Reporter's Statement of the Case 113 C. Cls. across the bottom. In the tabular column headed "Interior Finishes" the ceilings of elevator machine rooms 2 (on the second floor mezzanine) and 3 (on the roof) were listed as "unfinished," while the ceilings of elevator machine rooms on the fourth floor were shown to have sound-deadening plaster. Symbols relating to walls of elevator machine rooms 2 and 3 indicated that they were also to be unfinished in respect to acoustical material. 17 43. Paragraph 37-A-1 of section 37-A of the specifications 17 and Drawing 215 were in conflict. Plaintiff bases its claim upon the assertion that when read together paragraph 37-A-1 and the schedules on Drawing 215 are susceptible of being interpreted to mean that the specifications designated what finish was to be applied and the schedules designated where it was to be applied and that there is, therefore, no conflict. ⚫ Plaintiff asked for and was given a written order to apply acoustical treatment to the walls and ceilings of elevator machine rooms 2 and 3, with which order plaintiff complied under protest. The fair and reasonable value of such work was $2,091.72. 44. Plaintiff first raised the question of contract requirements in respect to acoustical treatment with defendant's construction engineer who cited paragraph 14 of the General Conditions 18 and stated he would, if plaintiff so desired, submit the matter to the department. Plaintiff accordingly requested him to submit the question to the Procurement Division, and he forwarded plaintiff's letters. Reply was made to plaintiff by the supervising engineer of the Procurement Division, Treasury Department, stating that "the specifications require all machine rooms to be soundproofed and no change in the contract requirements is desired." On April 12, 1939, plaintiff wrote to the supervising engineer taking "exception to the decision" and requesting a "review of this matter." The supervising engineer replied on April 17, 1939, acknowledging receipt of plaintiff's letter "requesting reconsideration," and declining to rescind the previous rejection 17 For text, see finding 71 (6) (a). 18 For text, see finding 71 (1) (d). 316 Reporter's Statement of the Case of the claim because "the specifications definitely require that the rooms be soundproofed and that in case of a difference between the drawings and specifications, the latter shall govern." The supervising engineer in no way identified himself as the contracting officer or his authorized representative, and there is no evidence that he acted under authority as either. On April 26, 1939, plaintiff wrote to the "Procurement Division, Public Buildings Branch," stating that: In accordance with the decision of the Division, we will proceed with the work as indicated in the specification, with the reservation that this matter will be presented for final adjustment to the Division at a later date, since we believe we are correct * On June 23, 1939, plaintiff made claim in writing to the Director of Procurement for $2,093.72, as the cost of acoustical treatment work in controversy plus ten percent for overhead and ten percent for profit. This claim was rejected by letters dated July 20, 1939, and December 31, 1940,19 from the Commissioner of Public Buildings. No further action on the claim was taken by plaintiff after receipt of the latter letter. 45. Pneumatic tube equipment.20-Before the remodeling, mail was conveyed within the building by various mechanical devices such as belt conveyors, spiral chutes, slides, and buck lifts. The contract called for new equipment to replace these mechanical devices. In the course of demolition plaintiff removed the old equipment and kept it for salvage. 46. The building was also served by the pneumatic-tube system owned by the New York Mail and Newspaper Transportation Company and operated by it under a franchise from the city of New York. The system consisted of underground tubes extending for a distance of 27 or 28 miles, connecting 23 postal stations in New York City, and equipped with blowers and compressors capable of transmitting containers of mail through the tubes from one postal station 19 For text, see finding 28. 20 For pertinent provisions of the specifications see findings 71 (2) (a) to (c); 71 (2) (r); and 71 (12) (a). Reporter's Statement of the Case 113 C. Cls. to another. Rental was paid to the owner by the United States on a mileage basis. Prior to June 1938, the rental contracts required the owner of the system to station operators within the postal station, and such operators were provided with identifying badges in conformity with postal regulations. Some of the operators wore the badges; others carried them in their pockets. These badges differed from those worn or carried by post office employees. After June 1938, the equipment was operated within the postal stations by post office employees, the owner continuing to service and maintain the equipment and system. The system had been in use in the Grand Central Annex for 30 years. 47. At the date of plaintiff's contract the pneumatic-tube equipment in the building included: (1) A power plant, consisting of a compressor, three blowers, an unspecified number of tanks, and controls (panel board and switches), which was located on the ground floor in an area 24 feet wide and 275 feet long closed off by a brick wall and shown on Drawing 12 as the "Compressor Room"; (2) Three receiving machines and three transmitting machines, located on the "Present Post Office Floor" as shown on Drawing 13; (3) Special piping, to the extent of 950 feet, extending from the underground connection beneath the ground floor, up to and along the ceiling of the ground floor, and through it to the receiving and transmitting machines on the next floor, as shown on Drawings 12 and 13; and (4) Valves (25), flanged fittings of T's and elbows (50), special fittings (72), and metal carriers or bullets (number unspecified). 48. This pneumatic-tube assembly inside the building was mechanical equipment specially designed and assembled for the purpose for which it was used. Some of the pieces of equipment bore plates on which were inscribed the inventory number of the owner, the New York Mail and Newspaper Transportation Company, and the legend "Installed under the patents of the American Pneumatic Service Company." 49. Machines comprising the power plant were on floating platforms, i. e., platforms resting on supports separate from 316 Reporter's Statement of the Case the foundations and floors of the building. Plaintiff's contract required it to construct similar floating platforms in a different location. Plaintiff was also required to make provision for outlets for pneumatic tube piping, and to build tube form cases. All these requirements were necessary incidents to the relocation of the pneumatic tube equipment. Defendant had notified the owner of the equipment in 1936 of the contemplated remodeling, and asked for plans for the relocation of the equipment, drafts of which the owner prepared and supplied in 1936 and 1937. There was no provision in plaintiff's contract (or in the specifications or drawings) requiring plaintiff to move and relocate the pneumatic tube equipment. This work of moving and relocating was done by a contractor other than plaintiff under a contract with defendant dated May 29, 1939, for which bids had been invited on September 8, 1938. Equipment formerly in use was moved to the new locations specified on Drawings 2, 3, and 4, except for one blower, a tank, and a switchboard, for which replacements were furnished by the owner, the replaced items being sent to storage by the owner. 50. Drawing 3, showing plans for the remodeling of the first floor, contained the following note: Entire interior finish on this floor shall be removed including * all mechanical equipment * unless otherwise noted. See Drawing No. 13 for existing work. In the center of Drawing 3, between lines 31 and 32, at line XX, the pneumatic tubes were depicted and indicated by a legend: Pneumatic tubes not in this contract. Similar notes and legends appeared on Drawings 2 and 4, relating, respectively, to the ground floor plan and the second floor plan, except that they referred, for existing work, to Drawings 12 and 14. Drawing 12, showing the "present" or old ground floor, contained the note: Unless otherwise noted all existing work not shown on Drawing No. 2 shall be removed. 838936-49- -29 Reporter's Statement of the Case 113 C. Cls. Drawing 13, showing the "Present Post Office Floor," contained the note: Unless otherwise noted all existing work not shown on Drawing No. 3 shall be removed. Except for the legend "Pneumatic tubes not in this contract," Drawings 2 and 3 did not show the pneumatic tubes as remaining. None of the other drawings showed the existing equipment as remaining. The contract drawings showed the pneumatic tube system as being relocated within the building and required building changes to accommodate such relocation. 51. Prior to the submission of bids defendant never specifically advised plaintiff other than as noted in the specifications and on the drawings, (1) that it did not own the pneumatic tube equipment or (2) that it planned to re-use such equipment in the new locations outlined therefor in the drawings. Plaintiff made no effort to ascertain further information or facts with reference to the pneumatic tube system and equipment until more than 17 months after its contract was signed and considerable work had been performed thereunder. Plaintiff could not have ascertained from a mere view of the site that the equipment did not belong to defendant. 52. In the preparation of its bid, plaintiff gave consideration to the salvage value of mechanical equipment in the building and to be removed by it and its bid reflected an allowance therefor. The amount of such allowance is not in evidence. On the day before bids were to be opened, plaintiff telegraphed defendant to deduct $41,000 from its proposal. The evidence given by plaintiff on this item of its claim that $40,440 of this reduction represented additional allowance by plaintiff for the salvage value of the pneumatic tube equipment, is not convincing. 53. The parts of the pneumatic tube equipment could have been adapted to uses other than the transmission of mail, using parts separately or in combination, the expense of such adaptation depending on the use. The compressor and blowers were similar to those used in subways and in manufacturing plants, but their adaptability was somewhat restricted by their use of direct instead of alternating electric |