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Reporter's Statement of the Case for the additional cost of overhead, supervision and labor for installing same, at a later date and not in the
progress of the regular work. July 27, 1933 the supervising architect wired plaintiff to submit all unapproved samples, drawings, and models to defendant's Washington office. Plaintiff received details of the millwork drawings for the basement window frames June 22, 1933, but did not receive the drawings for the circle head window frames until August 8, 1933. The record is not sufficient to show the extent and results of the time lost on construction through defendant's inaction on these samples and drawings. However, progress was slow because, instead of being able to carry on several portions of the work contemporaneously, plaintiff had to perform one job at a time. The front of the building had to be left open in the absence of the circle head window frames and the brick could not be bound to these frames. On several occasions after this delay had occurred the contracting officer requested plaintiff to submit a statement of the date, cause, and extent of each delay, with an accompanying recommendation of the construction engineer. For the time lost between May 20 and August 15, 1933 plaintiff requested the construction engineer to recommend that the contract be extended for a period of 27 days. The construction engineer refused to recommend any extension of time for delay during this period, and plaintiff did not mention such delay in his letters of April 13, 1934 and October 10, 1934 to the contracting officer, wherein he enumerated the cause and extent of all other delays. There was no finding of fact made and no extension of time granted with respect to this delay.
8. The contract required defendant to furnish plaintiff the terra cotta models. As early as February 17, 1933 plaintiff requested that these models be shipped to the manufacturer. Failing to receive any reply, plaintiff wrote both the architect and the supervising architect on May 4, May 17, June 14, and June 22, 1933 in an effort to expedite action on the models.
The defendant prolonged the manufacture, inspection, and shipment of the models for an unreasonable and unnecessary length of time so that the terra cotta was not delivered until 100 C. Cls. Reporter's Statement of the Case February 10, 1934. During all this time plaintiff repeatedly wrote defendant complaining of the delay and additional expense incurred by him for labor, extra materials, and overhead, and warned that further delays were anticipated through postponement of exterior work until the winter months. Very little progress was made from August 15, 1933 to February 10, 1934. By means of an inside scaffold plaintiff carried up the brick backing from the top of the first floor windows to the bottom of the second floor, leaving out the face brick and terra cotta. This was not the proper or customary method of construction, but was adopted at defendant's request and it minimized the delay somewhat.
Plaintiff requested an extension of time of 180 days for the delay caused by defendant's tardiness in providing the terra cotta models, and the contracting officer extended the contract for the full period requested.
9. As a result of the delays caused by defendant, which have been discussed in the previous findings, plaintiff's exterior masonry work was postponed until the winter of 1934, one of the coldest winters recorded in a 20-year period. Between February 10 and April 1, 1934 plaintiff lost 24 working days on account of extremely cold weather and the contracting officer extended the contract for that period of time.
10. From April 1, 1934 to September 27, 1934, plaintiff experienced a great deal of difficulty in inducing his subcontractors to proceed with their subcontracts because of a substantial increase in the cost of labor and materials in the summer and fall of 1934, due to the adoption of the Codes of Fair Competition and to work projects totaling approximately $500,000, which were instituted by the Civil Works Administration in the vicinity of the post office. Under these conditions the subcontractors, who had expected to perform their work within the original period of the prime contract, were reluctant to work in the summer and fall of 1934. In order to compel their performance, plaintiff had to threaten suit against them, and plaintiff also had to expend money in addition to the amounts provided for in the subcontracts in order to hold these men on the job.
Reporter's Statement of the Case The delay caused by this situation aggregated 37 days. Plaintiff did not notify the contracting officer of this delay or of the cause thereof until October 10, 1934. The contracting officer made no finding regarding this particular delay and no extension of time was granted therefor.
11. The specifications required the contractor to give the supervising architect seven to ten days advance written notice of the date when the building would be ready for final inspection. Plaintiff gave such notice on September 17, 1934, stating that the building would be ready for final inspection on September 27, 1934. The building was occupied by the Government, with plaintiff's consent, on October 1, 1934, at which time there was a balance of 1.44 percent of the contract to be completed. Inspections were made by defendant's general inspector on October 16, 1934, and by the mechanical inspector October 24, 1934. Both inspectors made lists of minor omissions and defects, which were not corrected until November 26, 1934.
Had both inspections been made on September 27, 1934, plaintiff could have completed all of the work 27 days in advance of the actual completion date. Plaintiff did not give the contracting officer written notice of this delay, or make any claim for extension of time therefor. The contracting officer made no finding with respect to this delay, nor was the contract period extended because of it.
12. February 12, 1935 the contracting officer made his written report and recommendations to the Secretary of the Treasury. This report included findings on the cause and extent of various delays, and a finding that liquidated damages should be assessed against plaintiff.
The Secretary of the Treasury approved the findings of the contracting officer on February 12, 1935, and the final voucher was issued shortly thereafter. It was accepted by plaintiff with the following reservation : "In signing this voucher I hereby reserve all my rights regarding all claims arising under this contract.”
13. Plaintiff was delayed by the Government a total of 238 days, for which extensions of time were granted. Fifteen days' delay was due to the additional time required to lower the footings. It does not include the 15 days' delay 100 C. Ols. Reporter's Statement of the Case in deciding to what depth the footings should be lowered. As a result of the delays totaling 238 days plaintiff sustained camage totaling $13,058.09, made up of the following items: (1) cost of superintendence and job overhead $7,128.10, at $29.95 a day; (2) equipment rentals $2,500; (3) increased price of materials $644.64; (4) loss of discounts for prompt payment of bills $302.30; (5) extra cost of doing certain work $1,907.05; (6) additional travel expense required $576.00.
In addition, plaintiff claims damages of $647.48, an alleged loss due to inefficiency of labor; $1,231.71 an alleged loss on the surrender of an insurance policy; $5,761.80, an alleged loss on subcontracts; and $6.50, an alleged cost of extra photographs.
14. Article 8 of the contract required the contractor to give his personal supervision to the work or have on the work at all times a competent foreman or superintendent satisfactory to the contracting officer, with authority to act for the contractor. For three or four months prior to October 1, 1934 plaintiff, who acted as his own superintendent, was frequently absent from the site of the work and did not leave a competent superintendent in charge. Plaintiff's absence was due to financial difficulties occasioned by previous delays on the part of the Government. While he was away from the job plaintiff spent his time in attempting to establish new lines of credit, trying to locate and contract with subcontractors, traveling to Washington to confer with defendant's officers, and in doing office work.
Had plaintiff given the work adequate supervision during this time, the contract could have been completed at least 24 days before the date of substantial completion. The contracting officer found that plaintiff was responsible for this delay, and liquidated damages at the contract rate in the sum of $720 were deducted from the contract price. One of plaintiff's claims is for the remission of the amount deducted as liquidated damages.
15. Contract drawing F-4 plainly showed that the roof over the loading platform of the Post Office should be constructed of tin. In the middle of the drawings showing the roof of this platform there was written in large capital letters the words “TIN ROOF.” The specifications said
hat a copper tin roof and est, and at
Reporter's Statement of the Case nothing about the kind of roof for this loading platform, but they did provide for the kind of roofing on other parts of the building.
Prior to installing the roof plaintiff sent a sample of the tin he proposed to use for this purpose to the supervising architect for approval. It was returned approved. Thereafter, sometime before July 31, 1934, plaintiff had his subcontractor install the tin roof. This was done under the supervision of the construction engineer. At the end of the month plaintiff was paid 90 percent of the cost of the tin roof. About a month later a traveling inspector from the supervising architect's office visited the job and told plaintiff that the tin would have to be removed and copper substituted therefor, since paragraph 422 of the specifications provided that "All exterior sheet metal work shall be of copper." Plaintiff protested. Whereupon the construction engineer wrote the supervising architect for instructions. The supervising architect held that a copper roof was required and plaintiff was required to remove the tin roof and replace it with a copper one. This plaintiff did under protest, and at a cost of $319.44.
This work was done under a subcontract. Plaintiff demanded of his subcontractor that the tin be removed and copper substituted. The subcontractor complied with the demand, but under protest and with notice that he would expect plaintiff to pay for the cost of replacement. On October 19, 1934 the subcontractor presented plaintiff with a bill for $319.44 for the cost of replacing the tin roof. This bill has not been paid, but it is still asserted against the plaintiff.
In the contracting and construction trade the words "exterior sheet metal” refer to gutters, flashings, skylights, and louvers, but do not refer to roofs.
The contract and specifications provide that in case of conflict between the drawings and specifications, the latter shall govern. Article 15 of the contract provides :
Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by