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
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,
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-
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. 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.
CONTRACTING OFFICER-Continued.
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.
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.
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,
« AnteriorContinuar » |