Wunderlich Contracting Co. v. United States

351 F.2d 956 | Ct. Cl. | 1965

Cowen, Chief Judge,

delivered the opinion of the court:

Plaintiffs, Wunderlich, Curlett & Tompkins, a joint venture, ’bring this action in their own behalf as general contractor, and on behalf of several of their subcontractors, to recover certain sums alleged to have been lost in constructing a hospital project for the Veterans Administration. On March 18, 1950, plaintiffs entered into a contract with defendant to erect a 500-bed neuro-psychiatric-tubercular hospital complex in Salt Lake City, Utah, in accordance with detailed and highly technical plans, specifications, and drawings, for a consideration of $7,898,000. Under the terms of the agreement, plaintiffs were required to complete performance of the project within 540 days after receipt of notice to proceed, and the completion date was originally fixed as October 20, 1951. In fact, though, the work was delayed for various reasons, and performance was not actually finished until September 2, 1952, some 318 days in arrears. Plaintiffs were not assessed liquidated damages by defendant for the delays, as they had been granted extensions of time sufficient to cover the entire period by which the actual performance time exceeded the original contract time.

Plaintiffs’ claims for relief here are predicated upon three major, alternative theories: (1) damages for breach of contract — based upon the allegation that defendant knowingly furnished plaintiffs with defective plans and specifications which were substantially incomplete, ambiguous, and impossible of performance; (2) quantum meruit, to reimburse plaintiffs for their reasonable costs incurred in performing the work — 'based upon the contention that defendant ordered an unreasonable number of changes and modifications in the plans and specifications after the work had begun, the cumulative effect of which resulted in a fundamental alteration of the scope of the contract and the construction of a hospital subtantially different from that originally contemplated by the parties, and (3) equitable adjustment under the Suspension of Work article of the contract, to compensate plaintiffs for the costs of actual delays incurred — based upon the assertion that the plans and specifications were allegedly so inherently ambiguous and inadequate and the changes ordered so extensive, that defendant should in all fairness have stopped the work in order to make corrections and prevent unnecessary delay and expense in the contractor’s performance.

On December 16, 1946, defendant (by and through the Army Corps of Engineers) engaged an experienced Salt Lake City architectural firm to prepare necessary reports, designs, drawings, and specifications incident to the construction of the proposed 14-building hospital complex for the Veterans Administration. Because the anticipated project was to be the largest high-class construction venture ever undertaken in Salt Lake City, and because no prototype of the proposed facility existed anywhere in the United States, the architectural firm encountered serious difficulties in the performance of the design contract. Months were spent in studying various hospital designs and modern hospital techniques, and a great deal of cooperative effort was necessitated among the Veterans Administration, the Corps of Engineers, and the architects in order to produce a coordinated set of plans that would satisfactorily fulfill the requirements of the Administration. Work on the drawings was further complicated by the fact that the quality of design in the early post-war years was not as high as is now expected. During World War II, qualified draftsmen and engineers had been absorbed in great numbers into the armed services, and in the post-war years a severe shortage of personnel continued, due to the necessity of having to retrain previously qualified servicemen and to the great competitive demand for skilled technicians by both industry and government.

During the preparation of the pertinent plans and specifications, defendant, through the offices of the District Engineer, Division Engineer, Chief of Engineers, and the Veterans Administration, repeatedly reviewed submissions and resubmissions of the architect, making numerous and detailed comments, criticisms, corrections, and changes in design. Serious conflicts arose at times among the different personnel involved over various aspects and details in the plans, and conferences were arranged with the Chief of Engineers in Washington, D.C., to resolve points of difference.

When the final working drawings, as amended and modified, were eventually submitted, on May 25,1949, the architectural firm realized that a substantial number of discrepancies remained which had not been satisfactorily resolved by corrections on the relevant documents. The Corps of Engineers, too, was cognizant of certain inadequacies and discrepancies in the final drawings, but because of the great need of the Veterans Administration for the hospital, did not require further corrections to be made prior to bidding. It decided rather to leave such outstanding matters for handling as field problems in the subsequent construction of the project.

The hospital project was then advertised for bids on December 16, 1949, and the date for submission and opening of bids scheduled for February 16, 1950. On January 24 and 25, 1950, a pre-bid conference was held in Salt Lake City, with the District Engineer of the Corps of Engineers presiding and two partners of the architectural firm in attendance. Several prospective bidders and material suppliers attended and were invited to make comments and criticisms on the plans. The existence of many errors, omissions, and discrepancies in the plans and drawings for the project would have been obvious to any competent person who examined them, and in the course of the proceedings several mistakes were brought to the attention of defendant and were later corrected by addenda. Although plaintiffs were present at this meeting, they did not comment at the time on any of the apparent deficiencies and errors in the documents.

The trial commissioner to whom this case was referred has found that performance of the project within the 540 days specified in the contract could only have been accomplished under ideal conditions. Under Rule 66 of this court the findings of the commissioner are presumptively correct and can be overcome only by a strong affirmative showing by plaintiffs to the contrary. Dodge Street Building Corp. v. United States, 169 Ct. Cl. 496, 341 F. 2d 641, 644-5 (1965); Wilson v. United States, 151 Ct. Cl. 271 (1960); Davis v. United States, 164 Ct. Cl. 612 (1964). Upon a review of the record in the case we are satisfied that the commissioner’s finding is amply supported by the evidence. The local manager of the Associated General Contractors, acting upon information received from interested contractors, strongly urged defendant to increase the contract performance time from 540 to 800 days. Plaintiffs themselves, moreover, had requested defendant prior to bidding to fix the contract time at 730 days, based on their own estimates of performance requirements. Because of the size and technical nature of the project, the existence of certain unresolved discrepancies in the plans and drawings, and the pressing need of the Veterans Administration for the facility, a provision was inserted in the invitation for bids permitting individual contractors to submit bids based upon a performance time in excess of 540 days, by adding to their bid a certain fixed sum per excess day. In fact, of the nine bids that were eventually submitted and opened at the appointed time, six were computed on the basis of a performance time of more than 540 days. Plaintiffs, however, elected to risk completing performance within the 540-day period, and submitted an offer of $7,898,000, which, being the lowest of those received, was accepted by defendant.²

In March of 1950, after the award had been made and the contract signed, plaintiffs commenced performance on the project, subcontracting approximately 80 percent of the work to some 57 different firms, seven of which have claims presented in this case. Plaintiffs were all experienced and qualified construction contractors, although they had never worked together before as a joint venture, nor individually, in the Salt Lake City area. The various subcontractors were also experienced and qualified in their respective fields, though most of them were California firms without previous experience in Salt Lake City.

Luring the course of performance, plaintiffs encountered difficulties of various sorts which seriously hindered and delayed their progress. Some of these problems were attributable to inadequacies and ambiguities in the plans and drawings, and others to factors beyond the control of either plaintiffs or defendant. As is conceded by defendant, the plans furnished to plaintiffs contained numerous errors, omissions, and discrepancies. Although the majority of these defects were discovered through advance review and in the preparation of shop drawings, many of the errors were not uncovered until work on the pertinent phases of the project was actually in progress. Through close and continuous cooperation between plaintiffs’ project manager and engineer and defendant’s resident engineer and inspectors, most of the remaining specifications problems were solved on the site. Design and architectural problems were submitted to the architects who prepared the plans, and changes in basic criteria were referred to the District Engineer for decision.

Because most of the errors had to be corrected before the relevant work could begin or continue, defendant was compelled to order a large number of changes and alterations as performance progressed. Plaintiffs from the outset kept records of the extra costs they incurred in having to make the alterations and corrections ordered, and prepared a series of 470 estimates for submission to defendant, each of which was based on the direct costs of labor, materials, and equipment. Most of these estimates were approved by defendant as reflective of actual additional costs, and during the course of performance 35 change orders were issued granting plaintiffs a monetary adjustment in the contract price, including a percentage allowance for overhead and profit, of $298,563.27. Defendant from the start refused to entertain any estimate unless verified by records and based purely on the direct cost of labor and materials as applied to the particular types of work involved. Contested claims and all claims for extra costs allegedly resulting from confusion and delays in ordering and executing changes were deferred by agreement of the parties for presentation at the completion of the work.

In addition to those delays and expenses which resulted from changes in the plans and drawings, plaintiffs’ performance was substantially affected by the Korean War, which commenced shortly after work had begun and continued through the duration of the project. The war caused a significant increase in the price of construction materials and equipment and in the wages of workmen. Having based their cost estimates and bid on pre-war prices and wage scales in stabilized market conditions, plaintiffs were seriously hurt by substantial increases in costs brought about by wartime conditions. Moreover, the Salt Lake City area had a relatively small and restricted labor market for skilled workers, and plaintiffs were confronted with severe shortages of brickmasons, due to competing war projects in general and to an emergency military construction project in the immediate vicinity in particular. Carpenters, plumbers, and other craftsmen were also in declining supply and, in order to alleviate these labor difficulties, plaintiffs were forced to advertise in newspapers throughout the country to attract skilled workers to the site. Because of the effect of the labor scarcity on their performance, plaintiffs specifically requested the contracting officer to extend the performance time 120 days. The relief desired was not granted, however, as the officer refused to recognize labor shortages as a valid justification for extensions under the contract.

Apparently believing that they would be entitled to reimbursement by the government for the additional costs being incurred due to wartime conditions, plaintiffs wrote several letters to defendant’s District Engineer, detailing their plight and advising him of their intention to file formal claims to recover their extra expenses on the purchases of materials, tools, and equipment, and the costs of increased wages, overtime premiums, special bonuses, and advertising expenses incurred to maintain a sufficient labor force on the job. In conducting research on the proposed claims, however, plaintiffs came to the conclusion that the government would not be responsible for these additional expenditures under the provisions of the contract and, in fact, never formally filed the claims. Performance was also impeded because the plastering subcontractor refused to work in more than one building at a time, thereby delaying the scheduled performance of succeeding trades. The precise effect of this conflict among the subcontractors upon the overall progress of the work, however, has not been established by the evidence.

To mitigate the difficulties they were facing as a result of these various and sundry factors, plaintiffs filed several requests for extensions of time in the total amount of 1,075.75 days. The contracting officer denied most of the requests as unjustified, but did extend the completion date through the change orders to cover the full 318 days by which performance was in fact delayed. Of the 318 days thus allowed, 30 were specified as for labor strikes, and 8 for unusually severe weather. In addition, 45 days were allowed for the extra work of constructing a four-car garage, 53 days for the providing of additional laboratory facilities, 10 days for revision of roads, sidewalks, landscaping, and outside utilities, 2 days for changing footing elevations, and 153 days for miscellaneous changes.

Despite all the above-described impediments, some of which were due to errors and discrepancies in the plans and specifications or to the ordering of modifications and alterations in the work and some to extraneous factors beyond defendant’s control, plaintiffs’ performance under the contract proceeded with reasonable expedition.

After completion of the work, plaintiffs filed claims with the Corps of Engineers Claims and Appeals Board to cover those disputed items on which the contracting officer had earlier denied liability and refused payment, including claims for delay damages. The Board found that the number and scope of the errors in the plans and the consequent number and scope of changes ordered by defendant were quite reasonable and normal for a project of such size and complexity, and decided that “any delays caused by errors in [the] plans were concurrent with and comprehended within the greater delays occurring over the same period caused by the impact of the Korean War.” Certain of plaintiffs’ specific claims for additional direct costs, however, were sustained by the Board, and after its decision, a 36th change order was issued to encompass those items allowed. Plaintiffs were thus paid an additional $137,232.37, which brought their total compensation, including contract price and monetary adjustments, to $8,333,795.64. The commissioner has found that plaintiffs’ total costs on the project, including all sums paid to the various subcontractors, amounted to $9,454,301.13.

The first major claim presented is grounded in breach of contract. Plaintiffs maintain that they submitted their bid in complete reliance upon the accuracy and thoroughness of the specifications, fully believing that the project could profitably be completed within the 540 days specified. Plowever, they allege that defendant knowingly furnished prospective bidders with critically defective plans and specifications, and thereafter compelled plaintiffs, to their financial detriment, to perform in strict accordance with the same. Plaintiffs claim that this action of providing fundamentally unworkable plans demonstrated a lack of good faith on the part of the government and constituted a material misrepresentation and breach, of defendant’s implied warranty that the plans were complete and adequate to the required task. Plaintiffs seek to recover as damages for this breach of warranty their entire loss on the project, measured by the difference between the total cost of performance (plus profit allowance) and the income received through payment of the contract price, as increased by the change orders. No attempt is made to distinguish between expenses arising out of deficiencies in the plans and expenses attributable to purely extraneous factors. Plaintiffs simply ask for a blanket recovery of all unrecouped costs on the contract, regardless of source.

Precedent indicates that the government implicitly warrants in a construction contract that if the contractor complies with the specifications furnished he will be able to complete the project within the contemplated period; and if the specifications are so faulty as to prevent or unreasonably delay completion of the contract performance, the contractor may recover his actual damages for breach of the implied warranty. United States v. Spearin, 248 U.S. 132 (1918); Warren Bros. Roads Co. v. United States, 123 Ct. Cl. 48, 105 F. Supp. 826 (1952); Laburnum Construction Corp. v. United States, 163 Ct. Cl. 339, 325 F. 2d 451 (1963). But, in the case at bar, the evidence does not support plaintiffs’ contention that the government-supplied documents were so substantially deficient or unworkable as to constitute a breach of the contract. Defendant engaged an experienced and qualified architectural firm to prepare the necessary designs and subsequently invited prospective bidders to offer their comments, with a view toward eliminating as many discrepancies as possible. Although the plans and specifications, as modified and refined, did in fact contain a large number of errors which eventually had to be corrected, it cannot be said that the cumulative effect or extent of these errors was either unreasonable or abnormal for a project of such encompassing scope and complexity. Plaintiffs have not carried their burden of proving that the commissioner’s findings to this effect are unsupported by the evidence.

Moreover, plaintiffs necessarily had knowledge of the actual state of the plans and were cognizant of the fact that performance could only have been completed within 540 days under ideal conditions. Yet, they did not exercise the option offered to all prospective bidders of submitting their bids upon the basis of a longer performance time. They elected instead to enhance their competitive position by saving the required penalty sum and thereby willingly assumed the substantial risk of completing the project within the tight schedule of 540 days. Under the circumstances of the case, plaintiffs have hot established by a preponderance of the evidence that defendant breached its implied warranty of reasonable accuracy or that plaintiffs were misled into assuming greater risks and responsibilities than they had anticipated. See Anthony M. Meyerstein, Inc. v. United States, 133 Ct. Cl. 694, 137 F. Supp. 427 (1956); Flippin Materials Co. v. United States, 160 Ct. Cl. 357, 312 F. 2d 408 (1963); Archie & Allan Spiers, Inc. v. United States, 155 Ct. Cl. 614, 296 F. 2d 757 (1961).

Assuming arguendo that a cause of action in breach of warranty could have been established, plaintiffs have failed, in any event, to prove their damages. They have offered evidence to show that the actual cost of completing the project greatly exceeded pre-bid estimates and resulted in a significant net loss on the contract. They have not, however, established the approximate extent to which any of this loss can be said to have been attributable to disruptions in operations caused by defects in the plans and specifications or to tardiness in ordering changes. The record is in fact replete with express admissions that the Korean War was a major factor in contributing to the delays in performance and the increases in the cost of labor and materials. The Claims and Appeals Board, in passing on plaintiffs’ appeal in this case, denied most of the relief requested and noted that the relevant claims were originally conceived and filed as a hardship case resulting from the serious and continuing consequences of the Korean War. The trial commissioner, in deciding the facts after a trial de novo,³ arrived at essentially the same conclusion — that the proliferating effects of the Korean hostilities contributed heavily to the difficulties encountered, and that plaintiffs had failed to carry their burden of proving that the delays or extra expenses were directly caused by the actions of defendant. See Archie & Allan Spiers v. United States, supra. We have adopted this finding.

The “total cost plus profit” theory of computing damages advanced here by plaintiffs is appropriate only in “extreme cases,” where no more satisfactory method is available. F. H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 511, 130 F. Supp. 394 (1955). It assumes, inter alia, that defendant is in fact liable for all the injuries sustained, that plaintiffs’ bid was accurately computed, and that the costs incurred were reasonable. F. H. McGraw & Co. v. United States, supra; River Construction Corp. v. United States, 159 Ct. Cl. 254 (1962); Laburnum Construction Corp. v. United States, supra. The case at hand is ill-suited to application of this method of computation. There is no reliable evidence in the record to serve as a basis for approximating the extent to which defendant, and not the Korean War or other factors beyond the control of defendant, was responsible for any of the loss sustained by plaintiffs on the contract. See Commerce International Co. v. United States, 167 Ct. Cl. 529, 338 F. 2d 81 (1964); J. D. Hedin Construction Co., Inc. v. United States, 171 Ct. Cl. 70, 86-7, 347 F. 2d 235, 246-47 (1965).

Plaintiffs’ second claim for relief, designated as under the theory of quantum meruit, is also essentially based on a breach of contract argument. It is alleged that defendant ordered such an unreasonable number of changes in the specifications that the contractor was compelled to construct a project substantially different in character from that contemplated at the time the contract was executed. Plaintiffs thus argue that the scope of the contract was fundamentally altered and seek to recover as damages for breach all reasonable costs incurred in constructing the facility for defendant.

Article 3 of the contract explicitly reserved to defendant the right to make changes in the specifications “within the general scope thereof,” and provided for an equitable adjustment in the contract price to compensate plaintiffs for the cost of effecting such modifications. Defendant cannot be held liable for the exercise of this contractual privilege unless it exceeded the permissible limits of its discretion under the Changes article and ordered changes which were cardinal in nature. Aragona Construction Co., Inc. v. United States, 165 Ct. Cl. 382 (1964); F. H. McGraw & Co. v. United States, supra; J. D. Hedin Construction Co., Inc. v. United States, supra, 171 Ct. Cl. at 105-6, 347 F. 2d at 257-58; General Contracting Co. v. United States, 84 Ct. Cl. 570 (1937).

In the instant case defendant issued some 35 change orders covering various corrections in the specifications and alterations in the work, including changes in footing walls and columns, water table recomputations, furring of walls and ceilings and lowering of ceilings, finish and color changes, convector changes, door and door frame modifications, dimensional adjustments, and structural corrections. Although the changes ordered by defendant were extensive, we do not find that they were so extensive as to constitute a cardinal change.

There is no exact formula for determining the point at which a single change or a series of changes must be considered to be beyond the scope of the contract and necessarily in breach of it. Each case must be analyzed on its own facts and in light of its own circumstances, giving just consideration to the magnitude and quality of the changes ordered and their cumulative effect upon the project as a whole. Saddler v. United States, 152 Ct. Cl. 557, 561, 287 F. 2d 411 (1961). The contractor cannot claim a 'breach of the contract if the project it ultimately constructed is essentially the same as the one it agreed in the contract to erect. Aragona Construction Co., Inc. v. United States, supra, p. 391.

The trial commissioner has found that the completed project was not substantially different from that contemplated in the original contract plans. The record supports the finding. Plaintiffs point to the fact that their total cost of performance, exclusive of profit allowance, exceeded the bid price by more than $1,500,000, or about 20 percent. This figure, however, does not truly reflect the effect of the changes ordered on the contract, since plaintiffs have failed to allocate between costs of performing extra work in accordance with the changes and costs unavoidably incurred as a result of alien factors. The total additional payments authorized by defendant under the Changes article as reasonable compensation for the verified costs of executing the alterations ordered in the work amounted to $435,795.64, or less than 6 percent of the contract price. Plaintiffs have not shown that this figure is incorrect or unreasonable. Instead, they stand on the basic unproved assertion that defendant was responsible for all losses on the contract.

Manifestly, plaintiffs’ performance has been lengthier and costlier than anticipated at the time the bid was submitted, but in the long run they constructed essentially the same project as that described in the contract. This court’s language in Aragona Construction Co., Inc. v. United States, supra, p. 391, in dealing with a somewhat similar situation, is particularly in point:

In this case, the changes did not materially alter the nature of the bargain into which plaintiffs had entered or cause it to perform a different contract. Plaintiff contracted to build a reinforced concrete hospital building on a certain site at Fort Howard, Maryland, and that is exactly what it built. The hospital, when it was completed, was in the same location, looked the same, had the same number of rooms and floors and the same facilities as the one shown on the original plans and specifications. Apart from the substitution of materials, it differed not at all from the building that had been contemplated when the contract was awarded.

Upon a review of the evidence as a whole, we conclude that such changes as were ordered by the contracting officer here were not' cardinal in nature. Although extensive in number, they were entirely within the scops of defendant’s discretion to make under the Changes article of the contract. Plaintiffs have been compensated by price adjustments for the verified costs of carrying out these alterations, and have not shown by a preponderance of the evidence that they are entitled to any additional sum.

In addition to the effect of the change orders, plaintiffs assert that defendant interfered with performance of the work by letting other construction projects in the immediate vicinity of the hospital, particularly an emergency military facility at nearby Hill Field. It is argued that in expeditiously pushing these ventures to completion defendant greatly reduced the supply of skilled workers in an already restricted labor market. This action is alleged to have impeded progress on the hospital project by diverting badly needed craftsmen and to have forced plaintiffs to expend substantial sums of money in order to maintain an adequate work force on the job.

Actions of a general and public character, implementing programs in the national interest, are considered to be acts of the sovereign for which defendant cannot be held liable in damages. Horowitz v. United States, 267 U.S. 458 (1926); Jones v. United States, 1 Ct. Cl. 383 (1865); Wah Chang Corp. v. United States, 151 Ct. Cl. 41, 282 F. 2d 728 (1960); Anthony P. Miller, Inc. v. United States, 161 Ct. Cl. 455 (1963), cert. denied, 375 U.S. 879. Even though a contractor may be directly or indirectly injured by the detrimental effect of other government projects on the relative labor market, he has no legal cause to complain if it is the sovereign that renders his performance more difficult to complete. See Bateson-Stolte, Inc. v. United States, 158 Ct. Cl. 455, 305 F. 2d 386 (1962); Standard Accident Ins. Co. v. United States, 103 Ct. Cl. 607, 59 F. Supp. 407 (1945); Air Terminal Services, Inc. v. United States, 165 Ct. Cl. 525, 330 F. 2d 974 (1964), cert. denied, 379 U.S. 829. The action of the United States in ordering the construction of other public facilities in the Salt Lake City area was an act of the sovereign, and plaintiffs here are precluded from any recovery upon the allegation that defendant violated an implied duty under the contract not to interfere with the performance or to make it more costly than necessary.

Plaintiffs’ third major claim is for an equitable adjustment in the contract price under Article GC-11 of the contract — the Suspension of Work article.⁴ This alternative theory of recovery rests upon the same basic factual contentions as do the breach of contract claims, except that here plaintiffs pray for relief within the framework of that document. Plaintiffs again maintain that the plans and specifications were fundamentally inadequate, that defendant ordered an unreasonable number of major changes, and that each change so ordered delayed performance and resulted in increased costs to the joint venture and its subcontractors. They contend that in light of the serious difficulties encountered because of defects and ambiguities in the plans, defendant should in all equity have suspended the work for its own convenience in order to work out a corrective set of plans. See T. C. Bateson Construction Co. v. United States, 162 Ct. Cl. 145, 187, 319 F. 2d 135, 160 (1963); Ozark Dam Constructors v. United States, 153 Ct. Cl. 120, 288 F. 2d 913 (1961). Failure to have done so is alleged to'have caused unnecessary delay and uncertainty in plaintiffs’ performance and to have resulted in substantial additional expense and hardship. It is the actual costs of this delay that plaintiffs now seek to recover through equitable adjustment.

To be compensable under the contract, however, delay must be for an unreasonable length of time. River Construction Corp. v. United States, supra, p. 270; F. H. McGraw & Co. v. United States, supra, pp. 506-7. Further, that delay must be shown to have been proximately caused by defendant’s actions. River Construction Corp. v. United States, supra, p. 270; Laburnum Construction Corp. v. United States, supra, p. 349; J. A. Ross & Co. v. United States, 126 Ct. Cl. 323, 331-4, 115 F. Supp. 187 (1953). Plaintiffs’ performance here required 318 days, or approximately 60 percent longer to complete than had been anticipated; but this figure is not of itself decisive, especially in a case where plaintiffs’ bid was submitted on the basis of a very tight work schedule that could only have been fulfilled under ideal conditions and where much of the delay experienced resulted from a variety of largely unavoidable circumstances.

The plans furnished contained a substantial number of discrepancies, as any competent person who examined them at the time the bids were being prepared could readily have discerned. The fact that certain changes and corrections would have to be made was obvious. Apparent, too, was the implication that when such changes were effected certain delays in the prosecution of the work would likely result. Griffiths v. United States, 74 Ct. Cl. 245, 255 (1932); J. A. Rosse Co. v. United States, supra, pp. 331-2; Laburnum Construction Corp. v. United States, supra, p. 349; Anthony P. Miller, Inc. v. United States, 111 Ct. Cl. 252, 77 F. Supp. 209 (1948).

We have adopted the trial commissioner’s finding that such errors as were periodically discovered during performance of the contract were acted upon by defendant with reasonable promptness. Through close and continuous cooperation with plaintiffs’ personnel on the job, the government sought to minimize the effect of these errors by ordering necessary corrections and changes as soon as possible under the circumstances. All in all, the project required some 858 days to complete, instead of the 540 days bid upon, the 730 days originally expected by plaintiffs, or the 800 days requested by the Associated General Contractors as a reasonable performance period. The contract could only have been completed within the specified period under ideal conditions, but the conditions actually encountered were in fact far from ideal, for the Korean War significantly distorted the contractor’s time and cost estimates. Considerin g the fact that a certain amount of delay was inevitable and expected in order to make necessary corrections in the plans, that defendant acted expeditiously to order these corrections, that the contractor assumed the significant risk of completing a unique, extensive, and complex project within an ideal performance period, and that the ramifications of the Korean War produced unforeseen disruptions in operations, it cannot be concluded that the delays actually experienced by plaintiffs on this contract were either unreasonable in duration under the circumstances or principally attributable to defendant’s actions.

Plaintiffs have been granted extensions of time sufficient to cover the entire 318 days of actual delay without being assessed liquidated damages. They have also been compensated by defendant for the costs of such changes as they were ordered to make. In the absence of a showing that unreasonable delays were experienced in making necessary adjustments, plaintiffs are not entitled to an equitable adjustment under the Suspension of Work article of the contract.

A claimant need not prove his damages with absolute certainty or mathematical exactitude. Dale Construction Co. v. United States, 168 Ct. Cl. 692 (1964); Houston Ready-Cut Home Co. v. United States, 119 Ct. Cl. 120, 96 F. Supp. 629 (1951). It is sufficient if he furnishes the court with a reasonable basis for computation, even though the result is only approximate. F. H. McGraw & Co. v. United States, supra; Locke v. United States, 151 Ct. Cl. 262, 283 F. 2d 521 (1960). Yet this leniency as to the actual mechanics of computation does not relieve the contractor of his essential burden of establishing the fundamental facts of liability, causation, and resultant injury. River Construction Corp. v. United States, supra; Addison Miller, Inc. v. United States, 108 Ct. Cl. 513, 70 F. Supp. 893 (1947), cert. denied, 332 U.S. 836; J. D. Hedin Construction Co., Inc. v. United States, supra, 171 Ct. Cl. at 86-7, 347 F. 2d at 246-47. It was plaintiffs’ obligation in the case at bar to prove with reasonable certainty the extent of unreasonable delay which resulted from defendant’s actions and to provide a basis for making a reasonably correct approximation of the damages which arose therefrom. Aragona Construction Co., Inc. v. United States, supra; Laburnum Construction Corp. v. United States, supra. Broad generalities and inferences to the effect that defendant must have caused some delay and damage because the contract took 318 days longer to complete than anticipated are not sufficient. Commerce International Co., Inc. v. United States, supra.

Although we do not doubt that plaintiffs and their subcontractors encountered delays and difficulties in proceeding with the plans provided by defendant, all that plaintiffs have attempted to prove with respect to any of the major claims is the total amount of costs and the total delay experienced on the project. No satisfactory evidence has been presented to differentiate between reasonable and unreasonable government delays, or between delays attributable to defendant and delays unavoidably caused by extraneous circumstances. It is incumbent upon plaintiffs to show the nature and extent of the various delays for which damages are claimed and to connect them to some act of commission or omission on defendant’s part. See Laburnum Construction Corp. v. United States, supra. This is especially true where there has been an affirmative showing that other causes, for which defendant was not responsible, contributed materially to the delays in construction. Commerce International Co., Inc. v. United States, supra. The trial commissioner has found that “the evidence does not establish the extent, if any, to which there were delays in the performance of the contract * * * [or] * * * the extent, if any, to which the costs of plaintiffs and each of the * * * subcontractors were increased as a result of the revisions and corrections of the contract plans, specifications, and drawings, necessitated by errors, omissions, and discrepancies therein, nor does the evidence establish any basis for a reasonable approximation of such increased costs.” We have adopted these findings and are compelled to conclude that there has been a critical lack of proof of causation.

As plaintiffs have pointed out in their brief, the claims of their subcontractors, which are designated as Claim 1, are grounded upon the same rules of law and arguments as plaintiffs’ Claim 1. Since there are no significant factual differences in any subcontractor’s claim which would entitle it to recover on grounds other than those asserted in behalf of plaintiffs’ main claim, the subcontractors’ claims in this category fall for the same reasons as plaintiffs’ Claim 1.

Since we have concluded that plaintiffs are not entitled to recover for themselves or in behalf of their subcontractors on Claim 1, we shall now consider the remaining six claims. Two of these are separate from Claim 1, whereas the remainder are in the alternative to Claim 1 and involve claims for extra costs that were included within the items covered by Claim 1 (finding 75).

CLAIM OP LAUREN BURT, INC.

Lauren Burt, Inc., plaintiffs’ subcontractor for the installation of asphalt tile flooring in most of the rooms and corridors of the project, was paid by change orders for all the direct costs it incurred on account of finish, color, and dimensional alterations. In this claim, recovery is sought, as a separate and distinct item, for the costs of reviewing certain documents in connection with the performance of its subcontract. From time to time, as the contracting officer ordered changes in the plans and specifications, plaintiffs issued a series of change-of-plan authorizations to the various subcontractors setting forth the items of work to be altered. Lauren Burt maintains that it was required to review, study, and analyze each of these authorizations in order to determine whether any of its own work would be involved and to ascertain the extent to which any of its plans would have to be modified accordingly. The subcontractor claims entitlement to the sum of $250 as the reasonable cost of such reviews, based upon a figure of $1 per page of authorization and $2 per item of change.

The tile flooring subcontractor also made studies at the request of defendant’s resident engineer of 479 additional items of color and finish changes and claims the sum of $958 for such reviews and reports. In addition, the subcontractor’s claim includes an item of $100 for the alleged submission of an estimate to plaintiffs for the repair of storage and temporary office space.

No record was kept of any of the costs claimed by Lauren Burt. All of the work was performed by its president who testified that the amounts sought to be recovered are reasonable charges for the work.

Lauren Burt, Inc., was paid for its extra direct costs on account of finish, color and dimensional changes through approved change orders. None of the items included within the present claim was ever presented to the defendant’s contracting officer or to the Corps of Engineers Claims and Appeals Board. Since plaintiffs failed to exhaust their administrative remedy on this claim, recovery is precluded. United States v. Holpuch Co., 328 U.S. 234 (1946).

CLAIM: 18-A OP WASATCH CACHE ELECTRIC COMPANY

The separate claim of Wasatch Cache Electric Company, plaintiffs’ subcontractor for installation of the electrical sys-tern and fixtures throughout the project, involves the direct additional costs of installing supports in recessed electrical fixtures. The drawings and specifications did not specifically indicate the type of support necessary to sustain recessed fixtures installed in project ceilings having metal pan acoustical tile, as they merely provided that such outlets were to be installed “in a rigid and satisfactory manner”. The National Electrical Code, however, which was incorporated by reference into the specifications, listed a number of ways in which such fittings should be secured. Wasatch requested defendant’s District Engineer to provide specific designs for such supports but that officer declined to furnish the plans, stating that plaintiffs had the obligation of doing whatever was necessary to accomplish a complete and satisfactory job. Thereupon, the subcontractor provided supports for the fixtures in a reasonable and economical manner consonant with the Code. The method used was approved by defendant’s resident engineer.

The Corps of Engineers Claims and Appeals Board decided that the specifications were sufficiently complete and that defendant had no duty to provide a design for the supports, as the National Electrical Code provided the contractor with a choice of reasonable and economical methods to achieve the desired objective. Plaintiffs assail the findings of the Board as erroneous and gratuitous on the grounds that they essentially involved a question of law. The commissioner determined that the Board’s findings were reasonable and were supported by substantial evidence. From a reading of the contract and specifications and a review of the relevant evidence, we conclude that defendant’s interpretation of the contract was correct and that no duty of design was imposed upon defendant. Therefore, plaintiffs are not entitled to recover on this claim.

CLAIM 3-AD OK RISK-SUTTON COMPANY

Claim 3-AD of Risk-Sutton Company, plaintiffs’ painting subcontractor, involves the allowability of certain costs allegedly incurred as a result of the substitution of two types of surfacing materials used on the project. One of these changes concerned the substitution of primer sealer for erroneously specified paint, and the other the substitution of a washable enamel paint for the water-base paint originally specified for interior surfaces of the boilerhouse. Disputes arose on both items as to the amount of extra costs incurred as a result of making the changes, and to establish support for its contentions, Bisk-Sutton engaged the services of two research laboratories, at a cost of $625, to determine the relative costs of application. On two or three occasions, however, defendant’s representatives rejected the subcontractor’s estimates of extra costs. Instead, the government had time and material studies made at its own expense in Pittsburgh, and the results of these tests were used as the basis for the ultimate settlement of the extra costs due to the primer sealer change. We have found that neither of the Bisk-Sutton laboratory reports contributed to the resolution of the dispute. The subcontractor is not entitled to recover the costs of the laboratory tests made for the purpose of preparing and presenting its claims to defendant’s representatives.

Bisk-Sutton also seeks to recover the travel expenses of one of its partners for several round trips from the firm’s headquarters in Los Angeles to the job site in Salt Lake City, and two round trips to San Francisco in connection with the above-mentioned laboratory tests, at a total cost of $1,160.45. Although the trips are alleged to have been made as a direct result of the disputes over the primer sealer and boilerhouse paint and because of other paint substitution problems, the evidence does not support the contention. The trips were not made solely in connection with the relevant disputes over changes in paint types. The record shows that they were made as part of the partner’s frequent and prolonged attendance on the job site in his regular supervision of the subcontract performance. Plaintiffs have not shown entitlement to any recovery on this claim in behalf of the subcontractor.

CLAIM 15-D OF RISK-SUTTON COMPANY

This claim was presented in behalf of Bisk-Sutton Company, the painting subcontractor, to recover extra costs alleged to have been incurred in repainting spaces due to the repair of plaster cracks in numerous rooms on the project. The issue involved is whether the plaster cracks occurred as a result of a defect in defendant’s design. After hearing the expert testimony adduced by both parties on the question, the trial commissioner found that the spalling and cracking of plaster was not caused by faulty design features of the project buildings. He also found that there was no substantial evidence to show the extent to which the painting subcontractor incurred extra costs in repainting surfaces where the allegedly faulty design cracks were repaired. After reviewing the record, we are satisfied that these findings are supported by the evidence and. have adopted them. Consequently, the claim is disallowed.

CLAIM 15-A OK PLAINTIFFS

This claim is for the reasonable costs expended by plaintiffs in providing temporary heat during the period from November 1951 through the following winter months.

The specifications required the contractor to provide at his own expense temporary heat to prevent injury to work or material through dampness or cold. In July 1951, plaintiffs’ project manager requested permission to use the main boiler plant and permanent heating facilities in all the buildings to supply temporary heat when needed during the following fall and winter months. The contracting officer granted plaintiffs’ request on the basis of their agreement to assume all expenses connected with such temporary heat.

We have found that plaintiffs did not incur the claimed expense as a result of unreasonable delays on the part of defendant and that plaintiffs agreed to pay for all costs in connection with the temporary heat used. Therefore, plaintiffs are not entitled to recover on this claim.

ITEMS 5 AND 8 OF CLAIM 6-AB, HICKMAN BROS., INC.

These two claims are parts of Claim 6-AB, which was presented to the Corps of Engineers Claims and Appeals Board.

The specifications provided for the installation of clay tile partitions in certain areas bnt authorized the contractor to use cinder block in lieu of tile. Plaintiffs elected to use cinder blocks in such areas. The specifications also provided that the plumbing fixtures were to be secured and fastened to the structural'walls by brass toggle or through bolts. When Hickman Bros., Inc., the plumbing and heating subcontractor, began running pipes to fixtures in areas where cinder blocks had been installed, the mortar between the blocks would not hold the bolts for hanging the plumbing fixtures. To meet this problem, plaintiffs installed a steel plate across the mortared areas and attached the plumbing fixtures to the plate. The trial commissioner found that the Corps of Engineers Claims and Appeals Board had denied the claim on the basis of a determination, supported by substantial evidence, that the extra costs were the direct consequence of the exercise by plaintiffs of their option to use cinder block instead of tile for the partition walls.

Item 8 of Claim 6-AB is a claim by the heating and plumbing subcontractor for extra labor and materials used in rerouting and relocating interior utility lines. The Corps of Engineers Claims and Appeals Board found that considerations of economy led Hickman Bros., Inc., to request approval of the rearrangement and relocation of the utility lines and that the subcontractors saved money thereby. Our trial commissioner has found that the Board’s determination on this matter is supported by substantial evidence.

Plaintiffs have not excepted to the commissioner’s findings regarding these claims and have not mentioned them in their brief. We have therefore adopted the commissioner’s findings, and it follows that the plaintiffs are not entitled to recover on these claims.

defendant’s counterclaim:

At a pretrial conference the parties stipulated that defendant’s counterclaim was abandoned and no proof in support thereof was presented. Accordingly, defendant’s counterclaim is dismissed.

The court having considered the evidence, the report of Trial Commissioner Eoald A. Hogenson, and the briefs and arguments of counsel, makes findings of fact as follows:

1. Plaintiffs Wunderlich Contracting Company, Curlett Construction Company, and Chas. H. Tompkins Company are and were respectively, Nebraska, California, and District of Columbia corporations, with their principal places of business respectively at Omaha, Nebraska; Long Beach, California; and Washington, D.C.

2. Under date of March 13, 1950, plaintiffs (as joint contractors and co-adventurers) and defendant (by and through its District Engineer, San Francisco District, Corps of Engineers, United States Army) executed Contract No. DA-04-203 ENG-187, by the terms of which plaintiffs agreed for the consideration of $7,898,000 to furnish all plant, labor, materials, and equipment (except some Government furnished materials and equipment not relevant to the issues in this case) and perform all work (except furnishing and installing elevators and dumbwaiters) for the construction of the Veterans Administration 500-bed neuro-psychiatric-tubercular hospital at Salt Lake City, Utah, in strict accordance with the pertinent specifications, plans, and drawings.

3. The contract required that plaintiffs commence within 30 days and complete the contract performance within 540 days after the date of receipt by plaintiffs of notice to proceed. Receipt by plaintiffs of such notice on April 28, 1950, fixed the original contract completion date as October 20, 1951.

Plaintiffs completed the contract performance on September 2, 1952, and were not assessed liquidated damages for delays, as they were granted extensions of time for the entire 318 days by which the actual performance time exceeded the original contract time, as hereinafter related.

4. Articles 2, 3, and 5 of the contract and Specification GC-11 provided as follows:

article 2. Specifications and drawings. — The contractor shall keep on the work a copy of the drawings and specifications and shall at all times give the contracting officer access thereto. Anything mentioned in the specifications and not shown on the drawings, or shown on the drawings and not mentioned in the specifications, shall be of like effect as if shown or mentioned in both. In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy in the figures, drawings, or specifications, the matter shall be immediately submitted to the contracting officer, without whose decision said discrepancy shall not be adjusted by the contractor, save only at his own risk and expense. The contracting officer shall furnish from time to time such detail drawings and other information as he may consider necessary, unless otherwise provided.

article 3. Changes. — The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered: Provided, however, That the contracting officer, if he determines that the facts justify such action, may receive and consider, and with the approval of the Secretary of the Army or his duly authorized representative, adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in Article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed.

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.

gc-,11 suspension OF work: The Contracting Officer may order the Contractor to suspend all or any part of the work for such period oí time as may be determined by him to be necessary or desirable for the convenience of the Government. Unless such suspension unreasonably delays the progress of the work and causes additional expense or loss to the Contractor, no increase in contract price will be allowed. In the case of suspension of all or any part of the work for an unreasonable length of time causing additional expense or loss, not due to the fault or negligence of the Contractor, the Contracting Officer shall make an equitable adjustment in the contract price and modify the contract accordingly.

5. Article 15 of the contract provided as follows:

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 subject to written appeal, by the Contractor within 30 days to the Head of the Department concerned or his duly authorized representative whose decision shall be final and conclusive upon the parties hereto. In the meantime the Contractor shall diligently proceed with the work as directed.

The term “his duly authorized representative” used in Article 15 was defined in Article 28 to mean “Chief of Engineers, U.S. Army, or an individual or Board designated by him.”

6. The hospital project, as designed and constructed, consisted of 14 buildings covering an area of 28 acres.

Building No. 1, designated as the Main Building, is one of many complex parts, and comprised about 35 to 40 percent of the overall contract work. It included the staff and administrative offices, chapel, out-patient department, clinical laboratories, research rooms, library, admission rooms, operating rooms, diagnostic rooms, physiotherapy rooms, hydrotherapy suites, occupational therapy units, X-ray and other diagnostic facilities, pharmacy, special diet kitchen, nursing units for disturbed patients, nursing units for medical and surgical care, nursing units for continued psychiatric treatment after observation, rooms for suicidal patients, morgue, storage areas, and mechanical equipment rooms.

Building No. 2, designated as the T.B.-N.P. Building, was a specialized building designed and constructed for the separate housing and treatment of patients with both tuberculosis and neuro-psychiatric disorders. This building required specialized rooms and equipment for maximum septic control and for the greater care required for patients with poor health tolerances.

Building No. 3 was specially designed and constructed for patients with violent and suicidal tendencies; Building No. 4 as the infirmary for mental patients with physical disabilities; Building No. 5 as the hospital kitchen; Building No. 6 as the boilerhouse and shop; Building No. 7 as the laundry; Building No. 8 as the recreation building; and Building No. 9 as a theatre. The balance of the 14 buildings were resident buildings for the staff.

PREPARATION OF PLANS AND SPECIFICATIONS

7. On December 16, 1946, the Corps of Engineers entered into a contract with the architectural firm of Ashton, Evans, Ware and McClenahan, for the preparation of the necessary reports, designs, drawings, specifications, and other documents for the pertinent hospital project. During the progress of the work, the firm's name was changed to Ashton, Evans, Brazier and McClenahan.

8. The design contract required that approval of studies, designs, plans, specifications, and estimates be obtained by defendant’s contracting officer through the office of Chief of Engineers when each of the following phases was reached.

Phase A provided for the site plan and small-scale single-line sketches showing the proposed -functional layout and arrangement of the buildings.

Phase B included the description of the type and quality of construction, materials, and equipment, and preparation of finish schedules.

Phase C involved the preparation of double-line drawings showing developed floor plans, floor and roof framing, typical wall section, and proposed floor-to-floor heights, site development plans, exterior utility layouts, and preliminary cost estimates.

Phase D involved the preparation of the final working drawings and specifications.

9. This hospital project was the largest high class construction venture ever undertaken in Salt Lake City, and the architect firm encountered serious problems in the performance of the design contract. There was no prototype of the proposed hospital in the United States, and no other neuro-psychiatric hospital in Salt Lake City. The architect partner assigned to supervise the design spent months studying hospital designs and modern hospital techniques before the start of the detailed drawing work. There were some 89 Veterans Administration hospital projects in some stage of design, and the new ideas of architects on these projects were passed on by Veterans Administration to the Corps of Engineers for dissemination among the various architects and engineers engaged in the overall program.

During World War II qualified draftsmen and engineers were absorbed into the armed services, and schools and colleges for lack of students could not supply replacements. During the post-war years, the severe shortage of qualified personnel was aggravated by the required retraining of previously qualified servicemen and the great demand for engineers and draftsmen in industry generally, as well as in the crash programs of the Veterans Administration.

As a result of these and other factors, the quality of design work in the early post-war years was not what is now to be expected in architectural, structural, mechanical, and other designs.

10. During the performance of the design contract, the design staff of the architect firm ranged from 4 to 70 men, and the Phase D or final drawings, over 500 in number, represented 40 man-years of work.

On the Phase D drawings, the architect firm employed a team of draftsmen and engineers for each of the main buildings, and a single team for a group of the smaller buildings, each headed by a job captain.

The mechanical and electrical plans were prepared respectively by qualified mechanical and electrical engineers, with the landscaping designed by a professor of landscape architecture at Utah State University, the roads and gutters designed by an experienced firm, and the color and finish schedules prepared by a qualified colorist.

11. During the preparation of the plans and specifications, the defendant by and through the offices of the District Engineer, Division Engineer, Chief of Engineers, and Veterans Administration, repeatedly reviewed submissions and resubmissions by the architect firm of the proposed contract drawings and specifications. Defendant’s comments, criticisms, corrections, and changes in design were numerous and detailed, sometimes conflicting at the various levels of review, and continuous to the extent that the architect firm was at times in doubt as to what defendant wanted, and it was necessary to arrange conferences with the Chief of Engineers at Washington, D.C., to obtain decision on points of difference.

12. The architect firm made final submission of Phase D or final working drawings by May 25, 1949.

The original submission of these drawings occurred between December 8 and 27, 1948, and thereafter the architect firm was allowed the tight period of 5 months to make the final submission. Between January 30 and February 6, 1949, a conference between various representatives of the architect firm and the defendant was held at Washington, D.C., to review the Phase D drawings. Shortly prior thereto, on January 18, 1949, the District Engineer had submitted his detailed written comments, and in turn the comments of the Division Engineer were prepared, with the review comments of the Chief of Engineers, issued on February 7, 1949. On March 18, 1949, the architect firm responded to these comments and pointed out the conflicts between the various levels of review in the Corps of Engineers.

At the time of the final submission of the Phase D drawings, the architect firm knew there were a substantial number of comments and criticisms which had not been resolved by corrections on the drawings, but proceeded with the submission in the time allowed.

Defendant, by and through the various offices of the Corps of Engineers, knew of the inadequacies and discrepancies in the Phase D drawings, neither made nor required corrections prior to bidding, but left such matters for handling as field problems in the construction of the project.

13. The Phase D drawings were variously grouped in the usual categories of architectural and landscaping, structural, mechanical (plumbing, heating and special piping) and electrical plans or designs. Coordination between these different categories of drawings is necessary to avoid as much as possible conflicts and interferences in the placing of materials and equipment in the construction work. In drawings for an ordinary house, 5 or 6 errors in plans could reasonably be expected, but in the pertinent complex hospital project, 2,000 errors would not be unreasonable. The probability of discrepancies in the pertinent drawings was increased due to the fact that the defendant was constantly requesting changes throughout the preparation of the plans and specifications, and the substantial efforts of the architect firm to coordinate the drawings were adversely affected.

INVITATION FOR BIDS

14. The hospital project was advertised for bids on December 16, 1949, and date for submission and opening of bids was February 16, 1950. On January 24 and 25, 1950, a pre-bid conference was held, as provided in the invitation for bids, at Salt Lake City, with the District Engineer presiding, and with various members of his staff, and two partners of the architect firm in attendance. Prospective bidders and material and equipment suppliers pointed out numerous discrepancies in the drawings, which were later corrected by addenda. Plaintiffs, though present, did not report any discrepancy. The local manager of the Associated General Contractors made a vigorous plea that the contract performance time not be limited to 540 days, and suggested that from the information received from contractors at his office, 800 days should be allowed.

15. Due to the need of the Veterans Administration for the facility, the invitation for bids specified the addition of a certain sum per excess calendar day to any bid which proposed a contract performance time in excess of 540 calendar days, and thus provided an advantage to any bidder who would propose performance in the basic time stated, or who minimized the excess days in his bid.

Plaintiffs’ bid was for performance in 540 days although they had requested defendant, prior to bidding, to fix the contract time for 730 days.

16. Nine bids were submitted and opened at the appointed time, with the prices ranging from plaintiffs’. low bid of $7,898,000 to the high bid of somewhat more than 9 million dollars, and with the performance time estimates ranging from 540 to 760 days. Five of the nine bidders proposed 600 days or more for the contract performance.

Performance in the contract time of 540 days could only have been accomplished under ideal conditions.

The average of the nine bid prices was the sum of $8,467,900. The defendant’s pre-bid estimate of reasonable costs of performance, without profit, was $8,417,500.

PERFORMANCE OF THE CONTRACT

17. Plaintiffs as a joint venture subcontracted about 80 percent of the contract work to some 57 subcontractors, of which 7 have claims presented in this case. The great bulk of the subcontract work was performed by California firms, most of which had not previously had experience in the Salt Lake City area.

Plaintiffs were all experienced and qualified construction contractors, although never having worked together before as a joint venture nor in the Salt Lake City area, and the subcontractors were experienced and qualified in their various types of subcontract work.

18. Plaintiffs commenced the contract performance about March 13, 1950, and completed on September 2, 1952, or 318 days in excess of the original contract time.

During the course of the contract performance, plaintiffs made numerous requests for extensions of time in the total amount of 1,075.75 days, and were granted the 318 days of experienced delays.

Of the 318 days allowed through 35 change orders, 8 days were for unusually severe weather, 30 days were for labor strikes, 45 days were f-or the extra work of construction of a four-car garage, 53 days for the extra work of providing additional laboratory facilities, 2 days for changing footing elevations in Buildings Nos. 4, 5 and 8, 17 days for substitution of primer sealer for paint otherwise specified in various areas, 10 days for revision of roads, sidewalks, landscaping, and outside utilities, and 153 days for miscellaneous changes.

19. The original contract price of $7,898,000 was increased by monetary allowances provided in most of the 35 change orders in the total sum of $298,563.27. By Change Order 36, issued after completion of the work and as a result of the allowance of various claims by the Corps of Engineers Claims and Appeals Board, plaintiffs were paid an additional $137,-232.37, which made the total additional payments amount to $435,795.64.

20. Plaintiffs’ performance of the contract was substantially affected by the Korean War which commenced in June 1950 and continued throughout the performance time, resulting in substantially increased costs due to rises in prices of materials and equipment and in wages of workmen, with plaintiffs’ bid having been based upon pre-war prices and wage scales in stabilized market conditions.

21. The Salt Lake City area had a relatively small and restricted labor market for skilled workers.

In the fall of 1950, and continuing through the spring of 1951, plaintiffs experienced severe shortages of brick masons, due generally to war projects and conditions and specifically to an emergency military construction project at nearby Hill Field. During this period, there were also serious shortages of carpenters, plumbers and terrazzo workers. Plaintiffs employed an expediter to find brick masons and other skilled labor, and advertised in newspapers throughout the country for such employees.

Plaintiffs requested extensions of the contract performance time in the total amount of 120 days on account of the delays caused by shortages of brick masons, plumbers, and carpenters. This request was not granted, as defendant’s contracting officer refused to recognize labor shortages as a valid justification for extensions under the contract provisions.

22. Plaintiffs repeatedly wrote letters to defendant’s contracting officer that they were experiencing increased costs and delays due to increased prices and wages and shortages of skilled workmen, all resulting from the Korean War, and advised that plaintiffs would present their claims against defendant for such increased costs when they could be determined.

Plaintiffs employed Colonel E. G. Thomas, retired Corps of Engineers contracting officer, to expedite procurement of materials, and to collect data for the purpose of establishing the effect of the Korean War upon plaintiffs’ costs. These claims were never filed by plaintiffs who concluded that there was no legal basis for allowance of them. These contemplated war claims, reflecting the best information plaintiffs had available as to such increased costs, totaled about $650,000.

28. Plaintiffs experienced difficulties in that its plastering subcontractor refused to work in several of the principal buildings at one time, as scheduled by plaintiffs, but insisted in the main upon working in one building at a time, which resulted in complaints by other subcontractors that the plastering subcontractor was delaying the scheduled performance of the work of succeeding trades. The effect of this conflict between subcontractors upon the overall progress of the work is not established by the evidence.

24. Despite the above-described difficulties, as well as the problems hereinafter mentioned, plaintiffs’ performance proceeded with reasonable expedition. The contract work was substantially complete by the end of May 1952, and thereafter plaintiffs and their subcontractors were occupied until September 2, 1952, with correction of punch list items, removal of temporary construction offices, general cleanup of the project, and maintenance of landscaping.

ERRORS, OMISSIONS, AND DISCREPANCIES IN PLANS AND DRAWINGS

25. As was or should have been anticipated by plaintiffs and defendant, there were many errors, omissions, and discrepancies in the plans and drawings. As demonstrated at the pre-bid conference, this condition was apparent to any competent person who examined them. The Corps of Engineers well knew of these circumstances, but decided that corrections would be made as a field condition because of the great need for the hospital facilities. Most of the errors, omissions, and discrepancies were discovered through advance review by both the joint venture and defendant's engineers and through preparation by plaintiffs of necessary shop drawings, but a substantial number thereof were discovered as the pertinent work was in progress. Most of the problems were solved on the site by defendant’s resident engineer. Design and architectural problems were submitted to the architect firm which had a liaison representative at the project site, with the assigned partner of the firm available at his Salt Lake City office to be called to the site by telephone. When the circumstances involved changes in criteria, such matters were referred to the District Engineer for decision. There was close and continuous cooperation between plaintiffs’ project manager and project engineer and defendant’s resident engineer and his staff of inspectors for structural work, mechanical work, electrical work, painting, outside utilities and other types of work.

26. As conceded by defendant, there is no dispute in this case as to the existence of many errors, omissions, and discrepancies in the plans and drawings. Puring the course of the contract performance, defendant issued some 467 memo-randa covering corrections of about 5,467 errors, omissions, and discrepancies, described as “changes” by plaintiffs in their petition and in the testimony of their witnesses. For example, plaintiffs describe as 18 changes, one direction of the defendant to change 18 doors from wood to metal. Plaintiffs counted in the total of 5,467, every correction or modification, no matter how often repeated.

27. Of the 5,467 corrections or modifications, 16 were items of deletion; 19 were substitutions proposed by plaintiffs and approved by defendant; 106 were matters covered by addenda issued prior to bidding; 98 were repeated items; 1,069 were items on which no costs were ever claimed by plaintiffs by submission of estimates or otherwise; 1,150 were items for which payments were made in the first 35 change orders issued by original aetion of defendant’s contracting officer; 2,251 were items included in claims allowed by the Corps of Engineers Claims and Appeals Board, payments for which were thereafter included in Change Order 36; and 758 were items in claims denied by the Board.

28. Plaintiffs from the outset kept records of the direct costs (extra labor, materials, and equipment) allegedly incurred on the 5,467 modifications, and as a matter of course prepared a series of 470 estimates for submission to defendant, each of which was based on the actual direct cost as applied to the pertinent unit price breakdown provided in the contract for the particular type of work involved.

Of plaintiffs’ 470 estimates, 30 were never submitted to defendant for one reason or another; 30 were submitted but canceled or withdrawn by plaintiffs; 37 were for additional work under consideration but not undertaken; 10 concerned items not claimed to be chargeable to defendant; 7 concerned items of deletions; 334 covered items included in the change orders, in which in most instances plaintiffs’ estimated prices were those paid; and 22 were ultimately denied in the administrative consideration of plaintiffs’ claims.

The change orders made a percentage allowance for overhead and profit, based on the direct costs. Neither plaintiffs’ estimates nor defendant’s change orders included any monetary allowances for alleged disruption of the work or alleged delays in performance ascribed to any or all of the 5,467 modifications.

Early in the contract performance, defendant’s resident engineer refused to entertain any estimate unless based only on direct costs of actual labor and materials, and defendant’s contracting officer acceded to plaintiffs’ proposal that claims for extra costs allegedly caused by confusion and delays resulting from numerous changes and corrections should be eliminated from the estimates and deferred for presentation and consideration at the conclusion of the construction.

29. Of the 5,467 corrections and modifications, the major categories were 416 changes in footing elevations for foundation walls and columns, 87 water table reeomputations, 1,658 items of furring of walls and ceilings and lowering of ceilings, 107 dimensional adjustments, 201 structural corrections, 209 changes or clarifications to duct work, 1,567 finish and color changes, 65 convector changes, and 338 door and door frame changes.

ROOTING ELEVATIONS

30. References on the contract drawings established the overall design requirement that the footing elevations for the foundation walls and columns be placed on a two-to-one stepping of the general slope of repose. This is a usual structural standard followed to prevent the overloading of a lower footing due to earth pressure generated from the load on a higher footing. These step footings (2 feet horizontally for each foot vertically) were necessary on the project buildings because of the slope of the terrain and the resulting general slope of the footings. Through the contract drawings there were some steps shown for foundation footings, but there were many omissions and also errors.

It was necessary for plaintiffs to design and place on the drawings omitted step footings for the foundations and correct erroneous ones, as well as to correct various column footings to conform to the established principle of design.

31. By counting each step in a footing as a change or modification, there were 416 footing changes, on 839 of which plaintiffs kept no record of extra costs and submitted no estimates therefor, and on the remaining 77 of which plaintiffs claimed and were paid extra direct costs (plus percentage allowance for overhead and profit) by various change orders.

82. The step footing problems occurred mainly on Buildings Nos. 1, and 3 through 5, but also to a lesser extent on Buildings Nos. 2, and 6 through 9.

In most instances, plaintiffs anticipated such problems in advance of actual excavation and proposed the corrections which were promptly approved by the defendant’s resident engineer. However, there were instances when the errors or omissions on step footings were discovered during or after excavation, and it was necessary for plaintiffs to transfer the pertinent crew to other available excavation and footing work, thereafter to be returned to correct the work where the error or omission had been discovered.

WATER TABLE ELEVATIONS

88. The water table on a foundation wall is the shelf-like indentation or angle on the exterior face at the top of the wall which permits the placing of the exterior face brick to commence on the foundation at a lower level than the inside masonry wall.

Due to the fact that brick sizes vary from one job to another, contractors make it a general practice to check the elevations and dimensions of water tables prior to the pouring of the foundation walls, in order that necessary adjustments can be made for the particular exterior brick to be used.

At the outset of the pouring of foundation walls, plaintiffs made no check of water table elevations and proceeded to pour about 500 lineal feet of the foundation for Building No. 1. Thereafter the brick mason subcontractor discovered that the water table elevation was too high for the face brick being supplied by the manufacturer, and it was necessary for plaintiffs by jackhammer to chip away some concrete and repair the water table. For this work, plaintiffs supplied an estimate and were paid by change order in the usual manner. After this experience, plaintiffs checked all elevations and dimensions of water tables prior to the pouring of concrete, and proposed corrections which were promptly approved by defendant’s resident engineer.

84. Adjustments of the water table elevations were made throughout the project.

Counting each step or different elevation of any water table as a change, there were 87 of such corrections, no extra costs being claimed by plaintiffs or paid by defendant on 86 of them.

The evidence does not establish that the overall contract performance was delayed by these corrections.

FURRING AND CEILING CHANGES

85. The contract drawings showed that generally throughout the project buildings the story height from finished floor to finished floor was 11 feet 6 inches, and that the vertical distance from finished floor to ceiling within a room was 9 feet 6 inches, thus allowing only 2 feet between the ceiling of a given room and the top of the finished floor of the room above.

Within this 2-foot vertical space, the designed structure was as follows: Proceeding down from the finished floor, there were 1.75 inches of floor finish and topping materials, 2.5 inches of concrete structural floor slab, 14 inches of space occupied by concrete floor joists, then an open space (except for vertical suspension wires) of 2% inches, with the remainder of the 2-foot space (or 2% inches) occupied by the necessary carrying channels and plastering materials comprising the ceiling of the room below. The overall structural design was such that the horizontal space between the concrete floor joists could not be utilized to place the various mechanical lines.

Thus, there was only the impossible space of 2% inches within which to place the necessary piping, heat ducts, and electrical conduits if such mechanical items were to be included (though not required) within the 2-foot space between the finished floor above and the ceiling below, with the alternatives being that such items would have to be suspended below the ceiling and enclosed in furring or false beams, or that the ceiling would have to be lowered, or both procedures employed.

80. The interior horizontal dimensions within each of the project .buildings were in the main extensively set forth on the architectural drawings, and any competent architect or construction engineer upon reviewing both the mechanical and architectural drawings could readily compute that the thicknesses of partitions between rooms and adjacent areas were such that complete enclosure of heat ducts and large piping within partitions would in most cases be impossible, and that in the construction work such mechanical items would either be left exposed, or have to be furred.

37. The architect firm in the preparation of the plans and drawings recognized the extensive ceiling furring problems arising from the criteria concerning story heights and ceiling heights, as outlined in finding 35, and requested the Office of the Corps of Engineers to consider lowering the ceilings or increasing the story heights, but was advised by that office that the ceiling furring matters should be left as field construction problems.

38. One of the architectural drawings showed typical details of project construction and contained detailed drawings both as to ceiling furring and wall furring showing enclosure of ducts, pipes, and other mechanical equipment in a false ceiling beam or false wall column or pilaster. This same drawing contained the following:

Note: Fur as necessary around all air conditioning and ventilating duct work, plumbing, steamfitting and miscellaneous services, piping, et cetera. No such utilities are to be left exposed.

With relatively few exceptions, the details with respect to location and sizes of furring beams and columns to enclose mechanical equipment in the various rooms of the project buildings were not set forth on the architectural or other contract drawings.

89. Early in the overall project work, shop drawings concerning placing of ventilating ducts were submitted to plaintiffs by a subcontractor, which showed that ducts coming out of a mechanical equipment room would have to cross each other, and this alerted plaintiffs’ project engineer to the problem of the extensive need for furring generally, and for the lowering of ceilings. He then organized what he called an interference committee comprised of the field superintendents of various subcontractors, such as those concerned with lathing, plumbing, electrical installation, heating, ventilating, masonry for partitions, and acoustical tile for ceilings. This committee met regularly and made up an extensive list of rooms in which conflicts between the various trades could be foreseen. Recommendations were then prepared and submitted to defendant’s resident engineer who with reasonable diligence approved or revised the corrections or clarifications to the contract drawings concerning false furred beams and lowering of ceilings.

Before the completion of the concrete pouring for the first floor of any building, plaintiffs discussed with defendant’s resident engineer the two problems of furring and lowering of ceilings and furring of partitions to enclose mechanical equipment.

Concerning vertical pipes and ducts, defendant’s resident engineer advised that they all had to be enclosed either by the widening of partitions or by furred pilasters. In general the mechanical workers installed their vertical piping and ducts, and thereafter, the masons (by widening some partitions) and lathers (by furring concurrently with lathing of the area) proceeded to enclose the mechanical lines with few interruptions in sequence of operations.

Plaintiffs objected to the interpretation by defendant’s resident engineer that it was a contract requirement that the mechanical service lines along the ceiling be furred. At a conference between plaintiffs’ project officers and defendant’s resident engineer and representatives from the Corps of Engineers District Office, plaintiffs were again advised that ceiling furring was a contract requirement, and that plaintiffs should proceed to lower ceilings, in each case the least possible, and install ceiling furring on the basis of their field decisions without any formal action, but plaintiffs declined to assume such responsibility. It was therefore agreed that plaintiffs would submit their recommendations to the defendant’s resident engineer through their interference committee. Decisions were promptly made by defendant’s resident engineer, mainly as approvals but with some revisions directed. The lowered ceilings and furred ceiling beams were in most instances installed in the regular construction operations, with relatively few disruptions to the overall sequence of operations.

In the bowling alley of the recreation building, there was a long concrete beam or girder running lengthwise in the center of the ceiling, as provided in the structural drawing but not shown on the architectural drawing. The walls and ceiling were finished with acoustical tile. During the course of construction and without interruption in sequence of operations, the necessary furring channels and acoustical tile were applied to the walls and ceiling including the materials applied to the sides and bottom of the girder, with the extra work on the finishing of the girder having been orally directed by the defendant's resident engineer.

The architectural drawings showed that furring was to be installed in the ceilings of patients’ shower rooms, but failed to specify how the side of the furred beams would be finished. The pertinent drawings were amended by adding a note to the effect that the vertical face of the furred-down ceiling would be finished the same as the adjacent wall.

40. Throughout Buildings Nos. 1 through 10, there were about 200 rooms in which ceilings were lowered, about 310 rooms in which ceiling furring was installed, and about 475 rooms in which wall furring was done.

There were 1,658 separate items of furred ceiling beams, furred wall pilasters, and lowering of ceilings. Various claims were made by plaintiffs for extra direct costs incurred for the lowering of ceilings and the furring generally. The Corps of Engineers Claims and Appeals Board sustained those claims (covering 932 items) concerning changes in ceiling elevations, thickening of partition walls to include piping and ducts, and also those items of furring not considered related to the contract drawing and furring note above-mentioned in finding 38. Thereafter, plaintiffs were on such sustained claims paid their direct costs, with percentage allowances for overhead and profit, by Change Order 36, but have pending before this court their claim for the remaining 726 furring items, as hereinafter related.

DIMENSIONAL CORRECTIONS

41. During the course of construction, plaintiffs discovered that certain dimensions on the architectural and structural drawings were incorrect, and upon plaintiffs’ submission of estimates or proposals for clarification, defendant’s resident engineer with reasonable diligence issued clarifying memo-randa. Of the total of 107 such items, most of which occurred in Building No. 1, but otherwise were scattered throughout the project, 103 concerned correction of dimensional data on the drawings, and 4 dimensional changes involved extra work for which plaintiffs claimed and were paid their direct costs by change orders.

Most of the dimensional errors were discovered and corrected in advance of the particular construction work involved, but in some few instances, crews had to be transferred to other work pending correction of such an error.

42. Most of the dimensional errors existed because the specified overall dimension of a building did not conform with the corresponding total of the successive interior distances, that is, from the outer face of the building to the first column center line, to each succeeding column center line, and to the outer face of the other end of the building. As required by the pertinent detailed drawing, the distances from column center line to column center line had to be changed to conform with the overall architectural dimension of the building. Thus, plaintiffs were required to check all structural drawings, and discovered the need for and proposed corrections of a substantial number of column center line to column center line distances.

43. Throughout the project buildings, plaintiffs encountered problems with respect to location of partitions between rooms in that in most instances the drawings did not provide the distance between a partition and some structural member, and it was necessary that partitions be located by plaintiffs by reference only to the specified room dimensions.

structural problems

44. There were about 201 errors, omissions, or discrepancies with respect to structural members such as columns or beams, most of which existed in Building No. 1 but were otherwise scattered throughout the project.

Most of these items were discovered by plaintiffs in the course of the layout of work to be done, and plaintiffs’ requested corrections were promptly approved by defendant’s resident engineer after consultation with the liaison representative or partner of the architect firm. In some few instances, errors in beams were discovered during construction work, and the crew had to be transferred to another area until the correction was requested and approved.

Of the 201 structural items, plaintiffs claimed no extra costs on 79 because they related only to the supplying or correction of information. There were 122 items on which plaintiffs requested and were paid their direct costs for extra work by change orders, and this extra work in the main was comprised of changes in the sizes of columns and addition of necessary beams missing on the contract drawings.

45. An illustration of a structural problem arising from lack of coordination between architectural and structural drawings was that there was shown architecturally that there was a difference of 1 foot between the floor elevation of the nave and the remaining part of the chapel, whereas the structural beam design made no allowance for this difference. In the layout of this work, plaintiffs discovered this discrepancy, and requested and obtained approval of the necessary modification of beams to provide the 1-foot step in floor elevation.

Also, certain beams and bents in the chapel were shown structurally to be larger in size and shape than permitted by architectural dimensions, and the necessary modifications were requested and approved.

Another example of a structural problem is that on the first floor framing plan for Building No. 8, there was no structural design shown to support the floor where it crossed the tunnel, there being several tunnels on the project to connect major buildings, with this problem repeated in several buildings. Plaintiffs were required to design for submission and approval the necessary beam details to provide support for the floor over the tunnel.

At one place on the outside brick face of Building No. 1, the architectural drawings showed a slight recess in the brick facing, but the corresponding structural drawing showed no such recess in the foundation wall, and it was necessary for plaintiffs to propose and obtain approval from defendant’s resident engineer of the reduction of the thickness of the foundation wall from 12 to 7 inches along the recess area, the purpose being to coordinate the foundation with the recessed brick facing and still maintain the specified interior dimensions.

The contract drawings failed to show any specific method of supporting the outside cast stone facing of bay windows, an architectural feature of most of the large buildings of the project. This structural support had to be designed and added to the drawings. Discrepancies between structural and architectural drawings also required redesign of the radius of beams in one tier of bay windows for five floors in order to accomplish the architectural plan.

At one location on the first floor structural plan where flat-slab construction was erroneously specified, apparently because a concrete wall was incorrectly considered to be structural, the Corps of Engineers substituted the pan-joist construction which was the typical type of floor construction on the project.

Corrections of the contract drawings were also required to clarify the discrepancy between structural and architectural drawings as to the location of a circular stairway, to provide in one stairwell windows shown architecturally but missing on structural drawings, and to correlate conflicting information on the architectural and structural drawings concerning elevator shafts and stairwells throughout the project.

duct opening corrections

46. Because of lack of coordination between the mechanical drawings and the structural drawings, there were about 209 instances in which the opening or hole through the structural floor slab was not large enough (as specified on the pertinent structural drawing) to accommodate the insertion of the specified size of heating duct. These openings had to be provided by sleeving of the concrete, and such sleeves were placed by the mechanical subcontractor prior to the pouring of concrete for the particular floor slab.

In laying out the work of framing for the pouring of the first floor slab on the project, the subcontractor on the heating and ventilating work discovered some of these errors as to the size of openings, and it was necessary for plaintiffs and their subcontractor to review all of the mechanical and structural drawings and propose the corrections which were approved by defendant’s resident engineer with reasonable diligence by memoranda on August 19,1950, with oral revisions having been given prior to that date in instances where the work was in progress. Nearly all of these corrections were accomplished prior to the time for placing of the sleeving for the required duct openings. These errors on the structural drawings were scattered throughout all buildings. In some instances where concrete had already been poured on the first floor slabs of Buildings Nos. 1 and 4, plaintiffs had to enlarge some openings by use of a jackhammer, and then repair the concrete opening, for which they were paid their extra direct costs.

CONVECTOR CHANGES

47. Of the 65 convector changes, some involved relocation of convectors, such as several instances where the specified location was behind a piece of laboratory equipment, others concerned substitutions of smaller sized convectors where the large type specified would not fit into the space designated on the plans, and still others concerned necessary changes in the type of ceramic tile constituting the window stool, or inside sill in some rooms, in order that the exhaust grill of the convector could function by releasing heat through the stool into the room.

Plaintiffs were paid their extra direct costs, with percentage allowances for overhead and profit, on all of the foregoing convector changes, and these corrections were in the main either made promptly by field decision while the work in the pertinent area was in progress or anticipated in advance and corrected before the pertinent work commenced.

48. There were some instances in which the window above the required convector was located close to or adjacent to structural concrete, such as a concrete column, and there was insufficient space or clearance for the placing of the subframe to which the convector front was installed. In some cases this difficulty was not discovered until the inside masonry work in the area had been completed, and it was necessary to have brick masons return and modify masonry in order that the convector could be installed.

49. The contract drawings made no provision for an ending strip for plaster along the vertical edges of the removable convector fronts. The standard practice in such a situation is to install a bead or metal strip to provide a firm ending for plaster. After lathers had proceeded with their work through a portion of the project, this omission was discovered, and it was necessary to obtain a revision of the contract to add a vertical bead on each side of the convector front, after which the lathers returned to the areas of their completed work to make such installations.

DOOR AND DOOR FRAME MODIFICATIONS

50. Of the 338 door and door frame modifications, 18 were changes of that many doors from wood to metal. Plaintiffs had submitted at defendant’s request estimates of extra costs to change 78 wooden doors to metal, being both the exterior and interior doors in stairwells. The final decision by the Corps of Engineers was to change only the 18 interior doors, with the exterior ones to remain wood. Pending this decision, the masonry work was in progress on the first floor of Building No. 1, and at the locations of 14 exterior doors, it was necessary to leave masonry work incomplete for the later installation of the wider door frames required if metal doors were ordered. Thereafter the masons had to return to brick in the door frames at these 14 locations. Plaintiffs requested and were paid their costs for the return of the masons to these entrances and also their direct costs plus percentage allowances for overhead and profit on substitution of the 18 interior metal doors.

51. Most of the other door and door frame modifications concerned changes either in the sizes and types of doors, or changes in types of door frames in order that each door frame would be as wide in its jamb direction as the finished partition in which it was located. The corrections of door frames were made necessary by the lack of coordination to the extent of the required changes in the contract drawings between the specified type of door frame (having a particular jamb width) with the thickness of the involved partition. The partitions varied in thickness because of the variations in their finishes, such as plaster, glazed tile, terrazzo bases, glazed wainscoting. To some extent, widening of partitions to enclose vertical mechanical lines, wall furring, relocation of mechanical equipment, and corrections of errors and discrepancies as to wall finishes required changes in size or location of door frames.

52. Most of the door and door frame changes were requested and approved prior to commencement of the pertinent work, with oral revisions being usually directed by defendant’s resident engineer when required corrections were discovered during work progress, but in some instances there were disruptions of the related operations and necessary reassignment of crews to other available work.

Plaintiffs were paid their direct costs, with percentage allowances for overhead and profit, on the door and door frame changes.

FINISH AND COLOR SCHEDULES

58. The types of finish and.color combinations for each of the 2,000 rooms and other spaces, such as corridors, lobbies, etc., on the project were provided by complex finish schedule on two sheets of architectural drawings, and by a complex color schedule on one architectural drawing.

On each of such schedules, key numbers as to various color and finish combinations were listed under column headings for the various surfaces of a room, such as floor, wall base, wainscot, wall, ceiling, doors, windows, etc., by type, grade, and color of the finish materials or paint so specified.

In turn, each architectural drawing of floor areas of rooms contained for each room key numbers for colors and finishes in a block, which numbers were found under the various column headings of the color and finish schedules.

54. In his written comments, dated January 18,1949, on the first submission by the architect firm of the final contract drawings, the District Engineer suggested that a master list of rooms, with numbers and identification, be prepared, to add considerably to the clarity of the plans, but no such list was presented in the final submission in May 1949, or thereafter.

On March 21, 1950, the District Engineer by letter advised the defendant’s resident engineer that review of the contract color and finish schedules showed there were still many discrepancies, stated that there were instances in which both glazed tile and painting were specified for the same space, requested consultation with the contractor and complete review of such schedules, and suggested that the architect firm would undoubtedly want to review such schedules and make the necessary corrections.

55. By written memoranda dated June 23, July 10 and 20, August 14, September 8 and 25, 1950, well in advance of the stage of construction requiring installation of interior finish or paint in any of the buildings, the defendant’s resident engineer ordered the necessary changes, additions or corrections to the finish and color schedules, with most changes made by the memorandum dated June 23, 1950.

There were about 206 rooms affected in greater or lesser degrees by these memoranda.

On February 21, 1951, a tabulation of all changes, corrections, additions or deletions directed by preceding memoranda, as well as the pre-bid addenda to the invitation, was issued in a comprehensive memorandum purporting to gather together and collate all finish and color information. However, further explanatory, corrective or clarifying memoranda on finish and color were issued March 10 and 13, 1951, with some minor revisions to painting on July 6, 1951. In many, if not most cases, color and finish corrections were orally given to plaintiffs by defendant’s resident engineer and later confirmed by the memoranda.

56. There were 1,537 corrections, clarifications, deletions and changes to the finish and color schedules.

The finish and color schedules concerned the performance by subcontractors on such work as asphalt tile flooring, lathing and plastering, ceramic wall tile, acoustical ceiling tile, and painting.

While the use of the complex finish and color schedules, rather than a room-by-room listing of such matters, and the coordination of the 1,537 changes, seriously burdened supervisory personnel in the layout of the work of the various trades, the evidence does not establish that there were substantial disruptions to the actual work involved, nor that such changes caused any overall delay in the contract performance.

Disruption of the finish work in the main lobby of Building No. 1 occurred when the lathing subcontractor during lathing operations in that area discovered a discrepancy concerning location of an inside canopy with respect to the lowered ceiling level, and it was necessary for the lathers to stop such work and be transferred to another area pending approval of the canopy adjustment. Relocation of the light fixtures in this lobby was required because of insufficient space between the ceiling and structural framing.

Redesign of the installation of the wood flooring of the gymnasium was required to provide an expansion joint around the perimeter of the wood flooring where the adjacent floor materials were glazed masonry on concrete. This was accomplished prior to construction of the masonry walls.

MISCELLANEOUS CHANGES

57. In addition to the foregoing general categories, there were a substantial number of miscellaneous changes, corrections, and clarifications, most of which are hereinafter described in findings 58 through 74.

58. At the outset of plaintiffs’ activities on the site, prior to notice to proceed, plaintiffs’ survey crew, in attempting to establish excavation elevations, discovered that the bench mark elevation on the contract drawings was erroneous. This survey work was delayed for 2 or 3 days until the architect firm and its surveying engineer determined that the erroneous bench mark elevation had been based on a previously disturbed marker, and a corrected elevation was provided.

59. There were a substantial number of corrections of errors and omissions as to grade elevations of trenches for outside utility lines, as hereinafter related in findings concerning the claim of subcontractor E. C. Losch Company.

60. There were clarifications and corrections due to errors and omissions on the contract drawings regarding road locations and grades, with resulting corrections to sidewalks and raising and lowering of the elevations of fire hydrants as required by changes in road grades. An access road was relocated when plaintiffs’ road construction crew discovered in excavating that a municipal pipeline crossing such road would be at a higher elevation than the specified finish grade of the road. The contract drawing showed the existence of such line but not its elevation.

61. A 12-inch water supply line was constructed 10 feet to the east of its specified location, this revision being required because of omission of information from the contract plan.

62. Revisions of two catch basins leading to underground storm sewers were made upon defendant’s request for change in type.

68. Clarification of tunnel plans at various locations where tunnels passed under project roads was required due to discrepancies between contract drawings as to the' reinforcing structure of the tunnels at the road locations. Also, the cross-section drawing of a pipe tunnel showed three pipes, but the piping plans only required two pipes, and defendant’s resident engineer directed deletion of the third pipe as not required. In this same pipe tunnel, revision of plans was made to increase the head room by adding concrete curbs to raise the pipe-carrying section.

64. Discrepancies between large detailed drawings and floor plans concerning small toilet rooms required a considerable number of clarifications of plans.

65. When plaintiffs’ survey crew was laying out the northeast wing of Building No. 1, discovery of a manhole revealed the presence of an old sewer line in conflict with the specified foundations and footings in that area, and it was necessary to defer excavation for that part of the building until defendant’s resident engineer issued a revised drawing showing relocation of the sewer line.

66. The plumbing specifications erroneously required a concealed type of thermostatic valve, but the architectural drawings showed an exposed type installed in control cabinets. When the clarification was issued for use of the exposed type, masonry had already been constructed in some areas for the concealed type, and it was necessary to return masons to cut out masonry work for the installation of the control cabinets.

67. The plans for Building No. 1 provided expansion joints between the different wings and portions, with such joints filled with a mastic material. Plaintiffs installed in the joints a black mastic material proposed by them and approved by defendant’s resident engineer, after which the heat of the sun caused the mastic material to ooze out from behind the cover plates of each expansion joint and flow down the outside brick walls for the full height of the building. Plaintiffs thereafter had to remove all of the cover plates, steam out the mastic filler from the joints, and clean the black stains from the exterior brick facing by steam jetting and sand blasting.

68. The specified pan-joist construction resulted in each of the floor slabs and its reinforced joists being poured as a monolithic whole; This situation caused a dispute to arise between plaintiffs and defendant’s contracting officer concerning the meaning of a contract specification which stated that corridor and pipe space walls were to be built “from the floor to the underside of floor construction above.” Plaintiffs contended that they were required to construct such walls only as high as the plane running beneath the bottoms of the floor joists, whereas defendant’s contracting officer required such walls to be built (in accordance with his interpretation) to make actual contact and closure with the floor slab surfaces between the joists in each of the pertinent pan-joist areas.

Plantiffs’ contention was eventually sustained by the Corps of Engineers Claims and Appeals Board, and they were paid their extra direct costs of labor and materials for the added height of these walls.

The order requiring closure of these walls was made by defendant’s contracting officer on June 12, 1951, at a time when most of such walls had been constructed to floor joist height, and it was necessary that brick masons be returned to complete the partition construction in 2,200 pan-joist areas, mostly along corridors.

69. In one wing of Building No. 1, there were some instances of conflicts between the architectural and structural plans concerning location of floor drains, and it was necessary to modify the framing plan to drop the pan lower and thus thicken the floor slab in some places in order that floor drains could be installed as required between joists rather than through them.

76. Because of discrepancies in the plans and the omission of information concerning type of construction, it was necessary for the penthouse on Building No. 8 to be redesigned to clarify the location of windows, provide for wooden framing with brick veneer exterior and wooden roof structure, a type of construction not previously specified, and not typical to this or the other large buildings of the project.

71. Building No. 9, the theatre building, required numerous revisions to the plans concerning supplying and correcting of elevations for footings and foundations, corrections of structural dimensions, revisions of the proscenium wall and of doors to comply with fire prevention standards, and general clarification of construction details required because of omissions from the plans. The revisions were supplied to plaintiffs by a substantial number of successive memoranda from defendant’s resident engineer. Because plaintiffs’ project officers deemed the redesign of this building confused, plaintiffs dropped this building out of their construction schedule in the fall of 1950 and did not resume work thereon until the spring of 1951, when they were required to expedite operations in order that this building would be ready for the various trades to perform their work in an orderly manner.

72. As required by the heating and plumbing plans, the ventilating ducts had dampers to control air flow, and the plumbing pipes had valves to control water supply, and these dampers and valves were installed above ceilings with access panels required. The architectural plans showed neither the existence nor location of such panels, but in such a large construction project, placing of access panels is dependent upon decisions by mechanical subcontractors as to the location of such dampers and valves. Throughout Buildings Nos. 1, 2, 3 and 13, the plumbing or heating man would tag where a panel should be installed, and thereafter plaintiffs installed a panel at each damper or valve location. Plaintiffs’ direct costs for the access panels were paid for by change order.

73. As proposed by plaintiffs and approved by defendant’s resident engineer, plaintiffs substituted an adjustable anchor bolt in lieu of the fixed anchor bolt specified to hold the required anchor iron to support the face brick adjacent to the spandrel beams. This substitution of bolts, which eliminated the serious difficulties in brick construction which would have been caused by use of fixed bolts, was made on every building at every floor at the head of every window.

74. There were a number of changes in location or types of electrical fixtures, wall cabinet sinks, mirrors, medicine cabinets, bathroom accessories, insect screens and other equipment, on which plaintiffs were paid for any extra direct costs incurred and claimed.

CLAIM 1 AND ALTERNATIVES

75.Claim 1 of plaintiffs’ petition is an overall claim by which plaintiffs as a joint venture seek to recover for themselves and for each of various subcontractors the difference between experienced costs and income on the contract performance, plus percentage allowances on experienced costs for overhead and profit, as'the overall damages of the joint venture and each of such subcontractors, allegedly caused by defendant’s claimed breach of contract, or as the alleged reasonable amounts of recovery of such claimants on a quantum meruit basis on claimed entitlement to reformation of the contract.

Included under Claim 1 are the respective claims of the joint venture and certain of its subcontractors, hereinafter designated individually by appropriate headings.

The claims for extra costs of subcontractors Lauren Burt Company and Wasatch Cache Electric Company (the latter being Claim 18-A) are separate and not in the alternative to Claim 1, as these subcontractors have not asserted any claim on the theory of entitlement to the difference between experienced costs and income.

Claims 3-AD, 15-D, 15-A, and 6-AB (Items 5 and 8) are in the alternative to Claim 1, as they involve alleged extra costs included within those covered by the claimed entitlement of the joint venture and/or a subcontractor under Claim 1 to all costs in excess of income.

The numbering of the claims is the same as that used in the proceedings before the Corps of Engineers Claims and Appeals Board.

plaintiffs’ claim i

76. In addition to the overall supervision and correlation of the performance of the work of their many subcontractors, plaintiffs directly performed the work of general layout of the project, excavation and framing for footings and foundations, pouring of concrete structures of the large buildings, completion of the masonry work abandoned by the mason subcontractor, and among other things, general cleanup of the project.

77. Plaintiffs' total costs, including all amounts paid by them to their various subcontractors as well as their costs otherwise on the contract performance, were in the sum of $9,454,301.13, including reasonable allocation of overhead, on which a reasonable profit allowance would be 5 percent, or $472,715.06, for the total sum of $9,927,016.19. Plaintiffs’ total income on the contract performance included $8,333,795.34 received from the defendant, and $98,149.70 in other income for a total sum of $8,431,945.04. Thus the amount claimed by plaintiffs in behalf of the joint venture on Claim 1 is the sum of $1,495,071.15.

The general testimony of the principal agents of the joint venture, unrebutted by the defendant, is that all of plaintiffs’ total costs were reasonably necessary to accomplish the contract performance under all of the circumstances encountered. There is no evidence of any wasteful or unnecessary expenditure, although it is clear that the costs of performance were greatly increased by the price and wage increases incident to the Korean War.

78. By comparison of plaintiffs’ bid estimates with their recorded costs of performance, the major losses of plaintiffs as a joint venture were incurred on the following items of contract work, with each amount in the table including principally labor and materials, but with some other costs:

The detailed figures supporting the foregoing summary show that the actual costs of labor and materials greatly exceeded the estimated costs, but no attempt was made by plaintiffs to show in evidence the extent to which these or other losses were caused by disruptions in operations, apparently because plaintiffs claim entitlement to all of their excess costs, irrespective of the extent to which they were caused by war conditions.

CLAIM 1 OF HICKMAN BROS., INC.

79. Hickman Bros., Inc., entered into a subcontract with plaintiffs on March 31, 1950, by which this subcontractor agreed to furnish and install all meehancial equipment including plumbing, heating, ventilating and certain other utilities on the project for a total consideration of $1,484,500. This subcontractor had had no previous experience in the Salt Lake City area, but had for many years performed similar work on large construction projects.

Hickman subcontracted the outside utilities and also the interior systems for air conditioning, heating, and refrigeration, but in the main performed the work on the interior systems for water, sewer, and steam.

80. The mechanical drawings, in accordance with the prevailing custom in the building construction industry, were diagrammatic, that is, single-line drawings which did not purport to reflect interferences, obstacles, or detailed routing of the various systems, but showed only the approximate location of piping in a particular area. Thus, the precise locations of pipes and vents were left for determination as job conditions developed, as was customary in the industry.

81. In the performance of the installation in the various project buildings of the sewer and water lines, Hickman encountered structural interferences requiring routing of pipe around structural beams, rerouting of pipes previously installed because some plumbing fixtures were located on the architectural drawings directly in conflict with structural beams, and problems concerning installation of pipes in the limited space provided in connection with furred beams and pilasters and lowered ceilings.

For its extra direct costs incurred in the correction of interferences and discrepancies, this subcontractor was paid by change order.

82. The total costs of Hickman Bros., Inc., in the performance of its subcontract, including amounts paid to its subcontractors as well as its own costs of performance otherwise, were in the sum of $1,841,003.52, on which a reasonable allowance for overhead would be 10 percent, or $184,100.35, and a reasonable allowance for profit would be 5 percent, or $101,-255.19, for the total sum of $2,126,359.06. The total income of Hickman Bros., Inc., was the sum of $1,608,793.49. Thus, this subcontractor’s claim under Claim 1 amounts to the sum of $517,565.57. '

The costs of this subcontractor were also substantially increased by the Korean War price and wage increases.

88. Hickman Bros., Inc., began to experience severe financial difficulties in 1951, and by February 1952, it was necessary for its surety company to take over the completion of the subcontract performance.

In addition to the items set forth in finding 82, the claim of this subcontractor under Claim 1 includes further amounts of so-called “hardship claims” of Hickman subcontractors and also claimed expenses of the surety company, on which there is no substantial evidence to support any finding.

CLAIM 1 OP RISK-SUTTON COMPANY

84. Risk-Sutton Company, a partnership, was plaintiffs’ painting subcontractor on both interior and exterior work on the project.

As previously stated in findings 53 through 58, there were numerous corrections, clarifications, deletions, and changes to the finish and color schedules set forth in the contract drawings. In connection with the issuance by defendant of the various memoranda concerning revision of such schedules, there was a total of 480 painting spaces throughout the entire project, on which there were color revisions. Of these, 177 spaces were affected by the June 23,1950, revision. By September 25,1950, 12 additional spaces were revised, and 241 more spaces were changed in connection with the overall revision by the architect firm of the finish and color schedules on February 21, 1951, these latter changes being made in connection with finish revisions to produce harmonious effects in accordance with the design objective to provide color therapy for mental patients. Up to July 6, 1951, there were minor revisions affecting 47 additional spaces, with 3 spaces changed shortly after September 18, 1951.

85. By reason of the changes, more expensive paints were required in a substantial number of areas, for which extra costs defendant made payment by change orders.

The paint was first delivered to the project site in July 1951, at which time priming work started, with the first painting not commenced until September 18, 1951. Painting was concluded in July or August 1952, with punch list work continuing until September.

86. Two changes were instigated by the painting subcontractor through plaintiffs, and defendant paid the extra costs by change orders.

One concerned the substitution of primer sealer for erroneously specified paint as a first coat on plastered walls. The painting subcontractor in purchasing materials assumed that primer sealer was required for such surfaces and had the same delivered to the job site. However, the bid estimates of this subcontractor were based on the less expensive specified first coat of paint. In October 1951, one of the partners of the painting firm discovered the supply of primer sealer on the job, noted the error in the specifications, and instituted a request for the revision through plaintiffs. In this connection defendant allowed an extension by 17 days of the overall contract performance time.

The other change requested by the subcontractor was the substitution of a washable paint for the water-base paint originally specified for interior surfaces of the boilerhouse.

87. The total costs of Risk-Sutton Company in the performance of its subcontract amounted to $159,279.03, on which a reasonable allowance for overhead would be 10 percent, or $15,927.90, and a reasonable allowance for profit would be 5 percent, or $8,760.35, for the total sum of $183,967.28. The total income of this subcontractor from the subcontract was the sum of $128,308.72. Thus, this subcontractor’s claim under Claim 1 amounts to the gross sum of $55,658.56, from which this subcontractor allows a deduction of $9,261.83 for an unexplained item in its audit statement, for the net amount of $46,396.73.

The costs of this subcontractor were also substantially increased by the Korean War price and wage increases.

CLAIM 1 OP L. D. REEDER COMPANY

88. L. D. Reeder Company was the subcontractor for the furnishing and installation of acoustical tile or metal pans as the finish for about half of the ceilings on the project. While not having performed work in the Salt Lake City area, it had had several years of experience in such work on large construction projects.

In preparing its bid estimates, this subcontractor used the architectural, structural, and mechanical drawings, and also the finish and color schedules.

After being awarded the subcontract, Reeder proceeded to lay out its plans for the work, and discovered that there were conflicts and discrepancies between the specifications and finish schedules with respect to whether acoustical tile or metal pans would be installed as the finish for ceilings in various rooms, especially the rooms in various nursing units.

After having its request refused that plaintiffs supply a schedule as to where acoustical tile or metal pans were to be installed, Reeder prepared and submitted its own schedule to the architect firm and to defendant’s resident engineer, and both approved and returned the same to the subcontractor as a basis for performing the work.

The work thereafter proceeded and was completed in accordance with such approved schedule. However, on March 6, 1952, shortly after a conference between the subcontractor, plaintiffs, and defendant, defendant’s resident engineer directed removal of acoustical tile and'replacement with metal pans in the ceilings of 12 rooms in Building No. 3 at no additional cost to defendant, and Reeder complied. The defendant’s resident engineer further directed that the acoustical ceilings installed in 7 rooms in Building No. 2,4 rooms in Building No. 3, and 22 rooms in Building No. 4, would not be disturbed, but that defendant was to receive credit for difference in cost between metal pan and acoustical tile installation. For the ceilings in 3 additional rooms in Building No. 4, apparently yet to be installed, it was stated that acoustical tile could be installed without any additional cost.

89. During the subcontract performance, Reeder was required in three buildings to install acoustical tile on the sides and bottoms of furred ceiling beams in rooms otherwise having acoustical tile ceilings, and this subcontractor eventually was paid its extra direct costs therefor, by change order issued by defendant.

At the Board proceedings, Reeder abandoned its claim for replacement of acoustical tile with metal pans on the 12 pertinent ceilings in consideration of defendant’s agreement to concede liability on Reeder’s claim for installation of acoustical tile on furred ceiling beams. The abandoned claim was in the sum of $8,137.50 for total direct costs.

The disruption of this subcontractor’s performance consisted of the necessary bypassing of a number of rooms because of unresolved problems concerning lowering of ceilings and furred ceiling beams, with the later return of workmen and equipment to complete any bypassed area. In some instances, this subcontractor moved its workmen from one building to another and back again because of the bypassing of rooms, all of which created difficulties in the handling of scaffolding and materials.

00. The total costs of L. D. Reeder Company in the performance of its subcontract amounted to $148,784.16, on which a reasonable allowance for overhead would be 10 percent, or $14,878.42, and a reasonable allowance for profit would be 5 percent, or $8,183.13, for a total sum of $171,845.71. The total income of this subcontractor from the subcontract was the sum of $128,423. Thus, this subcontractor’s claim under Claim 1 amounts to the sum of $43,422.71.

The costs of this subcontractor were also substantially increased by the Korean War price and wage increases.

CLAIM 1 OR JUSTICE-DUNN COMPANY

91. Justice-Dunn Company, a partnership, was the landscaping subcontractor on the project. This firm had been in business since 1948, and had had no previous experience in the Salt Lake City area, but had a superintendent with extensive experience on large landscaping jobs.

In January 1952, this subcontractor’s superintendent first went to the project site and conferred with plaintiffs’ project officers, and on the basis of the specifications, then proceeded to order the specified shrubs, trees, peat moss, fertilizer and the required lawn seed.

The landscaping started in April 1952, the earliest reasonable time in the calendar year on a large project in the Salt Lake City area from the standpoint of weather and ground conditions, as were the circumstances in 1952. The planting of trees and shrubs was completed by May 1952, and the seeding of all lawn areas accomplished by July 5, 1952, by which time all landscaping work had been completed, except that Justice-Dunn was required -by the specifications to maintain and did maintain the landscaping until the entire project was accepted by defendant in September 1952. This subcontractor had planned to complete its entire performance within 3 months, but somewhat more than 5 months were required.

92» The ideal procedure in landscaping a large project is to complete the cultivation of soil and all planting (shrubs, trees, and lawn seed) in a particular area, and then proceed successively in the same manner from area to area throughout the project. Each area is circumscribed by the existence of buildings, roads, sidewalks, parking areas, and the water facilities afforded by the design of the overall sprinkling system.

The landscaping subcontractor necessarily had to proceed on the project in accordance with conditions as they were, not in accordance with some ideal plan. Consequently, due to construction activities in and about several buildings, the landscaping crew had-to move from one area to a non-adjacent area throughout the work, in some areas planting only shrubs and trees, and leaving the seeding for subsequent accomplishment when traffic in the area had ceased. In one area planting of seed had to be postponed until an adequate water supply was provided through the area sprinkling system. Some cultivated areas had to be repaired after traffic had damaged them. The watering program, was complicated by the bypassing of areas in the overall landscaping work, and by the postponement of lawn seeding in some areas where trees and shrubs had been planted.

The only project change ordered by the defendant after the commencement of the landscaping work concerned providing some additional parking facilities, and the specific effect of this modification on the landscaping is not shown in evidence.

93. The total costs of Justice-Dunn Company in the performance of its subcontract amounted to $52,206.14, on which a reasonable allowance for overhead' would be 9 percent, or $4,698.55, and a reasonable allowance for profit would be 5 percent, or $2,845.23, for a total sum of $59,749.92. The total income of this subcontractor from the subcontract was the sum of $47,457.86. Thus, this subcontractor’s claim amounts to the sum of $12,292.06.

The costs of this subcontractor were also substantially increased by the Korean War price and wage increases.

CLAIM 1 OP E. C. LOSCH COMPANY

94. E. C. Losch Company was the subcontractor (under Hickman Bros., Inc.,) for the outside utilities, including storm drains, sanitary sewers, water lines, and gas lines.

After the site grading has been performed by the grading subcontractor, the ideal order of performance of outside utility work of the type required on this project was as follows: First, the various sewer lines are completely installed, since they are deeper in the ground than other utility lines; second, the storm drain system is installed; third, the water lines are completed; and fourth, the gas lines are installed. On this project, this subcontractor was required to depart from the ideal procedure and first install a large part of the water system in order that water could be supplied to the prime contractor for testing and construction purposes, apparently because no other reasonable source of water was available. The rough grading was not completed when Losch commenced excavating trenches for water lines, and it was necessary in some places to excavate as deep as 9 or 10 feet, whereas only 3 feet would have been required had grading been completed.

95. The contract plans and drawings contained a substantial number of errors and omissions with respect to the grades and elevations of the outside utility lines, and also discrepancies resulting in conflicts between different lines.

Because of the inadequacies of the plans and drawings, there were a substantial number of disruptions to the overall work, requiring stoppage of work on a line pending clarification or correction of data, and transfer of the crew and equipment to work at another location, with this procedure repeated on various lines in a number of instances throughout the project. In connection with Building No. 1, it was necessary to relocate some of the outside utility lines in order to coordinate with and connect with interior plumbing lines at specified locations where thejr left the building. Stoppage on one utility line was required when it was discovered during operations that extension of the specified grade would result in the line being 3 feet above ground, and time for revision of the grading was required.

96. The total costs of E. C. Losch Company in the performance of its- subcontract amounted to $164,557.56, on which a reasonable allowance for overhead would be 8.2 percent, or $13,493.72, and a reasonable allowance for profit would be 5 percent, or $8,902.56, for a total sum of $186,953.84. The total income of this subcontractor from the subcontract was the sum of $169,441.99. Thus, this subcontractor’s claim amounts to the sum of $17,511.85.

The costs of this subcontractor were also substantially increased by the Korean War price and wage increases, although to a lesser extent than other subcontractors, as the impact of the war did not occur until the fall of 1950, by which time this subcontractor had completed a substantial part of its performance, with completion by the end of 1950.

Included in the income of $169,441.99 is the sum of $9,244.82, concerning which amount this subcontractor issued a billing to Hickman Bros., Inc., which billing was not paid. Losch charged this sum off as a bad debt, and there is no explanation in evidence as to why collection was not made from either Hickman or its surety company.

GENERAL EINDINGS ON CLAIM 1

97. With respect to each of the claims of the joint venture as the prime contractor and the various subcontractors under' Claim 1, it is found that the evidence does not establish the extent, if any, to which there were delays in the performance of the contract caused by disruptions in operations due to the revisions and corrections of the contract plans, specifications, and drawings on account of errors, omissions, and discrepancies therein. There were no records kept of such disruptions, and the genera! testimony affords no basis for even approximating the extent of the delays, if any, caused thereby.

98. It is further found with respect to the various claims under Claim 1 that the evidence does not establish the extent, if any, to which the costs of plaintiffs and each of the above-named subcontractors were increased as a result of' the revisions and corrections of the contract plans, specifications, and drawings, necessitated by the errors, omissions, and discrepancies therein, nor does the evidence establish any basis for a reasonable approximation of such increased costs.

99. It is further found with respect to the various claims under Claim 1 that the evidence does not establish that the completed project was substantially different from that contemplated in the original contract plans, specifications, and drawings as a result of the revisions and corrections necessitated by errors, omissions, and discrepancies therein.

100. Plaintiffs allege in their petition that the adverse decision of the Corps of Engineers Claims and Appeals Board on the claims of plaintiffs and their various subcontractors under Claim 1 was not final because based upon questions of law which the parties had not stipulated might be finally determined by administrative action, and further because such decision related to breaches of contract. Plaintiffs’ alternative position is that such decision lacked finality because it was capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or was not supported by substantial evidence.

Plaintiffs state the same allegations with respect to the finality of the Board’s decisions on the other claims involved in this case.

Based upon the extensive record of proceedings before the Board, it is found that the Board’s denial of Claim 1 was reasonable and supported by substantial evidence.

The subcontractors L. D. Reeder Company, and Justice-Dunn Company did not present any proof on their claims under Claim 1 to the Board.

CLAIM OP LAUREN BURT, INC.

101. Lauren Burt, Inc., was the subcontractor for installation of asphalt tile flooring which comprised the floor finish of most of the project rooms and corridors.

In connection with the numerous corrections, clarifications, deletions, and modifications of the contract plans and drawings, plaintiffs from time to time issued to their various subcontractors during the contract performance a series of “change of plan authorizations” which set forth all of the items affected. To determine which items were concerned with the performance of its work, this subcontractor was required to review 94 pages of such authorizations, for which review it claims entitlement to compensation at the rate of $1 per page, or $94.

In the course of such review, this subcontractor found 78 items of color, finish, and dimension changes which concerned its work, and in connection therewith was required to study and analyze the finish and color schedules and. alter its work plans accordingly. For the review of these 78 items, this subcontractor claims $2 per item, or $156.

This subcontractor also made studies at the request of defendant’s resident engineer, relayed through plaintiffs, of 479 additional items of color and finish changes, for which reviews and reports this subcontractor claims entitlement to $2 per item, or $958.

On the fourth part of this claim, relating to a $100 charge for alleged submission of an estimate to plaintiffs concerning repair of storage and temporary office space, there is no substantial evidence to support any finding.

102. Lauren Burt, Inc., has never presented any claim on the theory of damages involved in the claims under Claim 1, and its claim before this court was not presented to defendant’s contracting officer or to the Corps of Engineers Claims and Appeals Board. For all of its extra direct costs incurred on account of finish, color, and dimension changes, this subcontractor was paid by change orders.

This subcontractor made no effort to keep any record of the costs now claimed. The work involved was all performed by its salaried president whose testimony is unrebutted that the amounts claimed are reasonable for the required review of the pertinent documents.

CLAIM 18-A OF WASATCH CACHE ELECTRIC COMPANY

108. Wasatch Cache Electric Company was the subcontractor for installation of the electrical system and electrical fixtures throughout the project.

The contract drawings and specifications did not provide for the type of support necessary to sustain the recessed lighting fixtures which were installed in project ceilings having metal pan acoustical tile.

The contract specifications did provide that electrical outlet boxes were to be installed “in a rigid and satisfactory manner,” and the rough can of a recessed lighting fixture is reasonably to be considered the equivalent of an outlet box. The specifications also provided that the National Electrical Code was part of the contract, and a pertinent part of such code provided:

In concealed work * * * outlet boxes and fittings unless securely held in place by concrete, masonry or other building material, in which they are embedded, shall be secured to a stud, joist, or securely fixed to a structural unit, or to a metal or wooden support which is secured to such a structural unit.

104. Subparagraphs (a) and (b) of the specification pertaining to installation of miscellaneous metal provided as follows:

(a) Supplementary Parts shall be included, as necessary, to complete each item even though such work is not definitely shown or specified.

(b) Materials Furnished to Other Trades: Furnish to proper trades all anchors, sockets and similar fastening devices required to be built in masonry or concrete and any devices necessary for securing metal work to construction.

105. Plaintiffs requested specific instructions relative to supporting these electrical fixtures in order that assignment of such work could be made to the appropriate subcontractor. The office of the District Engineer responded that the plaintiffs had the contract obligation to accomplish a finished and complete job, and declined to provide a design of such supports. This advice was confirmed by defendant’s resident engineer who instructed plaintiffs to furnish and install the necessary supports.

At a meeting between representatives of plaintiffs and subcontractors for acoustical tile, plastering, and electrical work, it was decided that the electrical subcontractor would furnish and install the supports and thereafter assert a claim for extra work.

106. The electrical subcontractor supported each of the pertinent recessed fixtures by installation of channel iron f ram-ing about the four sides. Depending upon the ceiling span involved, the channel iron framing was, in the case of a lesser span, suspended on the carrying bars installed by the acoustical tile subcontractor, and otherwise by hanger wires installed by the electrical subcontractor, attached to the floor slab above.

107. The method employed by the electrical subcontractor in providing supports for the recessed electrical fixtures was a reasonable and economical manner of doing the work, and was accepted and approved by defendant’s resident engineer.

The actual direct cost of furnishing and installing by Wasatch Cache Electric Company of the supports for the pertinent recessed electrical fixtures was the reasonable sum of $6,763.43, on which a reasonable allowance for overhead would be 10 percent, or $676.34, plus a reasonable profit allowance of $563.94, for the total sum of $8,003.71.

108. Based upon detailed findings of fact, supported by substantial evidence in its record of proceedings, the Corps of Engineers reasonably decided Claim 18-A of Wasatch Cache Electric Company as follows:

The plans show nothing as to supports for lighting fixtures, but the specifications and National Electrical Code, embraced by the contract, exhibit a requirement to secure to other structural units all outlet boxes and to complete each item of metal work although not definitely shown or specified.

While the contract ordinarily commands only that work clearly contemplated by specification or drawing, we are aware of no legal authority which vitiates a general requirement in a contract for completion of construction details in compliance with a code authority defined within reasonable and ascertainable limits. The fact that the contract and the Government gave the contractor a free choice as to the means for accomplishment of the end does not impose a duty of design upon the contractor. The acceptance by the Government of the cheapest and easiest method of support selected by appellant demonstrates the simplicity of the problem and the amenability of the resident engineer. We find no design duty fastened upon appellant under the facts.

The claim is denied.

CLAIM 3-AD OE RISK-SUTTON COMPANY

109. In connection with the substitution of primer sealer for paint erroneously specified' on interior plaster surfaces, and also the change of type of paint for the interior surfaces of the boilerhouse, both of which are previously described in finding 86, disputes arose as to the extra costs of- Risk-Sutton Company, the painting subcontractor, on account of such changes.

To establish support for its contentions, Risk-Sutton employed Dunn-Edwards to determine the amount of primer sealer needed, and paid a fee of $325 therefor. This subcontractor also hired Harlan Associates, another laboratory, to determine the relative cost of application of the proposed primer sealer, and paid a fee of $300 therefor. Defendant’s representatives on two or three occasions rejected the successive estimates of extra costs, whereupon each time Risk-Sutton decreased its proposals, obviously because it had already had the primer sealer delivered to the job site, and there were indications that the change to primer sealer might not be made. On each such occasion, this subcontractor, through plaintiffs, made its proposal on decreased costs when one of its partners, Leon Risk, was at the job site after a trip from Los Angeles.

110. Time and material studies on the primer sealer problems were made by the Pittsburgh Materials Testing Laboratory at the expense of the defendant, and the results of these tests were used as a basis of the ultimate settlement of the extra costs incurred on the primer sealer change. Neither the Dunn-Edwards nor the Harlan Associates tests contributed anything to the resolution of the dispute.

111. Leon Risk, a partner in Risk-Sutton Company, made several trips from Los Angeles to Salt Lake City and two to San Francisco during the subcontract performance at a total expense of $1,160.45. The evidence does not establish that these Salt Lake City trips were made solely in connection with the dispute on the primer sealer change, or the boiler-house change, or both, but rather that they were made as part of his frequent and prolonged attendance on the job site in the supervision of the subcontract performance. The two San Francisco trips were made in connection with obtaining the unsuccessful test results of Harlan Associates.

112. On the basis of detailed findings of fact, supported by substantial evidence in its record of proceedings, the Corps of Engineers Claims and Appeals Board reasonably denied Claim 3-AD of Risk-Sutton Company. The Board found among other matters that the trips to the job site were not shown to have been occasioned by any particular feature of the subcontract work, but even if considered to have been made as alleged, they were made at the request of plaintiffs to assist plaintiffs in obtaining larger allowances for changes than defendant was willing to grant; and that the fees and fares on the Dunn-Edwards and Harlan Associates tests were wasted, with the test results abandoned by plaintiffs and the subcontractor.

CLAIM 1S-D OF RISK-SUTTON COMPANY

113. Claim 15-D concerns the claim of Risk-Sutton Company, the painting subcontractor, for recovery of the alleged extra costs incurred in repainting spaces due to the repair of plaster cracks in numerous rooms of the project, which cracks were allegedly caused by inherent features of the design of the various large buildings.

114. One of the criticized design features of the buildings pertained to the type of construction of the exterior walls. Enclosed in the exterior walls were the spandrel beams extending between columns below. each concrete floor slab level. These beams were 7% inches wide and 42.5 inches in vertical measurement. Thus, between two successive floors, the higher portion of the exterior wall was of solid construction, comprised of the outside courses of face brick, the width of the spandrel beam, and interior courses of cinder blocks. Below the span-drel beam, the exterior wall was comprised of the exterior courses of face brick, the interior courses of common backup brick, then an air space about 3 or 4 inches wide, and finally, the interior courses of cinder blocks. As specified, the plaster was applied directly to the flush cinder bloek construction at and below the spandrel beam area.

At an unspecified number of places on the project, plaster cracks appeared along the line of the bottom of the spandrel beam, or commenced at or near such point as in the case of cracks proceeding from upper corners of windows which were installed directly against the bottom of the spandrel beam. The plaintiffs’ project engineer testified that it was his deduction that these cracks were caused by the fact that the materials in the reinforced concrete spandrel beam had greater coefficients of expansion than any of the other materials in the wall, with greater expansion in length and width occurring in the beam than in the other wall materials. .It was his opinion further that the exterior temperatures of the face brick were more readily conducted through the solid part ol the wall enclosing the spandrel beam than in the part below the beam where insulation was provided by the air space within the wall, with expansion and contraction greater above than below the beam.

115. Another criticized design feature was the installation of the metal stools, metal heads, and metal jams of windows in direct contact with plaster walls, with convectors located directly below windows and exhaust of heat therefrom through the metal stools. The metal stool, metal head, and metal jams of each window were fabricated in one piece.

There was spalling and cracking of plaster adjacent to such windows at and near the metal stool level in an unspecified number of locations on the project. The testimony of plaintiffs’ project engineer was that such cracking and spalling were caused by expansion of the metal stools and frames against such plaster, without expansion joints being provided.

11@. The last category of criticism of design on plaster cracking was that the convector cover plates were attached to structural steel angles which were attached to masonry against which plaster was applied. No explanation is made as to how expansion, if any, of such cover plates and angles occurred; nor even as to whether such angles became heated in the use of the convectors.

There was spalling and cracking of plaster immediately adjacent to convector cover plates in an unspecified number of locations on the project. As related in finding 49, a bead or metal strip was installed to provide a firm ending for plaster along the vertical edges of the removable convector fronts. Defendant’s resident engineer instructed the lathing and plastering subcontractor to leave 1/18 of an inch between the bead and the edge of the convector cover plate. In many cases, these beads were either installed or pressed by plasterers into contact with such plates, and heat in such plates, if any, could have been the cause of spalling and cracking of plaster in such areas.

117. Concerning repair and patching of plaster cracks, the contract specifications provided as follows:

24-14 patching: Plaster containing cracks, blisters, pits, checks, or discoloration will not be acceptable. Such plaster shall be removed and replaced with plaster conforming to the requirements of this specification and approved by the Contracting Officer. Patching of defective work will be permitted only when approved by the Contracting Officer, and such patching shall match existing work in texture and color.

In some instances, there was repeated repairing of the same plaster cracks, and repeated painting of the spaces involved. Risk-Sutton’s claim is purportedly for the repeated painting of spaces where alleged design cracks occurred, not for initial repainting of such areas.

118. Expert testimony adduced by defendant effectively rebutted the theory that extensive spalling and cracking of plaster were caused by faulty design features of the project buildings, and it is found that such theory is not established by a preponderance of the evidence.

In any event, there is no substantial evidence to establish the extent to which Risk-Sutton incurred extra costs in repainting spaces where the allegedly faulty design cracks were repaired.

119. Based upon detailed findings of fact, supported by substantial evidence in its record of proceedings, the Corps of Engineers Claims and Appeals Board reasonably decided Claim 15-D as follows:

In this welter of confused and conflicting testimony anent the source of plaster cracks, resting largely in conjecture, engineering and physical theory or deduction, the Board can only conclude that plaster cracks are natural and normal to all structures of masonry design, including these; that its cause is a mystery defying scientific analysis to date, but that its occurrence was an eventuality which everybody foresaw and for the correction of which by the contractor the specifications expressly provide.

The equivocal position of the appellant that the specifications called for the initial correction of plaster cracks, but not for subsequent repairs, is in itself a quixotic and contradictory duality of contention and is entirely irrelevant to issues of design or workmanship. The specifications impose a clear duty upon appellant to deliver crack-free walls. There is nothing from which the Board may infer that the duty is satisfied, discharged or exhausted with the first patching. We also conclude that the plaster patching problem was aggravated by poor workmanship, and that there is no evidence whatsoever of defective design.

The claim is denied. '

CLAIM 1S-A OF PLAINTIFFS

120. The contract specifications provided concerning furnishing of temporary heat to the project installations during construction performance, as follows:

a. The contractor shall provide at his own expense such heat as is necessary to prevent injury to work or material through dampness or cold. Heat shall be maintained as required for the installation of all items as specified in the technical sections of this specification, and as required for maintenance of scheduled progress and for good workmanship.

Despite the fact that the bid opening date was February 16, 1950, and plaintiffs’ bid was to complete the project in 540 days, thus indicating that their proposal was to complete performance by the early fall of 1951, plaintiffs in their pre-bid estimates allowed $13,100 for the first season, and $9,700 for the second season of temporary heating on the project performance.

121. By letter dated July 29, 1951, plaintiffs’ project manager transmitted the following request to defendant’s contracting officer:

Permission is requested to allow the joint venturers on captioned job to use the Boiler Plant and the permanent heating facilities in all the buildings for temporary heat if and when needed during the coming fall and winter months.

We, of course, shall assume all expenses therewith and said use shall in no way affect the terms and conditions of our contract.

It is also felt that it would be in the interest of the Government to have this preliminary firing as it will give them a chance to iron out any difficulties with the plant ahead of occupancy.

Defendant’s contracting, officer granted the request contained in the foregoing letter.

122. By letter dated October 15, 1951, plaintiffs’ project manager requested issuance by defendant’s contracting officer of a change order for extra work under Article 5 of the contract to cover plaintiffs’ costs, plus 15 percent for overhead and profit, for providing temporary heat on the project in the coming winter months, alleging that the necessity for supplying such temporary heat was due to delays caused by the changes and additions to the contract directed by defendant’s contracting officer.

By letter to plaintiffs, dated October 26, 1951, defendant’s contracting officer set forth the above-quoted specification concerning temporary heat, stated that plaintiffs had the contract obligation to provide temporary heat during contract performance, and denied plaintiffs’ request for issuance of a change order under Article 5.

128. On August 12,1952, plaintiffs submitted to defendant’s contracting officer their claim in the sum of $65,888.16 for supplying temporary heat during the preceding winter, which claim was denied and heard on appeal by the Corps of Engineers Claims and Appeals Board.

124. The pertinent temporary heating by use of the project boiler plant and heating facilities commenced in November 1951, and continued throughout the following winter months, and thereafter plaintiffs restored the boilers to their original condition prior to acceptance by defendant of the project.

In such operations, plaintiffs expended reasonable costs in the sum of $56,385.14, on which a reasonable allowance for overhead would be 10 percent, or $5,638.51, and a reasonable allowance for profit would be 5 percent, or $3,101.18, plus boiler insurance fees in the sum of $263.33, for the total sum of $65,388.16.

125. The evidence does not establish that delays were caused by the defendant which extended the contract performance through the winter months of 1951-1952.

126. Based upon detailed findings of fact, supported by substantial evidence in its record of proceedings, the Corps of Engineers Claims and Appeals Board reasonably denied Claim 15-A, stating that any delays caused by errors in plans were concurrent with and comprehended within the greater delays occurring over the same period caused by impact of the Korean War, and further that plaintiffs’ request and defendant’s grant of permission for use of the project heating plant were based on the assumption of all costs of such use by plaintiffs.

ITEMS S AND 8 OF CLAIM 6-AB, HICKMAN BROS., INC.

127. There were nine items involved in Claim 6-AB as presented to the Corps of Engineers Claims and Appeals Board by plaintiffs in behalf of themselves and various subcontractors. Items 5 and 8 in behalf of Hickman Bros., tnc., the plumbing and heating subcontractor, are the only parts of Claim 6-AB presented to this court.

128. Item 5 of Claim 6-AB relates to hanging of plumbing fixtures by attachment to cinder block partition walls. The contract specifications provided for the installation of structural clay tile partitions in certain areas, but they also authorized the plaintiffs to use cinder block in lieu of tile. Plaintiffs elected to use cinder block in such areas. In respect to the specified tile partitions, the specifications provided that plumbing fixtures were to be secured and fastened to the structural tile walls by brass toggle or through bolts. In running the pipes to fixtures in areas where plaintiffs had installed cinder block in lieu of tile partitions, cinder blocks were cut out in a number of instances and the void around the pipes filled with mortar. Since the mortar would not hold the toggle or through bolts, Hickman Bros., Inc., on the basis of a design by plaintiffs installed a steel plate across the area of mortar fill in each instance, and attached the plumbing fixture to the plate by means of through bolts. This method of installation was approved by defendant’s resident engineer.

The evidence does not establish what extra costs were incurred by this subcontractor on this claim.

The Corps of Engineers Claims and Appeals Board denied this claim on findings, supported by substantial evidence in its record of proceedings, that the claimed extra costs were the direct consequence of the exercise by plaintiffs of their right of election to use cinder block instead of terra cotta tile for partition construction, and that there was an absence of proof that plaintiffs were prevented from hanging the fixtures to such walls by some other satisfactory method at less cost.

129. Item 8 of Claim 6-AB relates to extra labor and materials allegedly furnished by the plumbing and heating subcontractor in rerouting and relocating interior utility lines. Ventilating ducts and pipes were in some instances installed around joists instead of being sleeved through them as specified. Rearrangements of piping were necessary in some instances to avoid cutting of the metal pans used for forming the monolithic slab-joist floor construction. These pans were expensive and extremely difficult to replace. Relocation of piping in some instances was done to avoid installation of furring. Interferences with structural beams, electrical work, and other utility lines also required some relocations of ducts and pipelines.

130. As is customary in the building construction industry, the contract drawings concerning mechanical lines were diagrammatic, that is, straight-line drawings showing only the approximate location of the mechanical lines, and it is the normal procedure for mechanical subcontractors to make necessary adjustments during installation.

131..The specifications provided with respect to the contract drawings of plumbing lines, as follows:

e. Drawings: The drawings show the general arrangement of all piping; however, where local conditions necessitate a rearrangement, the contractor shall prepare, and submit for approval, drawings of the proposed rearrangement. Because of the small scale of the drawings, it is not possible to indicate all off-sets, fittings, and accessories which may be required. The contractor shall carefully investigate the structural and finish conditions affecting all his work and shall arrange such work accordingly, furnishing such fittings, traps, valves, and accessories as may be required to meet such conditions.

Similar provisions were in the specifications concerning gas-lines, steamlines, heating and air conditioning ductlines, and other utility lines.

The rerouting and relocation of piping, ducts, and other utility lines were proposed to the defendant by the plumbing and heating subcontractor through plaintiffs, and approved by defendant’s resident engineer.

132. In defendant’s audit schedules filed pursuant to Rule 28 (b) (3) in response to plaintiffs’ statement of items and figures to be proved, filed pursuant to Rule 28(b) (2), defendant advised that this subcontractor’s claimed extra costs in the sum of $21,744.68 on this claim were not verified by its books and records of account, but that such sum represented only so-called billings. At pretrial conference, defendant’s trial attorney advised that there was no breakdown of actual claimed costs in the books and records of this subcontractor, and that the verification of the sum of $21,744.68 represented only billings, not actual costs reflected in the books and records.

This subcontractor offered no proof at the trial concerning the extent of its alleged extra costs on this claim, and it is found that there is no substantial evidence to support any finding thereon.

13S. The Corps of Engineers Claims and Appeals Board reasonably denied the claim designated as Item 8 of Claim 6-AB on the basis of findings of fact supported by substantial evidence in its record of proceedings.

In addition to finding that the mechanical drawings were diagrammatic only, as was customary in the industry, and that improvisation in the installation of mechanical lines was normal in the trade, the Board found that considerations of economy led the plumbing and heating subcontractor to request approval of the rearrangement and relocation of piping and ducts to avoid expensive sleeving of concrete beams and joists as shown on the plans, to avoid ruining metal pans used in structural forming which were almost impossible to replace, and to avoid extensive furring.

In its decision on overall Claim 6-AB, the Board stated with respect to Item 8, as follows:

In claim 8, the appellant has shown that some of the major relocations and rerouting of the mechanical members were changes in the plans. While quantum is not in issue, it affirmatively appears by the testimony of witnesses, including the subcontractor, that it besought the Government’s permission to make such changes to save the metal pan forms, to escape sleeving concrete members as required by plan, and otherwise for its own interest and advantage. It further appears that appellant and/or its plumbing subcontractor saved money thereby. To remand for assessing the relative costs would be an idle gesture inasmuch as the appellant could not gain under the record evidence and the Government has not counterclaimed. This claim item is therefore denied.

defendant’s counterclaim

184. At the pretrial conference in this case, the parties stipulated that the counterclaim of the defendant was abandoned, and no proof in support thereof was ever presented in this case.

135. Hickman Bros., Inc., filed suit against plaintiffs which was settled by payment of $67,500 by plaintiffs to Hickman, in which settlement agreement it was stipulated that all claims between the parties were thereby released, satisfied, and compromised, with the exception of the following claims which were to remain in effect only to the limited extent as follows:

. All claims being asserted by Hickman against Wunder-lich and included in the suit against the United States Government filed by Wunderlich in the United States Court of Claims, No. 286-58, shall remain in effect against Wun-derlich only to the extent and for the purpose of effecting a recovery from the Government in part or in whole of said claims. The liability of Wunderlich to Hickman provided for in this paragraph is expressly limited to the payment to Hickman of any monies paid by the Government on the said Hickman claims, which amount and manner of payment thereof to Hickman is covered in a separate agreement of even date, executed between the parties hereto, except for Seaboard Surety Company.

Hickman contracted to have plaintiffs present this subcontractor’s claims to this court, and in the written agreement it was provided in pertinent part as follows:

* * * It is further agreed that in the event the release heretofore executed, the Dismissal with Prejudice of the aforesaid law suit in the State of California, or the execution of this Agreement, in any way renders uncollectible all or any part of the First Party’s claims, that under no construction of the intention of the parties or of this Agreement, Release or Dismissal with Prejudice, are any claims of First Party against Second Party to be revived, reasserted or in any way recognized. It is agreed that the effectiveness of this Agreement, of the said Release, or of the Dismissal with Prejudice are in no way conditioned one upon the other.

136. Article Y of the standard form of subcontract executed by plaintiffs as a joint venture and each of its subcontractors for performance of work under the contract in this case, provided in pertinent part:

* * * The Contractor shall have the right, at any time, to delay or suspend the whole or any part of the work herein contracted to be done without compensation to the Subcontractor, other than extending the time for completing the whole work for a period equal to that of such delay or suspension. No'delay, suspension, or obstruction beyond the reasonable control of the Contractor, shall serve to terminate this Contract or increase the compensation to be paid to the Subcontractor.

Following completion of the contract performance, and prior to the Board proceedings, plaintiffs obtained releases from its various subcontractors. While varied in form, such releases generally recite the receipt and acceptance of a sum of money in satisfaction and acquittance of accounts in full, contingent upon presentation to and payment by the defendant of certain claims in stated amounts. The material provisions of a typical release are as follows:

' This release does not prejudice any claims of the subcontractor, the payment of which is contingent upon payment by the Government and which claims, in the total amount of $ — —•, are itemized on list attached hereto. It is fully understood and agreed that the joint venture, contractor, does not guarantee the payment of said claims and does not undertake the prosecution of said claims for the subcontractor, except with the aid of, and at the expense of the subcontractor. It is further agreed that if the Government does not pay said claim's, the joint venture shall be under no obligation whatsoever to the undersigned. It is the sole intention of the paragraph that the undersigned shall not hereby waive its rights in said listed claims against the Government, which may ultimately be allowed by the Government.

There are no allegations in defendant’s answer concerning the releases stated in findings 135 or 136.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are not entitled to recover, and that since defendant abandoned its counterclaim, it is entitled to recover nothing thereon. Therefore, plaintiffs’ petition and defendant’s counterclaim are dismissed.

2 The second lowest bidder, Utah Construction Company, offered to construct the project for a price of $7,962,000, based on a performance time of 760 days. If this contractor had bid on the basis; of 540 days, as plaintiffs did, and had it therefore saved the excess sum which it was required to add to its bid for the extra 220 days, it, and not plaintiffs, would have been the lowest bidder. In addition, if plaintiffs themselves had bid on the basis of the 730 days which they had proposed to defendant prior to bidding and had they thereby incurred the required penalty for the 190 days in excess of the contract time, again Utah would have been low bidder.

3 Since there was no timely objection to the de novo evidence presented by both parties, such evidence has been considered in this case. Stein Bros. Mfg. Co. v. United States, 162 Ct. Cl. 802, 337 F. 2d 861 (1963).

4 GC-11, the Suspension of Wort clause commonly used by the Corps of Engineers at the time reads in part as follows :

“The Contracting Officer may order the Contractor to suspend all or any part of the work for such period of time as may be determined by him to be necessary or desirable for the convenience of the Government, unless such suspension unreasonably delays the progress of the work and causes additional expense or loss to the Contractor, no increase in contract price will be allowed. In the case of suspension of all or any part of the work for an unreasonable length of time causing additional expense or loss, not due to the fault of negligence of the Contractor, the Contracting Officer shall make an equitable adjustment in the contract price and modify the contract accordingly.”

Case Details

Case Name: Wunderlich Contracting Co. v. United States

Court Name: United States Court of Claims

Date Published: Oct 15, 1965

Citation: 351 F.2d 956

Docket Number: No. 286-58

Court Abbreviation: Ct. Cl.