Syllabus 100 C. Cls. to appeal to the head of the department, but on the question whether or not the defendant had caused a delay for which it might be held liable for damages, the contracting officer's findings of fact are not final and conclusive. Same; validity of agreement that findings of contracting officer shall be final in suit against defendant for delay.-Where Congress has consented that the Government may be sued only in the Court of Claims, and in certain cases in the district courts, on claims arising out of Government contracts, an agreement by parties to a Government construction contract that some one other than the Court of Claims or a district court may finally determine the facts upon which the liability of the Government rests would be in violation of the Act of Congress vesting jurisdiction in the Court of Claims and the district courts and, therefore, such agreement would be void, if made. Same. The Court of Claims has consistently held that neither Article 9 nor Article 15 of the Standard Government Construction Contract gives the contracting officer the power to determine finally a contractor's claim for damages for delay. See Phoenix Bridge Co. v. United States, 85 C. Cls. 603; Plato v. United States, 86 C. Cls. 665; United States v. Rice and Burton, Receivers, 317 U. S. 61. Same; damages for delay caused by changes by defendant.-Where defendant had the right to make changes in the contract, plaintiff is not entitled to recover damages for delay caused by changes made by defendant. United States v. Rice and Burton, Receivers, 317 U. S. 61. Same; failure to request extension of time; waiver.—Where contractor failed to request an extension of 27 days on account of delays in supplying details and drawings at the time he requested an extension of 24 days on another account, which extension of 24 days was granted, contractor thereby waived his claim to the 27 days' delay. Same; notification of fact of delay, necessity for.-Failure of contractor to notify the contracting officer of delays at the time of their occurrence, as required by the contract, precludes recovery under the Supreme Court's decision in Plumley v. United States, 226 U. S. 545. Same. A requirement that notice of delay be given as a condition precedent to the maintenance of a suit against the United States in no way impinges upon the jurisdiction conferred on the Court of Claims by Congress. Same; notice.-Where the cause of delay is within the knowledge of the contracting officer, notice is not necessary. Same; delay in final inspection; notification that delay was causing damage, necessity for.-Where, with the contractor's consent, building was occupied by the Government before final inspection, and where contractor did not notify the contracting officer that 15 Reporter's Statement of the Case he was being damaged by such delay in making final inspection; plaintiff is not entitled to recover. Same; actual damages, proof of.-Actual damages must be definitely proven, Eastern Contracting Company v. United States, 97 C. Cls. 341. Same; liquidated damages deducted, recovery for.-Where contractor was delayed by defendant's representative in determining the depth of footings required, for which delay no extension was granted; and where contractor was unable to give his personal supervision by reasons of circumstances for which defendant was responsible, resulting in delay of completion; assessment of liquidated damages was unreasonable and arbitrary, and plaintiff is entitled to recover. Same; contracting officer's change of interpretation of contract after completion of work.-Where the contract drawings specified a tin roof, which contractor installed, under the supervision of the construction engineer, after a sample of the tin had been submitted to the supervising architect and approved by him; and where later upon a report of a traveling inspector the supervising architect reversed his previous interpretation of the plans and specifications and required contractor to remove the tin roof and replace it with copper, which the contractor did under protest; plaintiff is entitled to recover. Same. The interpretation of the plans and specifications by the contracting officer is final and conclusive under the provisions of the Standard Government Construction Contract, but there is nothing in the contract or specifications that gives the contracting officer the right to reverse bis ruling after the work has been done in accordance with the original instructions of the contracting officer. The Reporter's statement of the case: Mr. Bernard J. Gallagher for the plaintiff. Mr. M. Walton Hendry was on the briefs. Mr. Percy M. Cox, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Newell A. Clapp was on the brief. The court made special findings of fact as follows: 1. The plaintiff, Arthur W. Langevin, entered into a contract with the defendant on January 10, 1933, whereby for a consideration of $77,000 he agreed to furnish all labor and materials and perform all work required for the construction of a Post Office at Weston, West Virginia. The work was to be completed within 360 days after receipt of notice to pro Reporter's Statement of the Case 100 C. Cls. ceed. This notice was given on January 17, 1933, which fixed January 12, 1934 as the date of completion. 2. The building was substantially completed and occupied by the Government on October 1, 1934, although the correction of defects and other work of a minor nature were not finished until November 26, 1934. On account of the delays. hereinafter referred to, defendant granted plaintiff extensions of time aggregating 238 days, or until September 7, 1934, to complete the contract. Plaintiff was held responsible for 24 days' delay occurring between September 7, 1934 and October 1, 1934, and $720 was deducted from the contract price as liquidated damages. 3. Stephen W. Ford, an architect of Clarksburg, West Virginia, hereinafter referred to as the "architect," was authorized by the contract to prepare all drawings and speci fications, pass on all shop drawings, approve or reject archi. tectural samples, and criticize or approve all ornamental work, colors, and finishes. By June 22, 1933 he had severed all connection with the work and his duties were assumed by defendant's supervising architect at Washington, D. C. 4. Article 9 of the contract provides in part as follows: the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes: Provided further, That the contractor shall within ten days from the beginning of any such delay notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay, and his findings of facts thereon shall be final and conclusive on the parties hereto, subject only to appeal, within thirty days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay shall be final and conclusive on the parties hereto. 5. While plaintiff was excavating for footings on March 6, 1933, it was found that the footings specified in the con 15 Reporter's Statement of the Case tract were not sufficient for the ground conditions. The construction engineer, who supervised the work for defendant, ordered plaintiff to cease work pending the receipt of instructions from the contracting officer. March 24, 1933 plaintiff was instructed to lower the footings down to shale and, on completing the extra work, to submit his proposal with an itemization of cost and a statement of the exact number of days he was delayed. On the same day plaintiff made a written proposal to perform the additional work at cost, plus 10 percent for overhead and 10 percent for profit. Exclusive of the time lost on account of rain, 15 days were required for the extra work, which was finished April 25, 1933. April 28, 1933 plaintiff mailed to the contracting officer a statement of the cost of the work, including the 10 percent for overhead and 10 percent for profit. This amount was allowed and paid in full. At the same time plaintiff attached a letter to the statement requesting his cost of superintendence and overhead during 15 days of the period the work was discontinued to await instructions from the Government. The contract was extended for a period of 15 days, representing the time required for lowering the footings. No extension of time was allowed for the interval during which plaintiff awaited notice to proceed, nor was any payment made to cover plaintiff's claim for superintendence and overhead during that period. Eighteen days was an unreasonable length of time for defendant to take to determine to what depth the footings should be lowered. This should have been determined in not more than three days. 6. Beginning on February 14, 1933, plaintiff submitted to the architect various samples and drawings. The architect took no action thereon, but on February 20, 1933, he wrote plaintiff that he had not received necessary instructions from the Treasury Department and suggested that plaintiff send all drawings and samples to that department in Washington. Thereupon plaintiff forwarded the samples and drawings to defendant's supervising architect, submitting the reinforcing steel drawings on February 27, 1933 and the structural steel Reporter's Statement of the Case 100 C. Cls. drawings on March 8, 1933. No approvals were given, but the supervising architect advised plaintiff by letters of March 17 and 22, 1933 that the samples and drawings were being returned to the architect at Clarksburg for his approval. Plaintiff was ready to use the reinforcing steel on March 24, 1933, but, because of defendant's delay in approving the necessary drawings, the steel was not received until April 6, 1933. No request for extension of time was made on account of this delay which was concurrent with that occasioned by lowering the footings. The structural steel drawings submitted on March 8, 1933 were not approved until April 28, 1933. As a result work on the building was at a standstill from May 2 to May 20, 1933, when the structural steel was delivered. During the same time the brick and granite work was held up because of the architect's delayed action on the granite drawings. For the time lost on the structural steel work plaintiff requested an extension of time of 19 days, which was approved by the contracting officer. 7. Between May 20 and August 15, 1933 plaintiff was delayed while waiting for defendant to supply the details and drawings for millwork and to approve the drawings and samples for marble. The architect, who was required by the contract to furnish the millwork drawings, failed to reply to plaintiff's letters of March 24 and May 17, 1933, in which these drawings were requested. The marble samples and drawings which plaintiff mailed to the architect for approval were returned in the original package unopened. On July 21, 1933, plaintiff wrote the supervising architect in part as follows: You certainly must be convinced by now that Mr. Stephen W. Ford has severed all relations with this work and should, therefore, inform me immediately what I am to do with the samples, drawings and questions I have for immediate action and decision. These were submitted to the architect months ago in accordance with the specifications and terms of my contract. I wish to again go on record for delay, to the extent of which I do not know at this time that will be occasioned by the samples and drawings not having been approved to date, *. I will expect to be paid |