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Opinion of the Court

113 C. Cls.

cations relating to the assembly plant site, as meaning that the contractor grading that site must also do extensive grading and excavation of ditches for an airfield taxiway 6,600 feet long and 100 feet wide, for the existing airfield on the Midwest Air Depot site, some distance west of the assembly plant site. Such an interpretation would, we think, be an unreasonable one. If the description and boundaries set out in paragraph 1-02 and the boundaries shown on Plan G-3, marked "Property Line," could not be relied on, there was then no discernible limit to what the Government intended except its own interpretation. Cf. Callahan Construction Co. v. United States, 91 C. Cls. 538, 611; W. H. Armstrong and Company v. United States, 98 C. Cls. 519, 527; John K. Ruff v. United States, 96 C. Cls. 148, 164. We think there was no reason for plaintiff to suppose, as defendant argues there was, that the Midwest airfield taxiway in question, and shown on the plans, was a necessary part of the Assembly Plant project so that plaintiff should have inquired whether or not it would be required to grade it even though it was located off the plant site limits definitely fixed in the specifications.

We cannot agree with defendant's second argument that plaintiff is barred from recovering on the ground that the decisions of the contracting officer and the War Department Board of Appeals, acting for the head of the department, were final and conclusive by virtue of paragraph 2-16 of the specifications. A similar contention was considered and denied in the case of E. and E. J. Pfotzer v. United States, 111 C. Cls. 184. The decisions in United States v. Joseph A. Holpuch Co., 328 U. S. 234, and United States v. Blair, 321 U. S. 730, cited by defendant, are not in point. Paragraph 2-16 is entitled "Claims, Protests and Appeals” and is primarily a procedural provision intended to provide an orderly method for carrying out the provisions and purposes of Article 15 of the standard formal contract. Such a paragraph in the "General Provisions" of the specifications has itself come to be a standard provision, and, as we pointed out in the Pfotzer case, supra, the fact that the specifications, which are intended to delineate the work to be done and the procedures to be followed, are made a part of the contract by Arti

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cle 1, does not warrant the conclusion that they override an express provision of the contract. Provisions such as paragraph 2-16 must, if possible, be read and interpreted in the light of and consistent with the provisions of the formal contract. When this is done, there is no conflict between Article 15 and paragraph 2-16.

The standard contract duly prepared and approved by the proper authority of the Government is binding upon the writer of specifications covering a specific project, and such contract provisions control unless they are modified or changed by a proper provision, approved by proper authority, inserted in the article of the contract provided for that purpose. Otherwise, the standard contract itself would be of little, if any, use, and the uniformity of understanding among contractors, contracting officers and others concerned, and the values flowing to the Government as well as to contractors by reason of such standard contract provisions, would not be obtained but would be left in a state of confusion and uncertainty. The history of the preparation and adoption of the standard forms of Government contracts shows that it was for reasons such as above mentioned, among others, that led to the adoption of the standard contract such as we have here.

We think the provision in paragraph 2-16 of the specifications that the decision of the Secretary of War on appeal 66* * * shall be final and binding upon the parties to the contract," properly interpreted, means that such decision shall be final and binding to the extent provided in Article 15 of the Contract. Paragraph 2-16 of the original specifications provided that appeals from decisions of the contracting officer should be taken to the Chief of Engineers, U. S. Army, "whose decision shall be final and binding upon the parties to the contract," and stated that he had been designated by the Secretary of War to make "final decision." The paragraph also contained the statement-"(See Article 15 of the Contract.)"

When the formal contract was prepared for execution, the contracting officer inserted certain provisions under Article 22, entitled "Alterations", in which Articles 3, 9, 18 and 19 of the Contract were changed and a new Article 23, "Ter

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Opinion of the Court

113 C. Cls. mination for the Convenience of the Government," was added. In addition, this article stated that the specifications were changed by adding thereto paragraph 2–26, changing paragraphs 2-19 and 2-16, and deleting paragraph 2-22. As re-written, paragraph 2-16 provided for appeals to the Secretary of War instead of to the Chief of Engineers, and left out the parenthetical reference to Article 15 of the contract. However, for the reasons above mentioned, we think the elimination of the reference to Article 15 did not have the effect of changing the substance and meaning of the original paragraph 2-16 as to the extent of the finality of the decisions of the contracting officer and the head of the department. We are also of the opinion that the making of this change in paragraph 2-16 of the Specifications under Article 22, did not have the effect of changing in any way Article 15 of the Contract. This could only have been accomplished by expressly changing or deleting and rewriting Article 15, as was done with reference to certain other articles of the Contract.

The decision of the Board of Contract Appeals was based upon its interpretation of the contract documents which is not a question of fact within the meaning of Article 15. Pfotzer v. United States, supra. In view of the facts and for the reasons hereinbefore discussed, we hold that the Board and the Secretary of War erred in denying the claim here involved.

We conclude, therefore, that plaintiff's contract, specifications and drawings did not require plaintiff to grade the airfield taxiway on the Midwest Air Depot site west of property line Range 29, and that there was nothing in the contract, specifications, or drawings furnished to plaintiff to call plaintiff's attention, before it made its bid, to defendant's undisclosed intention to include the taxiway in question within the assembly plant site grading project.

There remains the question of damages.

Plaintiff contends that 84 cents per cubic yard is the proper measure of compensation for the grading west of Range 29. Defendant contends that 84 cents is excessive and that in any event plaintiff has failed to prove any dam

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ages. Plaintiff kept a record of its costs for this extra work as it was performed and introduced evidence showing its total actual cost for all the work done west of Range 29, exclusive of profit and overhead, in the amount of $158,235.94 (finding 22). Defendant has no evidence to show that these costs were erroneous or excessive for the work done. This cost, without profit and overhead expense, amounts to about 53 cents a cubic yard which, we think, was reasonable in the circumstances. The defendant, however, takes exception in its brief to the amount of the item for equipment rental. Some of the machinery on which rental as a part of cost or compensation for the extra work was charged was owned by plaintiff and some by the Government. The plaintiff paid a certain rental rate to the Government for the machinery rented from it and charged the same rate on its books for machinery plaintiff owned and used for this work. Defendant objects to this procedure on the ground that there was no proof as to what plaintiff's ownership costs were nor how much of the total rental paid was paid to the Government for rental of its machinery. From the record we are convinced that the rental figures claimed by plaintiff for various items of machinery and equipment were fair and reasonable and that they were not more than the Associated General Contractor rates customarily charged. Defendant offered no evidence to support its contention that the rental rates were not reasonable.

Plaintiff's actual costs of $158,235.94 do not include anything for overhead or profit. The actual cost per cubic yard for this extra work was approximately 53 cents. We believe that 59.3 cents per cubic yard, which would include a reasonable amount of 12 percent additional for overhead and profit, constitutes reasonable and fair compensation to plaintiff for such work. In view of plaintiff's actual costs of performing certain grading work northwest of Range 29 and within the Midwest Air Depot site, which the War Department Board of Appeals held to be extra work outside of plaintiff's contract, the contracting officer paid plaintiff 60 cents a cubic yard. Accordingly, we are of opinion that plaintiff is entitled to recover $105,502.17, representing the difference be

Syllabus

113 C. Cls.

tween $177,231.69 (298,793 cu. yds. at 59.3 cents) and $71,729.52 (298,473 cu. yds. at 24 cents), which plaintiff has already been paid.

Plaintiff claims interest, but interest is not allowable on the judgment at this stage of the case under Sec. 2516, U.S. C. Title 28, Revised.

Judgment will be entered in favor of plaintiff for $105,502.17. It is so ordered.

HOWELL, Judge; MADDEN, Judge; WHITAKER, Judge; and JONES, Chief Judge, concur.

DANIEL SIMON v. THE UNITED STATES

[No. 47289. Decided March 7, 1949]

On the Proofs

Suit for salary; Civil Service employee separated in violation of valid Civil Service regulations relating to reduction in force.-Where plaintiff, a Civil Service employee of the Government, was separated from the service on the ground of reduction in force and later reinstated; and where it is found that plaintiff's separation was in violation of valid Civil Service regulations relating to reduction in force; it is held that plaintiff is entitled to recover his salary for the period of separation.

Same; jurisdiction.-Where defendant concedes that plaintiff was discharged in violation of valid Civil Service regulations, but contends that such action by the Government did not give rise to a cause of action by plaintiff for salary during the period of his separation from the service; it is held that plaintiff's claim is within the jurisdiction of the Court of Claims under 28 U. S. C. 1491, Revised, conferring jurisdiction to render judgment upon any claim founded upon any act of Congress or upon any regulation of an executive department.

Same; Civil Service Regulations under the 1883 Act.-Regulations made by the President and the Civil Service Commission under and pursuant to the authority of the Civil Service Act of 1883 (5 U. S. C. 633) were fully authorized by law and it was the intention of Congress, in the enactment of the Civil Service Act, that the regulations made thereunder should have the force and effect of law within the purview of the statute conferring jurisdiction on the Court of Claims.

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