86 Ct. Cl. 461 | Ct. Cl. | 1938
delivered the opinion of the court:
The contention of counsel for defendant that the court is without jurisdiction to entertain this suit because plaintiff did not appeal from the decisions of the contracting officer refusing to pay the items herein sued for cannot be sustained. Under Art. 15 of the contract only decisions us to questions of fact by the contracting officer and the head of the department concerned, if an appeal was taken, were to be final and conclusive upon the parties. No appeal
Upon the facts disclosed by the record, the same conclusion is necessary under the second item with reference to' the additional cost incurred and paid for purchasing and laying the tile which defendant compelled plaintiff to furnish.
As to the question concerning the tile, there was no dispute as to the actual facts. The contracting officer simply arbitrarily refused to consider the claim for the additional costs. Plaintiff did appeal from this action of the contracting officer and in a letter signed by the Chief Clerk of the Treasury Department, “By direction of the Secretary of the Treasury,” the claim for this extra cost was disposed
On the merits it seems clear that plaintiff is entitled to recover the extra costs directly attributable to the delays in beginning the structural steel work because of the unknown, and unforeseen conditions encountered in excavating for' and constructing the foundation for the building and for' the additional cost incurred in being required to furnish glazed vitrified tile which was more expensive than the cream color glazed tile known to the trade at the time the contract was made, and more expensive than the tile which, it seems clear, was contemplated by the parties to the contract.
The changes made necessary by reason of the conditions encountered in excavating for the foundation of the building were not reasonable changes within the scope of the drawings and specifications as contemplated in Art. 3 of the contract, but represented important changes based upon changed conditions which were unknown and materially different from those shown on the drawings or indicated in the specifications. Such changes were, therefore, clearly not within the contemplation of either party to the contract at the time it was made. On the facts disclosed plaintiff is entitled to recover on this item. But its recovery must be limited to the actual extra costs incurred without profit-Profits are not allowable upon damages sustained by reason of delays caused by the defendant and occasioned by unforeseen conditions encountered during the prosecution of the work, unless the contract so provides. The matter of the allowance of a profit based on extra costs was an item properly to be considered in determining the additional compensation to which a contractor is entitled for extra expense and materials required to perform the work called for in change orders. It must be presumed that in the equitable adjustment under Art. 4 of the contract, the additional compensation allowed and paid to plaintiff for the extra work and materials made necessary by reason of the additional excavation and enlarged footings included a reasonable profit. ‘
With reference to the second item of the claim presented in this case, we are of opinion that the defendant was without authority under the contract to require plaintiff to furnish and lay tile which was more expensive than the cream color vitrified glazed tile generally known to the building trade and to the plaintiff and the defendant at the time the contract was made. Clearly the contract cannot be construed as requiring plaintiff to furnish and lay a special tile not theretofore known to the trade which was manufactured by a secret process, or a similar tile necessary to be especially manufactured. The contract, instead of providing that the tile to be furnished should be such tile as the contracting officer might demand when the time came to lay the tile, stated that plaintiff was to furnish a cream color glazed vitrified tile. At the time the contract was made a cream color glazed vitrified tile was being manufactured and was generally advertised and known to the building trade. It was upon this tile that plaintiff made its bid. When, therefore, the contracting officer arbitrarily demanded and required plaintiff to furnish a different and more expensive tile than that generally advertised and known to the parties at the time the contract was made, he obligated the defendant to pay the excess cost of the special tile demanded plus a reasonable profit. Such action, which was evidenced in writing, constituted a change in the contract which required
Even if an appeal was necessary from the arbitrary action of the contracting officer, the facts disclose that such an appeal was taken and the claim was later rejected by direction of the Secretary of the Treasury on the sole ground that the contract required plaintiff to furnish the tile ■ demanded.
Judgment will be entered in favor of plaintiff for $28,795.64. It is so ordered.