MaddbN, Judge,
delivered the opinion of the court:
Tbe plaintiff had a contract with the Government to construct maintenance hangars and related facilities at the Ardmore Air Force Base at Ardmore, Oklahoma. The work included the construction of a number of reinforced steel and concrete caissons some 50 feet deep, as foundations for the hangars. The concrete in fifteen of the caissons did not have the compressive strength required by the contract, and the plaintiff was required by the Government to remedy this defective work by placing additional caissons adjacent to the defective ones. The cost of the remedial work was some $14,000. The plaintiff says that the weakness of the concrete was due to the fault of the Government in designing the concrete mis, and that the Government had no right to require the plaintiff to remedy the defect at the plaintiff’s own expense. The instant suit is for the recovery of the cost of the remedial work.
The plaintiff subcontracted the construction of the caissons to a partnership hereinafter called Saxet. Saxet obtained its concrete from a corporation hereinafter called Ardmore. The specifications of the plaintiff’s contract with the Government prescribed five and one-half bags of cement per cubic yard of concrete for the concrete mix for the caissons, but also provided that if the plaintiff should be directed by the contracting officer to use more or less than that amount of cement, the Government would pay extra for the larger amount and would receive credit for the smaller amount.
The specifications provided that the concrete in the caissons should be strong enough to bear a weight of 3,000 pounds per square inch (p.s.i.) when it had set for 28 days. Before the pouring of the concrete began, the Government concluded, from its experience with other concrete work at the same air base, under identical conditions, that concrete of the prescribed strength could be produced by using only five bags of cement per cubic yard. The contracting officer thereupon directed that only five bags be used in the plaintiff’s caisson work.
The contracting officer permitted the use of ready-mixed concrete for the caissons. It was brought to the site in [516] Ardmore’s trucks which, had revolving drums with fins inside them to mix the cement, crushed rock, sand and water. Before the concrete was dumped from the trucks into the caisson excavations, samples were taken from each truck load for testing purposes. There was a slump test, to determine the workability of the concrete, i.e., whether it would compact well around the reenforcing bars and at the outside of the caissons without leaving voids. The water content of the mix had a good deal to do with the slumping quality of the concrete. The result of the slump test could be determined immediately. But the test for compressive strength, made by placing sample cylinders of the concrete under pressure, after seven days for a preliminary test, and after 28 days for a final test, necessarily created the risk that caissons would be filled with concrete which had set beyond the possibility of removal, and the samples taken from that concrete at the time it was poured would show that the concrete was lacking in compressive strength.
The first concrete was placed in the caissons on July 2, 1954. The seven-day test of samples of that concrete showed that it had very little compressive strength. Concrete was placed in other caissons on July 6. The seven-day tests of this concrete showed that it was quite strong. Caissons poured on July 7 had an average compressive strength of 4,187 pounds p.s.i. after 28 days. Those poured on July 8 and 9 tested only some 1,500 pounds. The final 28-day tests of course came long after the pouring.
At a conference on August 11 of the Government’s representatives and representatives of the plaintiff, Saxet and Ardmore, it was agreed that the cement in the mix should be increased to five and one-half bags per cubic yard; that only two cubic yards instead of three should be mixed in the mixing trucks in each batch; that all the materials in each batch should be thoroughly mixed before the water was added; that the mixing drums on the trucks should be revolved 100 times, instead of not less than 50 nor more than 100, as the practice had been. In addition to these agreed measures, Ardmore was directed to spray the stockpile of crushed stone, which was to be used in the aggregate, every [517] day to keep it from being overdry and absorbing too much of the water in the mix.
The concrete work was resumed after August 11, and the new procedures were followed. None of the caissons poured after that time were rejected on the ground that they contained defective concrete.
Investigation continued as to how many of the caissons poured before August 11 were defective. Core borings taken from some of them showed the concrete, even within the same caisson, to have good concrete at one depth and weak concrete at another depth. In all, 15 caissons were found to be defective.
As we have seen, the plaintiff was required to remedy the defects. It says that the reason for the weak concrete was the Government’s reduction of the cement content from five and one-half bags to five bags per cubic yard. It points to the fact that there was no more weak concrete after August 11, when the use of the five and one-half bag mixture began. The Government says that the cement content in the mix was not the cause of the trouble; that other caissons at the same area and poured under the same conditions, with the five-bag mixture, were not defective; that ten of the 25 caissons poured by Ardmore before August 11, using the five-bag mixture, had the required compressive strength; that the Portland Cement Association, which would be interested in selling as much cement as possible, says in its manual that a five-bag mix will produce concrete having compressive strength of from 4,000 to 5,500 pounds per square inch.
After the remedial work had been done, the plaintiff submitted to the contracting officer a claim for the cost of that work. The contracting officer denied the claim on the ground that the defective concrete resulted from insufficient or improper mixing of the concrete by Ardmore. The plaintiff appealed to the Corps of Engineers’ Claims and Appeals Board which denied the claim on substantially the same grounds. The plaintiff appealed to the Armed Services Board of Contract Appeals. That Board adopted the findings and conclusions of the Engineers’ Board and denied the plaintiff’s appeal. This suit followed.
[518] The “Disputes Clause,” Article 6 of the plaintiff’s contract with the Government, provided that determination by the Board of Contract Appeals would,
* * * unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious or so grossly erroneous as necessarily to imply bad faith, be final and conclusive upon the parties hereto.
The Act of May 11, 1954, 68 Stat. 81, 41 U.S.C. § 321, which is the so-called Wunderlich Act, says that in situations where the contract provides for finality of the decision by the head of the pertinent Government department or his duly authorized representative or board, such decision
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MaddbN, Judge,
delivered the opinion of the court:
Tbe plaintiff had a contract with the Government to construct maintenance hangars and related facilities at the Ardmore Air Force Base at Ardmore, Oklahoma. The work included the construction of a number of reinforced steel and concrete caissons some 50 feet deep, as foundations for the hangars. The concrete in fifteen of the caissons did not have the compressive strength required by the contract, and the plaintiff was required by the Government to remedy this defective work by placing additional caissons adjacent to the defective ones. The cost of the remedial work was some $14,000. The plaintiff says that the weakness of the concrete was due to the fault of the Government in designing the concrete mis, and that the Government had no right to require the plaintiff to remedy the defect at the plaintiff’s own expense. The instant suit is for the recovery of the cost of the remedial work.
The plaintiff subcontracted the construction of the caissons to a partnership hereinafter called Saxet. Saxet obtained its concrete from a corporation hereinafter called Ardmore. The specifications of the plaintiff’s contract with the Government prescribed five and one-half bags of cement per cubic yard of concrete for the concrete mix for the caissons, but also provided that if the plaintiff should be directed by the contracting officer to use more or less than that amount of cement, the Government would pay extra for the larger amount and would receive credit for the smaller amount.
The specifications provided that the concrete in the caissons should be strong enough to bear a weight of 3,000 pounds per square inch (p.s.i.) when it had set for 28 days. Before the pouring of the concrete began, the Government concluded, from its experience with other concrete work at the same air base, under identical conditions, that concrete of the prescribed strength could be produced by using only five bags of cement per cubic yard. The contracting officer thereupon directed that only five bags be used in the plaintiff’s caisson work.
The contracting officer permitted the use of ready-mixed concrete for the caissons. It was brought to the site in [516] Ardmore’s trucks which, had revolving drums with fins inside them to mix the cement, crushed rock, sand and water. Before the concrete was dumped from the trucks into the caisson excavations, samples were taken from each truck load for testing purposes. There was a slump test, to determine the workability of the concrete, i.e., whether it would compact well around the reenforcing bars and at the outside of the caissons without leaving voids. The water content of the mix had a good deal to do with the slumping quality of the concrete. The result of the slump test could be determined immediately. But the test for compressive strength, made by placing sample cylinders of the concrete under pressure, after seven days for a preliminary test, and after 28 days for a final test, necessarily created the risk that caissons would be filled with concrete which had set beyond the possibility of removal, and the samples taken from that concrete at the time it was poured would show that the concrete was lacking in compressive strength.
The first concrete was placed in the caissons on July 2, 1954. The seven-day test of samples of that concrete showed that it had very little compressive strength. Concrete was placed in other caissons on July 6. The seven-day tests of this concrete showed that it was quite strong. Caissons poured on July 7 had an average compressive strength of 4,187 pounds p.s.i. after 28 days. Those poured on July 8 and 9 tested only some 1,500 pounds. The final 28-day tests of course came long after the pouring.
At a conference on August 11 of the Government’s representatives and representatives of the plaintiff, Saxet and Ardmore, it was agreed that the cement in the mix should be increased to five and one-half bags per cubic yard; that only two cubic yards instead of three should be mixed in the mixing trucks in each batch; that all the materials in each batch should be thoroughly mixed before the water was added; that the mixing drums on the trucks should be revolved 100 times, instead of not less than 50 nor more than 100, as the practice had been. In addition to these agreed measures, Ardmore was directed to spray the stockpile of crushed stone, which was to be used in the aggregate, every [517] day to keep it from being overdry and absorbing too much of the water in the mix.
The concrete work was resumed after August 11, and the new procedures were followed. None of the caissons poured after that time were rejected on the ground that they contained defective concrete.
Investigation continued as to how many of the caissons poured before August 11 were defective. Core borings taken from some of them showed the concrete, even within the same caisson, to have good concrete at one depth and weak concrete at another depth. In all, 15 caissons were found to be defective.
As we have seen, the plaintiff was required to remedy the defects. It says that the reason for the weak concrete was the Government’s reduction of the cement content from five and one-half bags to five bags per cubic yard. It points to the fact that there was no more weak concrete after August 11, when the use of the five and one-half bag mixture began. The Government says that the cement content in the mix was not the cause of the trouble; that other caissons at the same area and poured under the same conditions, with the five-bag mixture, were not defective; that ten of the 25 caissons poured by Ardmore before August 11, using the five-bag mixture, had the required compressive strength; that the Portland Cement Association, which would be interested in selling as much cement as possible, says in its manual that a five-bag mix will produce concrete having compressive strength of from 4,000 to 5,500 pounds per square inch.
After the remedial work had been done, the plaintiff submitted to the contracting officer a claim for the cost of that work. The contracting officer denied the claim on the ground that the defective concrete resulted from insufficient or improper mixing of the concrete by Ardmore. The plaintiff appealed to the Corps of Engineers’ Claims and Appeals Board which denied the claim on substantially the same grounds. The plaintiff appealed to the Armed Services Board of Contract Appeals. That Board adopted the findings and conclusions of the Engineers’ Board and denied the plaintiff’s appeal. This suit followed.
[518] The “Disputes Clause,” Article 6 of the plaintiff’s contract with the Government, provided that determination by the Board of Contract Appeals would,
* * * unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious or so grossly erroneous as necessarily to imply bad faith, be final and conclusive upon the parties hereto.
The Act of May 11, 1954, 68 Stat. 81, 41 U.S.C. § 321, which is the so-called Wunderlich Act, says that in situations where the contract provides for finality of the decision by the head of the pertinent Government department or his duly authorized representative or board, such decision
* * * shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.
See E. J. Albrecht Co. v. United States, 146 Ct. Cl. 299, 305.
The second section of the Wunderlich Act, 41 U.S.C. § 322, provides that an administrative decision on a question of law may not be made final, and the plaintiff urges that there was a question of law involved here, particularly insofar as the Government’s control over the concrete operation was concerned. However, the question before the contracting officer and the two appeals boards was the factual question of what was the reason for the failure of the concrete to have the required compressive strength. A conclusive answer to that question will never be had. The agency officials were confronted with conflicting evidence, and they made their decision adverse to the plaintiff.
The question before this court is a much narrower one. It is whether there was substantial evidence, i.e., such evidence as might convince a reasonable man, to support the conclusion reached by the agency officials. Whatever this court might have decided, if the case were before us as res nova, we have no doubt that there was, before the administrative officials, as there is before us, substantial evidence to support the conclusion which those officials reached. We must therefore hold their decision to be “final and conclusive.”
[519] The plaintiff’s petition will be dismissed.
It is so ordered.
LaRAMoee, Judge; Whitaker, Judge, and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the report of Trial Commissioner Wilson Cowen, and the briefs and argument of counsel, mates findings of fact as follows:
1. Plaintiff, hereinafter sometimes called Bateson, is a Texas corporation which, on April 23, 1954, entered into a written contract with the defendant, whereby plaintiff agreed to furnish the labor, material, plant, and equipment required for constructing maintenance hangars and related facilities at the Ardmore Air Force Base, Ardmore, Oklahoma. The work required under the contract included the construction of a number of reinforced steel and concrete caissons as foundations for the hangars, and Bateson sublet that portion of the work to Saxet Foundation Company, a partnership, hereinafter called Saxet. Saxet obtained the necessary concrete from Ardmore Concrete Material Company, Inc., hereinafter referred to as Ardmore.
Bateson brought this action on behalf of Saxet to recover damages allegedly sustained as a result of defendant’s rejection of a number of the caissons and its requirement that remedial caissons be provided.
2. The contract between Bateson and defendant contained a schedule of designations and unit prices which specified the diameter of caissons, the estimated lineal feet, and the unit price to be paid per lineal foot of concrete and per pound of reinforcing steel. The unit price specified per barrel of cement was $3.20 and with respect thereto the contract stated:
Adjustment for Variation from the Specified Average Cement Content of Concrete in Maintenance Hangar, other than in 14-inch Hangar Floors. The Contractor will be paid for all extra Cement used due to a higher Cement Content at the Unit Price Stated herein. The Government will be Credited for all Cement not used due to a Lower Cement Content at the Unit Price stated herein.
[520]*5203. Article 9 of the contract between Bateson and defendant provided that all material and workmanship would be subject to inspection, examination, and tests by the contracting officer and stated that the Government would have the right to reject defective material or workmanship or require its correction.
Article 6 of the contract contained the following “Disputes Clause”:
6. 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 send by registered mail, return receipt requested, a copy thereof to the contractor at his address shown herein. Within 80 days from the receipt thereof, the contractor may appeal in writing to the Chief of Engineers, whose written decision thereon, or that of his designated representative or representatives, shall be final and conclusive upon the parties hereto unless, within 30 days after the receipt thereof by the contractor, he appeals in writing to the Secretary, which appeal shall operate to vacate said decision of the Chief of Engineers. If the dispute is determined by the Secretary, his written decision or that of his designated representative or representatives, shall, unless determined by a court of competent jurisdiction to have been fraudulent, arbitrary, capricious or so grossly erroneous as necessarily to imply bad faith, be final and conclusive upon the parties hereto. The Chief of Engineers or the Secretary may designate an individual, or individuals, other than the contracting officer, or a board as his authorized representative to determine appeals under this article. In connection with any appeal proceeding under this clause, the contractor shall be afforded an opportunity to be heard and offer evidence in support of his 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.
4. Pertinent provisions of the specifications attached to and forming a part of the contract read as follows:
SC-18. TESTING 03? MATERIALS AND EQUIPMENT:
a. Responsibility. — The contractor shall be responsible for the compliance of all materials, products and [521] equipment with the requirements of the specifications. Where the specifications require tests to determine compliance with the specifications, such tests shall be accomplished bj the contractor and at his own expense, except where specified that tests will be made by and at the expense of the Government. Whenever such tests are made, compliance shall be proved to the satisfaction of the contracting officer.
‡
Section II — Concrete
2-07. Samples and Testing.
(a) General. — Except as otherwise specified, testing of the aggregate and reinforcement shall be the responsibility of the contractor. The testing agency shall be approved. Testing of end items is the responsibility of the Government. Samples of concrete for strength tests of end items shall be provided and stored by the contractor when and as directed.
* * * * *
(e) Concrete
(1) Strength Tests During the Worh.- -The contractor shall provide for test purposes one set of three cylinders or one set of three beams taken from each 250 cubic yards or fraction thereof, or each day’s pour, whichever is less, of each class of concrete placed. * * * The standard age of test shall be 28 days, but seven-day tests may be used, with the permission of the contracting officer, provided that the relation between the seven-day and 28-day strengths of the concrete is established by tests for the materials and proportions used. * * * * * * * *
2-11. Classes of Concrete and Usage.
(a) Strength Requirements. — Concrete of the various classes required shall be proportioned and mixed for the following strengths:
* * ❖ * *
2-12. Proportioning of Concrete Mixes. — Concrete shall be proportioned by weight.
[522] (c) Control. — The design of the concrete mixture, to meet strength requirements of the class or classes of concrete specified, shall be the responsibility of the contracting officer. In designing the mix, aggregate proposed for use by the contractor and approved by the contracting officer will be used. The design mix will be determined well in advance of commencement of the work so as to cause no delay.
(1)Mix Design. — Before placing any concrete, adequate quantities of the concrete ingredients proposed for use shall be supplied to the contracting officer for making trial design mixes. In case of change in source or character of concrete ingredients after concrete placing has started, sufficient quantities of ingredients, including the new material, shall be furnished the contracting officer for determining a new mix. No substitutions shall be made in the materials used in the work without approval of the contracting officer. Average cement content will be as follows:
(2)Slvmip Test. — Consistency will be determined by the slump test, in accordance with CBJD-C 5. The slump shall fall within the following limits:
Type of Structure Slump for Vibrated Concrete,