
    No. 51-71.
    October 21, 1977
    Codell Construction Co., et al.
   -Plaintiff seeks damages for alleged breach of a contract for construction of the second stage of the six-stage Fishtrap Reservoir Project on the Big Sandy River in Pike County, Kentucky. Completion of plaintiffs portion was set for June 29, 1968, performance to occur during four construction seasons. The first-stage contract awarded to another was for building a tunnel through an adjoining hillside, foundations of the intake structure to the tunnel allowing controlled flow of water to bypass the dam, and the tunnel outlet. The first-stage work was scheduled to be completed prior to July 1, 1965, and it was intended that the river should then be diverted by a cofferdam to pass through the tunnel while the dam was being built across the original channel. Plaintiffs contract related to the construction of the intake structure with hydraulically operated slide gates, sluice liners, trashracks, elevator and heating and water systems. The invitation for bids contained drawings showing a six-step water diversion procedure for construction of the intake structure in the dry. Plaintiff experienced delays occasioned by unusually high water flow and flooding. Plaintiffs administrative claim for an equitable adjustment was denied. Plaintiff claims here that it was required to follow the six-step diversion plan and that the Government misled it into believing that if it did follow that plan it would be able to complete the lower level of the intake structure within approximately 90 days without substantial interference from flooding. Plaintiff contends that whether or not 1966 had unusually high water flow on the river at the damsite, the diversion plan was inadequate even for an average year. On June 23, 1976 Trial Judge Kenneth R. Harkins filed a recommended decision (reported at 24 CCF para. 81,820), setting forth at length his reasons for concluding that there was no breach of contract and that plaintiff is not entitled to recover. On October 21, 1977 the court, by order, adopted the recommended decision as the basis for its judgment in this case, concluded that plaintiff is not entitled to recover and dismissed the petition. Plaintiffs motion for rehearing was denied January 13, 1978.  