
    ARCHIE AND ALLAN SPIERS, INC. v. THE UNITED STATES
    [No. 219-58.
    Decided December 6, 1961]
    
      
      Gaines V. Palmes for plaintiff.
    
      David V. Anthony, with whom was Assistant Attorney General William H. Orrioh, Jr., for defendant. John F. Wolf was on the brief.
   Laramoke, Judge,

delivered the opinion of the court:

This action involves three separate claims by plaintiff resulting from a contract with the Navy to rehabilitate certain piers at the U.S. Naval Base (Naval Supply Center), Norfolk, Virginia.

Claim No. 1 is for damages for delays which occurred during an alleged 4-months’ period subsequent to completion of the contract work, which resulted from defendant’s alleged failure to accept the work promptly after it was completed.

Claim No. 2 is for damages caused by what plaintiff contends was an erroneous contract drawing on which plaintiff relied in bidding.

Claim No. 3 is for increased costs sustained in maintaining certain pipelines after they were completed by plaintiff and possession thereof taken by defendant.

Plaintiff’s claims were rejected by the contracting officer, and the Armed Services Board of Contract Appeals dismissed them for lack of jurisdiction. Suit in this court resulted and trial was had before a commissioner of this court. The commissioner has filed his report and numerous exceptions are taken by plaintiff to the commissioner’s findings.

Since the exceptions are many, we will not here undertake to discuss each one. Suffice to say that from an examination of the record we conclude that the commissioner’s findings are, with one exception, correct. The exception above noted has reference to commissioner’s finding 5. This finding lists the original contract price and the price as amended by change orders. The finding then recites payment for the contract work as amended and lists the contractor’s costs in the performance of the contract as amended. Finally, finding 5 sets forth the profit as being $43,013.03, or 8.99 percent of costs, and states that the contractor “* * * thus realized a profit in excess of the 8% anticipated by it.”

We deem the profit made by plaintiff to be irrelevant to the issue of whether or not plaintiff sustained damages; consequently, plaintiff’s exception to finding 5 is sustained, and said finding is not adopted by the court.

The facts relating to plaintiff’s claims are as follows: On June 30, 1951, pursuant to an invitation for bids, plaintiff and defendant entered into a contract calling for the rehabilitation of designated pipelines on piers at the U.S. Naval Base (Naval Supply Center), Norfolk, Virginia. The contract price as increased by change orders was $522,148.90. The plaintiff’s bid was the only bid received by defendant under its invitation.

The plaintiff, a Virginia corporation, has its principal place of business in Newport News, Virginia, and for many years has been engaged as a plumbing and mechanical contractor.

The contract required that work be commenced on June 30, 1951, and be completed by March 26, 1952. The contract contained a liquidated damages provision. By change orders issued pursuant to the termination of the contract, the contract completion date was extended by 538 calendar days, increasing the time for performance from the originally specified time of 270 days to 808 days, and the revised completion date was September 15, 1953. The work was completed in September of 1953 and no liquidated damages were charged. The contract work was accepted on January 12, 1954, retroactively to September 8, 1953.

The work required under the contract consisted of the removal and renewal of fuel oil and diesel oil piping on five piers, each approximately 1,350 feet long. Also required under the contract was the renewal of fresh water piping on two piers, and removal of gasoline piping on all piers. The contract also called for some earth work, concrete, steel and iron work, as well as insulation and weatherproofing on the pipelines. The piping was to be removed from and installed on the imderside of the piers where it was suspended by hangers and supports.

Plaintiff was requested by telephone to bid on the project in suit. It appears that one of the considerations with which the Navy contracting officer was faced at the time was the impending close of the fiscal year. In any event, on Friday, June 22, 1951, Mr. Allan Spiers went to the naval base and obtained the bid data. On June 28,1951, plaintiff submitted its bid and was awarded the contract on June 30, 1951.

No examination of the site of the work was made on behalf of plaintiff before submission of its bid, although under the provisions of paragraph 1-21 and article 4(b) of the contract it was informed that inspection of the site was expected.

Paragraph 1-21 of the contract specifications provides:

1-21. Examination of Premises. — Before submitting proposals, bidders are expected to inspect carefully the work in place and satisfy themselves as to the character and amount of work to be removed, renewed or replaced, and of new work. In this connection particular attention is invited to paragraph 1 of form no. 76ld.

Article 4(b) of the contract provides:

Article 4. — Performance of the Work
(b) Changed, Conditions. — Information respecting the site of the work given in drawings or specifications has been obtained by Government representatives and is believed to be reasonably correct but the Government does not warrant either the completeness or accuracy of such information and it is the responsibility of the Contractor to verify all such information; Provided, That in case of subsurface, latent, or unknown conditions, this contract may be modified, when, in the manner, and to the extent hereinafter in this subparagraph provided: Should the Contractor encounter, or the Government discover, during the progress of the work, subsurface or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as being inherent in work of the character provided for in the drawings and specifications, the Contracting Officer shall be notified before the existing conditions are disturbed. The Contracting Officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ, the contract shall be modified by the Contracting Officer to provide for any increase or decrease in cost and difference in time resulting from such conditions and an equitable adjustment in the pertinent contract terms shall be made in accordance with the provisions of paragraph (a) of Article 10 hereof. Such modification by the Contracting Officer shall be final, subject only to appeal under the provisions of Article 16.

Much of the work was contracted for and performed by plaintiff during the Korean conflict, and plaintiff knew at the time of bidding that there was a steel shortage. Plaintiff qualified its bid in this regard, as follows:

$ $ ‡ $
Nope. — Manufacturers state, materials will not be shipped, before sometime in the fourth quarter of this year, even with a D.O. rating. Contract Limits will have to be discussed later.
$ $ $ $ $

Plaintiff’s letter of June 29, 1951, discussed the time extension that would be required to obtain materials. AJ1 materials required for performance were furnished by the contractor. There- was no provision for Government-furnished material.

While plaintiff appears to have ordered the necessary material shortly after award of the contract, very little was done to perform the work until October of 1951.

By the end of January 1952, approximately 580 pipe hangers had been fabricated in accordance with the dimensions shown on the contract drawings for a typical hanger. When the first hanger was fabricated it was checked at one place where a hanger was to be located, and it appeared to be satisfactory for that location. On the assumption by the plaintiff’s workmen that the measurements for the typical hanger were correct for every location where a hanger was to be placed, and without further verification of conditions at other hanger locations, the 580 hangers were made to the same dimensions.

On January 21, 1952, plaintiff began drilling at hanger locations preparatory to erection of the hangers. This continued until January 27, when it became apparent that the 530 pipe hangers fabricated could not be used due to interferences caused by pilings supporting the concrete deck of the pier, and also due to uneven grade on the underside of the concrete deck of the pier.

The contract drawings had been prepared by a private firm of architects and engineers and consisted of eight sheets, one of which showed the general piping layout for all five piers. The general piping layout contained “general notes” as follows:

For detail description of work see individual pier drawings.
Contractor shall verify all dimensions and conditions at the site.

There were also five separate drawings, one for each pier. These drawings also contained under “general notes” the following statement:

Contractor shall verify all dimensions and conditions at the site

Four days after plaintiff learned that some pilings on pier 2 were not in the exact location indicated on the plans, the architect-engineer, the plaintiff, and the Grovernment’s representatives, met to discuss the matter. By February 5, 1952, the architect-engineer had conducted a field survey and had determined the trouble. The architect-engineer immediately proceeded to revise the plans, which were submitted to plaintiff for estimate on March 4, 1952. These estimates were submitted by plaintiff on March 10,1952, and formal authorization to proceed was issued on April 10, 1952. However, prior to receipt of formal authorization to proceed, plaintiff fabricated new hangers under the revised drawings received March 4 and also installed new pipe on pier 2. During February and March of 1952, plaintiff continued the work on pier 2 and other piers, such as the excavation of valve pit covers, hauling of dirt from such excavation, fabrication of valve pit covers, installation of fittings, fabrication and installation of pipe racks, the installation of watermains in pier 2, and pouring concrete in the construction of the valve pits. However, no work was done on some of the days because of inclement weather.

Due to the priority system then in effect as a result of the Korean conflict, plaintiff did not receive the 6" and 12" steel pipe necessary to do the work under the contract until March 10, 1952, just 20 days prior to the original contract completion date.

Without awaiting authority to proceed, plaintiff on March 10, 1952, began to remove old pipe on pier 2 and replace it with new pipe. Beginning on March 19, 1952, new pipe was installed on almost a daily basis until April 10, 1952, when formal authority to proceed was issued.

During July of 1952, while work was in progress on piers 2 and 3, and lead work was beginning on pier 4, it was determined that all 6" and 12" pipe on pier 4 should be replaced. Change Order F was issued to cover the new work on January 20, 1953. This new work was fully paid for under the change order.

Pursuant to article 10, the contracting officer by Change Orders A, C and F, ordered additional work and an increase in contract price. Each change order was submitted to and accepted by the plaintiff. The work was duly performed by the plaintiff, and the plaintiff was compensated therefor. There is no satisfactory proof that the orderly progress of the work was affected by the additional work order.

It was anticipated and understood by the parties that the plaintiff should proceed in its work in such a manner as to cause the least possible disturbance to the naval activities of the Naval Supply Center. Navy ships were serviced at the five piers during the entire period of performance of the contract work. The fuel and diesel oil connections were cut off on only one side of one pier at any one time, thus allowing servicing of ships on both sides of four piers and on one side of the fifth pier while the work was in progress.

Naval activities at the piers were no greater than was anticipated by the parties. However, due allowance for such naval activities was not made by plaintiff in the preparation of its bid.

During the performance of the contract work, the plaintiff applied waterproofing to the pipes that had been installed as a part of the contract work. When defects in the waterproofing appeared, they were called to the attention of plaintiff by tlie Navy inspector and such defects were corrected. The defects were due to damage caused by floating debris, as well as installation on pipe which was not completely dry. Such corrections took place during the entire performance period of the contract. The record does not disclose what portion of the waterproofing work under piers 2, 3, and 5 was initial work and what portion was replacement work, if any. There is also no evidence of what portion, if any, was required because of scarring by floating debris. However, the contract clearly contemplated maintenance and repair work by the plaintiff.

On September 14, 1953, the plaintiff wrote the following letter to the officer in charge of construction:

Ee Contract NOy-27124, Rehabilitation of Pipe Lines, Naval Supply Center.
GeNtlbmeN : This is to advise you that we have finished the above reference job according to our contract and we are ready to move out our men and equipment, but due to failure of the twelve inch (12") expansion joints to work properly because of inadequate anchorage as installed according to plans, we are now faced with an additional change order to correct this fault.
The Architects are now preparing additional drawings, correcting expansion joint anchorage. While we are not particularly interested in this change order we understand that the Navy will not accept the job. until this condition is corrected, and we are therefore willing to cooperate with the Navy to correct the expansion joint anchorage and to advise you so that it will be on record that we will expect the Navy to reimburse us for holding men and equipment on the job until such time as we are in receipt of the change order.
We wish, also, to advise you that we will not be responsible for damage done to expansion joints and piping because of the inadequate anchorage.
As you know the entire job is subject to the elements and this change order will prolong the acceptance by the Navy, causing us to feel that we should be relieved of any responsibility of damage from any act of God or man beyond our control.
Thanking you for your attention to the above, we are
Very truly yours,
Archie and Allan Spiers, Inc.,
Archie Spiers, Vice President.

The officer in charge of construction replied to the above letter on September 28, 1953, as follows:

‡ ‡ ‡ $
With reference to your letter of 14 September 1953 regarding the failure of the twelve inch (12") expansion joints, an inspection of the installation by.,representatives from this office revealed the fact that the expansion joint anchors were not installed in accordance with the contract drawings.
It would be inconvenient to the Navy to cut the oil supply off on the piers at this time to reinstall the joint anchors as shown on the drawings. To prevent this the Officer in Charge of Construction is investigating the possibility of providing some method of anchoring these joints properly which will be of the best advantage to the Government and the contractor.
* * * . * *

By November 12, 1953, the architect-engineer had made a recommendation to the Navy for the anchoring of expansion joints, and on that date a copy of the drawings of such proposed method was handed to the plaintiff’s superintendent. It was requested that an estimate for performance of the work covered by the drawings be submitted.

On November II and 20, 1953, plaintiff submitted its estimate for doing the work, and on January 8, 1954, it furnished a written breakdown of the November 20 estimate. After consideration of the price proposal, the Government on January 12, 1954, four days after receipt of plaintiff’s last proposal dated January 8, 1954, accepted the work as performed by the plaintiff and decided not to issue a change order involving repair or additional work by the plaintiff. Said acceptance was retroactive to September 8, 1953-.

The period between September 1953 and early January 1954 was spent in a careful investigation and consideration of a possible remedy for the defective work.

During the period from about the middle of September 1953, to January 12, 1954, the plaintiff’s superintendent remained at the job. His salary was $120 per week. One employee, a waterproofer, was also at’the job from September 30, 1953, to January 12, 1954. He was an hourly employee whose rate was $1.85 per hour. This employee was engaged in repairs to the coal tar covering (waterproofing) on the fuel and diesel oil pipes which had been damaged due to action of the elements.

For some reason, the plaintiff has in its brief discussed the issues in order of Claim No. 2, Claim No. 3, and Claim No. 1. Therefore, this order is used in our decision.

Claim No. 2, as stated earlier, is for damages caused by an erroneous contract drawing on which plaintiff relied in bidding.

In respect to Claim No. 2, it is contended by plaintiff that because of the erroneous drawings supplied, drastic changes had to be made. Plaintiff says that it could, but for the changes, have completed the job in seven months after the work of installing the pipe hangers was commenced in January of 1952. However, it is contended that due to the erroneous contract drawings, coupled with long delays by defendant in taking corrective measures, the performance of the original contract work took about 15 months. Consequently, plaintiff claims increased direct labor costs arising out of the disruption of operations, and increased overhead and equipment costs due to the prolonged period of performance.

The contract called for the rehabilitation of old existing piers. The evidence discloses and common sense dictates that after years of use, due to settling and/or constant bumping by ships, the measurements contained in the contract drawings could not be deemed accurate in all respects. This is especially true in a situation where the contract drawings present but one measurement. It was for this reason that the contract was drawn so as to warn bidders not to place reliance on the specifications, but that bidders should “inspect carefully the work in place and satisfy themselves as to the character and amount of work to be removed, renewed or replaced, and of new work.” (Paragraph 1-21). Furthermore, on the general drawing there appeared a warning “contractor shall verify all dimensions and conditions at the site.” In addition, on each separate drawing for each pier there was a further warning: “contractors shall verify all dimensions and conditions at the site.”

These warning clauses were not idly placed in the contract. They were meaningful and necessary in the light of the nature of the contract and the condition of the old piers. Therefore, if the contractor miscalculated or failed to examine the site and verify the measurements, which were called to his attention by the contract itself, no claim could arise even though the contractor sustained a loss. Blauner Construction Co. v. United States, 94 Ct. Cl. 503.

Plaintiff contends that paragraph 1-21 of the specifications and the warning clauses on the contract drawings were meaningless and of no legal effect. Plaintiff characterizes the warning clauses as “exculpatory clauses” and asks this court to disregard them. To support this proposition, plaintiff cites such cases as United States v. Spearin, 248 U.S. 132; Hollerbach v. United States, 233 U.S. 165; Christie v. United States, 237 U.S. 234; and United States v. Atlantic Dredging Co., 253 U.S. 1. However, none of the cited cases deals with a clause such as paragraph 1-21 or the warning clauses contained in the contract drawings. What the cases generally hold is that where the Government has made a positive representation of a fact of which it should have knowledge, and where in the circumstances the contractor could reasonably rely on the Government’s representation without an investigation of its own, the Government will not be relieved of responsibility merely because of the presence of a clause in the specifications admonishing the contractor to inspect the premises. Such is not the case here, and the cited cases do not remove such cautioning clauses from contracts. Blauner Construction Co. v. United States, supra; C. W. Blakeslee & Sons, Inc. v. United States, 89 Ct. Cl. 226; Mac Arthur Bros. Co. v. United States, 258 U.S. 6; Anthony M. Meyerstein, Inc. v. United States, 133 Ct. Cl. 694; Puget Sound Bridge & Dredging Co. v. United States, 131 Ct. Cl. 490; Trieste & Earle v. United States, 84 Ct. Cl. 84, cert. denied 302 U.S. 696; General Contracting Corp. v. United States, 88 Ct. Cl. 214.

In other words, as the court stated in Midland Land & Improvement Co. v. United States, 58 Ct. Cl. 671, 683, aff’d 270 U.S. 251:

The burden of proving misrepresentation rests upon the party making the allegation. It is not to be presumed, and one may not, either under the Christie or Hollerbach Case, simply show a different condition in some respects from that which the chart or blue prints of borings discloses, * * *. There must be some degree of culpability attached to the makers of the maps and charts, either that they were knowingly untrue or were prepared as the result of such a serious and egregious error that the court may imply bad faith. The many contract cases in this court, too many to cite, sustain this principle.

There is no question that had the contract misrepresented the conditions existing under the piers, the Government would be liable in damages. Again, however, the record discloses that such was not the case. To the contrary, the evidence discloses that there was no misrepresentation (finding 20).

Thus it is concluded that the contract represented what the Government believed to be the true conditions at the site; the contractor was not mislead and, therefore, was not justified in ignoring the warnings therein contained.

Further, the contractor had ample time to check the dimensions, and it is apparent that it did not do so. Delivery of pipe was delayed almost nine months due to the Korean conflict, and plaintiff had the nine months in which to verify dimensions. Even if plaintiff had not ample time to verify dimensions, it was under no compulsion to bid.

In addition, the evidence shows that the plaintiff was in no way delayed through the issuance of Change Order A. Plaintiff asserts that it was delayed for the period from January 27,1952, when it first discovered that all dimensions and conditions on all piers were not the same, until April 10, 1952, when the proceed order for Change Order A was issued. The commissioner, however, has found, which finding we adopt, that revised drawings were issued to plaintiff on March 4, 1952, and that plaintiff immediately proceeded under them without waiting for the order of April 10, 1952. The commissioner further found, and we also adopt these findings, that the 6" and 12" pipe for the job did not arrive until March 10, 1952, and that immediately upon its receipt plaintiff began to install it, not waiting for the proceed order, and during all of this period various other supporting-work was also performed.

Accordingly, we conclude, as did the commissioner, that since delays, if any, occurring prior to March 10,1952, were concurrent witli delays caused by non-receipt of pipe for which the Government is not responsible, and since plaintiff, upon receipt of the pipe, immediately began to install it in accordance with the revised drawings previously furnished, the plaintiff was in fact not delayed even though the formal authorization to proceed was not issued until April 10,1952.

Nor was the orderly progress of the work affected by other change orders; i.e., C and F. The evidence discloses, and the commissioner has found as a fact, that the work under Ghange Orders A, C, and F was performed by plaintiff, and the plaintiff was duly compensated therefor. The facts show that “there is no satisfactory proof that the orderly progress of the work was affected by the additional work orders.”

Plaintiff’s Claim No. S is a claim for reimbursement of costs alleged to have been expended by it in maintaining pipelines after completion of the work, but prior to acceptance by the Government.

In respect to Claim No. 3, plaintiff contends that article 19(b) of the contract provided that if the Government took possession of any part of the work with the intention of retaining possession thereof, the contractor shall be relieved of responsibility for loss or damage to the part taken over by the Government other than that resulting from the contractor’s fault or negligence. Plaintiff then says that the Government took over possession of each pipeline on a pier as it was completed and immediately began to refuel ships from the recently constructed facilities. Plaintiff further states that once the Government took over possession of a pier, that possession was never returned to the contractor; that plaintiff asked defendant’s representatives to assume the maintenance and repair work on each pier when it was taken over, but that defendant refused stating that there could be no partial acceptance of the work; that plaintiff was required to continue with maintenance and repair work on each pier until January 12, 1954, despite the fact that the Government had taken over possession of the piers seriatim.

There may be other and compelling reasons why plaintiff cannot recover on this claim; however, this claim must fall for failure of proof. This failure of proof is fully disclosed by finding 28, which is adopted by the court, as follows:

28. During the period April 1, 1958 through September 8, 1953, plaintiff installed new pipe under Piers 4 and 7, and performed initial waterproofing work under these piers. During the months of July and August 1953 some waterproofing was applied to pipes under Piers 2, 3, and 5. The record does not disclose what portion of the waterproofing work under Piers 2, 3, and 5 was initial work and what portion was replacement work, if any. Further, if some of this work was replacement, the record does not disclose what portion was necessitated through the improper initial application of the waterproofing on damp surfaces by plaintiff. There is no evidence of what portion, if any, was required because of scarring by floating debris.

Clearly, article 4(d) of the contract required that the contractor shall be responsible for all work performed until completion and final acceptance. Clearly, article 19(b) of the contract relieved the contractor of damage other than that resulting from its own negligence after acceptance by the Government.

Thus, even were we to assume that the Government actually took possession of certain work when completed, it would be necessary for plaintiff to prove what portion of the costs under this claim were for initial work and what portion was for replacement work occasioned because of scarring by floating debris. Without this proof there can be no basis for judgment against the Government.

Plaintiff’s Claim No. 1 is for costs allegedly incurred by it after September 8,1953, which costs allegedly resulted from defendant’s failure to accept the work promptly after it was completed.

It is defendant’s position that the Navy refused to accept the work in September of 1953 for the reason that plaintiff had failed to properly install the expansion joint anchors, and that the time period involved was consumed by investigation to find a remedy to correct this deficiency without shutting down the fuel lines with consequent disruption of the Navy’s fueling operations.

Plaintiff contends that the defect in installation of expansion joint anchors was solely due to faulty plans supplied by the defendant, and since the plaintiff had already finished the work called for by those plans in September of 1953, it had no obligation to correct the installation.

On September 14, 1953, the plaintiff wrote a letter to the officer in charge of construction in which it claimed the work had been finished according to the contract, and that the expansion joint anchors were installed according to the plans. Plaintiff also advised that it was willing to undertake the corrective work, but that it would not be responsible for damages done because of the inadequate anchorage.

The officer in charge of construction replied, stating that an inspection revealed the fact that the expansion joint anchors were not installed in accordance with the contract drawings. The officer in charge went on to explain that, in order to prevent the cutting off of oil supplies to the Navy, an investigation was being made to determine the possibility of some method of anchoring the joints properly which would be of the best advantage to the Government and the contractor.

There the matter ends, so far as the evidence and the facts disclose, and the question of whether the plaintiff was without fault is left to conjecture.

Certainly it is the burden of the plaintiff to prove that the delay in completion of the work was due to the fault of the Government. Failing in this respect, we cannot now determine whether a claim for damages flowing from the 4-day or 4-month delay is actionable.

Plaintiff, in an effort to avoid the implication of the above, argues that defendant recognized that the expansion joint anchors were properly installed when it requested a new estimate or bid for extra work to correct the defect, secondly by rejecting the bid on its merits rather than on the theory that plaintiff was further obligated under the original contract, and thirdly by accepting the work already done retroactively to September.

We can see no merit in this contention. It is clearly shown by the evidence that the Navy was seeking some new method of correction to avoid inconvenience to the Navy. Having found a method the Navy undoubtedly thought the price was too high. Hence it decided not to do the work and accepted retroactively. We think this is an adequate explanation of the Navy’s conduct, and in no sense do we deem it an admission by the Government that the plaintiff correctly installed the expansion joint anchors in compliance with the contract.

Nor can it 'be said that the Navy finally accepted the work on the piers when plaintiff finished. To the contrary, the naval officials made it clear that the work was not acceptable.

It is apparent from what is stated earlier that both the Navy and the contractor iised the facilities at the same time with an effort to interfere with each other as little as possible. It was a matter of convenience to the Navy as well as to the contractor. This procedure was clearly contemplated by the contract, and the action of the Navy in no sense can be construed to be a taking of possession.

Under the circumstances of a positive taking of possession, the right to exclude all others is a necessary substance. Rice, et al. v. Frayser, et al., 24 Fed. 460. Certainly the Navy at no time had the right to exclude the contractor until the work was fully and finally completed according to the contract.

Having failed in its burden of proof as stated above, plaintiff cannot recover on Claim No. 1.

Plaintiff in its reply brief strongly urges that in the original answer defendant made admissions of material allegations of fact which amounted to confessing liability.

The facts relative to this contention are these: Plaintiff amended its complaint, changing the theory of the case. Defendant then asked and was granted leave to file an amended answer. The amended answer contained denials of the allegations in the petition which were previously admitted.

The Government now says the original answer was in error. However, even if not in error initially, when the plaintiff amended, changing its theory, it was well within defendant’s rights to file a new or amended answer changing its defense. The office of the petition and answer is to permit introduction of the true facts in the record. If something was inadvertently or erroneously admitted, it is not only the right but the duty of the defendant to correct the error. We can find nothing erroneous in the court’s order permitting defendant to amend its answer. Furthermore, plaintiff was not harmed in that it was given the opportunity to reopen the hearing and call any witnesses it had in rebuttal. Plaintiff failed to do so, saying it had already expended large sums of money in the trial of the case. We do not think this is a reasonable excuse for failing to introduce further evidence if such were available. Nor is it a reason why defendant should be faced with admissions either inadvertently or erroneously made.

For the reasons above stated, plaintiff’s petition will be dismissed.

It is so ordered.

Darr, Senior District Judge, sitting by designation; Dureee, Judge; Whitaker, Judge; and Jokes, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner William E. Day, and the briefs and argument of counsel, makes findings of fact as ■ follows:

1. The plaintiff is a corporation organized- and existing under the laws of the Commonwealth of Virginia,.with its principal place of business located at 2214 Wickham Avenue, Newport News, Virginia. It has been engaged as a plumbing and mechanical contractor for many years.

2. On June 30, 1951, plaintiff, pursuant to formal invitations for bids, entered into a contract, No. NOy 27124, with the defendant, through J. D. Burky, for the Chief of the Bureau of Yards and Docks, Department of the Navy. The contract covered the rehabilitation of pipelines at the U.S. Naval Base (Naval Supply Center) Norfolk, Virginia. The contract price as increased by change orders was $522,148.90. The plaintiff’s bid was the only bid received by the defendant under its invitation.

3. The contract required that work be commenced on June 30, 1951 and be completed by March 26, 1952. The contract provided for the payment of liquidated damages at the rate of $125.00 for each calendar day of delay. By change orders issued pursuant to the terms of the contract, the contract completion date was extended by 538 calendar days, increasing the time for performance from the originally specified time of 270 days to 808 days. The revised completion date was September 15, 1953. The work was completed in September 1953 and no liquidated damages were charged. The contract work was accepted on January 12, 1954, retroactively to September 8, 1953.

4. The work required under the contract consisted of the removal and renewal of fuel oil and diesel oil piping on five piers, each approximately 1,350 feet long, renewal of fresh water piping on two piers, and removal of gasoline piping on all piers. The work included some earth work, concrete, steel and iron work as well as insulation and weatherproofing. Much of the replacement pipe was of 6-inch and 12-inch steel pipe. The piping referred to was removed from and installed at the underside of the piers suspended from hangers and supports.

5. The plaintiff was requested by telephone to submit a bid on the project in suit. It appears that one of the considerations with which the Navy contracting office was faced at the time was the impending close of the fiscal year. In any event, on Friday, June 22, 1951, Mr. Allan Spiers, President of the plaintiff, went to the Naval Base and obtained the bid data. The plaintiff’s estimator worked on the plaintiff’s bid on Saturday, Monday, Tuesday and Wednesday, including some work at night. The plaintiff submitted its bid on Thursday, June 28,1951. The plaintiff was advised by telephone that it had been awarded the contract. The contract was dated June 30,1951.

6. No examination of the site of the work was made on behalf of the plaintiff before submission of its bid. In this connection, the contract specifications contained the following provisions:

*****
1-21. Examination of Premises. — Before submitting proposals, bidders are expected to inspect carefully the work in place and satisfy themselves as to the character and amount of work to be removed, renewed or replaced, and of new work. In this connection particular attention is invited to paragraph 1 of form no. 767d.
*****

7. The contract specifications provided in part as follows:

1-02. General Description. — The work consists of the removal and renewal of fuel oil and diesel oil piping^ on all piers; the removal and renewal of fresh water piping on piers 2 and 3; the removal of all gasoline piping on all piers; and includes earth work, concrete, miscellaneous steel and iron work, hangers and supports,_ insulation and weatherproofing, field painting, cleaning and incidental related work.
1-03. Location. — The work shall be located on piers 2, 3, 4, 5, and 7, at the U.S. Naval Base, Norfolk, Virginia, approximately as shown. The exact location will be indicated by the Officer in Charge.
* * ❖ ❖ *
1-15. Drawings required of the Contractor. — Before commencing the installation of any of this work, the contractor shall submit for approval and in accordance with article 5 of form no. 197 such drawings as may be required.
* * * * *
1-18. Methods and Schedules of Procedures. — The work shall be executed in a manner and at such times that will cause the least practicable disturbance to the occupants of the buildings and the normal activities of the Station. Necessary connections to existing services shall be made only when directed, and the work of disconnecting, connecting and testing shall be performed so as to minimize the interference with the operation of the existing systems. Before starting any work, the sequence of operations and the methods of conducting the work shall have been approved.
*****
5-01. General requirements. — The work consists of furnishing all labor, material, and equipment, to remove and renew, all fuel oil and diesel oil mains and laterals and sections of fresh water laterals on piers 2 and 3, sections of fuel oil and diesel oil mains on pier 4, all fuel oil mains and diesel oil mains and risers on pier 5, all fuel oil mains and risers and sections of diesel oil mains on pier 7; and to remove all motor and aviation gasoline piping on all piers and steam piping on pier 5. The work- includes piping, fittings, valves, expansion joints, hangers and supports, insulation, sterilization, cleaning prior to removal, testing and all other work ox a piping nature indicated, specified and/or required to make the systems complete and ready for use. Material and workmanship shall conform to the applicable requirements of specifications nos. 21Yc and 66Pla (int) unless specified otherwise.

8. The contract contained the following provisions, among others:

Article 4.- — Performance op the Work
(5) Ohcmged Conditions. — Information respecting the site of the work given in drawings or specifications has been obtained by Government representatives and is believed to be reasonably correct but the Government does, not warrant either the completeness or accuracy of such information and it is the responsibility of the Contractor to verify all such information; Provided, That in case of subsurface, latent, or unknown conditions, this contract may be modified, when, in the manner, and to the extent hereinafter in this subpara-graph provided: Should the Contractor encounter, or the Government discover, during the progress of the work, subsurface or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as being inherent in work of the character provided for in the drawings and specifications, the Contracting Officer shall be notified before the existing conditions are disturbed. The Contracting Officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ, the contract shall be modified by the Contracting Officer to provide for any increase or decrease in cost and difference in time resulting from such conditions and an equitable adjustment in the pertinent contract terms shall be made in accordance with the provisions of paragraph (a) of Article 10 hereof. Such modification by the Contracting Officer shall be final, subject only to appeal under the provisions of Article 16.
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{d) Responsibility of Contractor. — The Contractor shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work, and shall be responsible for all materials delivered (including Government furnished material and equipment delivered to the Contractor unless otherwise specifically provided) and work performed until completion and final acceptance. Upon completion of the contract the work shall be delivered complete and undamaged.
(e) Space at Site. — The Contractor shall be allowed reasonable space at the site of the work and access thereto and shall confine his operations to the space assigned. The work shall be done without interference with the ordinary use of streets, berthing places, fairways, and passages and the Contractor shall cooperate with other contractors of the Government and Government employees as may be required by the circumstances or directed by the Officer in Charge. The Contractor shall not commit or permit any act which will interfere with the performance of work by any other contractor or Government employees whether at the site or not.
(/) Protective Measures. — The Contractor shall protect the materials and work from deterioration and damage during construction and shall store and secure inflammable material from fire, remove oily rags, waste, and refuse from buildings each night and during cold- weather furnish all heat necessary for the proper conduct of the work. He shall provide and maintain all temporary walkways, roadways, trench covers, barricades, colored lights, danger signals, and other devices necessary to provide for safety and traffic.
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Article 5. — Specifications and Drawings
(a) Conflicts — Omissions—Misdescription—Misinfor-mation. — The Contractor shall keep on the work a copy of the drawings and specifications and the Officer in Charge shall at all times have access thereto. Anything mentioned in the specifications and not shown on the drawings or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between the drawings and specifications the specifications shall govern. Omissions from the drawings or specifications or the misdescription of details of work which are manifestly necessary to carry out the intent of the drawings and specifications, or which are customarily performed, shall not relieve the Contractor from performing such omitted or misdescribed details of work but they shall be performed as if fully and correctly set forth and described in the drawings and specifications.
(&) Checking of Drawings and Dimensions. — The Contractor shall check all drawings furnished him immediately upon their receipt and shall promptly notify the Officer in Charge of any discrepancies. Figures marked on drawings shall in general be followed in preference to scale measurements. Large scale drawings shall in general govern small scale drawings. The Contractor shall compare all drawings and verify the figures before laying out the work and will be responsible for any errors which might have been avoided thereby. When measurements are affected by conditions already established, the Contractor shall take measurements notwithstanding the giving of scale or figure dimensions in the drawings.
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Article 6. — Payment and Pelease
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(e) All material and work covered by partial payments made shall thereupon become the property of the Government, but this provision shall not be construed as relieving the Contractor from the sole responsibility for all materials and work upon which payments have been made or the restoration of any damaged or destroyed work, or as a waiver of the right of the Government to require the fulfillment of all of the terms of the contract.
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Article 8. — Inspection and Testing
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(5) All material and workmanship (if not otherwise designated by the specifications) shall be subject to inspection, examination, and test by Government inspectors at any and all times during manufacture or construction and at any and all places where such manufacture or construction is carried on. The Government shall have the right to reject defective material and workmanship or require its correction. Pejected workmanship shall be satisfactorily corrected, and rejected material shall be satisfactorily replaced with proper material without charge therefor, and the Contractor shall promptly segregate and remove the rejected material from the premises. If the Contractor fails to proceed at once with the replacement of rejected material and the correction of defective workmanship the Government may, by contract or otherwise, replace such material and correct such workmanship and charge the cost thereof to the Contractor, or may terminate the right of the Contractor to proceed as provided in Article 25.
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Article 10. — Changes and Extras
(a) The Contracting Officer may at any time or times, by a written order, and without notice to the sureties, make changes in the drawings or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the cost of doing the work under this contract, or in the time required for its performance, an equitable adjustment in the pertinent contract terms shall be made as hereinafter provided and the contract shall be modified in writing accordingly. Any claim of the Contractor for such an adjustment must be made in writing to the Officer in Charge within 10 days from the receipt of such change order or within such longer period as may be allowed by the Contracting Officer. If the Officer in Charge considers that such change should result in a decrease in the Contractor’s compensation or time for Íierformance or both, he shall so notify the Contractor, n either case, the equitable adjustment shall be made in accordance with the mutual agreement of the parties, provided, however, that if the parties are unable to agree, the Contracting Officer shall determine such equitable adjustment, if any, to be made in the contract terms, and his determination shall be final, subject only to appeal under the terms of Article 16. In making such determination, the Contracting Officer shall, in those instances where the adjustment to be made in compensation is estimated by the Officer in Charge to amount to $10,000 or more, convene, and give full consideration to the report of, an advisory board of three members, consisting of two Government representatives appointed by the Contracting Officer and one representative appointed by the Contractor. This board shall estimate and report to the Contracting Officer the amount of the change in cost, time or both, resulting from the ordered change. In making such estimate, the estimated cost of additions shall be based upon the estimated actual cost to the Contractor and the estimated cost of deductions shall be based upon the estimated cost to the Contractor as of the time the contract was made. To such cost estimates, 6 percent shall be added by said board to adjust the Contractor’s profits. In arriving at the amount of the change in price, if any, allowance may be made at the discretion of the Contracting Officer for overhead and general expenses, plant rental, and other similar items. _
_ (5) Nothing provided in this article shall excuse the Contractor from diligently proceeding with the prosecution of the work so changed.
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Article 16. — Disputes
Except as otherwise provided in this contract, any dispute concerning a question of fact arising under this contract which is not disposed of by agreement shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the Contractor. Within 30 days from the date of receipt of such copy, the Contractor may appeal by mailing or otherwise furnishing to the Contracting Officer a written appeal addressed to the Secretary, and the decision of the Secretary or his duly authorized representative for the hearing of such appeals shall be final and conclusive; Provided, That if no such appeal is taken, the decision of the Contracting Officer shall be final and conclusive. In connection with any appeal proceeding under this clause, the Contractor shall be afforded an opportunity to be heard and to offer evidence in support of its appeal. Pending final decision of a dispute hereunder, the Contractor shall proceed diligently with the performance of the contract and in accordance with the Contracting Officer’s decision.
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Article 19. — Use or Steuctueb Befoee Acceptance
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(b) If, prior to completion and final acceptance of all the work, the Government takes possession of any structure (whether completed or otherwise) comprising a portion of the work with the intent of retaining possession thereof (as distinguished from temporary possession contemplating return to the Contractor), then while the Government is in possession of the same the Contractor, notwithstanding the provisions of paragraph (d) of Article 4, shall be relieved of the responsibility for loss or damage to such structure other than that resulting from the Contractor’s fault or negligence. Such taking of possession by the Government shall not relieve the Contractor from any provisions of this contract respecting such structure, other than to the extent specified in the preceding sentence, nor constitute a final acceptance of such structure.
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9. The work performed by the plaintiff was contracted for and much of it was performed during the Korean conflict. The plaintiff at the time of bidding knew at that time there was a steel shortage. A qualification was placed on the bid as submitted as shown below:

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Note. — Manufacturers state, materials will not be shipped, before sometime in the fourth quarter of this year, even with a D.O. rating. Contract Limits will have to be discussed later.
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10. On June 29, 1951, the plaintiff by its president wrote to the contracting officer’s representative concerning the bid qualification quoted in the preceding finding as follows:

Re Rehabilitation of Pipe Lines, U.S. Naval Supply Center, Norfolk, Yirginia.
We will eliminate the typewritten clause in our estimate of the above job, provided the Navy will give time extension instant to obtaining materials.
We will endeavor to keep within the contract limits.

11. All material required for performance of the contract work was furnished by the contractor. There was no provision for Government-furnished material.

12. Apparently the plaintiff ordered the necessary materials shortly after the award of the contract. Very little activity of any kind was carried on until October. From that time until sometime in January 1952, the plaintiff was fabricating pipe hangers. About 530 such hangers were made according to the dimensions shown on the contract drawings for a typical hanger. When the first hanger was fabricated it was checked at one place where a hanger was to be located and it appeared to be satisfactory for that location. On the assumption by the plaintiff’s workmen that the measurements for the typical hanger were correct for every location where a hanger was to be placed, and without further verification of conditions at other hanger locations, the 530 hangers were made to the same dimensions. By about January 21, 1952, while still fabricating pipe hangers, the plaintiff began drilling at hanger locations preparatory to the erection of hangers. This continued until January 27 when it became apparent that the 530 pipe hangers fabricated could not be used due to interferences caused by pilings supporting the concrete deck of the pier, and also due to uneven grade on the under side of the concrete deck of the pier.

13. The contract drawings which had been prepared by a private firm of architects and engineers, hereinafter referred to as A & E, consisted of eight sheets. One sheet showed the general piping layout for all five piers. This showed in general where piping of various sizes was to be removed and where piping of various sizes was to be installed. It is to be noted that this work was to be done on each side of each pier. The general piping layout contained “general notes” as follows:

For detail description of work see individual pier drawings.
Contractor shall verify all dimensions and conditions at the site.

There were also five separate drawings, one for each pier, which were denominated pier plan and details. On each of these drawings, except that relating to pier 5, there appeared under “general notes” the statement:

Contractor shall verify all dimensions and conditions at the site.

14. On J anuary 31,1952, four days after plaintiff learned that some pilings on pier 2 were not in the exact location indicated on the plans, representatives of the A & E, the plaintiff, and the Government met to discuss the matter, and by February 5, 1952, the A & E had conducted a field survey and had determined the trouble, and was in the process of revising the plans which were transmitted to the plaintiff for estimates on March 4,1952. Said estimates were submitted by plaintiff on March 10, 1952, and formal authorization to proceed under the revised drawings given to the plaintiff on March 4, 1952, was issued on April 10, 1952. However, prior to receipt of formal authorization to proceed, plaintiff fabricated new hangers under the revised drawings received March 4, and also installed new pipe on pier 2. Also, during the period February and March 1952, plaintiff continued the work on pier 2 and other piers, such as the excavation of valve pits, hauling of dirt from such excavation, fabrication of valve pit covers, installation of fittings, fabrication and installation of pipe racks, the installation of watermains in pier 2, and pouring concrete in the construction of the valve pits. No work was done on some days due to inclement weather.

15. The plaintiff received the revised drawings on March 4, 1952, and immediately proceeded to fabricate and install hangers in accordance with the revised drawings.

16. Due to the priority system then in effect as a result of the Korean conflict, plaintiff did not receive the 6-inch and 12-inch steel pipe necessary for the job until March 10, 1952, just 20 days prior to the original contract completion date.

17. Upon receipt of the steel pipe on March 10, 1952, and without waiting for formal authorization to proceed, plaintiff immediately began to remove the old existing pipe on pier 2 and to replace it with the new pipe. The first such pipe was installed on March 19, 1952. New pipe was installed on almost a daily basis thereafter to April 10, 1952, when formal authorization to proceed was issued.

18. Since delays, if any, occurring prior to March 10,1952, were concurrent with delays caused by non-receipt of pipe for which the Government is not responsible, and since plaintiff, upon receipt of the pipe, immediately began to install it in accordance with the revised drawings previously furnished, the plaintiff was in fact not delayed even though the formal authorization to proceed was not issued until April 10, 1952.

19. During July 1952, while primary work was in progress on piers 2 and S and lead work was beginning on pier 4, it was learned that the piping on pier 4 was more deteriorated than had been expected. Consequently, it was decided by the defendant that it would be uneconomical to retain the deteriorated pipe which, would have to be replaced later, and that instead of removing and replacing only those sections of pipes on pier 4 designated in the original plan, all 6-inch and 12-inch pipe on pier 4 should be replaced. This decision is incorporated in Paragraph (a) of Schedule “A” of Change Order F issued January 20,1953. The change order in this regard provided for new work and for extra work which was fully paid for under the change order.

20. It is found that there was no misrepresentation by the defendant as to conditions which the plaintiff might encounter in the performance of the work. On the contrary, the private firm of architects and engineers, which prepared the contract drawings for the defendant, using the as-built drawings of the piers as a basis, showed by the drawings what work was required and where, but warned potential bidders as well as the successful bidder that it would be necessary to verify each dimension shown to be certain of its application. The warning went unheeded.

21. It is not shown in the record whether the contractor submitted any shop drawings to the defendant for approval (see finding 7, paragraph 1-15.)

22. Pursuant to Article 10, the contracting officer by change orders A, C and F, ordered the following changes in the work at an increase in contract price as shown. .Each change order was submitted to and accepted by the plaintiff.

ChaNge “A” — -Schedule “A”
Furnish all labor, material and equipment for revising and relocating the twelve (12) inch gasoline and six (6) inch diesel oil lines as follows:
(a) Pier 2- — -Eevise two hundred twenty-six (226) structural steel hangers already fabricated. Fabricate and install seventeen (17) additional hangers at expansion joints. Eevise location of twelve inch (12") gasoline and six inch (6") diesel oil lines. Eemove one (1) bulkhead.
(b) Pier 3 — Eevise two hundred twenty-six (226) structural steel hangers already fabricated. Fabricate and install thirty-four (34) additional hangers at expansion joints. Eevise location of twelve inch (12") .gasoline and six inch (6") diesel oil lines. Eemove two (2) bulkheads.
(c) Pier 4 — -Re-vise seventy-two (72) structural steel hangers already fabricated. Fabricate and install seventeen (17) additional bangers at expansion joints. Revise location of twelve inch (12")- gasoline and six inch (6") diesel oil lines. Remove two hundred eighty feet (280') of eight inch (8") waterline.
(d) Pier 5 — Revise six (6) structural steel hangers already fabricated.
(e) Pier 7 — Fabricate and install eight (8) additional hangers at expansion joints.
Complete and ready for use, all as directed by the Officer in Charge of Construction.

Increase in cost price $14,100.

Change “C” — Schedule “A”
Furnish all necessary labor, material and equipment to provide:
Item (1) Pier 2
A. Twelve (12) fresh water laterals and one (1) swing check valve on port side
B. Twelve (12) fresh water laterals and one (1) swing check valve on starboard side
C. Extend waterline lateral from main to within eight (8) feet of terminals on outboard end.
Item (2) Pier 3
D. Twelve (12) fresh water laterals and one (1) swing check valve on port side
E. Twelve (12) fresh water laterals and one (1) swing check valve on starboard side
Complete and ready for use all as directed by the Officer in Charge of Construction.

Increase in cost price $5,482.

Change “F” — Schedule “A”
Furnish all labor, materials and equipment necessary to accomplish the following:
(a) Renew all 6" diesel oil and 12" fuel oil pipelines on Pier 4 in lieu of replacing portions as shown by Renewal Schedules on Y&D Drawing No. 493167.
(b) Change last two outlets on diesel oil line from 4" to 6" on Piers 2,3,4,5 and 7.
(c) Remove obstructions and reroute pipeline around existing concrete piles on Pier 7.

Increase in cost price $87,000.

23. The work described in the preceding finding was performed by the plaintiff and the plaintiff was duly compensated therefor.

24. There is no satisfactory proof that the orderly progress of the work was affected by the additional work ordered.

25. At the time the plaintiff submitted its bid and at the time it entered into the contract in suit, the Korean conflict was in progress. It was anticipated by the parties that plaintiff’s work would proceed in such a manner as to cause the least practicable disturbance to the normal activities of the Naval Supply Center. Naval ships were serviced at the five piers during the entire period of performance of the contract work. The fuel and diesel oil connections were cut off on only one side of one pier at any one time. This enabled the servicing of ships on both sides of four piers and one side of the fifth pier while the work progressed. Work was permitted on those 4y2 piers where it would not require the shutting off of utilities or otherwise interfere with the servicing of warships.

26. It is found that the naval activities at the piers were not greater than should have been reasonably anticipated considering the agreement of the parties. It is apparent from the testimony of the plaintiff’s estimator that due allowance for such naval activities was not made in the preparation of its bid.

27. During the performance of the contract work the plaintiff applied waterproofing on pipe that had been installed as a part of the contract work. When defects in the waterproofing appeared they were called to the attention of the plaintiff by the Navy inspector and such defects were corrected. The testimony shows that the defects were due to damage caused by floating debris as well as installation on pipe which was not completely dry. The correction of defects in waterproofing took place during the entire performance period of the contract.

28. During the period April 1, 1953 through September 8, 1953, plaintiff installed new pipe under Piers 4 and 7, and performed initial waterproofing work under these piers. During the months of July and August 1953 some waterproofing was applied to pipes under Piers 2, 3, and 5. The record does not disclose what portion of the waterproofing work under Piers, 2, 8, and 5 was initial work and what portion was replacement work, if any. Further, if some of this work was replacement, the record does not disclose what portion was necessitated through the improper initial application of the waterproofing on damp surfaces by plaintiff. There is no evidence of what portion, if any, was required because of scarring by floating debris.

29. The contract clearly contemplated maintenance and repair work by the plaintiff.

30. On September 14,1953 the plaintiff wrote the following letter to the officer in charge of construction:

Ee Contract NOy-27124, Eehabilitation of Pipe Lines, Naval Supply Center.
Gentlemen : This is to advise you that we have finished the above reference job according to our contract and we are ready to move out our men and equipment, but due to failure of the twelve inch (12") expansion joints to work properly because of inadequate anchorage as installed according to plans, we are now faced with an additional change order to correct this fault.
The Architects are now preparing additional drawings, correcting expansion joint anchorage. While we are not particularly interested in this change order we understand that the Navy will not accept the job until this condition is corrected, and we are therefore willing to cooperate with the Navy to correct the expansion joint anchorage and to advise you so that it will be on record that we will expect the Navy to reimburse us for holding men and equipment on the job until such time as we are in receipt of the change order.
We wish, also, to advise you that we will not be responsible for damage done to expansion joints and piping because of the inadequate anchorage.
As you know the entire job is subject to the elements and this change order will prolong the acceptance by the Navy, causing us to feel that we should be relieved of any responsibility of damage from any act of God or man beyond our control.
Thanking you for your attention to the above, we are
Very truly yours,
Archie and Allan Spiers, Inc.,
Archie Spiers, Vice President.

31. The officer in charge of construction replied to the above letter on September 28, 1953, as follows:

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With reference to your letter of 14 September 1953 regarding the failure of the twelve inch (12") expansion joints, an inspection of the installation by representatives from this office revealed the fact that the expansion joint anchors were not installed in accordance with the contract drawings.
It would be inconvenient to the Navy to cut the oil supply off on the piers at this time to reinstall the joint anchors as shown on the drawings. To prevent this the Officer in Charge of Construction is investigating the possibility of providing some method of anchoring these joints properly which will be of the best advantage to the Government and the contractor.
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32. By November 12, 1953 the A&E had made a recommendation to the Navy for the anchoring of expansion joints, and on that date a copy of the drawing of such proposed method was handed to the plaintiff’s superintendent. The plaintiff was, on November 16, 1953, requested to furnish its estimate for performing the work covered by such drawing on four of the piers and separately as to one side of each of two piers (being 2 of the 4 piers referred to).

33. On November 17, 1953 the plaintiff submitted its estimate for doing some of the work, and on November 20,1953 submitted an estimate for additional work with a request for a 365-day time extension to perform it. On January 8,1954 the plaintiff furnished a written breakdown of the November 20 estimate.

34. After consideration of plaintiff’s price proposal the Government, on January 12,1954, four days after receipt of the plaintiff’s last proposal, dated January 8,1954, accepted the work as performed by the plaintiff and decided not to issue a change order involving repair or additional work by the plaintiff. Said acceptance was retroactive to September 8,1953.

35. The period between September 1953 and early January 1954 was spent in a careful investigation and consideration of a possible remedy to the defective work. The four-day lapse of time between plaintiff’s last price proposal and final acceptance of the work by the Government was not unreasonable.

36. During the period from about the middle of September 1953 to January 12, 1954, the plaintiff’s superintendent remained at the job. His salary was $120 per week. One employee, a waterproof er, was also at the job from September 30, 1953 to January 12, 1954. He was an hourly employee whose rate was $1.85 per hour. This employee was engaged in repairs to the coal tar covering (waterproofing) on the fuel and diesel oil pipes which had been damaged due to action of the, elements.

37. The plaintiff, by counsel, in January 1956, filed a claim with the contracting officer in the amount of $60,348, apparently based on delays in issuance of change orders and due to changed conditions. On March 19,1956, W. E. Davidson, Civil Engineer Corps, U.S.N. for Chief, Bureau of Yards and Docks, Contracting Officer, sent the following decision of the contracting officer:

The Officer in Charge of Construction, Fifth Naval District, Norfolk, Virginia, has forwarded to the Bureau a letter of 2 January 1956 from Gaines V. Palmes, your attorney, in which a final decision of the Contracting Officer is requested hi connection with your claim for reimbursement for increased costs due to alleged delays in the issuance of a change order and changed conditions under NOy-27124 at the Naval Supply Center, Norfolk, Virginia.
After a careful review of the facts, the Contracting Officer determines that to the extent that your claim is in the nature of a claim for damages it cannot be the subject of compensation under the terms of the contract. In respect to that part of your claim concerning alleged changed conditions, it is considered that since you signed Change Orders “A” and “F” without exception, which change orders reimbursed you for encountering such conditions, no further basis exists for additionally compensating you for these changes.
As to that part of your claim concerning additional maintenance work, Article 4(d) of the contract provides that the contractor shall be responsible for all work performed until completion and final acceptance. Accordingly, the Contracting Officer considers that the cost of such, maintenance work must be borne by the contractor.
Accordingly, for the foregoing reasons, your claim for additional compensation in the amount of $60,348.06 is hereby denied. This is a final decision of the Contracting Officer.

38. The plaintiff filed an appeal with the Armed Services Board of Contract Appeals. That Board on August 6,1956, pursuant to the Government’s motion to dismiss, granted such motion for lack of jurisdiction.

39. On October 3, 1956 the plaintiff, by counsel, filed a claim with the Comptroller General consisting of three items as follows:

Claim No. 1. — Increased cost incurred as a result of delay in awaiting issuance of a proposed change order_$14, 470.27
Claim No. 2. — Increased cost of performance of original contract work due to encountering unforeseen conditions, and to misrepresentation of conditions_ 90, 010.46
Claim No. 3. — Cost of maintenance of pipelines due to encountering unforeseen con-ditions_ 7,499.13

The Assistant Comptroller General, on March 21, 1958, advised plaintiff’s counsel in a long opinion letter of the denial in its entirety of the plaintiff’s claims.

CONCLUSION OP 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 not entitled to recover, and the petition is dismissed. 
      
       Form no. 767d is not in evidence.
     