1 Reporter's Statement of the Case turbed. The removal of this deposit was required for the construction of the dam, powerhouse, and appurtenances. 101. In this cause of action plaintiffs claim damages caused by (1) certain restraining lines established by the contracting officer in the lower part of the west slide area, which interfered with their normal excavation operations, (2) defendant's failure to pay the plaintiffs the contract unit price for common excavation between elevations 1150 and 1275, and (3) the refusal of the contracting officer to permit plaintiffs to perform common excavation above elevation 1275. Plaintiffs' exhibit 6-1, made a part of these findings by reference, is illustrative of the relative positions of the three sections involved in this cause of action and shows the excavation performed in the west slide area after plaintiffs' contract was executed. This is a transverse section of the slide area on line 14 +50 as shown on the left hand side of plaintiffs' exhibit H, also made part of these findings by reference. The part shown on this exhibit below elevation 1150 was excavated by plaintiffs at the contract unit price of $1 per cubic yard. The portion lying between elevations 1150 and 1275 was excavated by plaintiffs under an extra work order at 43 cents per cubic yard. The part from elevation 1275 to the top at elevation 1545 was excavated by other contractors. Plaintiffs' position is that all the excavation done above the line marked "Final Line of Excavation" on this exhibit was open-cut excavation required for the construction of the dam, powerhouse, and appurtenances, and that under the contract they were entitled to do all that excavation work at the unit price of $1 per cubic yard. 102. Parts of paragraph 56 of Specifications No. 570, read as follows: excavation for Excavation, General.-* foundations of the dam and power house, which shall include all open-cut excavations required for the construction of the dam, powerhouse, and appurtenant construction, will be measured for payment to slopes of 1 to 1 for common excavation * * *: Provided further, That for any required excavation where, in the opinion of the contracting officer, the conditions warrant, 891357-50- -6 116 C. Cls. Reporter's Statement of the Case the excavation will be measured for payment to the most practicable dimensions and lines as staked out or otherwise established by the contracting officer: Provided further, material in slips and slides extending beyond the established slope lines or below the established grade lines will be measured for payment if, in the opinion of the contracting officer, such slips or slides are beyond the control of the contractor and not preventable by the exercise of reasonable care and diligence: 103. Under contract with David H. Ryan, heretofore referred to in the previous cause of action, excavation in this area was carried on between elevations 1085 and 1170, from December 1933 to June 1934. In March 1934 a major slide occurred which disturbed the deposit both below and above the highway and railroad grade. The slope in the west slide area was thereupon fixed at 2 to 1. Plaintiffs commenced excavation in this area under their contract on October 4, 1934. On November 14, 1934, while this excavation was being carried on, cracks appeared in the upper portion of the slide area both below and above the highway and railroad grade and the material slumped but no major slide developed. If a major slide had occurred it would have delayed the plaintiffs in their excavation as well as delayed the completion of the highway and railroad grade, which was necessary for the transportation of the material and equipment to the dam site. On direction from the engineers in charge of the work the plaintiffs, on November 15, 1934, moved their equipment from the toe of the slide area where they were working to other parts of the west abutment where excavation was continued. The purpose of this direction was to leave a plug unexcavated until the material above had been sufficiently excavated, which was a good method of stabilizing the slopes to prevent slides. 104. Plaintiffs began excavation with two small shovels and some trucks working within the staked-out slope lines to clean up a bench at elevation about 1085 in order to install a special conveyor-belt system with which to transport the material to the designated waste pile at Rattlesnake Canyon about one-half mile upstream from the dam on the west side of the river. To this system were four belt feeders to one central loading point on the main belt, which was 60 inches 1 Reporter's Statement of the Case wide. The plaintiffs purchased considerable equipment to use in connection with the conveyor-belt system. With this system and equipment, around 40,000 cubic yards of material per day could be handled. This plan of excavation by belt conveyor, with the heavy shovels and other equipment which plaintiffs had procured, was the most feasible and economical method for exacavation of the large quantities of material in this area. For efficient operation the belt conveyor and equipment had to be coordinated, as delay of one operation of the work unbalanced the whole system. December 13, 1934, plaintiffs began excavating with this equipment and the conveyor-belt system. 105. About the time the conveyor-belt system was ready for operation defendant established a restraining line beyond which excavation could not be carried on for the time being. The restraining line was moved westward from time to time, beginning January 1, 1935, and ending March 29, 1935, and was removed on April 3, 1935. Under extra work orders, the first of which was dated December 1, 1934, plaintiffs, at the direction of defendant for the purpose of stabilizing the slopes, sank in the slide area drainage wells, shafts, and tunnel system, for the purpose of draining water from the slide area. This work was ineffective. This all interfered with the efficient operation of plaintiffs' excavating equipment, which resulted in extra expense. 106. December 1, 1934, plaintiffs wrote a letter to the construction engineer, as follows: We expect to start excavation on a large production scale in the West bank area in the week of December 10. In preparation for this work our large shovels have been delivered and are being assembled. Our 60-in. belt line is being installed, substantially all of the equipment and materials being on the ground. We have on order for delivery within the next few days additional caterpillar crawler wagons for the haulage. It is our expectation that this equipment, in efficient operation, should remove 30 to 40,000 yards a day. The two conveyor feeders are being installed at elevation 1045. It is our plan to enter the shovels at elevation 1065 and remove a 20-ft. cut over the entire area, extending back to the established slope lines. This will be followed by a similar cut at elevation 1045. Mean 116 C. Cls. Reporter's Statement of the Case while, we will install two additional feeders at successively lower elevations, thus carrying the excavation down in substantially level benches. This, in our opinion, is the most efficient method of employing this equip ment. In beginning the work with truck haulage in October, it was our expectation that we would be permitted to take out all of the top material above elevation 1085 which lies within our slope lines. On November 15, in compliance with instructions from your office, we moved our shovels out of the West extremity of the excavation because of a slide which began to move in from the West end. At this writing, we have not been permitted to reenter this area. The shovels have been working upstream from the dam so that our operation has not been impaired, but we are apprehensive over the prospect of our large equipment being hampered and delayed by leaving this material above. It will be evident to you that with the large capacity we have available we can complete the first 20-ft. cut in a relatively short interval of time, and as this cut approaches the toe of the slide the stability of the ground may be further jeopardized unless we can carry the cut to the final slope lines. It is our opinion that the danger will be increased with each successive cut. Under these circumstances, we feel that your office should give us promptly some definite instructions as to the procedure we are to follow. We also wish to invite your attention to the fact that at this time we have not received signed plans or formal advice from you as to the slopes which are to be established for the West bank excavation. We understand that your field parties have staked out a 2 to 1 slope on the upstream side, and we are proceeding accordingly. However, in view of the requirements of our contract, we feel that we should have formal authority for excavating beyond the slope lines indicated in the contract. We would also appreciate your giving us an interpretation of the requirements of the contract as to our responsibility for slides. As we understand the requirements, it is incumbent upon us to excavate within the slope lines which you will establish, to avoid the undercutting of slopes or surcharging of banks, or other operations which might increase the natural tendency of the material to slide. This course of procedure would, in our opinion, satisfy our contract obligation for "the exercise of reasonable care and diligence." If you have a different view of this matter, we would be glad to have your advice. 1 Reporter's Statement of the Case Plaintiffs received no reply to this letter. 107. January 22, 1935, plaintiffs again wrote to the construction engineer as follows: Some weeks ago, we discussed with you the probability of interference with our West bank excavation resulting from the Government's requirement that we leave sufficient material in place at the toe of the slide to prevent further movement until such time as the slide can be stabilized by drainage or such other measures as the Government sees fit to take. In this conference, you expressed the view that we were suffering no injury at the time and suggested that we bring the matter up again, if and when we considered that our operations were being impaired. On January 19, we received, through your field office, instructions to the effect that we cannot advance beyond an established restraining line near the toe of the slide until after well No. 1, which has been sunk in the slide area has been drained by pumping. The enforcement of this restraint will leave us with very little excavation tributary to the feeders which we now have installed. The situation is further aggravated by the fact that we have not yet received written instructions or plans as to the tailrace slopes. We are rushing our No. 4 feeder as rapidly as possible in the hope that we may be able to enter a lower level, leaving No. 2, and No. 3, feeders in place for the time being until the matter can be cleared up, but we now foresee within the next few days a definite impairment of our operations. There is another phase of this matter which we wish to bring out as a matter of record. At your request, we undertook the work of sinking and pumping drainage wells in the slide area under an extra work order. In accepting this extra work order, we accepted the responsibility for expediting it to completion as rapidly as possible, and secured the services of a drilling contractor who had equipment immediately available to begin the work. The work has been delayed for various causes, and we have been disappointed in the progress made to date. The point we wish to bring out is that the necessity for this work originates primarily with the occurrence of a slide for which we are in no way responsible, and we do not feel that we should be called upon to accept the responsibility for delaying our work because of the fact that we are undertaking the corrective measures under an extra work order. |