by the contracting officer and the price stated in such order, the contractors are not entitled to receive any sum in excess of the contract price for the excess backfill work which resulted from the construction method employed by contractors for their own benefit and without authorization or written orders therefor from the contracting officer.

Decision by Comptroller General McCarl, August 20, 1934:

Carl Erickson and Walter Sam Hardwick, a partnership, trading as Erickson and Hardwick, applied May 10, 1934, for review of settlement no. 0431687, dated March 19, 1934, wherein was disallowed their claim for $11,090.64 in excess of the contract prices received which they asserted to be due for alleged extra work performed under contract no. W-1096-eng-2368, dated November 17, 1932, for the construction of certain levee work therein described as follows: Kempe-Lake St. John Levee, second New Orleans district, Louisiana, (1) relief item R-674-C, containing approximately 1,000,000 cubic yards; (2) relief levee item R-674-D, containing approximately 845,000 cubic yards; relief levee item R-674-H, containing approximately 940,000 cubic yards; and relief levee item R-674-I, containing approximately 800,000 cubic yards, all situated in the Lower Tensas levee district.

The alleged extra work for which the contractors have urged an additional payment of $11,090.64, in excess of the stipulated contract price for performance of the contract, consists of 92,422 cubic yards of backfilling in the old borrow pits between stations 3219 and 3252 of the Kempe-Lake St. John Levee, relief item R-674-C.

Under the provisions of the contract Erickson and Hardwick agreed, for and in consideration of the payment of their bid price of 12 cents per cubic yard, place measurement, to furnish all labor, materials, machinery, and equipment, and to perform all work necessary for the construction of said levee work therein described in strict accordance with the specifications, schedules, and drawings, all of which are a part of the contract, and within the period of time specified in paragraph 34 of the specifications, to wit, within 300 calendar days from date of receipt of notice to proceed with such work.

The contract provided, among other things, that:

ARTICLE 5. Extras.-Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the contracting officer and the price stated in such order.

ARTICLE 15. Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor within thirty days to the head of the department concerned, whose decision shall be final and conclusive upon the parties thereto as to such questions of fact. In the meantime the contractor shall diligently proceed with the work as directed.

The facts relative to the claim were reported to the president of the Mississippi River Commission on June 14, 1933, by J. N. Hodges,

lieutenant colonel, Corps of Engineers, District Engineer, Second District, New Orleans, La., to be as follows:

1. Items R-674 C, D, H, & I, Kempe-Lake St. John Levee were advertised under date of September 24, 1932, bids were opened October 11, 1932, and contract was awarded for all four items to Erickson & Hardwick on December 9, 1932. The work was subcontracted by W. E. Callahan, Inc., and later on item C was again sublet to the Callahan-Walker Construction Company. Work on this item was commenced on December 1, 1932, and continued until April 19, 1933, when seasonal river stages caused the subcontractor to suspend operations. At this date work is still in a state of suspension due to river stages.

2. On January 25, 1933 (letter attached marked exhibit "A"), the subcontractor informed this office that he was filling the existing borrow pits on item C in the process of levee construction with his tower excavator, but that while such borrow-pit fill was placed for his own convenience, it nevertheless resulted in a better levee and he thought that he should be compensated in some way for the additional material placed. Later, on February 8, 1933, the subcontractor again wrote a letter (attached, marked exhibit B"), requesting payment for pit filling and at that time stated that the additional material was required to strengthen the foundation. This office replied to the letter of February 8, 1933, under date of March 24, 1933 (copy attached), categorically denying the claims made by the subcontractor and refusing payment for unauthorized work. Again under dates of March 29, 1933 and April 22, 1933 (letters attached), the subcontractor requests payment for extra yardage, in this case limiting his request to yardage alleged as necessary by foundation weakness.

3. The following comment is offered regarding the claim of the CallahanWalker Construction Company:

This office has always endeavored to allow contractors to choose and to follow their own general and detailed methods of levee construction when such methods have not definitely violated mandatory provisions of the specifications. In the case at hand, the subcontractor has placed additional material in the old borrow pits throughout, admittedly for his own purposes. He requested payment or "some consideration" for the placing of this material which was not provided for nor contemplated under the contract specifications. Later on the subcontractor modified his claim for payment for the placing of additional pit filling to the area between stations 3219 and 3252, where it is claimed foundation failure would have resulted without such pit filling.

Settlement of foundation along this item has not been unusual. It has varied from station to station from a minimum of about 4 tenths of a foot to a maximum of about 4 feet. Settlement of foundation without failure of foundation and without any particular difficulty of construction, has exceeded the amounts stated above on a number of other levees built by contracts since commencement of the flood-control project. The statements of the subcontractor regarding foundation weakness are unsubstantiated and must be considered merely as expressions of opinion and not of fact. The best experienced levee engineers and constructors in this district agree that the evidence indicates that foundation conditions on this work were better than average; also that true foundation failure could not have been averted by the relatively minor measures taken by the subcontractor. It is not believed that the quantities involved in settlement of foundation were reduced in any degree by the unauthorized pit filling. On the contrary the pit filling very probably induced some minor settlement at the outer edge of the false berm provided for under the contract.

The contract specifications contemplate local settlement of foundation considerably in excess of that which has occurred on this item of work. The specifications also indicate the method of payment and the provisions for measurement of quantities. The subcontractor was well aware of these provisions as indicated by the fact that he erected structures for the determination of settlement of foundation and measured such settlement which was verified by representatives of this office.

I am compelled to conclude that the subcontractor changed the design by choosing a method of construction which provided for a widened and thickened false berm extending entirely across the existing borrow pit, believing that such a method would eliminate all possible difficulties and result thereby in a lowered total cost to him even though the claim for additional compensation were not allowed.

4. I cannot recommend payment for all or any portion of this unauthorized yardage which is considered unnecessary as a part of an adequate levee structure under the conditions existing at this point.

In report dated February 2, 1934, to the Chief of Engineers, United States Army, the acting district engineer, second district, New Orleans, La., reported that:

2. The original design of the Kempe-Lake St. John Levee, items R-674, C, D, H, & I, was not changed other than to provide for the construction of a rivers de false berm between stations 3408 and 3440 of item D, and of a landside false berm between stations 3660 and 3664 of item H. Both of these changes affected new levee where the levee was constructed on a new foundation landward of the existing old levee. Indications of foundation rupture and the occurrence of excessive base settlement necessitated those changes in design. However, there was no pit refill authorized or required and no payment has been made for same.

3. Specifically author.zed construction of the false berms on the new levee between the stations mentioned above cannot be considered as a parallel case to the refilling of the old borrow pits on the riverside of the levee enlargement between stations 3219 and 3252 of item C, which was performed by the contractor without authority and which is the subject of his claim. The original specifications for item C provided for the construction of a riverside false berm throughout the length of that item. As set forth in letter to the CallahanWalker Construction Company, dated March 24, 1933, copy herewith, no refilling of the old borrow pits or other change in the original specifications for the construction of item C was necessary, and none was authorized. In this connection, it may be stated that the contractor employed a tower excavator for the levee enlargement involved in item C, and this method of construction automatically resulted in the partial filling of the old borrow pits on a flat slope, as indicated in his letter to this office dated January 25, 1933, copy herewith.

The Callahan-Walker Construction Co., the subcontractor, on January 25, 1933, appears to have written to the contracting officer relative to such backfilling in the old borrow pit and payment therefor as follows:

We find that on part of item R674C on which we are now working with our tower excavator, that due to our method of construction it is necessary for us to fill in between the false berm and the back of the existing pit in order to bring it up to the same plane as the new pit. It has been our policy so far to leave this material as placed so that it will serve as berm, afford the pit perfect drainage, and make a neater looking job. We feel that we should receive some consideration for this work, and will be very grateful if you can give this matter your attention and let us know your decision sometime in the near future.

Said subcontractor again wrote the contracting officer relative to such backfilling on February 8, 1933, as follows:

On January 25th when we were working at station 3205 we wrote you that we were filling the old existing pits up to the plane of the new pits in order to give the pit perfect drainage and make a neater looking job.

We have continued this policy and placed approximately 25,000 cubic yards in the old pits as we have proceeded with the work to station 3222 to date.

From station 3219 to station 3222 we have found very poor foundation for the levee, and it has been necessary for us to keep our construction slopes down to less than 6 to 1 in order to prevent the foundation from puffing up ahead of the new fill not only in the old pit alone, but part of the way upon the slope of the old levee. From the looks of the material dug from the inspection ditch and the borings we have taken the foundation consists of a blue mucky material mixed with a very fine sand to quite a considerable depth as two men can push a 2" auger straight down to a depth of 20 feet or more in some places. Every indication is that this condition will continue until we reach station 3251.

We have good material for the embankment and we have dug a ditch along the back of the existing pits for drainage and subdrainage of the foundation,

but it is our honest opinion that this levee will not stand on this foundation if we discontinue filling the existing pits. In view of the conditions as outlined above we more than ever feel that we should receive some consideration for the filling of these pits as we stated in our letter of January 25th.

On March 24, 1933, the contracting officer replied to the two letters of said subcontractor, as follows:

Receipt of your letters dated January 25th and Febr. 8th, 1933, in which you request payment for refilling existing borrow pits between approximate stations 3219 and 3251 on item R674C, Kempe Lake, St. John Levee, is acknowledged.

In reply, you are advised that careful consideration has been given to your request and close examination has been made of the conditions surrounding the work. After review of the cross section and design of this work and visual examination of the construction operations, the following conditions are found: (a) No evidence of foundation weakness or instability of cross section has been offered or could be found to indicate the desirability of any modification in design.

(b) Examination of completed levee, berm, and borrow pits shows that construction conditions are unusually good as a whole. The character of material available, and used in construction, is exceptionally good.

(c) Existing borrow pits and levee base are now apparently well drained, but should heavy rains become impounded in the construction area and levee construction be carried on under the resulting conditions, trouble may be anticipated, as would be the case elsewhere. The use of sound construction methods coupled with good drainage may be expected to result in the construction of a satisfactory levee, fulfilling the best interest of all concerned.

You are, therefore, informed that the design of this levee is considered adequate and satisfactory and unless sufficient reason is found for a change in design, none will be made. Any pit refill, beyond that provided for in the construction of false berm, placed by yourselves for your own purposes, will not be paid for.

The general rule is that the parties to a contract are required to perform it according to its terms, where such parties are sui juris, where the contract violates no rule of law or public policy, and where no fraud or imposition has been practiced, notwithstanding the contract may operate harshly or unjustly on one of the parties. 13 Corpus Juris 627-635. It is well-established law that where the contract contains an express stipulation as to the amount of compensation, such stipulation is conclusive on the parties and measures the amount of recovery for performance. See 13 Corpus Juris 584; Brawley v. United States, 96 U.S. 168; and Simpson v. United States, 172 U.S. 379.

This contract-which was entered into as the result of competitive bids required by law-was on the standard Government form of construction contract (No. 23), article 5 of which provided, as above quoted, that no payment for extra work done or material furnished would be paid to the contractors unless same had been ordered in writing by the contracting officer and the price stated in such order. If the amount was more than $500, such order is required by the terms of the contract to be approved by the head of the department concerned or by his authorized representative. Article 15 of the contract provides that in the event of disputes concerning questions of fact arising thereunder, the decisions of the administrative officers are final and conclusive on the contractors. In the instant

matter no written orders were issued by the contracting officer with or without the approval of the Secretary of War or his authorized representative for any of the backfilling in the old borrow pits. Consequently, there is no legal liability against the Government for payment of any amount therefor, as for "extra work ", in excess of the stipulated contract price for completing performance of the contract. See Plumley v. United States, 226 U.S. 545; and Sanford and Brooks Co. v. United States, 58 Ct. Cls. 159. Moreover, the contracting officer having determined as a matter of fact that none of said backfilling of the borrow pits represented extra work, such finding of fact is conclusive on contractors under article 15 of the contract, no appeal therefrom to the head of the department having been taken. Penn Bridge Co. v. United States, 59 Ct. Cls. 892, and cases there cited. See also Morris and Cummings Dredging Co., Inc. v. United States, decision No. L-57, Ct. Cls., dated November 6, 1933.

Inasmuch as the backfill work for which the contractors are claiming an additional payment, in excess of the contract price, appears to have resulted from the construction methods employed by the contractors, for their own benefit without authorization or written orders therefor from the contracting officer and conferred no benefit on the United States as reported by the administrative officers concerned, contractors are not entitled to any sum in excess of the contract price.

Accordingly, upon review, the settlement of March 19, 1934, disallowing said extra work claim, must be and is sustained.

(A-56877)

TRAVELING EXPENSES-TEMPORARY AND PERMANENT CHANGE OF STATION

Where facts show the good faith of a temporary detail or assignment of an officer or employee to a place to which his regular station is thereafter changed, and that at the time the order for travel on temporary duty was issued there was no purpose to effect a transfer or change in regular duty station, reimbursement of otherwise proper expenses incident to such travel is authorized, but where the facts show that the real purpose of the travel was to effect a change of regular duty station, and the transfer was not "authorized by the head of the department" in an "order directing such transfer" pursuant to the requirements of section 2 of the act of March 3, 1933, 47 Stat. 1513, reimbursement of traveling expenses is not authorized.

Comptroller General McCarl to the Secretary of the Interior, August 20, 1934:

There has been resubmitted for preaudit voucher in favor of Maurice P. Shaner, special agent, for $6.85 as reimbursement of per diem and other expenses during the period April 20 to 27, 1934, in connection with the travel between Chicago, Ill., and New York City. This travel was authorized by travel order of April 20, 1934, as follows: