#### SANFORD & BROOKS CO. v. THE UNITED STATES.1

[No. 95-A.

Decided March 19, 1923.]

*On the Proofs.*

*Contract; extra work required*m *writing; protest.*— Where a contract provides that no claim shall be made for extra work unless required in writing by the contracting officer and prices agreed upon by the contracting parties, and that if the contractor considers the work required of him outside of the requirements of the contract he must ask for written instructions or decision immediately and then file a written protest with the contracting officer within three days thereafter or be considered as having accepted the record or ruling, and the contractor ignores these provisions of the contract and continues to perform what it asserts to be extra work and to accept without written protest the contract price therefor, he cannot recover for such work as extra work.

*Same; misrepresentation.*— Where the specifications state, “ The material to be removed is believed to be mud and sand, but bidders are expected to examine the work and decide as to its character and to make their bids accordingly, as the United States does not guarantee the accuracy of this description,” and the contractor makes an independent investigation and finds the material to consist of mud and sand, hard clay and hard sand, there was no misrepresentation on the part of the Government.

The *Reporter's*statement of the case:

*Mr. William L. Marbury for*the plaintiff. *Messrs. Horace 3. Whitman*and *Charles Clagett*were on the briefs.

*Mr. Barrett F.*Brown, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff, the Sanford <fe Brooks Co., is a corporation organized and existing under the laws of the State of Maryland, and on July 31, 1914, entered into a contract in writing with Col. Lansing H. Beach, Corps of Engineers, United States Army, acting for the United States, whereby it agreed to dredge certain materials in Broad Creek, Md., and the United States agreed to pay the plaintiff cents *159for each cubic yard of material dredged in accordance with the terms of the contract. A copy of said contract marked Exhibit B,” and the specifications and drawing which were a part of said contract marked “ Exhibit A and C,” respectively, are made a part hereof by reference.

II. Before executing the contract the plaintiff applied to the defendant for information, and was given such information as the defendant had both with reference to the nature of the materials to be dredged and the location of the work, and was told that the ranges of the various sections of the channel to be dredged had been marked by stakes, said stakes having been placed on the work for the purpose of giving local interests a basis to formulate their deeds, which deeds the Government required of them before the project could be begun.

III. The plaintiff began work on November 16, 1914, at the place and upon the lines designed by an inspector of the Government. On December 18, 1914, it was ascertained that the dredging being done was not within the area indicated upon the contract drawings. This was called to the attention of the contracting officer, who decided that an error had been made in the location of the work, and he directed that the work proceed along the wrong location until it reached a point which coincided with the location as laid down in the contract and thence upon the proper location. The amount of material dredged outside of the contract limits was 28,098 cubic yards. The plaintiff continued the work outside of the contract limits without protest in writing, nor did it make a claim for extra work in accordance with the provisions of the contract, and accepted the contract price for the material dredged outside of the contract limits. The material dredged outside of the contract limits consisted of mud, sand, hard sand, and clay. The plaintiff completed the contract on December 12, 1916, and was paid in full the contract price for the number of cubic yards dredged.

IV. In the bid the plaintiff stipulated a 20-inch dredge with a capacity of about 500 cubic yards per hour in soft mud. The plaintiff placed upon the work a 12-inch plant, *160the maximum capacity of which was 91 cubic yards per hour. Upon complaint of the defendant of the inefficiency of this plant a clamshell dredge was placed upon the work to facilitate the excavation. There was no requirement in the contract as to the type of dredge to be used on the work. The defendant approved the 12-inch plant first placed upon the work.

Y. The specifications stated that the material to be removed was believed to be mud and sand, but that bidders were expected to examine the work and decide for themselves its character and to make their bids accordingly, as the United States did not guarantee the accuracy of the description ; and the specifications also provided that the price bid per cubic yard for dredging should cover the cost of removal and disposition of all material encountered except ledge rock.

The plaintiff before it made its bid examined the work and found that the material to be dredged consisted of mud, sand, hard sand, and hard clay, and after making this examination prepared its bid and entered into the contract whereby it agreed to do the work for cents per cubic yard. As the work progressed both inside and outside the contract limits the material to be dredged was found to consist of mud, sand, hard sand, and hard clay, with some stumps interspersed.

1

 Appealed.

Hay, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of about $70,000.

The plaintiff claims that there is due it on account of extra work performed by it outside of the contract limits the sum of about $22,502.18.

It also claims that by reason of misrepresentations made by the Government as to the material to be dredged it was much more difficult and expensive to excavate the materials found than it would have been to excavate the materials described in the specifications; and that by reason of the misrepresentations of the Government the plaintiff was obliged to expend the sum of $47,127.98 more than it would have expended had the material been such as was described *161in the specifications. The plaintiff alleges that it relied upon the statement in the specifications as to the character of the material to be dredged, and that it was induced to enter into the contract to dredge the material at the price of 7T% cents per cubic yard by the description of the material contained in the specifications.

The contract provides: “Article 7. No claim whatever shall at any time be made upon the United States by the contractor for or on account of any extra work or material performed or furnished under or by virtue of this contract, and not expressly bargained for and specifically included therein, unless such extra work or material shall have been expressly required in writing by the contracting officer, the prices and quantities thereof having been first agreed upon by the contracting parties and approved by the Chief of Engineers.”

The extra work which the plaintiff alleges it performed was not required in writing by the contracting officer, nor were the price and quantity of the work approved by the Chief of Engineers. The plaintiff had under the contract a method pointed out to it by which it could have been paid for any extra work which it might have performed. It ignored the provisions of the contract, and continued to perform what it alleged to be extra work and to accept without written protest the contract price therefor; for article 39 of the specifications, a part of the contract, provided: “ If the contractor considers any work required of him to be outside the requirements of the contract, or considers any record or ruling of the inspector or contracting officer as unfair, he shall ask for written instructions or decision immediately and then file a written protest with the contracting officer against the same within three (3) days thereafter or be considered as having accepted the record or ruling.” So when the contracting officer directed the contractor to dredge along lines outside the contract limits, if it considered that ruling unfair to it the contract provided a remedy and a method by which it could have saved its rights, but the plaintiff did not proceed in accordance with the provisions of the contract, whether as to extra work, which it alleges it per*162formed, or as to the conduct of the work which the plaintiff alleges led to the performance of the extra work. Under these circumstances the plaintiff can not recover for the extra work which it alleges it has performed. *Plumley*v. *United States,*226 U. S. 545; *Daly & Hannan Dredging Co.*v. *United*States, 55 C. Cls. 1.

We come next to consider the claim of the plaintiff that it relies upon the statement of the Government that the material to be dredged was mud and sand, and that so relying it was induced to make its bid and to enter into the contract; that it was found that the material to be dredged was not only mud and sand, but also- hard sand and hard clay interspersed with stumps, which were very different from mud and sand, and much more expensive to excavate; and it claims that it should be paid a larger amount than the contract price for the material dredged by it.

The specifications as to the character of the material to be dredged are as follows:

> *“*22. The material to be removed is believed to- be mud and sand, but bidders are expected to examine the work and decide for themselves as to- its character and to- make their bids accordingly, as the United States does not guarantee the accuracy of this description.

> “ 23. The price bid per cubic yard for dredging shall cover the cost of removal and disposition of all material encountered except ledge rock. The removal of ledge rock, if found, will not be required; such work, if necessary, will be made the subject of separate contracts.”

It is not alleged or proven that the United States or its officers had knowledge of this material which it failed to disclose to bidders, nor that the United States or its officers had any more knowledge of the material to be dredged than was stated in the specifications. Indeed, it is admitted that the United States had no knowledge of the character of the material to be dredged, and it is asserted that having no knowledge the United States had no right to state its belief as to- the character of the material, and that by doing so the Government made itself liable to the plaintiff because when the material came to be dredged it turned out to be *163not mud and sand but material more difficult, and therefore more expensive to excavate.

As a matter of fact the evidence in this case discloses that the plaintiff did not rely upon the statements of the United States as to what the material was or was believed to be. The plaintiff, before making its bid and before entering- into the contract went upon the site of the work and made its own investigation and ascertained that the material consisted of mud and sand, hard clay, and hard sand. There-fore with its eyes open and with full knowledge of the character of the material to be dredged it made its bid and entered into the contract, and with full knowledge that if there was any other material there except ledge rock it could only receive the contract price for its removal, the contract providing “ the price bid per cubic yard for dredging shall cover the cost of removal and disposition of all materials encountered except ledge rock.”

In the face of the above facts the plaintiff can not be allowed to- found a claim against the Government upon the statement that it relied upon the- specifications to' determine the character of the material to be dredged. The belief as to the character of the material set out in the specifications is not a warranty upon which an action can be founded; it is only an expression of opinion. If the opinion set out in the specifications had been known to- be false by the officers of the United States, and had been so set out with intent to deceive and mislead, a different conclusion might be arrived at, but no such facts are proven or even alleged.

The case of the *Atlantic Dredging Co.,*53 C. Cl. 490, and 253 U. S. 1, is not similar to this case. The facts in the two cases are entirely different.

For the reasons above stated the petition of the plaintiff must be dismissed. It is so ordered.

GRAham, *Judge;*DowNet, *Judge;*Booth, *Judge;*and Campbell, *Chief*Justice, concur.