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100 C. Cls. Opinion of the Court the contracting officer or his duly authorized representative, subject to written appeal by the contractor within thirty days to the head of the department concerned, whose decision shall be final and conclusive upon the parties thereto as to such question of fact. In the meantime the contractor shall diligently proceed with the work as directed. Paragraph 26 of the specifications provides that the decision of the contracting officer or his authorized representative as to the proper interpretation of the drawings and specifications shall be final. The supervising architect was the authorized representative of the contracting officer.
16. Plaintiff has abandoned the claim made in his petition for furnishing vault doors and a rolling curtain for the parcel post window.
The court decided that the plaintiff was entitled to recover.
WHITAKER, Judge, delivered the opinion of the court:
Plaintiff seeks to recover (1) for damages for delays caused by defendant; (2) for liquidated damages deducted; and (3) for the cost of putting on a copper roof.
Plaintiff had a contract for the construction of a Post Office at Weston, West Virginia. It was to be constructed under the supervision of Stephen W. Ford, an architect of Clarksburg, West Virginia, who was authorized to prepare all drawings and specifications, to pass on all shop drawings, to approve or reject architectural samples and all ornamental work, colors, and finishes. Mr. Ford severed his connection with the work on June 22, 1933, and thereafter his duties were assumed by the supervising architect in Washington.
The contracting officer granted extensions of time totaling 238 days for delays caused by the defendant. The plaintiff claims damages for these delays, and also for others for which no extensions of time were granted.
The delays for which extensions of time were granted were occasioned by the following:
(1) 15 days' additional time required for lowering the footings to a depth greater than that originally specified;
(2) 19 days' delay for time lost due to the failure of the architect to promptly approve the structural steel drawings;
Opinion of the Court (3) 180 days' delay in providing terra cotta models;
(4) 24 days' delay on account of extremely cold weather during which plaintiff had to work caused by defendant's previous delays.
In addition to these delays, plaintiff claims damages for the following delays for which no extensions of time were granted:
(5) 18 days during which the work was suspended while awaiting instructions for lowering the footings;
(6) 27 days' delay in supplying details and drawings for millwork and in approving the drawings and samples for marble;
(7) 37 days' delay due to the reluctance of subcontractors to fulfill their contracts after the expiration of the original period of the prime contract;
(8) 27 days' delay due to defendant's failure to promptly make final inspection of the building.
DELAYS FOR WHICH EXTENSIONS OF TIME WERE GRANTED (1) 15 days' additional time required for lowering the foot
ings to a depth greater than that originally specified Plaintiff is not entitled to recover damages for the period of this delay. The defendant had the right to make changes in the contract and, therefore, in doing so it did not breach the contract and no damages can be recovered for the extra time required. United States v. Rice and Burton, Receivers. 317 U. S. 61. See (5) below. (2) 19 days' delay for time lost due to the failure of the architect to promptly approve the structural steel drawing8
Plaintiff received notice to proceed on January 17, 1933. The work was to be completed in 360 days, or by January 12, 1934. On February 14, 1933 plaintiff submitted to Mr. Ford, the architect, various samples and drawings. Six days later Mr. Ford wrote plaintiff that he had not received the instructions from the Treasury Department necessary for him to approve these samples and drawings, and suggested to plaintiff that he send all drawings and samples direct to Washington, although the contract named Mr. Ford as the 100 C. Cls. Opinion of the Court person to approve or reject them. Accordingly, plaintiff submitted to the supervising architect in the Treasury Department the reinforcing steel drawings on February 27, 1933, and the structural steel drawings on March 8, 1933. On March 17 and 22 the supervising architect wrote plaintiff that the samples and drawings were being returned to Mr. Ford for his approval. These were not approved until April 28, 1933, and as a result work on the building was at a standstill from May 2 to May 20, both inclusive, a total of 19 days. This was a delay solely occasioned by the defendant's representatives and, therefore, the plaintiff is entitled to recover the damages resulting therefrom.
(3) 180 days' delay in providing terra cotta models The contract required defendant to furnish plaintiff with terra cotta models. Plaintiff requested it to do so on February 17, 1933, but received no reply to his request. He repeated this request in letters directed both to Mr. Ford and the supervising architect on May 4, May 17, June 14, and June 22. As a result of defendant's long continued failure to furnish the models the terra cotta was not delivered on the job until February 10, 1934, although plaintiff repeatedly complained of the delay and notified defendant of the additional expense the delay was causing him.
The defendant recognized its default and granted an extension of 180 days on account thereof. Plaintiff is entitled to recover for the damages caused by this delay. (4) 24 days' delay on account of extremely cold weather during which plaintiff had to work caused by defendant's previous delays
The building was due to be finished on January 12, 1934. On account of the foregoing delays by the defendant the work was extended throughout the winter of 1933–1934. It was one of the coldest winters recorded in the preceding twenty years, and on account thereof plaintiff's work was delayed. The defendant recognized this and granted him 24 days' additional time on account thereof. Plaintiff is entitled to recover damages suffered on account of this 24 days' delay.
Opinion of the Court DELAYS FOR WHICH EXTENSIONS OF TIME WERE NOT GRANTED (5) 18 days during which the work was suspended while
awaiting instructions for lowering the footings While plaintiff was excavating for footings on March 6, 1933, it was found that the depths originally specified were not sufficient to reach solid bearing. The construction engineer ordered suspension of the work until defendant could determine what it wanted to do. It did not make this determination until March 24, 1933. Plaintiff asked for the cost of superintendence and overhead for 15 days of the total of 18 days while it was awaiting instructions. This was disallowed by the contracting officer.
It is said that this action of the contracting officer is made conclusive by article 9 of the contract. We do not think so. That article relates alone to the assessment of liquidated damages for delay in completing the contract; it does not relate to the defendant's liability for damages resulting from a delay caused by it. On the question of the assessment of liquidated damages the findings of fact of the contracting officer, or the head of the department in case of appeal, on the cause and extent of delay were made final and conclusive; but it is not provided that they are final and conclusive on the question of the defendant's liability for damages.
The contract provides for the assessment of liquidated damages for each day of delay beyond the termination of the contract period, but it provides that liquidated damages shall not be assessed
* * * because of any delays in the completion of the work due to unforseeable 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 fact thereon shall be final and conclusive on the parties hereto, subject only 574432--47-vol. 100—-4
100 C. Cls. Opinion of the Court to appeal, within 30 days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay shall be final and conclu
sive on the parties hereto. The whole subject in the minds of the parties was the assessment of liquidated damages for delay; they did not have in mind suits against the Government for damages for delays it had caused. On the question of the assessment of liquidated damages the findings of the contracting officer as to the facts and the extent of delay were made final and conclusive, subject to appeal to the head of the department; but on the question of whether or not the defendant had caused a delay for which it should be mulcted in damages, they have not agreed that his findings of fact should be final and conclusive.
There is a sound reason why the parties should have been willing to agree that his findings of fact should be conclusive in one instance and not in the other. In the first it was necessary for the contracting officer to determine only that the contractor should be excused for the delay; in the latter it was necessary for him to determine whether or not the defendant had breached its contract by doing something alleged to have delayed plaintiff. The defendant well might have been willing to submit to the final judgment of the contracting officer and head of the department the assessment of liquidated damages in its favor, but would not have been willing to submit to the final judgment of either of them the question of whether or not it should respond in damages.
Congress has conferred exclusive jurisdiction on this court, and in certain cases on the district courts, to decide claims against the Government. It has consented to be sued only in these forums. Can, then, some agent of the Government other than Congress validly contract that someone other than this court or a district court may finally determine the facts upon which liability of the defendant rests? Ordinarily, when the facts are once found, the case has been nine-tenths decided. Since Congress has vested in this court and in the district courts exclusive jurisdiction of cases against the Government, it is not to be presumed that the parties intended that some other tribunal should make findings of fact