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115 C. Cls.

CONTRACTS—Continued

pursuant to authorizations of the Wage Adjustment
Board, or a commitment on the part of the contract-
ing officer that such reimbursement would be made,
or a wrongful order by the contracting officer to pay
such increased rate; it is held there is no basis for
holding plaintiffs entitled to recover increased
labor costs. Paretta Contracting Company v. United

States, 109 C. Cls. 324, distinguished. Id.
United States O 70 (2)
X. In the instant case there is no evidence of misrepre

sentation or even of mistake with respect to the fact
that 75 cents per hour was the prevailing wage rate
for laborers in the vicinity, under applicable orders,

as set forth in the specifications. Id.

United States Or 73 (25)
XI. The Government, under the statute, has consented to

be sued in certain classes of claims, and in instances
such as the instant case that consent is limited to
such claims as arise under contract, express or im-
plied. Upon the facts and the provisions of the
contract in suit, there is no legal obligation to com-
pensate plaintiffs for voluntary increases in the

wages paid to laborers. Id.

United States C 73 (25)
XII. In the performance of a contract for the rental and

operation of a hydraulic dredge, drill boat and other
equipment for enlarging an existing levee on the
eastern shore of Lake Okeechobee, Florida, the evi-
dence adduced does not justify the conclusion that
defendant's agents interfered arbitrarily or unreason.
ably with plaintiff's operations. Plaintiff's conten-
tion that the action of defendant's representatives
prevented performance by plaintiff of its part of the
contract, thereby constituting & breach of the con-
tract, is not sustained and plaintiff is not entitled

to recover. Arundel Corporation, 92.

United States On 74.
XIII. Upon the evidence adduced and the terms of the speci-

fications and contract, it is held that the data con-
tained in the specifications regarding the dredging
done by the defendant's dredge, the Welatka, were
for informative purposes only and did not constitute

representations. Id.

United States C 66.
XIV. The data contained in the specifications concerning the

dredging done by the Government dredge could not
properly be interpreted to mean that a performance
similar to that of the Welatka would be accepted as

115 C. Cls.

CONTRACTS-Continued

compliance with the contract or that plaintiff would
encounter the same conditions as had been found in

the experimental levee construction. Id.

United States Con 73 (1).
XV. Where the contract and specifications in the instant

case, in addition to providing for reduction in the
rental rate for reduced progress in performance, also
provided for payment of higher rental rates in the
event of progress exceeding the rate specified; it is

held that this provision was not a penalty. Id.

Damages Omo 80 (1).
XVI. Whether a contract calls for a "penalty" or "liquidated

damages” must be determined by an examination of
the language used in the light of the subject matter
of the contract and the intention of the parties.
See Sun Printing and Publishing Association v.
Moore, 183 U. S. 642, 661; Wise v. United States, 249

U. S. 361, 365. Id.

Damages C 78 (1).
XVII. In the contract in suit the provisions which plaintiff

contends constituted a "penalty" are clearly drawn
and the intention of both parties is readily ascer-
tainable, and the provisions in question are valid
and enforceable. Since the Chief of Engineers, on
appeal, based his final conclusions upon them in
determining the final amount due plaintiff, it is held

that plaintiff is not entitled to further recovery. Id.
Damages On 78 (4).

United States Com 73 (14).
XVIII. In a suit for the charges to which plaintiff alleges it is

entitled for messages sent by agencies of the de-
fendant, where plaintiff claims the rate established
for "government messages," instead of "press rates";
it is held that plaintiff is entitled to recover.

Western
Union, 195.

Telegraphs, Telephones and Radios Sm 33.
XIX. Where in connection with publicity for the war bond

drive in 1942, 1944 and 1945, telegraphic messages
were sent by certain agencies acting for the Treasury
Department to newspapers, press services and other
publicity mediums conveying information as to the
progress of the war drive; and where these messages
were for the benefit of the Government and not for
the benefit of the recipients; it is held that under the
tariff regulations issued by the Federal Communica-
tions Commission, in accordance with the applicable
statute, the messages should be classified as "gov-

ernment messages” and not as press dispatches. Id.
Telegraphs, Telephones and Radios mw 33.

115 C. Cls.

CONTRACTS—Continued

XX. Press rates, under the regulations, apply only to mes-

sages addressed to newspapers, press associations or
newspaper syndicates or radio broadcasting com-
panies or stations and sent by duly accredited

"correspondents." Id.

Telegraphs, Telephones and Radios Cow 33.
XXI. Where in response to a “Request For Bids," issued in

October 1943 by the Navy Department for furnish-
ing to the Navy certain items listed therein, plaintiff
submitted its bid; and where on December 15, 1943,
plaintiff entered into a contract for furnishing cer-
tain items but not including the items in controversy
in the instant suit; and where on February 9, 1944,
the parties entered into a further agreement, desig-
nated "Extension Amendment No. 1,” which was an
addition and amendment to the contract of Decem-
ber 15, 1943, calling for the manufacture and delivery
of 25,000 metal devices for the collars of Navy Nurse
uniforms, subject to the provisions of the contract,
as amended; it is held that plaintiff is entitled to

recover. Gemsco, Inc., 209.

United States On 72.
XXII. When the extension agreement was entered into on

February 9, 1944, plaintiff proceeded to place itself
in position to deliver 25,000 collar devices within 90
days, with special dies “used only for the manufac-
ture of the devices ordered by the Government under
this order and not for devices for any other pur-
pose," as stipulated in the agreement. No deliv-
eries were to be made under the contract unless or-
dered, but since it was stated in the "Request for
Tender" that "Time of Delivery is of the essence of
the contract," plaintiff could not wait to begin
manufacture until receipt of delivery orders if it was

to be in position to perform the contract. Id.

United States Om 73 (26).
XXIII. After plaintiff had delivered 3,388 pairs of the devices

defendant issued an order on April 14, 1944, covering
this quantity and payment was made at the rate
specified in the extension agreement. Plaintiff con-
tinued to manufacture the devices and delivered
quantities of them on April 19, 22 and 26, 1944, but
all of these deliveries were rejected on May 2 and 9,
on the ground that no order had been placed for the
quantities delivered. On April 15, the Secretary of
the Navy had approved a change in the design of
the collar devices which was reported to the Perm&-
nent Naval Uniform Board on April 22. Plaintiff

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115 C. Cls.

CONTRACTS—Continued

was not notified of such change until June 1944, when
upon advising defendant's agent that a considerable
quantity of the devices was on hand and ready for
delivery, plaintiff was informed that none of the
devices had been ordered because of the change of

the design prior to that date. Id.

United States C 73 (17).
XXIV. Under the provisions of the Request for Tender and the

Contract (Article 2) changes in specifications, draw-
ings or designs and changes as to delivery might be
made by the contracting officer by “written notice
given to the contractor" and equitable adjustments
made accordingly. The contracting officer, as a
responsible agent of the Secretary of the Navy, was
charged with notice of the changes of design made
by the Secretary and his failure promptly to notify
the contractor in writing was a breach of the contract,

for which plaintiff is entitled to recover. Id.

United States A 73 (17).
XXV. The contracting officer's failure to notify the contractor

of the change in design was also a violation of the
standard of good faith ordinarily required of the
Government acting through its agents. Struck Con-

struction Co. v. United States, 96 C. Cls. 186. Id.

United States am 73 (17).
XXVI. The defendant had ample authority, under the ter-
115 C. Cls.

mination clause of the contract in suit, to terminate
the contract without harming plaintiff in any way.
The contract did not contemplate that the Govern-
ment could change the design of the articles involved
and then not give the plaintiff some form of notice,
either of the change in design or of its desire to ter-

minate the contract. Id.

United States Com 73 (17).
XXVII. In the contract in suit, there were no words which

qualified the indefinite quantities of devices called
for in such a way that the Government was abso-
lutely relieved from giving plaintiff any notice of
the quantity required or that a change in design had
been made. Bickett Coal & Coke Co. v. United
States, 67 C. Cls. 53, is distinguished, since in the
Bickett case the quantities of coal not called for
delivery within a specified period would find a ready
market elsewhere, whereas in the instant contract
quantities of devices manufactured for a special
customer with special dies could not be otherwise

disposed of. Id.
United States O 73°(17).

CONTRACTS—Continued
XXVIII. In the interpretation of contracts dealing with "in-

definite quantities,” such as the contract in suit,
unless all considerations of equity and justice are
disregarded, a high degree of good faith should be
required on the part of the Government and its
agents. See Brawley v. United States, 96 U. S. 168,

172; Field v. United States, 16 C. Cls. 434, 448. Id.

United States Own 70 (1).
XXIX. Where plaintiff on October 9, 1944, wrote to the Pay-

master General of the Navy filing its claim for dam-
ages alleged to have been suffered by reason of the
change in design and the failure of the defendant to
accept further deliveries under the contract; and
where, on November 13, 1944, this claim was denied
and plaintiff requested a reconsideration of the de-
cision, which decision was affirmed by the Navy
Department on March 31, 1945; it is held that plain-
tiff was not deprived of its right of action by failure
to appeal from the decision of the contracting officer
under Article 17 of the contract relating to disputes
concerning questions of fact arising under the con-
tract, since the question involved is a question of
law and not of fact. See Pfotzer v. United States,
111 C. Cls. 184, 227, certiorari denied 335 U. S. 885;
Callahan Construction Co. v. United States, 91 C.

Cls. 538, 616. Id.

United States Or 73 (14).
XXX. In a suit for alleged breach by defendant of the terms

of a construction contract on a war project in 1942,
between plaintiffs and defendant, where the claim is
made by plaintiffs for and on behalf of their subcon-
tractor, a partnership; it is held that plaintiffs are not

entitled to recover. Pearson, Dickerson, Inc., 236.

United States On 74.
XXXI. Under a unit price contract between plaintiffs and

defendant for the construction of a railroad at the
Navajo Ordnance Depot, where plaintiffs' claim is
based in part upon the contention that the contract,
which required them to procure materials only from
sources designated by the Government, expressly
represented that the allocations of such material had
been made by the Government when no such allocs-
tion had been made at that time; it is held, on the
evidence and in view of the prevailing war condi-
tions, that plaintiffs' interpretation of the phrase
"for which an allocation has been made," as the
phrase appeared in the specifications, is not sup-

ported by the facts and cannot be sustained. Id.
United States com 74.

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