99 Ct. Cl. 71 | Ct. Cl. | 1942
Lead Opinion
delivered the opinion of the court:
The seven items making up plaintiff’s claim of $146,091.60, damages alleged to have been sustained in performance of the contract dated December 2 and executed December 14, 1933, for which it is alleged the defendant is liable, are set forth in finding 13. The first six items of the claim, all involving excess and extra costs and expenses alleged to have been unnecessary and not required by the contract, relate to different items of work and delay and are all more or less related in fact and law as to the grounds upon which plaintiff bases his right to recover. The seventh item of the claim for $15,180.52 with reference to alleged excess cost for local building stone which plaintiff was required to use stands on its own facts.
The contract under which plaintiff’s claim is made was wholly prepared and written by the defendant. Therefore, it should he stated at the outset that under the well established rule of law defenses to acts, conduct, rulings and decisions cannot be sustained where, in order to sustain them it is necessary to resolve all doubts in favor of the party who prepared and wrote the contract and specifications. Callahan Construction Co. v. United States 91 C. Cls. 538, at pp. 611, 612. It should also be stated that where the acts, conduct, rulings and decisions of the designated and authorized officers
Art. 3 of the contract contained the usual provision in Government contracts, that the contracting officer might at any time by written order make changes in the drawings or specifications and within the general scope thereof; that if such changes caused an increase or decrease in the amount due under the contract or in the time required for its performance, an equitable adjustment should be made and the contract modified in writing accordingly; that no change involving an estimated increase or decrease of more than five hundred dollars should be ordered, unless approved in writing by the head of the department or his duly authorized representative, and that any claim for adjustment under that article must be asserted within ten days from the date the change is ordered unless the contracting officer should extend the time, and that if the parties could not agree upon the equitable adjustment to be made in the contract price the dispute should be determined as provided in Art. 15; but that nothing provided in Art. 3 should excuse the contractor from proceeding with the prosecution of the work. No such written changes were made. Art. 15 provided that all labor •issues arising under the contract which could not be satisfactorily adjusted by the contracting officer should be submitted to the Board of Labor Be view. No labor issue within the meaning of this provision arose under the contract. Article 15 further provided that all other disputes as to questions arising under the contract should be decided by the contract
Art. 9 of the contract related entirely to termination of the contract and to the matter of liquidated damages at the rate of $175 per day to be paid to the defendant by plaintiff in the event the contract was not completed by plaintiff within the time fixed by the defendant. This Article provided as follows:
That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unfor[e]seeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes: Provided further, That the contractor shall within 10 days from the beginning of any such delay notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of facts thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 30 days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto.
This provision does not apply to any of the claims here involved. The contract was completed within the time fixed by the defendant. For that purpose no extension of time was necessary or was made.
The facts show that in making his bid and in estimating the performance costs for material, labor, and overhead, plaintiff fixed November 1, 1934, as the date when he would complete the work called for by the contract, and the facts further establish that, except for the unreasonable delays in performance caused by the defendant, all the work called for by the contract • would have been completed by plaintiff by November 1,1934,106 days, or three and one-half months earlier than it was completed, and earlier than the period fixed by the defendant for liquidated damages purposes.
The facts established by the record as to the conditions, circumstances, acts and rulings of the defendant’s designated and authorized agents and officers which gave rise to the excess and unnecessary costs and expenses of plaintiff under the first six items of the claim, and the amounts thereof as established by the proof, are set forth in findings 1 to 20 inclusive. Findings 1 to 20 inclusive set forth the facts established by the record as to the first six items, with reference to the acts, conduct, and the requirements and ex-actions of the defendant’s supervising superintendent of construction and his assistant, the superintendent-inspector,
Under the facts so established and set forth in the findings, and under the well-established principles of law herein-before mentioned, the plaintiff is entitled to recover as damages the actual increased costs and expenses for materials, labor, and overhead not included in his bid nor the contract price, for work and delay not contemplated or required by the provisions of the contract and specifications and resulting from and caused by the acts of the Government’s authorized agents and officers.
The clear duty rested upon the defendant, acting by and through its agents and officers in charge of the work under the contract, not to delay the contractor in the performance of his work called for by the contract. It was also their duty to cooperate with plaintiff in every reasonable way to the end that the work as called for by the contract might be properly performed and completed as early as practicable so that neither the plaintiff nor the defendant would be put to extra costs or expenses. The proof conclusively shows that plaintiff fully cooperated in every way but that defendant entirely failed to do so. The proof shows beyond doubt that defendant did seriously delay the plaintiff in his performance; that defendant’s officers at the site of the work deliberately and without reasonable cause, delayed plaintiff and deliberately sought to punish him for contesting their instructions, thereby causing plaintiff’s costs and expenses to be greatly increased in certain particulars over the contract price and over what his performance costs would otherwise have been. The acts of the defendant’s supervising superintendent of construction and his assistant, which the con
There is also an implied undertaking on the part of the Government in such provision as Art. 5, hereinbefore referred to, that if work or material not called for by the contract and specifications is required by the authorized representatives of the contracting officer, to be performed or furnished, a written order therefor will be given, and if there is a failure or refusal to give such order and the contractor is forced or compelled by other means, as was done in certain instances in the case at bar, to do such work or furnish such materials, there is a breach of the contract. The contractor is, therefore, not barred from recovering his extra costs and expenses because such work or material was not ordered in writing, and the contract provision cannot be set up by the defendant as a defense to the claim.
Art. 15 of the contract relating to disputes also clearly contemplated and there was, therefore, an implied agreement that the defendant’s designated and authorized representatives, agents, and officers in charge of the work would not interfere with or hinder the contractor in questioning the propriety or correctness of their acts, instructions or requirements during the prosecution of the work and in submitting his protests and objections. Above all, there was clearly implied in such provision an obligation on and undertaking by the defendant not to commit or permit any act intended as punishment of the contractor for so attempting to invoke the contract provision and follow the procedure therein provided so as to obtain a fair and impartial decision of disputes on the basis of a true state of facts and circumstances. Ripley v. United States, 223 U. S. 695; Globe Grain & Milling Company v. United States, 70 C. Cls. 595.
The facts and circumstances established by the proof in the case at bar show that the defendant’s supervising superintendent of construction and his assistant were guilty of acts of punishment and such unreasonable, arbitrary, capricious, and grossly erroneous acts and conduct toward plaintiff and his officers and employees engaged in performance of the work as to make it impossible for plain
In the early stages of the work under the contract certain disputes and disagreements arose between plaintiff and the defendant’s officers in immediate charge of the work, with the result that the plaintiff protested to the contracting officer. The contracting officer sustained plaintiff’s protests and overruled the instructions and orders of the defendant’s representatives in charge of the work. The facts and circumstances and the subsequent conduct of these officers show that they resented having their instructions protested bv the
The whole evidence of record taken together shows and we have so found that on all of plaintiff’s protests concerning items 1 to 6 inclusive the final decisions and conclusions of the contracting officer, where he made decisions or reached independent conclusions, were all in favor of plaintiff. The contract certainly did not contemplate or compel the plaintiff to appeal to the head of the department from a decision or conclusion not in writing, or from a favorable decision or conclusion, or to appeal to enforce a favorable ruling.
With these observations and ^conclusions upon the facts-as established by the record, and which apply to the first six items of the claim," these items will be discussed separately.
ITEM ONE
This item of the claim is for extra costs and expenses which the proof shows amounted to $51,249.52 as a result of plaintiff being delayed for a period of more than three months in the completion of the work called for by the contract beyond the date when the plaintiff would, otherwise, have completed the same. The damages claimed and proven under this item for this delay are independent of the excess costs and damages claimed, and hereinafter mentioned under other-items of the claim. The facts with reference to this delay and the increased costs are set forth in findings 14 and 20. ■ The proof shows that the contracting officer delayed unreasonably, either in compelling the mechanical contractor
ITEM TWO
The damages of $25,886.84 claimed under this item represent increased costs for material and labor for outside scaffolds by reason of unreasonable, unauthorized, arbitrary, capricious, and grossly erroneous conduct and acts on the part ■of the authorized officers of the defendant in charge of the work. Plaintiff endeavored in every way that could be reasonably required of him, under the contract, to prevent this increased cost, without success. The facts applicable to this item of the claim are set forth in findings 15 and 20. This conduct on the part of the representatives of the Government in charge of the work was brought to the attention of the contracting officer, but nothing was done about it. The amount ■of $10,466.88 of this item of the claim represents the actual cost of material and labor for outside scaffolds around all the buildings which were not called for or required by the contract, and $12,990 represents extra and unnecessary labor costs for brick masons. Plaintiff incurred the extra costs of $25,886.84 in order to overcome an almost impossible con
ITEM THREE
This item of the claim as established by the evidence is $9,033.21 and represents extra and unnecessary expenses due! to unreasonable, arbitrary, capricious and unauthorized acts and rulings of the defendant’s officers in charge of the work. It is made up of (1) salaries and expenses, amounting to $4,952.95 of two men which it was necessary for plaintiff to station at Roanoke to handle matters arising from the conduct, instructions and orders of the agents of the defendant; (2) cost of $2,620.66 for bolting metal concrete form pans, which bolting was unnecessary and not required by the contract; (3) cost of $1,352.10 for performing certain fine grading work in the basement of certain buildings a second time; and (4) $107.50, extra cost of two-way temperature steel improperly required by defendant’s superintendent of construction to be furnished and installed by the plaintiff.
Upon the facts established by the record and set forth in the findings, plaintiff is entitled to judgment for $9,033.21 for this item of the claim. See findings 16 and 20.
This item of the claim, as established by the proof, in the ■amount of $8,657.05, represents $4,365.12 for excess costs for wages which plaintiff was required to pay certain employees in connection with the placing of reinforcing steel rods by reason of demands by the defendant’s supervising •superintendent of construction as the authorized representative of the contracting officer, and $4,291.93, excess and unreasonable costs and expenses resulting from direct and improper interference with the reinforcing steel work under the contract by the defendant’s officers in charge of the work. The facts established and applicable to this item of the claim are set forth in findings 17 and 20.
This was a Public Works Administration contract prescribed by the Federal Emergency Administration of Public Works and carried out through the office of Director of Construction of the Veterans’ Administration with funds supplied by the Public Works Administration of which the Secretary of the Interior was the Administrator. A reading of the contract, Art. 18, which is set forth in finding 17, the P. W. A. Bulletin 51, P. W. A. Release No. 56 and letter of the Administrator of the Federal Emergency Administration of Public Works, together with a schedule showing the action taken by a committee composed of representatives of the contractors, labor, and borrowers of public funds acting under authority of the Administrator of the Federal Emergency Administration of Public Works, and The Virginia Public Works Advisory Board, shows that plaintiff’s contract contemplated and provided for three classes of labor — namely, skilled labor at a minimum of $1.10; unskilled labor at a minimum of 45 cents an hour; and semi-skilled labor, such as assistants, helpers, apprentices, and serving laborers who work and serve skilled journeymen and mechanics and who were not to be termed as unskilled laborers, at an intermediate rate of wage between the minimum fixed for labor specifically classified as skilled labor and labor specifically classified as unskilled or common labor. Subsection (4) of Art. 18 of the contract, when read in connection with other provisions, seems plain enough on this point, but before
Upon receipt of the Hollenbeck letter a day or two later the defendant’s supervising superintendent of construction ¡notified plaintiff that the “United States Department of
In connection with the work of placing and tying reinforcing steel, plaintiff had on the j ob a -foreman of long experience-in reinforcing steel work, under whose direct supervision and instruction all of the reinforcing steel laborers worked. The Government Employment Office, at Koanoke, Virginia, from which plaintiff obtained his laborers in accordance with, the provisions of the contract, was unable to supply skilled mechanics for reinforcing steel work but that office was able to and did supply workers who had had sufficient experience in this type of work to qualify them for classification for semi-skilled work. They were able to do the work for which they were furnished. But when it was ruled that plaintiff could only use skilled mechanics on this work plaintiff had to let many of the men go. (See letter of April '25, 1934, of contracting officer, finding 17).
There is no evidence whatever in this record to show who, in the Public Works Administration in Washington, made the statement which the administrative assistant for the Veterans Placement Service in the Department of Labor, at Washington, transmitted by letter of March 20, to the supervising superintendent of construction on the basis of which plaintiff was required to classify reinforcing steel work as skilled labor and to pay reinforcing steel workers at the rate of $1.10 an hour. It would appear that because the answer to the question as submitted in the letter of March 15,
Counsel for the defendant contend that plaintiff is barred from recovering on this and other similar items because he did not submit the matter of whether the contract authorized the use of an intermediate grade of labor at an intermediate wage rate to the Board of Labor Beview for decision. But we think this contention is without merit for the reason that the question involved was not a labor issue within the meaning of Art. 15 and Art. 18 (f), but was simply a question whether the contract contemplated and, therefore, authorized the use of an intermediate grade of labor at an intermediate minimum wage rate. This question had already been considered, decided, and settled by the Administrator of the Federal Emergency Administration of Public Works six months before the defendant’s supervising superintendent of construction and his assistant conceived the idea in March 1934 that they would force plaintiff to pay all employees not clearly falling within the common labor class the minimum
Plaintiff is entitled to recover $8,651.05 under this item of the claim.
ITEM FIVE
This item of the claim as established by the evidence is $26,354.19 and represents the difference between the intermediate minimum prevailing wage rates of 60 and 65 cents an hour fixed and paid by plaintiff for semi-skilled carpentry work and the minimum of $1.10 an hour which the defendant compelled plaintiff to pay for such work. See finding 18. This item of the claim is governed by what has been said under the preceding Item 4. What has been there said is applicable here. Plaintiff is entitled to judgment.
ITEM six
This item of the claim as established by the proof is $9,730.27 and represents the difference between the intermediate prevailing minimum wage rate paid by plaintiff’s subcontractor, the Roanoke Marble & Granite Co., Inc., for labor of a semi-skilled classification and the minimum of $1.10 an hour which the defendant compelled that contractor to pay for such semi-skilled labor on the same grounds, for
ITEM SEVEN
Under this item of the claim plaintiff seeks to recover $15,180.52 on the ground that the contract and specifications-provided for the use of “commercial” sandstone and that the-contracting officer required plaintiff to use silica sandstone locally available and acquired, which, it is contended, was-not sandstone within the meaning of the specifications.
The facts with reference to this claim are set forth in finding 21. The specifications provided that “Stone work indicated on drawings as rubble shall be a random broken range ashlar * * * local sandstone, as hereinafter specified. * * *. All rubble or broken range ashlar stone work shall be a local sandstone of a buff color, with a variegated run of quarry color, the darker shades predominating.” When making his bid plaintiff assumed that there was available locally a soft sandstone that could be easily sawed into shape. Without making any investigation with reference to the matter, plaintiff wired a man near Eoanoke, who, plaintiff had been advised, owned a quarry, for the price which he could supply sandstone. Plaintiff received a reply quoting a price. Plaintiff made his bid accordingly. Plaintiff further assumed that the price quoted contemplated delivery of the sandstone at the site of the work. Later, after the contract with defendant had been made, plaintiff' found that the owner of the stone had no operating quarry,, that the stone was covered with overburden and that the-
The proof is not sufficient to justify the allowance of the whole or any part of this item of the claim. The contract did not call for “commercial sandstone” as that term may have been understood by plaintiff. It called for “local .sandstone.” There are several grades of sandstone. The •proof is not sufficient to show that the local stone which plaintiff was required to use did not come within the definition of the word “sandstone” or that it was not sandstone ■within the meaning of the specifications. The definition of the word “sandstone” in petrology, as given in Webster’s New International Dictionary, is “a sedimentary rock consisting of sand, usually quartz, more or less firmly united by some cement, as silica, iron oxide, or calcium carbonate. Sandstones vary in color, being commonly red, yellow, brown, .gray or white.” There was no soft sandstone of the character which plaintiff had in mind to be found locally.
The proof does not show what portion of the $08,614.32, which it cost plaintiff to unburden, quarry and deliver the local sandstone to the site of the work, represented the cost ■of uncovering and quarrying the stone which he did not contemplate he would have to do. Plaintiff is not entitled to recover on this item of the claim.
Judgment will be entered in favor of plaintiff for $130,-•911.08. It is so ordered.
Dissenting Opinion
dissenting in part.
I am unable to agree with the disposition which the Court has made of items 2,3,4, 5, and 6 of plaintiff’s claim. These items appear in Finding 13 and relate to the requirement that outside scaffolding be used, to unfair conduct of the defendant’s Superintendent and Inspector, to increased wages paid to reenforcing steel rodmen and carpenters, and to increased costs and wages resulting from rulings made with reference to’ the stone workers and terrazo grinders.
In each of these situations a serious dispute arose between plaintiff and the defendant’s agent on the job. Plaintiff, instead of submitting the disputes to the Contracting Officer and insisting upon a ruling which he could appeal to the Head of the Department, as he had a right to do under Article 15 of the contract, either acquiesced in the Superintendent’s ruling, or took the matter up informally with the Contracting Officer and acquiesced in his statement that he could not give plaintiff any relief.
I think the Government has the right to contract, if the contractor is willing, that the Government shall not be subjected to damage suits for disagreements between its inferior agents and the contractor, without giving the Head of the Department an opportunity to right the alleged wrong before it has grown into a big' claim against the public funds. And the fact that the inferior agent on the job does not act in good faith does not make it less necessary that his superiors, who presumably would deal fairly with the contractor, should have an opportunity to pass upon the dispute. Fitzgibbons v. U. S., 52 C. Cls. 164. See also Silas Mason v. U. S., 90 C. Cls. 266.
If a contractor concludes, as plaintiff apparently did, that he can get along better, on the whole, by pursuing a policy of appeasement of the Superintendent on the job, than by asserting and insisting upon his rights, he should not expect the Government to pay him the cost of the policy which he elected to follow.