Folk Construction Co. v. United States

31 Cont. Cas. Fed. 71,247, 2 Cl. Ct. 681, 1983 U.S. Claims LEXIS 1711
CourtUnited States Court of Claims
DecidedJune 14, 1983
DocketNo. 99-80C
StatusPublished
Cited by16 cases

This text of 31 Cont. Cas. Fed. 71,247 (Folk Construction Co. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Folk Construction Co. v. United States, 31 Cont. Cas. Fed. 71,247, 2 Cl. Ct. 681, 1983 U.S. Claims LEXIS 1711 (cc 1983).

Opinion

OPINION

WHITE, Senior Judge.

This action is being prosecuted by the plaintiff, Folk Construction Co., Inc. (Folk), [683]*683on behalf of Folk’s subcontractor, Cross Construction Co. (Cross), in order to obtain an equitable adjustment for work performed under government contract No. DAXW01-78-C-0016 (the contract). The contract, which was awarded to Folk on October 31,1977, at a total contract price of $1,023,849.50, was related to construction of the Lock-D Project, an important feature of the Tennessee-Tombigbee Waterway Project.

Background Facts

The preliminary design of the lock provided that the spillway, abutment walls, and upper guide wall would be pile supported. The contract called for a test program to be conducted in order to obtain information for the final design of the project. The test program included a test excavation, test fill, dewatering studies, and a pile test study. Specifically, the pile test study was intended to determine the most appropriate pile type, allowable pile loads, and a basis for estimating pile lengths for contract bids. The pile test study would also develop information on hammer types for driven piles and installation procedures for cast-in-place piles.

Cross’ subcontract provided that Cross would perform the portion of the contract which called for test pile driving and pile load testing. The contract required that seven pile load tests be conducted. Support piles, upon which a support frame would be placed, would be driven around each of the seven test piles.1 The test piles were to be driven at a slightly greater depth than the support piles, so that a hydraulic jack could be placed between each test pile and the support frame. The test pile then would be jacked against test loads placed upon the support frame, and various measurements would be recorded by instruments attached to the test piles. A change in the contract required that two tests be conducted simultaneously.

Before driving the test piles and commencing the load testing, Cross was required to drive eight steel H piles at a batter (slant) for the purpose of enabling the contracting officer to determine which of three pile driving hammers listed in paragraph 7.1 of section 2E of the specifications would be used for driving the test piles. Paragraph 8.1 of section 2E of the specifications provided that the contracting officer would make the determination after extracting and inspecting the batter piles.

The contract did not specify the hammer to be used to drive or extract the support piles. Paragraph 8.2.2 of section 2E of the specifications provided merely that “[s]up-plying temporary piles to support the load platform and the driving and extraction of these piles will be considered a subsidiary obligation of the Contractor * * *.”

Cross drove the eight batter piles between February 8 and February 15, 1978. On February 15 and 17, 1978, Cross unsuccessfully attempted to extract the batter piles with an HD15BSP reciprocating air extractor that was on the job site. After failing to extract the piles with the air extractor, Cross ordered a vibratory hammer/extractor from the L.B. Foster Company. The L.B. Foster vibratory hammer/extractor utilizes vibrations both to drive and extract piles.

The vibratory hammer/extractor was not available immediately. The test piles, however, arrived on the job site on February 17, 1978. Although the batter piles had not been extracted and inspected, the contracting officer determined that the vertical test piles would be driven with a single acting air hammer. Consequently, the contracting officer ordered Cross to begin driving the vertical test piles.

On February 19, 1978, while waiting for delivery of the vibratory hammer/extractor, Cross drove two test piles with the air hammer. Cross also drove prestressed piles and 24-inch casing on February 20 and 21, and performed maintenance on its equip[684]*684ment from February 22 to February 27, 1978.

The vibratory hammer/extractor arrived at the job site on February 27, 1978. Cross extracted four of the eight batter piles with the vibratory extractor on February 27 and March 1, 1978. On March 6, 1978, an official of the Corps of Engineers at the job site informed Cross that it could not use the vibratory hammer/extractor to extract the remaining four batter piles or to drive or extract any of the support or test piles, until the testing program in the test area was completed. At the same time, the official also instructed Cross that no work was to be done in the test area while the testing was in progress.

The Government’s decision to prohibit use of the vibratory hammer/extractor was based in part on the L.B. Foster brochure, which stated that use of the hammer/extractor would have a compacting effect on certain types of soils within a limited area. Additionally, the Government concluded that the ban on use of the vibratory hammer/extractor and on the performance of any work in the test area during testing was necessary in order to prevent disturbance of sensitive instruments attached to the test piles.

The plaintiff contends that the Government’s orders prohibiting work in the test area during testing and use of the vibratory hammer/extractor constituted changes in the contract which entitles Cross to an equitable adjustment for the increased costs incurred by Cross in complying with the Government’s orders. Cross originally intended to use only the eight batter piles, after extracting them, and other piles on the site as support piles for each of the seven pile load tests. At the conclusion of each test, Cross planned to extract the support piles and redrive them around the next test pile, until each of the tests was completed. In this manner, Cross planned to work continuously — extracting and redriv-ing support piles while another test was being conducted — during the testing.

The Government’s orders prohibiting work in the test area during testing, and prohibiting use of the vibratory hammer/extractor, compelled Cross to abandon its original plan , and adopt a more costly alternative method of performance. Cross purchased additional piles for use as support piles and drove all of them around the test piles between March 19 and March 24, 1978, before commencing any of the load tests. The various tests were conducted between April 4 and May 13, 1978.

On April 7,1978, the plaintiff submitted a claim, on behalf of Cross, for an equitable adjustment in the amount of $37,000 for the purchase of additional piles which Cross used as support piles. On July 31,1978, the plaintiff submitted, on behalf of Cross, an amended claim in the amount of $67,489. The amended claim was for the cost of the extra support piles and also for additional costs which, Cross alleges, resulted from idling his laborers and equipment during the test loads.

On March 9, 1979, the contracting officer denied the amended claim, except in the amount of $5,834.26, which the Government granted Cross as an equitable adjustment for the four batter piles which Cross was not permitted to extract.

On March 4, 1980, Cross filed a “direct access” complaint (then denominated a petition) in this court’s predecessor, the United States Court of Claims, pursuant to section 10(a)(1) of the Contract Disputes Act of 1978 (41 U.S.C. § 609(a)(1) (Supp. Y 1981)). Later, an amended complaint, which substituted Folk as the party plaintiff, was filed.

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Cite This Page — Counsel Stack

Bluebook (online)
31 Cont. Cas. Fed. 71,247, 2 Cl. Ct. 681, 1983 U.S. Claims LEXIS 1711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/folk-construction-co-v-united-states-cc-1983.