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Opinion of the Court that would be binding on us. If they did, their agreement would be in violation of the Act of Congress vesting jurisdiction in this court and the district courts, and therefore void.
We have consistently held that neither article 9 nor article 15 of the Standard Government Contract gives the contracting officer the power to determine a contractor's claim for damages for delay. See Phoenix Bridge Co. v. United States, 85 C. Cls. 603, 629, and Plato v. United States, 86 C. Cls. 665, 677. See also United States v. Rice and Burton, Receivers, 317 U. S. 61, 67.
In a suit against the United States for damages for delay, we do not think the contracting officer's findings of fact on the cause or extent of delay are conclusive.
We are of the opinion that 18 days was an unreasonable time for the Government to take to determine to what depth the footings should be lowered. With reasonable diligence this determination could have been made within not more than three days. Plaintiff's request for his cost of superintendence and overhead for 15 days' delay was entirely reasonable. He is entitled to recover for this delay. (6) 27 days' delay in supplying details and drawings for millwork and in approving the drawings and samples for marble
The extension of 19 days, discussed in (2) above, was for delay from May 2 to May 20, 1933. Plaintiff also claims 27 days' delay from May 20 to August 15, 1933 due to the Government's delay in supplying details and drawings for the millwork and in approving the drawings and samples for granite or marble. There is no doubt but that plaintiff was delayed for some time on this account, but the commissioner has found that the proof does not satisfactorily show the extent of the delay. The plaintiff's proof is unsatisfactory, but he does say that he could have completed the work done between these two dates 27 days earlier had it not been for these delays.
But whether or not this proof would be sufficient for us to determine that he had in fact been delayed this length of time, we do not think he is entitled to recover damages for 100 C. Cls. Opinion of the Court any delay during this period because we think he has waived any claim he might have had therefor. The contracting officer several different times requested plaintiff to submit a statement of the dates and causes and extent of each delay, with an accompanying recommendation of the construction engineer. Plaintiff asked the construction engineer to recommend an extension of time of 27 days for the delay during these dates, but he refused to do so, and when plaintiff wrote the contracting officer on April 13, 1934 setting out his several claims for extensions of time on account of delays, he did not mention this delay of 27 days. At the time he wrote this letter he had already been granted the 15 days, the 19 days, and the 180 days' extensions of time discussed above, but he requested a further extension of 24 days on account of haying to do his outside masonry work during cold weather. The 24 days were allowed him. By failing to request an extension on account of the 27 days' delay from May 20 to August 15, 1933 and by requesting an extension on another account at the same time, which was granted, we think that he has waived his claim to the 27 days' delay. It may be that had he requested both the 27 days and the 24 days, the 24 days would not have been granted unless he agreed to abandon his claim for the 27 days.
After the contract was finished on October 10, 1934, plaintiff requested an extension of time of 37 additional days, next discussed, but this was for a cause other than the delay in furnishing the drawings for the millwork and in approving the drawings and samples of the granite. The extension of time of 37 additional days was not granted, but his letter of October 10, 1934 is further evidence of the fact that plaintiff had waived and abandoned his claim for the 27 days' delay. (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
Prior to the time that the building was ready for the work to be done by some of the subcontractors, the Codes of Fair Competition under the National Industrial Recovery Act
Opinion of the Court
had been adopted, increasing labor and material costs; in addition, the Civil Works Administration had begun a number of projects in the vicinity of plaintiff's contract increasing the demand for labor which also increased labor costs. Because of these conditions, some of the subcontractors refused to perform their contracts for the amounts originally agreed upon, and plaintiff had to threaten suits against them in order to compel them to do so, and in some instances had to pay them more than the original contract price. The commissioner has found, and we also have found, that this resulted in delays aggregating 37 days.
However, plaintiff is not entitled to recover therefor, because he did not notify the contracting officer of these delays at the time they occurred. He made no claim therefor until after the job was completed on October 10, 1934. The contract required plaintiff to notify the contracting officer of the cause and extent of the delay within ten days thereafter. He failed to comply with this provision of the contract, and under the Supreme Court's decision in Plumley v. United States 226 U. S. 545, he is not entitled to recover therefor.
It is true that the provision of the contract requiring notice of the delay is in the same article which makes the contracting officer's decision on extensions of time for delays final and conclusive, and that we have held, supra, that his findings are not conclusive in a suit by the plaintiff to recover damages for delay. We said that this article had reference to the assessment of liquidated damages against the contractor and that it could not have reference to actions against the defendant for damages for delays because, if so, it would be in conflict with the Act of Congress conferring on this court and, in certain cases, on the district courts jurisdiction of suits against the United States. However, a requirement that notice of a delay be given as a condition precedent to the maintenance of a suit against the United States for resulting damages would in no way impinge upon the jurisdiction conferred on this court; it would not result in substituting a forum other than the one prescribed by Congress for the trial of suits against the Government. On the other hand, it does serve the useful purpose of giving the person re100 C. Cls. Opinion of the Court sponsible for the delay the opportunity of removing the cause of it and thus minimizing the damage. The validity of such a provision cannot be questioned.
Although we think it is the better view that the whole article has reference only to the assessment of liquidated damages, we are constrained by the Supreme Court's decision in the Plumley case, supra, to hold it applicable, so far as notice of the delay is concerned, to suits to recover damages therefor.
We have found that plaintiff is entitled to recover for defendant's delay in notifying him of the depth to which it wanted the footings lowered, although plaintiff did not notify the contracting officer of this delay, because this was a matter within the knowledge of the contracting officer and, hence, notification was unnecessary. So far as the record shows, the contracting officer had no information about plaintiff's difficulty with his subcontractors. Had he been advised of it he might have straightened the matter out without any delay. (8) 27 days' delay due to defendant's failure to promptly
make final inspection of the building The specifications required the contractor to give the supervising architect from 7 to 10 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. Inspection by the general inspector was not made until October 16, 1934, and inspection by the mechanical inspector was not made until October 24, 1934. Both of them made lists of minor omissions and defects, which were corrected by November 26, 1934. Plaintiff claims 27 days' delay on account of this.
Defendant did fail to make inspection promptly, but we are of opinion that this did not result in any damage to plaintiff, since the defendant, with plaintiff's consent, occupied the building on October 1, 1934, and thereby relieved plaintiff of any responsibility for the care of the building prior to the date of making inspections. No work was
Opinion of the Court expected of him until after the inspections were made, and, therefore, he did not have to keep on the job his superintendent or workmen, and, so far as we are able to see, was not put to any extra expense on account thereof.
In addition to this, plaintiff made no complaint to the contracting officer of this delay in inspection. In Plumley v. United States, supra, it was held that it was necessary that plaintiff notify the contracting officer that he would be damaged if inspection was not promptly made. Evidently the contracting officer in the instant case did not think it made a great deal of difference when final inspection was made, since the building was already occupied ; he evidently did not think that the plaintiff would be hurt by any delay in inspection, and since plaintiff did not notify the contracting officer that he was being damaged thereby, we think he is not entitled to recover, even if he in fact suffered any damage at all.
Plaintiff claims damages as a result of these delays as follows: (1) cost of superintendence and job overhead; (2) equipment rentals; (3) increased price of materials; (4) loss of discounts for prompt payment of bills; (5) extra cost of doing certain work; (6) additional travel expenses required; (7) extra cost due to inefficiency of labor; (8) loss on insurance policy; (9) extra cost of subcontracts; (10) claim for extra photographs.
(1) Cost of superintendence and job overhead. The only controversy about this element of damage is the reasonable value of plaintiff's services as his own superintendent and engineer on the job. The commissioner has allowed $375.00 a month for these services. The proof shows, however, that immediately prior to the instant contract plaintiff was drawing a salary of $600.00 a month as superintendent for the Pierce Steel Pile Corporation, plus $115.00 a month for a room at the Shoreham Hotel, and that at the time of testifying he was acting as superintendent for the C. & R. Construction Company of Boston, where he drew a salary of $600.00 a month, plus a commission of 3 percent of the profit