Reporter's Statement of the Case opening bids were available for inspection by bidders in defendant's office located near the dam site. The log kept of Test Pit No. 1 designated glacial till as "hardpan." The materials obtained from Test Pit No. 1 were sorted and piled near the top of the pit where they could be viewed and analyzed by prospective bidders. The other test pits and trenches did not go through or expose any glacial till. 37. Most of the Brett gravel deposits consisted of assorted sand and gravel which were sorted and deposited by water flowing at varying velocities. During the glacial era glaciers from the North extended into what is now the State of Washington and had their southern extremity approximately at the site of the Grand Coulee Dam. On top of part of the assorted sand and gravel, heretofore referred to, there was what is called glacial till, which was caused by advancing glacial ice moving so slowly that it served no sorting and stratifying process. The glacial till had in it unsorted sand and gravel and considerable silt. Later the glacial ice overran it and compacted it with its own great weight. 38. The topsoil over the Brett deposits was from 3 to 4 feet deep and in some places deeper. Under this topsoil over part of the assorted sand and gravel was glacial till from 2 to 40 feet deep. When the topsoil was removed, in places there were sand and gravel over the glacial till, in other places the removal of the topsoil exposed glacial till, and in still other places the removal of the topsoil exposed assorted sand and gravel without any glacial till underneath. 39. The glacial till was a composition of a great mixture of sizes of material from the finest flour up to big boulders. For concrete aggregates at the dam different sizes of gravel were required up to a maximum of 6 inches. In the Brett deposits the glacial till was more replete in the larger aggregates than the assorted gravel. Both the assorted and unsorted sand and gravel had to be excavated from the Brett deposits and run through plaintiffs' cleaning and classifying plant, which was modern and efficient in every way, and was located on the hill near the Brett deposits. The glacial till was compacted material and more difficult to excavate and process than the assorted sand and gravel. 116 C. Cls. Reporter's Statement of the Case 40. Sand and gravel from the glacial till, together with the sand and gravel in the assorted deposits, were used as aggregates in making concrete for the dam. In digging Test Pit No. 1, heretofore referred to, the compacted material in the glacial till encountered was removed with pick and shovel. Plaintiffs had difficulty in handling the glacial till with a power shovel. After a few weeks they got some well-drilling equipment on the job and drilled blast holes from the top of the surface of the glacial till, put explosives in the holes sufficient to give the bank a slight shaking and that was enough so that the power shovel could dig the material readily and load it. To handle the glacial till material plaintiffs also made some additions and adjustments to their cleaning and classifying plant. 41. Plaintiffs subcontracted the stripping to the Rowland Construction Company in the spring of 1935. The subcontractor began stripping the top soil about May 5, 1935. Considerable of the overburden had been removed by the late spring or early summer, when representatives of plaintiffs and of defendant met at the Brett deposits to discuss the condition of exposed sand and gravel and glacial till. Just what took place at the time is not very clear from the record except that a representative of plaintiffs expressed the opinion that some of the exposed glacial till was too dirty and that it should be stripped and wasted. To this a representative of defendant responded that it had a lot of sand and gravel and nothing in it prescribed by the specifications to be removed by stripping. The latter part of October or early in November 1935, the construction engineer and the assistant chief engineer met representatives of plaintiffs at the same place and the question of stripping the glacial till came up for discussion and plaintiffs were informed by both the construction engineer and the assistant chief engineer that the glacial till had sand and gravel needed in the construction of the dam and that it could not be stripped and wasted. Plaintiffs did not protest this decision, no writings were exchanged, and no claim for damages was made until November 22, 1937, 1 Reporter's Statement of the Case when the claim sued on in this cause of action and other claims were filed with the Secretary of the Interior. 42. Under item 2 of the schedule plaintiffs were paid 30 cents per cubic yard for stripping sand and gravel deposits. Plaintiffs paid the subcontractor for stripping 15 cents per cubic yard. Plaintiffs during the performance of their contract handled 2,272,000 cubic yards of glacial till. Plaintiffs claim loss of profit resulting from the refusal of defendant to permit them to strip glacial till from the Brett deposits. The difference between what defendant paid plaintiffs and what plaintiffs paid the subcontractor was 15 cents per cubic yard, and the loss of profit on 2,272,000 cubic yards at 15 cents per cubic yard was $340,800. It cost plaintiffs $0.2069 per cubic yard to excavate and process glacial till, and to excavate and process the other sand and gravel in the Brett deposits $0.1538 per cubic yard. Plaintiffs claim the difference as increased costs of excavating and processing glacial till, which was $0.0531 per cubic yard. The 2,272,000 cubic yards of glacial till at $0.0531 per cubic yard is $120,643.20. The total amount claimed is $461,443.20 ($340,800+$120,643.20). 43. If plaintiffs had been permitted to strip and waste the glacial till they would have been put to the expense of excavating additional yardage to make up for the 2,272,000 cubic yards of glacial till stripped and wasted. The Brett deposits contained 48 percent gravel and 52 percent sand and silt. For the concrete mixes of the dam the sand was approximately 27 percent and the gravel 73 percent, which resulted in wasting a great deal of sand. Gravel in the glacial till was proportionately higher than in the rest of the deposits, which, in order to get the necessary coarse aggregates, would have required the excavation of a greater volume of the other deposits than the volume of glacial till used by plaintiffs. The expense to plaintiffs in excavating and processing the aggregates required if the glacial till had been stripped and wasted would have been more than the expense incurred by plaintiffs in excavating and processing the aggregates used, which included the 2,272,000 cubic yards of glacial till. Reporter's Statement of the Case THIRD CAUSE OF ACTION 116 C. Cls. THE DISPUTE CONCERNING THE PERCENTAGE OF SAND PERMITTED TO BE USED IN THE CONCRETE MIX 44. As heretofore stated in Finding No. 43, the Brett deposits contained 48 percent gravel and 52 percent sand and silt and in the concrete mixes of the dam there were used approximately 73 percent of gravel and 27 percent of sand, which resulted in the waste of a great deal of sand. Plaintiffs contend that the contracting officer should have designed the concrete mixes so as to utilize more sand and less gravel by fixing the proportions of gravel to sand at 61 percent and 39 percent, respectively, instead of 73 percent and 27 percent, respectively, as was done; thereby they could have obtained the necessary aggregates for the concrete mixes to be placed under their contract by excavating and processing 1,454,940 cubic yards less of aggregates from the Brett deposits than were actually taken out. The sand and gravel deposits were furnished to plaintiffs by defendant, but the cost of excavating and processing the sand and gravel for use in the concrete mixes was borne by plaintiffs. 45. Paragraph 34 of Specifications No. 570 appears in full in Finding No. 35. Provisions of Paragraph 34 pertinent to this cause of action are the following: Sand and gravel deposits.—* The fact that the Government is hereby designating the deposits from 1 Reporter's Statement of the Case of suitable materials in the portion of the deposits being 46. Paragraph 81 of the Specifications No. 570 provided in part as follows: Composition.-Concrete shall be composed of cement, natural or crushed aggregates, and water, all well mixed and brought to a proper consistency. If required, as determined by the contracting officer, powdered admixture shall be added as provided in paragraph 83. The exact proportions in which these materials are to be used for different parts of the work shall be as determined by the contracting officer from time to time during the progress of the work, and as analyses and tests are made of samples of the aggregates and the resulting concrete. In general, the proportions shall be determined by the contracting officer to produce durable concrete of maximum practical economy to the Government and having strength properties commensurate with the time and degree of loading, due account being taken of stress conditions, nature of exposure, type of cement, and other considerations. It is contemplated that the concrete will range in character from unexposed mass concrete having 6-inch maximum size aggregate. minimum cement content of one barrel per cubic yard, maximum water-cement ratio of 1.0 by volume, and minimum compressive strength at time of full loading of 2,800 pounds per square inch, to heavily reinforced concrete having 34-inch maximum size aggregate, cement content of approximately 112 barrels per cubic yard, maximum water-cement ratio of 0.9 by volume, and minimum compressive strength at time of full loading of 3,000 pounds per square inch. The compressive strength will be determined through the medium of tests of 6-inch by 12-inch cylinders, made and tested in accordance with the latest standards spec ifications of the American Society for Testing Materials, except that for all concrete samples from which cylinders are to be cast, the pieces of coarse aggregate larger than 11⁄2 inches will be removed by wet-screening or |