248 Reporter's Statement of the Case Same; increased overhead costs due to delays. After eliminating items of the claim for increased overhead costs which are not properly chargeable as job overhead, such as membership fees and gratuities, as well as some of the attorneys' fees paid by the contractor, plaintiff is entitled to recover for legitimate overhead costs attributable to delays for which defendant was responsible. Same; incidental increased costs due to inability to pursue work in proper sequence.-Plaintiff is entitled to recover for incidental items of additional expense incurred as a result of plaintiff's inability to pursue the work in accordance with its planned and proper sequence, due to delays for which defendant was responsible. The Reporter's statement of the case: Mr. Alexander M. Heron for the plaintiff. Hinton & Heron were on the briefs. Mr. E. E. Ellison, with whom was Mr. Acting Assistant Attorney General John F. Sonnett, for the defendant. Mr. Currell Vance was on the brief. The court made special findings of fact as follows: 1. George A. Fuller Company is a corporation organized under the laws of the State of New Jersey and is engaged in the business of building construction. 2. On June 29, 1932, plaintiff entered into contract T1SA3242 with the defendant through its Treasury Department, represented by Ferry K. Heath as contracting officer, to furnish all labor and material and perform all work for the construction (except foundations and elevators) of the Department of Justice Building, Washington, D. C., for a consideration of $7,667,000, in accordance with designated specifications and drawings. The contract, including the specifications, is plaintiff's exhibit No. 1, and is made part hereof by reference. Additions to the contract price on account of change orders totaled $142,031.50, and deductions totaled $15,030.99, making a net increase in the contract price of $127,000.51. This included $10,464.59 to plaintiff for overhead expenses and $11,890.29 to plaintiff for profit. The final contract price was $7,794,000.51, which has been paid to plaintiff. 697795-46-vol. 105-18 Reporter's Statement of the Case 105 C. Cls. This included a job profit to plaintiff of $274,682.72. Plaintiff's total job costs were $7,519,317.79, and its general overhead expenses were between 2 and 3 percent of such costs. 3. In general the Department of Justice Building is a structure of seven stories above the basement with steel framework and faced with limestone, having a large central court and four small courts on the interior of the structure. There are certain ornamental features in stone on the exterior of the building, and on the interior there are ornamental features affecting the interior stonework and plaster in the various corridor intersections, elevator banks, the great hall, the library, the fifth floor corridor adjacent to the offices of the Attorney General and the Solicitor General, and in the offices of the latter officials and their assistants. These ornamental features in the exterior stone, interior stone, and plaster required models for their execution. 4. The contract provided that the work was to be completed within 720 days after the receipt of notice to proceed. Notice to proceed was received by the plaintiff on July 13, 1932, thereby fixing July 3, 1934, as the required date of completion. The building was substantially completed and occupied by the defendant on October 25, 1934. 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 ten days from the date the change is ordered, unless the contracting officer shall for proper cause extend such time, and if the parties can not agree upon the adjustment the dispute shall be determined as provided in Article 15 hereof. But nothing provided in 248 Reporter's Statement of the Case this article shall excuse the contractor from proceeding with the prosecution of the work so changed. 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 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: Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes: Provided further, That the contractor shall within ten days from the beginning of any such delay notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within thirty days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay shall be final and conclusive on the parties hereto. Reporter's Statement of the Case 105 C. Cls. In accordance with Article 9, the contracting officer extended the time for completion 76 days, or until September 17, 1934, because of the delay due to partially concurrent strikes of carpenters and plasterers. Under the provisions of Article 3, the contracting officer further extended the time 210 days, or until April 15, 1935, because of certain additional work ordered during September and October 1934. No liquidated damages were assessed. 5. The specifications (Sec. I, pars. 51 to 54, inclusive) provided as follows: 51. MODELS.-The Government will furnish the models indicated on the drawings. Any additional models of rights, lefts, miters, bends, curved portions, shrinkage models, etc., and any patterns required shall be provided by the Contractor. 52. Models will be delivered F. O. B. at points designated by the Contractor who shall furnish the Supervising Architect with full shipping directions. The Government bill of lading will be sent the consignee who shall fill out the "Certificate of Delivery" and surrender the Government bill of lading to the carrier as payment for the shipping charges. The Contractor or his authorized agent shall receive the models, be responsible for all charges for storage, etc., after notification that the models have been shipped, and for the care of the models from the time of delivery to him. 53. The models shall be unpacked immediately and examined. Dimensions shall be verified and any discrepancies or damage shall be reported in writing to the Supervising Architect. No repairs or alterations shall be made without written instructions from the Supervising Architect. 54. The Contractor shall deliver such models at the building for verification of the work executed therefrom when so directed by the Supervising Architect. After completion of the contract, the models are to be destroyed, unless permission is obtainable from the Supervising Architect to dispose of them otherwise. The defendant furnished the required models through one Anthony Di Lorenzo, a modeler in New York City, under a direct contract dated September 22, 1932. Models furnished under this contract included approximately 45 for exterior ornamental stone including about 25 for Court A; 84 for 248: Reporter's Statement of the Case the interior stone and marble, and about 138 for ornamental plastering. There was some ornamental carving and lettering of stone performed at the site, which did not require models. Some of the models for ornamental stone were duplicated in the work, while many of the models for ornamental plastering merely represented a segment of the work required in one place, which in turn was duplicated elsewhere. 6. Plaintiff planned to construct the building in two sections; the first extending from Constitution Avenue to and including the south wall of the large court, or Court A, including the east and west sections of the building south of the arched entrances to this court from Ninth and Tenth Streets, and the second section consisting of the remainder of the structure north to include the Pennsylvania Avenue front. It was contemplated that each trade would start its performance in the south section and that upon completion of the work of a trade in the south section the following trade would begin its work, complete it, and, in turn, move to the north section. In this manner it was contemplated that a smaller number of workmen and a smaller amount of equipment would be required than if each trade worked simultaneously on all parts of the building. 7. Exterior stone.-The exterior stone for the facades of the building was furnished by Indiana Limestone Company and that for the interior courts by Rockwood Alabama Stone Company. Upon the completion of a model required for an ornamental feature of the exterior stone the model was shipped to the subcontractor fabricating the stone, and the subcontractor, from the model, fabricated the ornamental stone in question. Upon its completion this stone was then shipped to Washington for incorporation in the building. The fabrication of an ornamental stone after receipt of a model therefor required from four to six weeks, according to the degree of ornamentation. 8. Interior stone.-Certain of the interior stone also required models for its fabrication, and the procedure in fabricating such ornamental stone was the same as in the case of exterior stone. |