Full opinion text
MEMORANDUM AND ORDER. HANSON, Chief Judge. Peter Kiewit Sons’ Co. (hereinafter Kiewit or the plaintiff), a Nebraska corporation, brings this lawsuit against Black & Veatch (hereinafter also the Engineer), a Missouri partnership, and Iowa Southern Utilities Co. (hereinafter Iowa Southern or the Owner), a Delaware corporation with its principal place of business in Iowa. The matter in controversy exceeds $10,000, exclusive of interest and costs. The Court concludes that it has jurisdiction over the subject matter of this action by reason,of diversity of citizenship of the parties. 28 U. S.C., Section 1332(a). The action arises from the work performed by the plaintiff under a construction contract dated May 13, 1966, in connection with the construction of a new generating station for Iowa Southern at Burlington, Iowa. In general, the construction work began in May of 1966 and was finally completed in 1968. This cause came on for trial before the Court and the Court, having considered the evidence submitted, makes the following: FINDINGS OF FACT: 1. Iowa Southern is a public utility engaged, among other things, in the production and sale of electricity. In 1964, Iowa Southern decided to build a new fossil fueled steam generating plant on the Mississippi River near Burlington, Iowa. After interviewing several engineering firms, it entered into an agreement, on April 10, 1964, with Black & Veatch, whereby Black & Veatch agreed to render certain services including the designing of the plant, the preparation of adequate plans, specifications, and contract documents relating to the several different phases of construction, and, ultimately, the supervision of the actual performance of construction activities on the job site. The contract required the new plant to be in operation by May 1, 1968. Black & Veatch agreed in the contract to perform the services called for “in accordance with the highest standards of the engineering profession.” 2. One provision of the contract between Black & Veatch and Iowa Southern required the Engineer to prepare construction plans and specifications in such detail that lump-sum proposals could be received from prospective contractors. Other provisions required Black & Veatch to properly coordinate and expedite the work, and to perform all tasks required “in obtaining strict compliance with contracts, plans and specifications.” 3. Pursuant to the contract with Iowa Southern, Black & Veatch began the preliminary work, which included obtaining for Iowa Southern bids on various items of equipment, such as the boiler, turbine and generator, to be purchased for installation in the proposed building. In addition, the Engineer began to prepare the necessary plans and specifications for construction of the building. Before the final plans, specifications and construction schedules could be prepared, however, it was necessary to obtain the contracts, including shipping dates, for the major items of equipment to be installed in the building, since the installation of this equipment had to be integrated into the construction process. The contracts for the boiler, turbine and generator were apparently awarded in late 1965. Combustion Engineering Co. was awarded the contract for the boiler and General Electric Co. was awarded the contract for the turbine. 4. Rather than let one general contract to one prime contractor who would be responsible for the entire construction of the project, Black & Veatch chose that Iowa Southern should award several prime contracts, breaking down the actual construction into several areas by the type of work involved. The Engineer determined that the structural steel contract, which included supplying and erection of the structural steel, would be let as one prime contract. The general construction, mechanical construction, and electrical construction contracts were put out for bid on a unified basis, so that contractors could bid on all three contracts or on only one or two of them. 5. The structural steel plans were released to bidders on January 28, 1966. The successful bidder for this contract was Havens Steel Co. The contract between Iowa Southern and Havens was awarded on March 8, 1966, and actually signed on March 15, 1966. 6. Contemporaneous with this activity, Black & Veatch were preparing an overall schedule of the construction. This overall construction schedule was in the form of a modified bar chart, known in the record as G-l, and was issued by Black & Yeatch on March 11, 1966. The construction schedule, G-l, set out estimated dates for the delivery of major components and the sequence and schedule for constructing the plant. The schedule was designed to coordinate work under the various prime contracts and to establish the basic working periods, construction sequence, and completion dates for certain phases of the work. G-l was made part of the general, mechanical and electrical contracts, but was not included in the boiler, turbine or structural steel contracts because they had been awarded prior to the issuance of G-l. 7. Bids were then requested on the general, mechanical and electrical contracts. Peter Kiewit Sons’ Co., the plaintiff herein, was the successful bidder on the general contract, and the agreement forming the basis of this lawsuit was entered between Kiewit and Iowa Southern on May 13, 1966. Winger Construction Co. was awarded the mechanical contract, and A. G. Shulman Electric Co. was awarded the electrical contract. 8. The entire project cost in excess of $23 million. Kiewit’s contract, as adjusted, was for $3,284,221.00. The general construction contract awarded Kiewit called for such things as the driving of pilings for foundation work, the pouring of concrete slabs at various elevations of the powerhouse structure and in outlying structures, the erection of the walls, ceilings and roof of the various structures, and the painting involved in the project. Kiewit subcontracted the painting portion to Chicago Painting Service, Inc. 9. The contract between Iowa Southern and Havens Steel Co. required Havens to commence work on July 15, 1966, and to have the steel sufficiently erected to allow hoisting of the boiler drum to commence October 1, 1966. The Havens contract did not contain any other intermediate dates nor did it incorporate G-1, which did contain intermediate dates for some phases of the construction. The construction contracts with Kiewit and each of the other contractors, including Havens, required the contractor to submit, within 30 days after award of contract, “a detailed construction schedule showing the time schedule for completion of each element of the work. The detailed schedule shall be based on the Construction Schedule but shall be expanded to include a complete breakdown of all elements of work.” Havens, before commencing its work on the structural steel, furnished and became bound to its own detailed construction schedule, which generally followed and was compatible with the schedule G-l. Kiewit also furnished a detailed construction schedule which followed G-l generally, but also included some fairly substantial deviations from G-l. 10. The entire agreement between Iowa Southern and Kiewit, excepting a later contract modification which will be discussed subsequently, is contained within two volumes, in evidence in this cause as Exhibit 1. The Court will devote its attention to items contained in Volume I, as Volume II contains technical specifications not now at issue. By provision of the signed contract, Iowa Southern is referred to as the “Owner” in all contract documents, and Kiewit is referred to as the “Contractor.” Article I of the Contract Agreement provided that “The Contractor shall perform the General Construction for Unit 1 of the Owner’s Burlington Generating Station, Burlington, Iowa, in accordance with Volumes I and II of the specifications. . . .” Article III of the Contract Agreement provided that “Time of completion is of the essence of the Contract Agreement, and that the Contractor shall proceed with the work in accordance with the specified schedule.” 11. Some provisions pertinent to this lawsuit are found in the “Instructions to Bidders,” found in Volume I and incorporated by reference into the contract between Iowa Southern and Kiewit. On page IB-6 are found the following items: “TIME OF COMPLETION. The time of completion of the work is a basic consideration of the contract. The proposal shall be based upon completion of the work in accordance with the Construction Schedule, Sheet Gl, bound with the drawings. It will be necessary that the bidder satisfy the Owner of his ability to complete the work within the stipulated time. In this connection, attention is called to the provisions of the attached General Conditions and Special Conditions relative to delays, extension of time, and detailed scheduling of construction. “INFORMATION CONCERNING SEPARATE CONTRACTS. Prospective bidders may examine at the office of the Engineer available specifications, drawings and data regarding materials arid equipment to be furnished and work to be performed under separate contracts awarded by the Owner. Specific information regarding the extent of factory assembly, erection requirements and other details shall be obtained by the bidders directly from the manufacturers. “LOCAL CONDITIONS. Each bidder shall visit the site of the work and thoroughly inform himself of all conditions and factors which would affect the prosecution and completion of the work and the cost thereof, including the arrangement and conditions of existing or proposed structures affecting or which are affected by the proposed work, the procedure necessary for maintenance of uninterrupted operation, the availability and cost of labor, and facilities for transportation, handling and storage of materials and equipment.” Under the heading “General Conditions” found in Volume I and incorporated by reference into the contract between Iowa Southern and Kiewit are further pertinent items: “GC-15. RELATIONS WITH OTHER CONTRACTORS. The Contractor shall cooperate with all other contractors who may be performing work in behalf of the Owner and workmen who may be employed by the Owner on any work in the vicinity of the work to be done under this contract, and he shall so conduct his operations as to interfere to the least possible extent with the work of such contractors or workmen. He shall promptly make good, at his own expense, any injury or damage that may be sustained by other contractors or employees of the Owner at his hands. Any difference or conflict which may arise between the Contractor and other contractors or between the Contractor and workmen of the Owner in regard to their work shall be adjusted and determined by the Engineer. If the work of the Contractor is delayed because of any acts or omissions of any other contractor, the Contractor shall have no claim against the Owner on that account other than an extension of time. Whenever there is interference with work under other contracts, the Engineer shall decide the manner in which the work shall proceed under each contract. “GC-17. AUTHORITY OF THE ENGINEER. To prevent delays and disputes, and to discourage litigation, it is agreed by the parties to this contract that the Engineer shall determine the quantities of work which are to be paid for under the contract and shall determine all questions in relation to the work. If in the opinion of the Contractor or the Owner a decision made by the Engineer is not in accordance with the meaning and intent of the contract, either party may file with the Engineer and the other party to the contract, within thirty (30) days after receipt of the decision, a written objection to the decision. Failure to file an objection within the allotted time will be considered acceptance of the Engineer’s decision and the decision shall become final and conclusive. The Engineer’s decision and the filing of the written objection thereto shall be a condition precedent to the right to request arbitration or to start action in court. It is the intent of this agreement that there shall be no delay in the execution of the work and the decision of the Engineer as rendered shall be promptly observed. “GC-22. MODIFICATIONS. The Contractor shall modify the work whenever so ordered by the Owner and such modifications shall not affect the validity of the contract. Modifications may involve increases or decreases in the amount of the work for which appropriate contract price adjustment will be made. Except for minor changes which involve no contract price adjustment or other monetary consideration, and with the exception of adjustments of estimated quantities for unit price work or materials to conform to actual pay quantities, all modifications shall be made under the authority of duly executed change orders issued and signed by the Owner and accepted and signed by the Contractor. “GC-22.01. Extra, Work. If a modification increases the amount of the work, and the added work or any part thereof is of a type and character which can properly and fairly be classified under one or more unit price items of the Proposal, then the added work or part thereof shall be paid for according to the amount actually done and at the applicable unit price or prices. Otherwise, such work shall be paid for as hereinafter provided. Claims for extra work will not be paid unless the work covered by such claims was authorized in writing by the Owner and the Contractor shall not have the right to prosecute or maintain either an arbitration proceeding or an action in court to recover for extra work unless his claim is based upon a written order from the Owner. Payments for extra work shall be based on agreed lump sums or on agreed unit prices whenever the Owner and the Contractor agree upon such prices before the extra work is started; otherwise, payments for extra work shall be based on actual field cost plus the specified percentage allowance. “GC-27. SUSPENSION OF WORK. The Owner reserves the right to suspend and reinstate execution of the whole or any part of the work without invalidating the provisions of the contract. Orders for suspension or reinstatement of work will be issued by the Owner to the Contractor in writing. The time for completion of the work will be extended for a period equal to the time lost by reason of the suspension. Extra costs and expenses which, in the opinion of the Engineer, are caused by work suspensions ordered by the Owner will be paid by the Owner to the Contractor. “GC-34. BEGINNING, PROGRESS, AND TIME OF COMPLETION OF WORK. Unless otherwise specified the Contractor shall begin work under this contract within ten (10) days after the date designated in a written order from the Owner to begin work. The rate of progress shall be such that the work will be completed in accordance with the terms of the contract on or before the termination of the construction period named in the Contract Agreement.’ The Contractor shall furnish the Engineer a detailed schedule setting forth the procedure he proposes to follow and giving the dates he expects to start and to complete portions of the work. If in the opinion of the Engineer proper progress is not being maintained, changes shall be made in the Contractor’s operations to assure proper progress. “GC-35. HINDRANCES AND DELAYS. The Contractor expressly agrees that the construction period named in the Contract Agreement includes allowance for all hindrances and delays incident to the work. No claim shall be made by the Contractor for hindrances or delays from any cause during the progress of the work, except as provided under “Suspension of Work” and “Extensions of Time.” “GC-36. EXTENSIONS OF TIME. Should the Contractor be delayed in the final completion of the work by any act or neglect of the Owner or Engineer or of any employee of either, or by any other contractor employed by the Owner, or by strike, fire, or other cause outside of the control of the Contractor and which, in the opinion of the Engineer, could have been neither anticipated or avoided, then an extension of time sufficient to compensate for the delay, as determined by the Engineer, will be granted by the Owner provided that the Contractor gives the Owner and the Engineer prompt notice in writing of the cause of delay in each case and demonstrates that he has used all reasonable means to minimize the delay. Extensions of time will not be granted for delays caused by unfavorable weather, unsuitable ground conditions, inadequate construction force, or the failure of the Contractor to place orders for equipment or materials sufficiently in advance to insure delivery when needed. “GC-45. RELEASE OF LIABILITY. The acceptance by the Contractor of the last payment shall be a release to the Owner and every officer and agent thereof from all claims and liability hereunder for anything done or furnished for, or relating to the work, or for any act or neglect of the Owner or of any person relating to or affecting the work.” Under the heading “Special Conditions” found in Volume I and incorporated by reference into the contract between Iowa Southern and Kiewit are these additional pertinent items: ‘‘CONSTRUCTION SCHEDULE. The time of completion and commercial operation of the new station is of the essence of this contract. The work shall be vigorously and systematically prosecuted to the end that all systems will be ready for start-up and initial operation as a complete electric power generating unit not later than March 1, 1968 and that the unit will be in firm commercial operation not later than May 1, 1968. The installation of the equipment, systems and subsystems shall be completed so that they can be given trial operation and necessary adjustments can be made before the plant start-up and initial operation specified above. In addition to compliance with the above dates, the Contractor shall comply with the intermediate dates set forth in the Construction Schedule and shall complete all work and remove all of his construction plant facilities from the site before July 1, 1968. The Construction Schedule, Sheet G1 of the construction drawings, shows in graphical form all construction to be performed concurrently at the site. The purpose of this Construction Schedule is to coordinate related work under the various construction and erection contracts and to establish the basic working periods, construction sequence, and completion dates for certain phases of the work. Starting dates graphically shown on the schedule are intended to designate the latest starting date permissible for compliance with the overall schedule. Earlier starting dates shall be adopted whenever possible. The Contractor shall cooperate with the Engineer as set forth herein under “PROJECT MANAGEMENT” to assure maximum coordination and efficiency in the construction progress. Failure of the Engineer to inform the Contractor that he is behind schedule or to direct and enforce procedures for complying with the schedule shall not relieve the Contractor of his responsibility for completing his work in accordance with the Construction Schedule and shall not be cause for an extension of time. Contractor’s Detailed Schedule. Within 30 days after award of contract, the Contractor shall submit a detailed construction schedule showing the time schedule for completion of each element of the work. The detailed schedule shall be based on the Construction Schedule but shall be expanded to include a complete breakdown of all elements of work. The schedule shall be presented in graphical form using the bar graph method, the critical path method (CPM), or the time-sequence method similar to the Construction Schedule. The Contractor’s detailed schedule shall be periodically revised to reflect the actual progress of the work, and shall be modified as necessary for coordination of his operations with those of other contractors. In addition to the above detailed schedule covering the entire life of the project, the Contractor shall prepare and submit at the beginning of each month during the construction period a schedule covering his operations for the coming 30 day period. Included with this schedule shall be an estimate of the total manpower required and the necessary equipment for the anticipated construction operations. This information shall be submitted to the Engineer’s Project Manager at the site and will be used to coordinate all contractors’ operations at the weekly meetings as set forth under “PROJECT MANAGEMENT.” Delays. Failure of Owner-furnished materials and equipment to arrive before the time required for construction or failure of other construction contractors to meet their schedule shall not be justification for claim for extra compensation. Failure of Owner-furnished materials and equipment to arrive before the time required for construction and failure of other construction contractors to meet their schedule shall not be justification for an extension of time as stipulated in the General Conditions, except where such failure causes, in the opinion of the Engineer, an actual delay in the Contractor's work, and providing that notice in writing of such delay is given to the Owner and Engineer within three days of the alleged delay. PROJECT MANAGEMENT. The coordination of all field construction shall be under the direction of the Engineer acting through its Project Manager at the site. A meeting of the Engineer and all contractors at the site will be held each week at the time and place designated by the Engineer. The Contractor’s superintendent shall attend each weekly meeting. The purpose of the weekly meeting will be for the scheduling and coordination of each contractor’s work within the requirements of the overall project. In the event conflicts arise between contractors concerning scheduling or coordination, the Engineer will make the final decision resolving the conflict. The Engineer’s decision shall not be cause for extra compensation or for extension of time. If at any time the Contractor’s work is behind schedule (as set forth herein under “CONSTRUCTION SCHEDULE”), the Engineer may direct him to increase his forces or otherwise accelerate his operations to comply with the schedule and the Contractor shall put into effect immediately definite procedures approved by the Engineer for getting the work back on schedule. The Contractor will not be allowed extra compensation for costs incurred by him because of additional regular or premium time required to keep his work on schedule. “PROTECTION OF WORK. The Contractor shall be solely responsible for the protection of his work until its final acceptance by the Owner. The Contractor shall have no claim against the Owner or the Engineer because of any damage or loss to the Contractor’s work, and shall be responsible for the complete restoration of damaged work to its original condition complying with the specifications and drawings. In the event the Contractor’s work is damaged by another party, not under his supervision or control, the Contractor shall make his claim directly with the party involved. If a conflict or disagreement develops between the Contractor and one of the other contractors concerning the responsibility for damage or loss to the Contractor’s work, the conflict may be submitted to the Engineer for his decision, with the understanding that both parties will abide by his decision. Such conflict shall not be cause for delay in the restoration of the damaged work. The Contractor shall restore the work immediately and the cost thereof shall be assigned pending the resolution of the conflict.” 12. Kiewit officials had carefully reviewed the proposed construction schedule, G-l, during the spring of 1966 and had found it to be a reasonable and feasible schedule. Kiewit officials carefully read and considered all contract documents before bidding and relied upon and took into account these documents in making the determination of Kiewit’s bid for the general construction contract. 13. Kiewit officials visited the construction site before submitting the bid. Kiewit was aware of the confined nature of the site. Furthermore, Kiewit had extensive previous experience in building steam generating plants and was aware of the crowded conditions inside the buildings during construction thereof. Although the contract documents advised Kiewit to ascertain details of the operations of other contractors from those contractors, Kiewit never inquired of Havens Steel Co. about its schedule concerning proposed delivery or erection dates. 14. Sometime in the late spring of 1966, Havens Steel Co. began the work for which it had contracted. After a schedule satisfactory to both the Engineer and Havens had been worked out, Havens began the preparation of shop drawings of the steel members it was to produce. Prior to the award of the structural steel contract, the Engineer had thoroughly investigated Havens, and had determined that Havens could perform its contract. That notwithstanding, it soon became apparent that Havens was not producing acceptable shop drawings fast enough to maintain the Engineer’s construction schedule. Black & Veatch immediately took steps to cure this problem. The Engineer had extensive communications with Havens about how to improve the shop drawings. On more than one occasion, engineers from Black & Veatch personally visited the Havens plant in an effort to correct and speed up the steel drawings. Havens, for its part, began to devote more effort to producing the drawings, and the Engineer, for its part, devoted more manpower to reviewing the drawings so that they could be returned to Havens faster. The shop drawings, as a result, were sufficiently complete to enable Havens to begin work at the site in July of 1966, according to schedule. 15. Further delays, however, began to plague Havens after it commenced work at the site. Havens had previously placed orders with various steel mills for the raw steel needed for fabrication of the steel members. For various reasons, none of which could be deemed the result of bad planning on the part of Havens or Black & Veatch, a substantial portion of the raw steel did not arrive at the Havens plant as scheduled. Oftentimes, the missing steel was a certain critical length needed in order to complete the fabrication of steel members needed at a particular instant on the job. Thus, Havens experienced many substantial delays in fabricating and erecting the structural steel on the job site, and Havens’ delays created corresponding delays for other contractors, including Kiewit, who were dependent upon the steel being erected before they could commence with their work. The Engineer and Havens devoted considerable time in attempting to speed up the steel erection. It was the considered judgment of the Engineer and Havens that running a night shift of iron workers was not feasible because of the danger involved in working at heights at night and the lack of additional qualified iron workers as a result of other major construction taking place in the Burlington area. The Engineer and Havens finally decided to run longer day shifts at premium time, and this speeded up the steel erection as much as possible under the circumstances. 16. Further delay in the project was caused when the boiler, to be supplied by Combustion Engineering, failed to arrive at the date anticipated, that being October of 1966. This delay was caused by a strike at the Combustion Engineering plant. Many facets of the project, including some of the steel erection and some of the concrete pouring, were dependent upon the erection of the boiler drum, and this work was held up as a result. Black & Veatch communicated extensively with Combustion Engineering about early shipment of the boiler drum, but Combustion replied that it would have to meet commitments to other projects before it could ship the boiler drum to Burlington, as the strike had caused a general back log in filling orders at Combustion. The boiler drum finally arrived at Burlington in December of 1966 and its erection commenced soon thereafter. In February of 1967, however, a large piece of piping fell from some considerable height when the cable supporting it snapped. The piping created extensive damage to some of the structural steel members, and these members had to be replaced. All of this delayed Kiewit in pouring the concrete slabs in the boiler area. 17. Havens Steel Co. began erection of the structural steel in the boiler area of the main building in July of 1966, approximately on schedule. At the same time, Kiewit began fine grading of the boiler area in anticipation of the pouring of the ground floor slabs, which was to commence in late August of 1966. Kiewit was ready to pour the concrete for the ground floor in the boiler area on schedule, but for reasons outlined previously, Havens had not erected sufficient steel so that the steel could be encased in concrete. 18. In early September, Kiewit moved its concrete workers to the outlying buildings to do the concrete work there. The piling work which Kiewit had subcontracted to another firm and for which Kiewit was responsible was behind schedule in the out-buildings and accordingly, Kiewit found itself with little work to do and had to reduce its labor force. 19. By August 19, 1966, Kiewit was running over its estimated costs for labor by approximately $20,000. This overrun was incurred prior to any of the events of which Kiewit complains in this cause of action. Because of the cost overrun and because Kiewit could foresee scheduling problems in future months, a decision was made to replace the job superintendent then on the site with a man having engineering and scheduling experience. 20. Many factors caused Kiewit to be unable to lay concrete slabs at the times anticipated by schedule G-l. Among the most significant were the failures of Havens Steel Co. and Combustion Engineering Co. to meet their schedules. In addition to the basic problem of not being able to pour concrete slabs because the structural steel was not in place, Kiewit was hindered in its work by Havens’ habitual practice of storing equipment and materials in places in which Kiewit was supposed to work. Havens was from time to time admonished by the Engineer to remove its materials and equipment from Kiewit’s work area, but at times the materials and equipment could not reasonably be stored in any other place. Nevertheless, Kiewit had to move Havens’ materials out of the way on some occasions. Furthermore, when steel erection commenced at higher elevations of the building, Kiewit on some occasions was not able to work underneath because of the danger of falling objects dropped by Havens’ workers. George Hirt, Black & Yeatch’s representative on the site, continually admonished Havens to observe safe practices, but did not insist that Havens erect netting or other devices to restrain the falling objects because of the impractieality of doing so. On some occasions the danger of falling objects forced Kiewit out of the area in which it was to do concrete work. Kiewit’s work during the late fall and winter of 1966 was further complicated because of the remedial measures taken by Havens and Combustion Engineering to expedite their work. Both Havens and Combustion Engineering employed many extra laborers in an attempt to get back on schedule. These extra men necessarily created much more congestion in a very confined working area. Thus some workers of Havens and Combustion Engineering got in the way of Ki.ewit’s workers and caused some delay for Kiewit. In addition, because of the dangers involved in the erection of the boiler drum, Kiewit was forced to suspend operations in the boiler area until the erection of the drum was completed. The erection of the boiler drum, once it arrived on the job site, was delayed somewhat because of difficulties encountered in trying to put it together. 21. By mid-October two additional factors began to hamper completion of construction. Commencing in October 1966 and lasting far into 1967, the Burlington area was deluged by rain. During the last four months of 1966, 11 full days and 2 part days were lost because of weather. Access to the job site was quite restricted because of topographical conditions. Kiewit was responsible for maintaining the only access road to the site. As more and more rain came down the access road became a quagmire. Kiewit, on the order of George Hirt, poured large quantities of gravel on to the road until the allotted supply was used up and it became apparent that the rock was doing no good in any event. In the fall of 1966, Kiewit had proposed that another road be built to the site, but other contractors were unwilling to share in the costs of such a road and Kiewit was unwilling to finance the road itself. Finally, Kiewit used a large tractor to pull vehicles of all contractors into the construction area. This caused much more congestion and hardship to contractors including Kiewit. In addition, labor problems caused some delay in construction work. For example, during the last four months of 1966, 6 full days were lost because of labor problems — basically a dispute arose with the operators which caused trucks to be backed up on the job site. 22. When it made its bid, Kiewit had planned to be able to make the largest pours possible in a given location. Furthermore, Kiewit had planned to be able to block out certain portions of the ground floor slabs in the turbine area and thus be able to pour that slab prior to the steel erection and erection of the turbine. In actual practice, it turned out that Kiewit had to make much smaller pours than it had planned. These smaller pours were made on the orders of the Engineer in its attempt to expedite the work of all contractors. The smaller pours caused Kiewit to have to use more lumber in the making of forms and caused some of the reinforcing steel (re-steel), used to give the concrete added strength, to be exposed pending the pouring of other concrete slabs. Extensive damage was done to Kiewit’s form work and to exposed re-steel by Kiewit’s own workers and by workers of other contractors as a result of much muddy foot traffic running over Kiewit’s work. Kiewit and the Engineer attempted to stop this destruction by' roping off the area and by other means, but Kiewit’s work continued to be damaged from time to time. This resulted in additional work for Kiewit in remaking the forms and in cleaning the re-steel. Kiewit was not able to block out portions of the turbine area, as it had anticipated, because it could not come up with a feasible plan for so doing. Black & Veatch talked with Kiewit and encouraged Kiewit to come up with a feasible plan for blocking out certain areas, but no viable method for blocking out was found. Thus the pouring of the concrete in the turbine area was not done in the manner Kiewit had anticipated and was done at a time when the area was much more congested. Furthermore, Havens Steel was quite late in erecting the steel in the turbine area, and this also caused delay for Kiewit. 23. From August through December of 1966, only four contractors were on the job site — Havens, Combustion Engineering, Kiewit, and the piping contractor. In December, other contractors, including some more of Kiewit’s subcontractors, came into the site. This, of course, increased the congestion on the job site and greatly enlarged the Engineer’s problem of coordinating all contractors. Thus, in January of 1967, the Engineer was faced with the problem of trying to bring three contractors (Kiewit, Havens, and Combustion Engineering) back on to schedule, and at the same time, arranging conditions so that the other contractors coming in would also be able to work. Sometimes, contractors coming in were not able to work immediately. The Engineer at all times had to consider its contractual obligation to place the plant into full working operation by May 1, 1968. 24. Starting in September of 1966, when it became apparent that work was falling behind the initial schedule, G-l, the Engineer began making modifications in the construction schedule to adjust to existing conditions. At approximately monthly intervals, Black & Veatch would devise a modified overall schedule which employed a planning technique known as the Critical Path Method (CPM), a method of planning, which, as the name suggests, is designed to assure that the most critical construction work is done in the most expeditious manner, while at the same time assuring that all contractors on the site can proceed with their work in a coordinated manner. Because new problems continually arose on the site, the CPMs became obsolete almost as they were issued. Thus, George Hirt, Black & Veatch’s field man, made modifications in scheduling at the site as often as new problems would arise. Sometimes these modifications occurred daily. Hirt used as his criteria for scheduling: (1) the May 1, 1968 deadline for completion, (2) his previous experience in supervising construction of power plants, and (3) the economic impact of his decisions on all of the various contractors. Hirt initially called weekly meeings of all contractors in which grievances were discussed and schedule modifications were worked out. By winter, however, Hirt decided that the weekly meetings were fruitless, and so he communicated with each contractor individually from then on. 25. All contractors complained about-one another to Hirt. All contractors continuously approached Hirt about obtaining priority at a particular location over the other contractors. Hirt’s scheduling decisions did not continuously favor one contractor over another, but were designed to get critical construction work done first. At times, every contractor was forced to obey a disadvantageous (to that contractor) schedule. Phil Harris, Kiewit’s job superintendent during the months in question, testified to the Court that Hirt’s decisions were impartial. 26. On some occasions, but infrequently, Hirt ordered Kiewit to one area in the morning and to another area in the afternoon, causing Kiewit the inconvenience of moving men and equipment. This, however, was not a significant reason for the problems Kiewit was encountering. 27. Hirt allowed many changes in specifications and scheduling which let Kiewit continue working when it otherwise would not have been able to do so. Kiewit was allowed to pour some slabs out of sequence, to pour in smaller areas than specified, and to block out certain areas to facilitate pouring. In the early stages, Kiewit had problems in conforming its re-steel work to specifications because it was using the wrong grade of steel and some of the welds were not holding. Hirt allowed some of this work to be merely repaired rather than replaced in order to expedite Kiewit’s work. Kiewit also had a problem of getting the water down to the specified level before making a concrete pour. Hirt allowed the pour to be made while the water was at a higher level. On one occasion, when Kiewit did not have enough lumber on hand to make forms for the pours required by the Engineer’s schedule, the Owner, through the Engineer, offered a contract modification to Kiewit in which the Owner would supply more lumber and pay some additional money if Kiewit would lay concrete in accordance with the schedule proposed by the Engineer. Kiewit refused this offer. 28. Kiewit and other contractors had difficulty getting along with Hirt’s assistant at the site, and consequently came to Hirt whenever a problem arose. This complicated the already large problems Hirt was having. Black & Veatch, however, did have adequate and capable personnel at the job site, and the job was not delayed in any manner because of insufficient personnel on the site from Black & Veatch. 29. Kiewit was continually plagued by a labor turnover which slowed down its work. 30. After March of 1967, Kiewit had no further problems at the site and had no further complaints about hindrances or delays. 31. The generating plant was completed and ready for commercial operation June 8, 1968. 32. Kiewit overran its initial labor estimate by more than $65,000 at the completion of the job. It also overran other items of the estimate to some extent, but in many other items, it actually spent considerably less than it had estimated. Overall, Kiewit had planned on a $300,000 margin above job site costs. It actually made around $99,000 over job site costs. 33. There is no evidence that Kiewit was forced by the Engineer to keep equipment or manpower idle at the job site during any of the delays or stoppages of work encountered from September, 1966 to April, 1967. In other words, there is no evidence that Kiewit needed the equipment or manpower elsewhere, but was forced to keep it idle at Burlington on orders of the Engineer. 34. There is evidence that Kiewit encountered greater interference, from having to jointly occupy the construction areas with other contractors, than was contemplated by the original schedule, G-l. This increased interference was caused because the delays encountered on the job forced the Engineer to schedule work of more contractors to be done simultaneously. 35. Fossil-fueled power plants are, of necessity, designed compactly because (1) materials, especially piping, are very expensive, (2) manpower to operate the plant is reduced when the plant is compact, and (3) thermo dynamic loss is greater as the plant becomes more spread out. Furthermore, the Burlington plant site itself was of a very limited area. As a result, there was very little working space at the Burlington plant, and much of the work of the various contractors had to be undertaken in approximately the same area. 36. Every contractor was bound by the May 1, 1968 completion date. Iowa Southern could not extend the completion date, because its contracts with outside sources of electrical power expired on that date, and it, therefore, needed the additional power on the line by May 1. Thus Black & Veatch had no viable choice but to require contractors to work in the same area simultaneously after delays began to occur. This joint occupancy caused Kiewit and other contractors to work less efficiently than they would have, had things gone according to G-l. 37. There is evidence that Kiewit incurred some additional expense in having to lay more concrete in the winter than it had originally contemplated. 38. There is no evidence that Kiewit was hindered in any manner because of inadequate plans and specifications for the job. 39. There is no evidence that Kiewit ever made a written request for extension of time which was turned down by the Engineer. 40. The final estimate for the work performed by Kiewit under the construction contract was evidenced by Certificate No. 28, dated March 7, 1969, and showed the amount due Kiewit to be $165,985.73. On April 2, 1969, and again on April 18, 1969, Iowa Southern tendered to Kiewit its check for $165,985.73 and on both of said occasions said check was refused by Kiewit because Kiewit was not willing to accept the final payment and release its claims in accordance with general conditions, section GC-45. 41. Kiewit performed the work under the conditions indicated from August of 1966 through April of 1967 as directed by defendants and Kiewit constantly, indeed almost daily, complained to George Hirt about the working conditions. Nearly all communications between Hirt and Kiewit about schedule modifications and complaints about scheduling were oral. 42. The parties, as shown by plaintiff’s Exhibit “7-6” modified the contract requirements set forth in section GC-17, specifying the thirty-day limit for filing notice of objection, and extended until February 1st, 1969, plaintiff’s right to file written protest to the Engineer’s decision turning down plaintiff’s claim, which was dated and filed by plaintiff on May 20th, 1968, and plaintiff complied with this modification. 43. On May 20th, 1968, plaintiff filed its claim for the extra costs involved in the total sum of $327,579.52, and when suit was brought increased this amount to $595,236.00. 44. There is no evidence in the record that Chicago Painting Service, Inc. was in any manner hindered or delayed in performing its sub-contract by any event occurring on the job site or by the Owner or the Engineer. Chicago Painting incurred increased costs because it chose to come on to the site at a late date when labor costs had increased over what it had originally estimated. CONCLUSIONS OF LAW Plaintiff Kiewit’s Complaint is in nine counts. Count I is against the Owner alone, and alleges breach of the construction contract by Iowa Southern, Count II is against the Engineer alone, and alleges breach of the contract between Iowa Southern and Black & Veatch to which Kiewit allegedly was a third-party beneficiary. Count III is against Black & Veatch alone, and is based upon alleged negligence of the Engineer in supervision of the project. Count IV is against both Iowa Southern and Black & Veatch, alleging “active interference” with plaintiff’s performance of its contract. Count V is against Iowa Southern and prays for an equitable adjustment of contract price because of alleged contract modifications. Count VI is against Iowa Southern and prays for an equitable adjustment of price because of alleged constructive suspensions of work. Count VII is against Iowa Southern and prays for money owing either because of constructive modifications of contract or constructive suspensions of work. Count VIII is against Iowa Southern and seeks payment of the final estimate of $165,985.73. Count IX is against both Iowa Southern and Black & Veatch, and prays for damages for plaintiff’s sub-contractor, Chicago Painting Service, Inc., realleging all of the allegations of Counts I through VIII. I. Plaintiff alleges in Count I that Iowa Southern is guilty of a material breach of its contract with the plaintiff. Clearly, in order for plaintiff to recover upon this theory, it must establish that the construction schedule, G-l, was binding upon Iowa Southern, for there is not a scintilla of evidence that Iowa Southern could have breached the contract in any other respect. Viewing the contract documents as a whole, the Court concludes that Iowa Southern did not breach its contract with Kiewit because of the deviations of the actual construction dates from the construction schedule, G-l. Iowa law is clear that in order for time to be of the essence in a contract, there must be express provisions to that effect. In this contract, there is no doubt that the completion date of the power station was of the essence; myriad provisions of the contract so state. As to the intermediate dates contained in G-l, however, there is no express provision in the contract which makes these dates absolutely binding upon Iowa Southern. The purpose of G-l is set out in the Special Conditions under the heading “Construction Schedule.” Schedule G-l was intended by the parties to give a basic idea of when the various phases of Kiewit’s and other contractors’ work should start and how rapidly it should be prosecuted in order for everyone to make the completion deadline of May 1, 1968. The Court also, notes sections GC-15, GC-27, GC-34, GC-35 and GC-36 of the General Conditions, which give additional support for the Court’s conclusion that this was the intention of the parties with respect to G-l. Section GC-15 of the General Conditions states explicitly that Kiewit was to prosecute its work in such a manner so as to cause the least possible interference with other contractors, and that the Engineer was to decide how the work was to proceed in the event that contractors experienced interference from one another. Considering the contract documents as a whole, the Court concludes that there was no express agreement that schedule G-l was binding upon Iowa Southern, but rather many items in the documents suggest that Iowa Southern, through the Engineer, could change the schedule as circumstances dictated. Kiewit had no right, under this contract, to rely upon the dates contained in G-l as being absolute time periods for construction. The Court does not believe that it actually did so rely. Insofar as Southern Fireproofing Co. v. R. F. Ball Const. Co., 334 F.2d 122 (8th Cir. 1964), is any support at all for either side in this case, the Court believes that its conclusion is in line with that decision. Iowa Southern did not breach its contract with Kiewit and Count I must fail. II. Count II of the Complaint alleges that Black & Veatch is liable to Kiewit because the Engineer breached its contract for engineering services with Iowa Southern to which Kiewit was a third-party beneficiary. The crux of plaintiff’s contention in this Count is found in the following pertinent portion of plaintiff’s trial brief at 19: “As part and parcel of this contract [between Black & Yeatch and Iowa Southern], although not specifically referred to, Black & Veatch agreed that it would represent Iowa Southern Utilities Co. in preparing and administering these contracts in a manner which is fair and reasonable both to the owner and to the contractor. Clearly, Black & Veatch knew that in the preparation of the bid documents for the general construction contract which was bid upon by Kiewit, they must be careful not to put in any misleading or inaccurate information upon which Kiewit would rely. “Black & Veatch owed this duty not only to Iowa Southern Utilities Co., but also to Kiewit.” (bracketed material and emphasis added by the Court). The Court cannot conclude that Black & Veatch owed such a contractual duty to Kiewit. It is true that Iowa has long ago left the strict rule that only the parties privy to a contract could sue upon it. Iowa Power & Light Co. v. Abild Const. Co., 259 Iowa 314, 144 N.W.2d 303 (1966). It is also clear, however, that in order to have standing to assert a breach of contract, a party not privy to such contract must be regarded as a direct beneficiary to the contract, and not as an incidental beneficiary. That is, he must be regarded as either a donee beneficiary or a creditor beneficiary, as those terms are defined in Restatement, Contracts, Section 133, in order to recover damages flowing from breach of a contract to which he was not a party. Olney v. Hutt, 251 Iowa 1379, 1386, 105 N.W.2d 515 (1960). It cannot be contended that Kiewit is a donee beneficiary, that is, that Iowa Southern intended to bestow a gift upon Kiewit. Accordingly, Kiewit must come within the concept of creditor beneficiary, or else Count II shall fail. “One is a donee beneficiary if it appears from the terms of the promise in light of surrounding circumstances ‘that the purpose of the promisee in obtaining the promise of all or part of the performance thereof is to make a gift to the beneficiary or to confer upon him a right against the promisor to some performance neither due nor supposed nor asserted to be due from the promisee to beneficiary’. Olney v. Hutt, supra, 251 Iowa at 1386 [105 N.W.2d 515]. One is a creditor beneficiary if no purpose to make a gift appears from the terms of the promise in accompanying circumstances but ‘performance of the promise will satisfy an actual or supposed or asserted duty of the promisee to the beneficiary.’ Olney v. Hutt, supra, 251 Iowa at 1386 [105 N.W.2d 515], One is merely an incidental beneficiary and no rights accrue to him from the contract if he fails to qualify as either a donee beneficiary or creditor beneficiary. Olney v. Hutt, supra, 251 Iowa at 1383, 1385, 1386 [105 N.W.2d 515]. See also Johnson Farm Equipment Company v. Cook [8 Cir.], 230 F.2d 119 at 124.” Iowa Power & Light Co. v. Abild Const. Co., 144 N.W.2d at 312. In the contract between Iowa Southern and Black & Veatch, Black & Veatch did not expressly undertake to do anything for Kiewit. There is no direct mention of Kiewit in the contract. There is no language in the contract which could be construed reasonably to show an intent of the parties to confer a direct benefit upon Kiewit. See Casey v. Jesup Creamery Co., 224 Iowa 1094, 278 N.W. 214 (1938). “That the parties must have clearly intended the contract to be for the benefit of the third party to enable him to sue thereon, is one of the most commonly expressed limitations on the rule, * * *. The intent to benefit the third person must clearly appear from the language of the agreement, in light of the circumstances under which it was entered into.” 17 C.J.S. Contracts, § 519(c), pp. 1127, 1128, 1129, and 1130 (1939). Olney v. Hutt, 105 N.W.2d at 518-519. “No man will be held liable in law to different parties for the same cause of action. The principle is therefore confined to cases where the person for whose benefit the promise is made has the sole, exclusive interest in its performance.” German State Bank v. Northwestern Water & Light Co., 104 Iowa 717, 722, 74 N.W. 685, 686 (1898); Olney, supra, 105 N.W.2d at 519. The Court cannot conclude that it was the intent of Iowa Southern and Black & Veatch in their agreement of April 10, 1964, to confer a direct benefit upon Kiewit. Counsel for Kiewit has not shown the Court any such provision contained in the contract. The contract clearly indicates that all benefits flowing from Black & Veatch in that contract were to be received by Iowa Southern. That Kiewit would and did receive some incidental benefits from this contract is not enough to make Kiewit a third-party beneficiary under the law. In this case, Iowa Southern contracted with Black & Veatch; Kiewit contracted with Iowa Southern. If something went wrong, it was clearly the intent of the parties that Kiewit would look to Iowa Southern, and then, perhaps, Iowa Southern would look to Black & Veatch. It was never the intent of the parties, as far as this Court can discern, that Kiewit look directly to Black & Veatch. The instant situation is distinguishable from that in Giarratano v. Weitz Co., 259 Iowa 1292, 147 N.W.2d 824 (1967). There the estate of a deceased employee of a sub-contractor sued the principal contractor for neglect of duty undertaken by the latter and articulated in its contract with the sub-contractor “to. take all necessary precautions for the safety of employees on the work .”. It is, of course, reasonable to consider that a safety clause is included in a contract primarily for the benefit of workers on the project and could be held to create in the worker a right to sue. It is notable that the members of the class were clearly identified as “employees”. In the instant action, a much more tenuous relationship exists regarding the intent of the owner to create a right to sue in others. The Iowa Court has indicated that “a distinction should be drawn between an intent to create a ‘right’ in a third party and an intent that a performance beneficial to him shall be rendered.” Giarratano v. Weitz Co., supra, at 1306, 147 N.W.2d at 833; Johnson Farm Equipment v. Cook, 230 F.2d 119, 124 (8th Cir. 1956). The owner intended to confer no right upon Kiewit (or anyone else) as against Black & Veatch because of damages allegedly arising from the project. Count II must be dismissed. III. In Count III Kiewit alleges that Black & Veatch was negligent in particulars which will be hereinafter discussed. At the outset, the Court notes certain clauses in the contract between Iowa Southern and Kiewit which gave the Engineer broad discretion in the planning and management of the project. These provisions are contained in the General Conditions at Sections GC-15, GC-17, GC-27, GC-34 and GC-36 and in the Special Conditions under the headings “Construction Schedule,” “Contractor’s Detailed Schedule,” “Delays,” and “Protection of Work.” Under Iowa law, when the parties (owner and contractor) to a construction contract agree to abide by discretionary decisions of the project engineer, the terms of the contract will be given full force and effect and the parties will be bound by the decision of the engineer. “It is not for us to inquire whether the construction placed upon the contract by the engineer was right or wrong, for the reason that the construction placed on it was a construction made by the one appointed to whom the right to determine the intent and meaning of the contract was given, and to make the estimate, and plaintiffs agreed to be bound by his construction.” Nishnabotna Drainage Dist. v. Lana Const. Co., 185 Iowa 368, 373-374, 170 N.W. 491, 492 (1919). “We hold, therefore, that inasmuch as the parties had a right to make the contract in question, and did, in the contract, provide that the engineer selected should have charge of the detail of the work, the power to construe the contract and to make the estimates according to the construction placed upon the contract by him, his construction and estimates, in the absence of fraud, are binding upon the plaintiffs. ...” 170 N.W. at 494. The Nishnabotna case was followed and extensively quoted in Eastern Iowa Light & Power Coop. v. McKenzie, 296 F.2d 295, 301-302 (8th Cir. 1961). The Engineer’s discretionary powers under the contract between Kiewit and Iowa Southern, however, do have limitations. This discretionary power is subject to the implied limitations of reasonableness and the duty to exercise care commensurate with the standards of his profession. “We think an architect whose contractual duties include supervision of a construction project has the duty to supervise the project with reasonable diligence and care. An architect is not a guarantor or an insurer but as a member of a learned and skilled profession he is under the duty to exercise the ordinary, reasonable technical skill, ability and competence that is required of an architect in a similar situation. . . . ” Aetna Insurance Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 476 (8th Cir. 1968). See also Peerless Insurance Co. v. Cerny & Associates, Inc., 199 F.Supp. 951 (D.Minn.1961); United States v. Rogers & Rogers, 161 F.Supp. 132 (S.D.Cal.1958). In addition, the Engineer had the duty of care and competence commensurate with the standards of his profession in obtaining and communicating information for the guidance of Kiewit with respect to its business transactions relating to the Burlington project. Ryan v. Kanne, 170 N.W.2d 395 (Iowa 1969); Restatement, Second, Torts, Section 552. Kiewit urges that Black & Veatch should be held, vis a vis Kiewit, to the highest standards of the engineering profession, because of a provision to that effect in the contract between the Engineer and Iowa Southern. As Kiewit is not a third-party beneficiary to that contract, for reasons stated in Division II supra, the Court concludes that Black & Veatch did not owe this higher standard of care to Kiewit. Thus, under principles articulated above, the Court must determine whether the Engineer was negligent. The Court will treat Kiewit’s allegations of negligence on the part of Black & Veatch seriatim-. 1. There is no evidence that Black & Veatch prepared faulty specifications. The only possible complaint Kiewit could have with respect to the specifications is that Havens was not initially bound by schedule G-l. This was because Havens’ contract was let before all key materials and equipment could be contracted for. Everyone agrees that it was essential that the steel contract be let as soon as possible in order to give the steel contractor adequate lead time. Accordingly, it could hardly have been an act of negligence for Black & Veatch to have let the steel contract when it did. In fact, Havens was subsequently bound by a schedule compatible with G-1. Had this schedule been met, there would have been no problem flowing from Havens’ performance as respects Kiewit. Occurrences beyond the control of the Engineer