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100 C. Cls.

CONTRACTING OFFICER-Continued.

which it might be held liable for damages, the
contracting officer's findings of fact are not

final and conclusive. Langevin, 15.
II. 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. Id.
III. The interpretation of the plans and specifications

by the contracting officer is final and conclusive
under the provisions of the Standard Govern-
ment Construction Contract, but there is noth-
ing in the contract or specifications that gives
the contracting officer the right to reverse his
ruling after the work has been done in accord-
ance with the original instructions of the con-

tracting officer. Id.
IV. Where under the provisions of the contract the

decision of the contracting officer upon the
facts, when affirmed by the head of the depart-
ment, were final; and where such findings are
not shown to have been arbitrary or grossly
erroneous; it is held that plaintiff is not entitled
to recover. Frazier-Davis Construction Company,

120.
V. Where the contracting officer admitted there had

been a slowing up of the work on Government
building but stated he did not have knowledge
as to the cause of the delay in completion, such
statement was not a finding that defendant
was responsible therefor. B-W. Construction

Co., 227.
VI. Where in connection with the contract for the

construction of a Government building, plaintiff,
contractor, submitted a proposal as to cost of
certain additions which the contracting officer
acknowledged were extra work, which work was
performed; and where the contracting officer
rejected the claim for payment for such extra
work solely on the ground that payment could
not be made under Section 320 of the Economy
Act of June 30, 1932 (47 Stat. 382, 412); and
where it is not denied that plaintiff was entitled
under the contract to the additional compen-
sation claimed; it is held that the contracting
officer's rejection of plaintiff's claim, on the
grounds stated, was not an interpretation of

100 C. Cls.

CONTRACTING OFFICER-Continued.

the drawings or specifications but a construc-
tion of the statute, as to which neither the con-
tracting officer nor the head of the department

was the final arbiter. Id.
VII. Whether Section 320 of the Economy Act barred

plaintiff from receiving additional compensa-
tion for admittedly extra work was neither
a question of fact nor a dispute "arising under
this contract"; and the decision of the contract-
ing officer thereon is not binding on the con-

tracting parties nor on the court. Id.
VIII. Where plaintiff, contractor, appealed from adverse

decision of the contracting officer to the head
of the department, who considered plaintiff's
appeal, sustained its contention and reversed
the decision of the superintendent of construc-
tion and contracting officer, and directed
plaintiff to submit its claim for extra costs on
the regular Government voucher form, sup-
ported by statement of facts, through the
office of the superintendent of construction
and the contracting officer; and where plaintiff,
in accordance with the decision of the head of
the department, submitted its voucher as
directed, supported by extended findings of
fact by the supervising construction engineer
and the contracting officer sustaining plaintiff's
claim; and where these findings of fact were
approved by the head of the department; it is
held that plaintiff is entitled to recover. Fred

R. Comb Company, (45457) 240.
IX. The first decision of the contracting officer, ad-

verse to plaintiff's claim, was not final nor con-
clusive, under paragraph 4 of the specifica-
tions which provided that the contracting
officer should be the interpreter of the specifi-
cations, where it was further provided under
Article 15 of the contract that all decisions of
the contracting officer, including interpretations
of the specifications, were subject to written
appeal to, and review by, the head of the de-
partment, whose decision was final and con-

clusive upon the parties to the contract. Id.
X. Where upon adverse decision of contracting

officer on plaintiff's claim for extra compensa-
tion, plaintiff appealed to the head of the de-

100 C. Cls.

CONTRACTING OFFICER—Continued."

partment who reversed the decision of the con-
tracting officer and approved plaintiff's claim;
it is held that under the terms of the contract
defendant is bound by the decision of the head
of its department and plaintiff is entitled to

recover. Fred R. Comb Co. (No. 45600), 259.
XI. Where paragraph 4 of the specifications provided

that the contracting officer should be the final
interpreter of the drawings and specifications
but did not provide that his interpretation
thereof should be final and subject to review
neither by his superior nor the courts; and
where Article 15 of the contract specifically pro-
vided that the decision of the contracting
officer should be subject to appeal to the head of
the department on disputes arising out of the
contract; the two provisions must be construed

together so as to give effect to each. Id.
XII. Except in rare cases, such as a suit by the con-

tractor for damages, or in case of fraud or mis-
take, the defendant is and should be bound by
the decision of the person the Government
selected to make final decisions. Cf. Arthur W.

Langevin v. United States, ante page 15. Id.
XIII. Where, in a contract for the construction of

abutments, piers and underpasses on certain
United States highways, it was provided that,
for the purposes of payment for excavation,
measurement would be made to slopes specified
in the contract for common excavation and
rock, respectively; and where, however, it was
further provided that measurement for pay-
ment would be made, if warranted in the opinion
of the contracting officer, to the most practical
dimensions and lines as staked out or otherwise
established by the contracting officer; and
where the contracting officer adopted, as the
basis of measurement for monthly payments,
the slopes which the contractor had, on his own
motion, begun to cut and which had proved sat-
isfactory; it is held that by such action the con-
tracting officer thereby "established" the
method by which the excavations would be
measured for payment, within the terms of the
contract, and plaintiff is not entitled to recover.
Dunn, 440.

100 C. Cls.

CONTRACTING OFFICER-Continued.

XIV. Where the contract provided (paragraph 683 of

the specifications) that "the contractor shall
provide adequate heating facilities" in the
building throughout any heating season during
the life of the contract; and where the con-
tractor installed a temporary heating system,
which was used during the heating season;
it is held that the contractor, under the
terms of the contract, was required to furnish
and pay for fuel for temporary heat during
the period of performance of the contract
and plaintiff is not entitled to recover for the
amount so expended for fuel. Edna H.

King, 475.
XV. Where the decision of the contracting officer has

substantial support in the language of the
contract his decision is final and binding on
the contractor, plaintiff, under the provisions
of the contract as found in paragraph 38 of

the specifications. Id.
See also Contracts II, VI, XII, XIII, XVI,

XX, XXII, XXIII, LI, LXI, LXII.
CONTRACTS.

I. Where in the specifications accompanying

the Government's invitation to bid, bidders
were put on notice to take into account the
uncertainty of the weather; and where the
weather was not more severe than that or-
dinarily encountered; it is held that such
weather as was encountered was not unfore-
seeable and plaintiff was not entitled to an
extension of time on this account. See
United States v. Brooks-Callaway, 318 U. S.
120; and Caribbean Engineering Co. v. United
States, 97 C. Cls. 195. Cape Ann Granite

Co., Inc., 53.
II. Where the contract placed upon the contracting

officer and the head of the department the
duty of making decisions, their failure to do
so is a breach of contract, which authorizes
the contractor to bring suit in the Court of
Claims to recover any amount to which the
contractor is entitled under the contract.
See James McHugh Sons, Inc. v. United
States, 99 C. Cls. 414. Id.

100 C. Cls.

CONTRACTS—Continued.

III. Where specifications represented that "there are

no bridges or other obstructions between the
proposed work and the sea," and maps, to
which reference was made, accurately showed a
sand bar in front of the entrance to the harbor,
there was no misrepresentation of conditions at

the site. Id.
IV. Where the specifications showed that there was a

minimum depth of 10 feet in the entrance channel
to a harbor and a survey after a flood showed
that there was an available depth of 11 feet at
mean low water through the entrance channel,
and the shallowest depth on the range line was
9.5 feet, there had been no material change in
subsurface conditions entitling the plaintiff to
an equitable adjustment under article 4 of the

contract. Id.
V. Under the provisions of article 9 of the Standard

Government Construction Contract, on the
question of the assessment of liquidated dam-
ages the findings of the contracting officer as to
the facts and the extent of delay are final and
conclusive, subject 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 con-
tracting officer's findings of fact are not final

and conclusive. Langevin, 15.
VI. Where Congress has consented that the Govern-

ment 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 con-
struction 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. Id.
VII. 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,

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