” Certainly if the change in the contract did not affect the nature of the work but required the contractor to levee the entire bank below Twisp, though it might involve miles of dikes, it would seem to be a cardinal change. By the same token the addition or correction of a few feet of embankment cannot be said to be a change which is beyond the scope of the contract. We do not attempt to set forth a mathematical definition by which any deviations in quantity from a contract must be measured. Obviously the differences between contract situations will admit of no such inflexible formula.

However, several elements of the instant fact situation are significant with respect to the seriousness of the change. This was a relatively small contract, perhaps involving a small margin. It was undertaken in order that the contractor might keep his men and equipment busy during the weeks preceding the opening of the Summer construction season. Irrespective of the delay caused by the unanticipated flooding, the contract period must have been extended in some measure by the addition of the new work. Furthermore, there is evidence that the redrafted specifications required the contractor to bring back certain equipment to the jobsite, which he had believed was no longer needed, a distance of a hundred miles. Certain qualifying conditions which accompanied plaintiff’s response bid on the new specifications apparently were disregarded by the defendant.

Plaintiff can not be said to have waived the impact of the extensive change. His bid on the proposed specification changes in June was a bid on an amount of earthwork only slightly increased over the original estimate, viz, from 5,500 yards to 7,950 yards. It became apparent that he had not intended to make such an offer on an amount of earthwork approaching that ultimately required in the final change order. He reiterated this reluctance to the defendant as it became clear in the beginning of September that the amount of embankment would far exceed the amount estimated in the June specification changes. In view of the contract provision requiring the contractor to perform even if the estimates were not met or were exceeded, the situation might have been different had the variance been within reasonable limits. We think that this provision in this particular contract can not be effective where the variance is so substantial as to amount to a cardinal change. A unit price bid on 7,950 yards of embankment can not be enforced where the amount, under these circumstances, is increased to over 13,000 yards nor can we find a waiver of the change since in June, when he submitted the bid, the plaintiff was given no idea of how extensive the change was to be.

We are of the opinion that tbe nature of this particular contract was so changed by the added work, albeit the same kind of work described in the original specifications, as to amount to a cardinal alteration falling outside of the scope of the contract. Some of the reasons which compel us to decide as we do about the character of the change are also pertinent to the problem of damages. But that question is complicated by the fact that plaintiff’s original books and records were lost or destroyed during a move in his business operations from Washington to California. The plaintiff’s claim was submitted to audit at the direction of the Trial Commissioner but the defendant was unable to accomplish the audit because of the skeletal character of plaintiff’s documentary evidence. We are satisfied that the original documentation relating to plaintiff’s additional expenses was lost in the maimer described. The documentation which he has introduced into evidence consists of an itemized accounting of expenditures prepared from the original vouchers by his bookkeeper at the time the expenses were paid. The additional expenses claimed as damages include costs of labor, travel, equipment rental, equipment transportation, engineering work and supplies. We are of the opinion that not all of these items are properly attributable to the changes which the defendant required.

The cost of moving tractors, scrapers, and compressor from Wenatchee to Twisp, Washington and return during the month of May would appear to be expenses which would properly have been incurred regardless of the changed specifications. However, plaintiff’s evidence indicates that certain equipment was removed from the jobsite at about the time work was stopped due to high water because that particular equipment was no longer needed. Following the change order, the evidence continues, it was necessary to bring some pieces of equipment back to the job. This would have occurred in July or later and as clearly as we can ascertain the only kinds of equipment so required were tractors and scrapers. The remaining major equipment which was moved after July, according to plaintiff’s records, was shovels apparently for use in obtaining the stone riprap, an item of work not increased by tbe change order. It appears that the only equipment transportation charge clearly attributable to the change is that connected with the return of tractors and scrapers from Wenatchee to Twisp, in July or later. There was only one of each machine so moved, the combined round-trip expenses totaling $744.52. Plaintiff’s formula for arriving at his equipment transportation charges is to take his transportation costs for the entire contract period and halve it. Such procedure has no relationship to the actual facts of the situation.

The entire amount claimed for supplies must be disallowed. It consists of expenditures for blasting powder, equipment maintenance, and incidentals, like lumber and safety hats. The powder was utilized, of course, in breaking up the stone riprap, an operation which, as we have previously noted, would have to have been performed under the contract as originally written. Gas, oil, equipment repairs, and the like, presumably were covered by the rental rates expended by plaintiff on the hired equipment; consequently, those charges cannot be recovered a second time as supplies.

The eviderice is that the labor, travel, and engineering expenses appearing in plaintiff’s evidentiary records were chargeable to the change order and, hence, they may be recovered. These items amounted to $3,762.35, $109.00, and $947.03, respectively.

The expenses for equipment rental must be treated like those for equipment transportation. Part of the claim must be disallowed since certain pieces of equipment would have been needed to perform those portions of the work not affected by the change. The rental expenses on so much of the equipment as could have been necessitated by the additional embankment work amounted to $5,231.17.

Adding together the expenses for equipment transportation ; labor, including a ten percent payroll expense; equipment rentals; travel and engineering costs a figure of $11,170.31 is arrived at. To this must be added ten percent which we think is reasonable for overhead; from it must be deducted the final payment of $6,181.90, accepted after the administrative claim had been filed. Accordingly, the am mint, of damages occasioned by the defendant’s breach is $6,105.44 and the plaintiff is entitled to recover that amount.

It is so ordered.

Laramoke, Judge; MaddeN, Judge; Whitaker, Judge, and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner Currell Vance, and the briefs and argument of counsel, makes findings of fact as follows:

1. Plaintiff, at all times hereinafter mentioned unless otherwise indicated, operated a general contracting business as an individual trading as P. L. Saddler, with his principal place of business at 934 Highland Drive, Wenatchee, Washington. Plaintiff presently resides at 1678 Del Dayo Drive, Carmichael, California.

2. On April 23, 1951, plaintiff entered into Construction Contract No. DA-45-108-ENGr-907 with the Corps of Engineers, Seattle District, Department of the Army. The award of the contract followed the acceptance of plaintiff’s bid which had been submitted on April 16, 1951 pursuant to an invitation for bids, dated April 7, 1951. The contract was a unit price contract and its purpose was to provide bank protection on the Methow River below Twisp, Washington. Plaintiff hoped that this contract, if awarded him, would serve to keep his men and equipment employed during the weeks preceding the summer construction season.

The contract required the plaintiff to “furnish the materials, and perform the work for the construction of levee embankment; excavation and backfilling of trench at toe of slope; construction of riprap slope protection; on the right bank of Methow River, below Twisp, Washington” in accordance with the specifications, Serial No. CIVENGr-45-108-51-54, schedule “A” and drawing E-32-1-29, which were made a part of the contract.

Contract drawing E-32-1-29, dated April 2, 1951, called for the construction of approximately 1,100 feet of levee embankment running from station 0+00 easterly to station 11+00.

Schedule A set forth the contract price per plaintiff’s bid in the following manner:

The contract called for work to commence within 5 calendar days after receipt of written notice to proceed and to be completed within 45 calendar days after receipt of written notice to proceed.

Specifically, the contract provided in pertinent part as follows:

3. Changes and Extras. — The contracting officer may at any time, in writing, and without notice to the sureties, order extras or make changes in the drawings and/or specifications of this contract providing such extras or changes are within the general scope thereof. If any. such extra or change causes 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. Any claim of tire contractor for adjusiment under this Clause must be asserted in writing within 30 days from the date of receipt by the contractor of the notification of extra or change: Provided, however, That the contracting officer, if he decides that the facts justify such action, may receive, and act upon 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 Clause 6 hereof. But nothing provided in this clause shall excuse the contractor from proceeding with the prosecution of the work as changed.
6. 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 hereto. In the meantime the contractor shall diligently proceed with the work as directed.

The specifications provided in pertinent part as follows:

SC-3. Estimated Quantities. — The, quantities listed below are estimates only. Within the limit of available funds the Contractor will be required to complete the work specified herein in accordance with the contract and at the contract price or prices whether it involves quantities greater or less than the following estimates:

3. On April 23, 1951, plaintiff was given notice to proceed with the work. Plaintiff acknowledged receipt of this notice on April 24, 1951. A completion time of 45 days being specified in the contract, the completion date of the contract was established as June 8, 1951. Several days after receipt of the notice to proceed, plaintiff commenced work on the contract. Prior to May 13, 1951, the levee embankment had been placed, but had not been shaped, prepared for riprap, nor checked for quantity. Further, the toe trench had not been constructed nor had any backfilling been done. Again, plaintiff, at this time, had not located a quarry from which to obtain suitable riprap. By May 13, 1951, a flood and attendant high waters inundated the work site requiring plaintiff to cease operations. No work on the contract was performed between May 13, 1951 and July 21,1951.

4. The specifications and drawing E-32-1-29 (April 2, 1951) governing the construction of the levee embankment had been premised on the flood peak for the area which had occurred in 1948. Following the flood of May 1951, and the attendant high -waters, it was discovered that sand and gravel accumulations had raised the elevation of the bottom of the river to such an extent that the originally designed levee embankment could not withstand a flood of such magnitude as the May 1951 flood. Accordingly, it was necessary to redesign the levee in order to obtain the necessary bank protection called for by the contract. On June 8,1951, which was the contemplated completion date of the contract, the Seattle District Office, Corps of Engineers, in accordance with Paragraph GC-11 of the specifications, issued a “Suspension of Work” order to plaintiff. Plaintiff was ordered to resume work by the same office on July 11, 1951. During the period May 13,1951-July 11,1951, high water prevented the performance of any work on the contract.

5. On June 21, 1951, the resident engineer of the Seattle District Office transmitted to plaintiff technical provisions, dated June 18, 1951, which amended the original specifications to provide for changes in length, alignment and profile of the levee, together with revised drawing E-32-1-29, dated June 13,1951.

By letter dated July 19, 1951, plaintiff submitted the following bid proposal:

Defendant’s letter transmitting the above changes contained the following paragraph:

It is requested that you submit to this office within fifteen (15) days a bid proposal for the above changes at contract unit prices or less, plus Item No. 4, Filter Blanket, on which to base a modification to the contract.

In his letter of July 19,' 1951, plaintiff requested that the resident engineer consider the following qualifications with respect to his riprap proposal, and his time for performing the contract:

The bid price of $3.00 per cubic yard for stone riprap is based on rock located within a distance by existing road, not exceeding two and one-half miles from jobsite.
Not over 15% of the total of the pit shall be classed as rejects. It being understood that some selection of the rock is necessary, but if an excessive amount be classed as rejects it would not be feasible to use such pit.
If further exploration for satisfactory rock is made necessary by reason of present pit not meeting require-mente or quantities, a reasonable cost should be allowed the contractor for such exploration.
Our engineer, Mr. Hughes, started re-staking and realigning the job July 11,1951 and will not be completed until Monday July 23, 1951. We therefore respectfully request, that due to the extra work required and the time it takes to move equipment back onto the job and get work started again, a time limit to August 31, 1951 should be allowed.

The filter blanket item was thereafter deleted from the proposal and required no further consideration by the parties.

6. Plaintiff did not want to perform the changed work, but under the threat that unless he did so recourse would be had to his bond, he resumed work under the contract on July 21,1951. When the estimated completion date arrived, it was apparent that plaintiff was not going to finish the work on time and the contracting officer, by letter dated August 21, 1951, called this fact to plaintiff’s attention. Plaintiff responded by letter, misdated July 23, 1951, but obviously August 23, 1951, contending that he should be given additional time and that the imposition of liquidated damages for delays would be an unwarranted penalty under the circumstances. By letter dated September 1,1951, plaintiff advised the Seattle District Office as follows:

With reference to Methow Eiver Kevetment job at Twisp, Washington.
This is to notify you that per your orders I am proceeding and have been for the past three weeks under protest. I have told you repeatedly I do not want to place a yard of material beyond our original contract.
I have lost money every day I have been on that job due to conditions beyond our control, first the high water of last spring proved that the original dike as planned by your office was inadequate for the results intended. Therefore, you revised your plans, added quantities, subtracted quantities, changed lines and etc., until it did not greatly resemble the original work, and then set an arbitrary and mandatory date of completion of which I informed your different personnel on and off the job we could not meet.
We now expect to be finished with entire job by Saturday, September 8, 1951 and respectfully ask that you extend our completion time to that date, inasmuch as there is no damage being suffered by anyone but me, you should not hesitate to grant me this extension. Thank you.

7.A proposed change order, dated July 11,1951, was prepared incorporating the plaintiff’s bid figures applicable to the embankment, backfill and stone riprap items contained in his letter of July 19, 1951. Schedule A was changed to read as follows:

Plaintiff’s completion date was changed to August 20,1951, by this proposed change order. Thereafter, this proposed change order was submitted to plaintiff, but no action was taken by him relative thereto.

8. Sometime in late July or early August 1951, plaintiff called at the Seattle District Office to discuss the work with the resident engineer and the chief of the construction division. Plaintiff wanted to be relieved of placing any additional riprap over the amount required in the contract. Plaintiff was assured that he would not be required to place any additional riprap over the estimated amount set forth in the contract. There was no problem at this time with respect to the embankment and backfill items but plaintiff contended he was losing money on the riprap and wished to be relieved of having to riprap the entire levee. Plaintiff, as it turned out, did not have to riprap the entire levee, as modified by the change order. Plaintiff completed the work on the contract on September 12, 1951. Certain equipment, principally a tractor and a scraper, which had been withdrawn from the job at the time of the flooding had to be returned to the j ob because of the increased work ordered. The requirement for this equipment for the original specifications had been satisfied prior to the flooding.

9. Following the completion of the contract, the change order dated July 11, 1951, was withdrawn and reissued as change order No. 1, dated October 17, 1951. The latter change order encompassed the work that was actually performed on the contract and amended Schedule A to read in pertinent part as follows:

The contract completion date was also extended by this change order to September 12,1951.

The work covered by change order No. 1 called for the embankment to extend from station 3 + 00 westerly to station —7+34.5, a distance of approximately 1,034 feet, plus a toe-around. Approximately 300 feet of the original levee was abandoned and the material comprising this embankment was utilized to constitute a part of the redesigned levee between stations 0+00 and 3+00. Basically, the change order provided for a slight change in the alignment and profile of the levee and extended the levee some 735 feet.

10. By letter dated December 1, 1951, plaintiff informed the Seattle District Office that he was not going to sign change order No. 1. By letter dated December 7, 1951, the contracting officer wrote plaintiff in part as follows: Plaintiff did not sign the change order until sometime in late January or early February 1953. The final payment on the contract of $6,181.90 was accepted by plaintiff on or about February 6, 1953, under protest. The total contract price paid plaintiff was $17,916.90.

The exact nature and extent of your present request for additional compensation and your reasons for not accepting Change Order No. 1 are not clear to this office. The unit prices used in the change order as a basis of contract price adjustment are identical to the Change Order prices proposed by you on 18 July 1951.
As indicated in letter of this office dated 28 November 1951, additional contract payments will not be made until the outstanding Change Order is returned to this office. In order to avoid additional delays in payment, it is suggested that you sign and return the change order. Any exceptions to the Change Order or claims for additional compensation should be detailed in a separate letter accompanying the Change Order. Execution of the Change Order will not prejudice any rights that you may have to claim additional compensation.

11. On August 22, 1952, plaintiff, acting through his attorney, 'filed a claim with the Corps of Engineers, Seattle District Office, in the amount of $21,852.18, contending in effect that the work entailed by Change Order No. 1 constituted a breach of contract entitling plaintiff to the additional compensation sought. Plaintiff enclosed with his claim letter a schedule of his “Job Cost” covering the period August 10, 1951 to September 10, 1951. Plaintiff further indicated in this letter that his claim figure of $21,852.18 was to be reduced to $15,670.28 when the final payment of $6,181.90 under the contract was paid him. As indicated in the preceding finding, final payment on the contract was not made until February 6, 1953. By letter dated October 21, 1952, the contracting officer denied plaintiff’s claim stating in part:

The work originally planned consisted of the construction of approximately 1100 lineal ft. of levee with a riprap surfacing and the excavation of a toe-trench with backfilling in this trench. By Technical Provisions dated 18 June 1951, submitted to you by letter of this office dated 21 June 1951, there was added approximately 350 lineal ft. of levee embankment, with riprap, upstream of and connecting with the work originally to have been constructed, the alignment of the first 500 lineal ft. of the original work was changed, riprap was eliminated from 600 lineal ft. along the downstream levee, and provisions were made for a filter blanket in a limited section of the work. In response to request in cited letter of 21 June 1951, you proposed to execute the revised work at the contract prices except for the filter blanket for which you quoted a new unit price. The proposal was qualified only by accompanying letter dated 19 July 1951 requesting extra compensation in event riprap could not be secured within a certain minimum distance and that material rejections should be held to a minimum specified percentage. Your qualifications in respect to riprap were denied by letter of this office dated 31 July 1951 and the excessive quotation for filter blanket was rejected. It is to be noted however that the filter blanket was deleted from your contract by letter of this office dated 6 August 1951, and therefore need not be carried in further discussion.
* * * * *
In light of the facts stated above, and of the record in this office, I am of the opinion that no extra compensation can be allowed as claimed. The work under the contract as revised in accordance with Article 3 thereof was identical to that called for under the original contract, i.e., levee embankment, riprap and toe-trench. The only modification in the work was in location, with such modification not exceeding 750 lineal ft. in length and this contiguous to the work originally specified and over similar topography. There was an increase of approximately 74% in the contract work on a total quantity basis which work you accomplished in approximately 81% greater working time. The greater working time needed appears to have been influenced, according to field inspector’s records, by insufficiency of equipment and shortage of labor rather than by the contract work.
It is also noted that the final quantities placed, show that the rock work, riprap, in relation to which you requested certain qualifications in letter of 19 July 1951, was not appreciably changed.
The letter of 22 August 1952 first referred to above does not contain any statement of facts in contravention of those stated in preceding paragraphs. A detailed analysis of the cost breakdown submitted with that letter has not been made as it appears that the costs are greatly overstated and some are listed which have no relation to the period, 10 August to 12 September 1952, for which claim is made.

By letter dated November 15, 1952, plaintiff appealed the decision of the contracting officer to the Corps of Engineers Claims and Appeals Board.

Í2. Thereafter, a hearing was held before the Corps of Engineers Claims and Appeals Board, at which time exhibits were introduced and testimony elicited from pertinent witnesses. Following a consideration of the evidence presented to it, the Board on December 23, 1954, rendered the following decision:

The question of breach of contract by the Government is for first consideration, since, if the breach did occur, the case becomes one of law and is not within the Board’s jurisdiction.
The evidence shows that the Government made changes in the contract as a result of a period of high water which indicated the original design and location of the levee to have been faulty. These changes increased the contract price by approximately 43%% (from $12,515 to $17,916.90), directed reconstruction of part of the flood damage and extended and relocated the levee. All these changes were within the scope of the original contract and, therefore, the Government did not breach and abrogate the contract as contended by appellant.
Considered next is the acceptance of Change Order No. 1 by the contractor under protest. The change order as promulgated is in agreement with appellant’s proposal except that certain qualifications in connection with the bid for stone riprap were omitted, and all work, etc., in connection with the proposed filter blanket was eliminated. Since the proposed filter blanket never became part of the contract and no work on it was accomplished, further consideration of this item is pointless.
The unilateral elimination by the contracting officer of the appellant’s qualifications regarding the bid price for stone riprap prevented the change order from being a firm meeting of the minds with respect to the unit price for the riprap, $3.00. Contractor is consequently entitled in addition to the $3.00 a yard to an equitable adjustment for the riprap actually placed if he was put to additional expense by failure of the Government to accept the qualifications.
The appeal is remanded for determination of additional expense, if any, incurred by appellant, and equitable adjustment therefor in accordance with the preceding paragraph.

In the light of the Board’s remand, the contracting officer again considered plaintiff’s claim. By letter dated March 10, 1955, the contracting officer informed plaintiff as follows:

Subsequent to the receipt of the referenced decision, I have thoroughly reviewed the previous decision issued by this office and have again determined that the prices used in Change Order No. 1 to your contract are fair and equitable for the modified or relocated work. I have further determined that the inclusion or exclusion of your proposed qualifications or restrictions to the terms of Change Order No. 1 could not, in any way, affect the amount of compensation due you under the terms of your contract.
My final decision is that the decision of the contracting officer dated 21 October 1952 is a fair and. just decision and that you are not entitled to any additional compensation under the terms of the contract and the instructions contained in the foregoing referenced Claims and Appeals Board decision. Tour attention is invited to Article 6, Disfutes, of your contract, which outlines your right of appeal from this decision.

13. Plaintiff again appealed the March 10, 1955 decision of the contracting officer to the Corps of Engineers Claims and Appeals Board. By decision dated August 10, 1955, the Board upheld the decision of the contracting officer. The Board noted that plaintiff stated that the qualifications in his letter of July 19, 1951, relative to riprap were submitted to cover extra expense which would arise should the then approved source of rock become exhausted. Plaintiff conceded to the Board that this source of rock proved sufficient and was utilized for all riprap actually placed, that it was within the 2y2 mile existing road distance from the project and that no further exploration was necessary or done. On the basis of these facts the Board concluded:

The only area of this dispute not settled by previous C & A Decision No. 536 is the determination of equitable adjustment payable to appellant because his qualifications had not been included in Change Order No. 1. The offer of the Government during the conference to accept the qualifications retroactively is in accordance with that decision. From the evidence presented, the Board finds that the contingencies which appellant anticipated and sought to protect himself against by virtue of his bid qualifications did not come to pass. Had the contracting officer initially accepted these qualifications and made them a part of Change Order No. 1 no additional compensation would have been payable. More specifically, the Board finds that the rock riprap was procured from a site not more than 2y2 miles by then existing road from the job site, that not over 15% of the pit was classed as rejected material and that further exploration for satisfactory rock was not performed. The appellant is therefore entitled to no additional compensation and the appeal is denied.

14. On April 27, 1957, plaintiff filed bis petition in this Court seeking to recover damages in the amount of $16,746, for breach of contract allegedly resulting from the issuance of change order No. 1. Thereafter, the Trial Commissioner to whom the case had been assigned invoked the audit procedures specified in Rule 28 of the Rules of this Court. Plaintiff subsequently submitted his claim schedule for audit but defendant was unable to audit the same because of the unavailability of plaintiff’s original books and records. Plaintiff testified that these original records were either destroyed during a housecleaning operation, or lost during the course of plaintiff’s moving from Wenatchee, Washington to Sacramento, California in the spring of 1955.

Plaintiff testified his claim schedule was premised on the following theory. Plaintiff’s original contract was for approximately $12,575. Accordingly, plaintiff worked until $12,575 worth of work had been completed on a per unit basis. Tins, plaintiff theorizes, completed his original contract, and since this occurred on or about August 10, 1951, all the costs he incurred subsequent to that date until September 10, 1951, the completion date of the contract, emanated from the change order.

15. Some of the plaintiff’s expenditures after August 10 were occasioned by the changed work. The evidence establishes that the changed work required plaintiff to bring back to the jobsite one tractor and one scraper which would not have otherwise been necessary. The cost of this transportation was $744.52.

Plaintiff also expended $5,231.17 in rentals for his own equipment and the equipment of others, which expenses would not have been necessary but for the change. Engineering costs in addition to, and more expensive than, those required by the original contract were expended in the amount of $947.03, as a result of the high water affecting the changed topography of the new levee. Plaintiff also encountered labor costs of $4,138.59, which includes a ten percent payroll expense, and personnel travel costs of $109.00. An additional ten percent of the total amount is claimed as an overhead and operating expense. In view of the size and nature of the job, this is not an unreasonable amount.

conclusion oe law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover and it is therefore adjudged and ordered that plaintiff recover of and from the defendant the sum of six thousand one hundred five dollars and forty-four cents ($6,105.44). 
      
       The technical provisions of June 18, 1951, and plaintiff’s bid in response thereto, included the placing of a filter blanket. However, the change order, as finally written, did not include this item and the plaintiff in fact did not perform any work in connection with the filter blanket. Apparently the filter blanket item was deleted by the defendant.
     