Reporter's Statement of the Case 113 C. Cls. with grout, which is a fluid mixture of cement, or cement and sand, and water; and where the Government, without issuing a change order and over plaintiff's protest, required the plaintiff to fill the recesses with various mixtures, by a more expensive process; and where in rejecting plaintiff's claim on this item, presented at the time of settlement, neither the contracting officer nor the head of the department made findings of fact; it is held that the plaintiff is entitled to recover the extra expense incurred less credit for the amount paid, and less credit for estimated cost of placing grout as the plaintiff was required to do under the contract. Same; delay by Government in furnishing gates in accordance with contract provisions.—Under the contract the plaintiff was required to place, in the concrete structure to be built, two cylindrical steel roller gates, which were to be furnished by the Government. Under a reasonable interpretation of the contract provisions and upon the evidence; it is held that the Government's delay in delivery of the gates constituted a breach of the contract, and plaintiff is entitled to recover for the several items of additional cost caused by this breach of the contract. Same; recovery allowed for delays in completion caused by Government; overhead; pay-roll expense; rental of equipment.— Where it is shown that plaintiff, except for delays caused by the Government, could have completed its work 90 days earlier than it did, and could have removed its equipment and terminated its straight-time personnel that much earlier; it is held that plaintiff is entitled to recover for office overhead and for pay roll of straight-time employees for 90 days; and for one-half of the fair rental value of such equipment during the period equal to that of delay in winding up the job. Full rental value should not be awarded for such delay, because the equipment was not in use and was not suffering wear and tear. See Brand Investment Co. v. United States, 102 C. Cls. 40. The Reporter's statement of the case: Mr. Herman J. Galloway for the plaintiff. Messrs. King and King were on the brief. Mr. Grover C. Sherrod, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. The court made special findings of fact as follows: 1. The Yakima river rises in the central part of the State of Washington and flows southeasterly to a confluence with other streams emptying into the Columbia river near Walla Walla, Washington. The Yakima Project of the Bureau of 536 Reporter's Statement of the Case Reclamation, Department of the Interior, is an irrigation development of lands near the city of Yakima, Washington. 2. On July 2, 1938, the Bureau of Reclamation invited bids on Specifications No. 793, which contained the following: 17. The requirement. It is required that there be constructed and completed, in accordance with these specifications and the drawings listed in paragraph 20 hereof, the Roza diversion dam, bench flume, and railroad bridge, Yakima Ridge canal, Roza division, Yakima project, Washington. The work is located 10 miles north of Yakima, Washington, as shown on the location map.3 3. Bids were opened on August 5, 1938. Plaintiff was the low bidder. Plaintiff was and is a Delaware corporation engaged in construction work as a general contractor. Its principal place of business was in Boise, Idaho. Work was begun on August 15, 1938, after plaintiff had indicated its desire to proceed immediately, in order to take advantage of the good weather, and officials of the Bureau of Reclamation had stated that an immediate start could be made on the understanding, to which plaintiff agreed, that any money expended by plaintiff prior to consummation of the contract was at plaintiff's own risk. 4. Award of the contract to plaintiff was made on August 29, 1938. The contract is in evidence as plaintiff's Exhibit No. 2 and is incorporated herein by reference. It was dated August 30, 1938. By its terms plaintiff agreed to "furnish the materials, and perform the work under the schedule of Specifications No. 793 for the consideration of the prices stated in the schedule in strict accordance with the specifications, schedules, and drawings, The contract price, based on unit prices in plaintiff's bid applied to defendant's estimate of the volume of work, was $526,860. ** 1 Specifications No. 793 are in evidence as plaintiff's Exhibit No. 3 and are incorporated herein by reference. The drawings are a part of the specifications. The railroad bridge was to span the bench flume. It was not a part of the railroad bridge across the river. The location map sketched an area of 10 miles from the city of Yakima on the south to a point just above the site of Roza dam on the north, and showed the locations of the river, the railroad, the highway, the channel of Yakima Ridge Canal, Pomona Siphon and the tunnel through the mountain, and the site of the required bench flume, railroad bridge, and dam. Reporter's Statement of the Case 113 C. Cls 5. On September 24, 1938, plaintiff received and acknowledged notice to proceed with the contract work. The specifications provided that work should be begun within 30 days after date of receipt of notice to proceed and should be completed within 550 days thereafter. When plaintiff received notice to proceed, the work was already well under way. Receipt of notice to proceed on September 24, 1938, fixed the expiration of the contract time on March 27, 1940. The work was accepted by defendant on December 28, 1939. 4 6. On April 19, 1940, the contract account between plaintiff and defendant was settled by final payment and release. In the release plaintiff reserved eight items of claim which included all the items claimed in this action. On November 22, 1940, the contracting officer issued his findings and decisions on the claims, denying payment of all with one minor exception.5 Plaintiff appealed to the Secretary of the Interior by letter dated December 13, 1940. On April 28, 1942, the appeal was dismissed in its entirety by order of the Under Secretary of the Interior at the conclusion of his administrative review of the claims. 7. The contract contained the following provisions: ARTICLE 3. Changes.-The contracting officer may at any time, by a written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. No change involving an estimated increase or decrease of more than Five Hundred Dollars shall be ordered unless approved in writing by the head of the department or his duly authorized representative. Any claim for adjustment under this article must be asserted within 10 days from the date the change is ordered: Provided, however, That the contracting officer, if he determines that the facts justify such action, may receive and consider, and with the ap The work was accepted as complete except for certain painting, of which plaintiff was relieved by an adjustment hereinafter noted. The contracting officer allowed plaintiff's claim for the sum of $280.38, representing the cost of a bond supplied by plaintiff to the Northern Pacific Railway Company, as an item owed by the Government to the railway company and assigned by the company to plaintiff. 536 Reporter's Statement of the Case proval of the head of the department or his duly authorized representative, adjust any such claim asserted at any time prior to the date of final settlement of the contract. If the parties fail to agree upon the adjustment to be made the dispute shall be determined as provided in article 15 hereof. But nothing provided in this article shall excuse the contractor from proceeding with the prosecution of the work so changed. ARTICLE 4. Changed conditions.-Should the contractor encounter, or the Government discover, during the progress of the work subsurface and/or latent conditions at the site materially differing from those shown on the drawings or indicated in the specifications, or unknown conditions of an unusual nature differing materially from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications, the attention of the contracting officer shall be called immediately to such conditions before they are disturbed. The contracting officer shall thereupon promptly investigate the conditions, and if he finds that they do so materially differ the contract shall, with the written approval of the head of the department or his duly authorized representative, be modified to provide for any increase or decrease of cost and/or difference in time resulting from such conditions. ARTICLE 5. Extras.-Except as otherwise herein provided, no charge for any extra work or material will be allowed unless the same has been ordered in writing by the contracting officer and the price stated in such order. ARTICLE 9. Delays-Damages. If the contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in article 1, or any extension thereof, or fails to complete said work within such time, the Government, may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been delay. In such event the Government may take over the work and prosecute the same to completion, by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess cost occasioned the Government thereby. If the contractor's right to proceed is so terminated, the Government may take possession of and utilize in completing the work such materials, appliances, and plant as may be on the site of the work and necessary therefor. If Reporter's Statement of the Case 113 C. Cls. the Government does not terminate the right of the contractor to proceed, the contractor shall continue the work, in which event the actual damages for the delay will be impossible to determine and in lieu thereof the contractor shall pay to the Government as fixed, agreed, and liquidated damages for each calendar day of delay until the work is completed or accepted the amount as set forth in the specifications or accompanying papers and the contractor and his sureties shall be liable for the amount thereof: * * ARTICLE 15. Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed. ARTICLE 16. Payments to contractors.-* * * (d) Upon completion and acceptance of all work required hereunder, the amount due the contractor under this contract will be paid upon the presentation of a properly executed and duly certified voucher therefor, after the contractor shall have furnished the Government with a release, if required, of all claims against the Government arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the contractor from the operation of the release in stated amounts to be set forth therein. TRANSMISSION LINE 8. Various portions of the Yakima Project were built before construction of Roza diversion dam was undertaken. Among them was a tunnel built by plaintiff in 1936, the upstream portal of which marked the downstream end of the bench flume included in the contract in suit. In connection with the construction of this tunnel plaintiff had entered into a contract with the Pacific Power and Light Company, under the terms of which the power company constructed a transmission line to the south or down-stream portal of the tunnel. Plaintiff furnished the power company with a bond in the sum of $6,000 to indemnify it for the labor cost of erecting and dismantling the line and for depreciation on |