342 Reporter's Statement of the Case ing (which included the corresponding corridor) per calendar day of delay beyond the date set in the contract for completion, subject to the provisions of article 9 of the contract. * The record fails to indicate that any request was made for or an extension of time granted under the provisions of article 9 of the contract, and in the absence of any showing as to the cause of delays in completing the work or that such delays were excusable under the express terms of the contract, it must be held that liquidated damages in the total amount of $5,160 are properly chargeable and deductible from the amount otherwise due under the contract. There are of record no findings of fact by the contracting officer as to the cause of delay in the completion of the contract work. The net amount allowed by the accounting officer was accepted by the contractor under protest. 6. The plaintiff's claim is limited to recovery of an allegedly excessive deduction for liquidated damages to the extent of $3,120.00, on the ground that the maximum amount deductible was $2,040.00, calculated at $20 per day for 102 days. The longer period of delay applied by the accounting officer, 132 days, the plaintiff says is excessive by 30 days, the delay of 30 days being due to causes for which the contractor was not responsible and for which the contractor made written request of the defendant for allowance as part of the time for performance. The delay of 30 days the plaintiff attributes (1) to a strike, and (2) to failure to receive prompt priorities resulting in delay in delivery of materials. 7. The contractor operated an "open shop," that is to say, employed men regardless of whether or not they belonged to a labor union. The contractor was performing its work at the same time another project on the hospital grounds was in course of performance. The contractor on the other job employed union labor exclusively. During the course of its performance a jurisdictional dispute arose between the unions, resulting in a strike and the picketing of the grounds. These pickets prevented members of unions affiliated with their Reporter's Statement of the Case 105 C. Cls. union from working not only on the job where the workmen had struck, but also on the job being performed by the Merando Company. The result was that truck drivers having material to deliver to the Merando Company job refused to pass the picket lines, which they had to do to deliver materials to this job. This made it necessary for the contractor to pick up material in its own trucks, accept delivery of material outside of the premises of the site, and to adopt other expedients to secure material and to keep the work going. The strike on the other job began on or about March 5, 1941, and lasted about 11 days. The union pickets, however, were not withdrawn and continued to operate against plaintiff's contractor until April 21, 1941, when they were finally withdrawn. The strike interfered with and retarded the contractor's work, and delayed its completion by eight days. 8. Difficulty was experienced by the contractor in obtaining priorities for certain materials entering into the construction of the building. In obtaining these priorities the contractor requested and secured the assistance of defendant's officers. The routine necessary to secure the priorities, by whom they were to be issued and to whom in the manufacturing or fabricating processes they would have to be issued, was not easily ascertained. This involved much letter-writing, telephoning, conferring, and negotiation before delivery of the necessary material could be secured. However, it does not appear that this materially delayed completion of the work. 9. In due course the contractor received from the constructing quartermaster the following letter dated March 26, 1941: Information is requested as to what extent Union pickets which have been posted at Walter Reed Hospital have interfered with the construction of the two Neuro-Psychiatric Ward Buildings. Please detail all inconveniences and irregularities, which have been occasioned by Union pickets which in your opinion have been responsible for delay of construction and delay of materials to the project. In order to enable this office to have this information available as soon as possible it is requested that you give this your immediate attention. 342 Opinion of the Court On April 10, 1941, the contractor requested of the constructing quartermaster ten days' additional time for completion, due to delay occasioned by the strike, citing incidents in connection therewith. On April 21, 1941, the constructing quartermaster made the following request of the contractor: Reference is made to your letter of April 10, 1941, requesting an extension of 10 days to your contract Now that the pickets have been removed from this project, it is requested that you advise whether the ten days extension requested in your letter of April 10th represents the total time which you expect to claim was lost due to difficulties encountered because of the strike delaying deliveries of materials to the job. On May 3, 1941, the contractor wrote the constructing quartermaster that it had been delayed by a strike and by a failure to secure delivery of materials due to delays in securing the necessary priorities. Its letter detailed the delays incident to the strike and to the failure to receive prompt priorities, and concluded: From the foregoing, it appears that because of strikes we lost close to 46 days' time on this job. We are asking for a 30-day extension, because we realize that even with the pickets removed, that additional time will be necessary for completion of the work. We will make every effort to complete the job before the expiration of the 30 days, but we most respectfully ask that you give us the 30 days' extension. The contracting officer never acted upon this application. 10. As the contractor's surety, the plaintiff has been compelled to pay to subcontractors and materialmen the total sum of $34,461.17, and from them it took releases. On this account the plaintiff has received a salvage of $14,047.30, making its net loss $20,413.87. The court decided that the plaintiff was entitled to recover. WHITAKER, Judge, delivered the opinion of the court: Plaintiff was the surety on the payment and performance bond of the Merando Company, which had a contract for the erection of an addition to the Neuro-psychiatric Ward of Walter Reed General Hospital in Washington, D. C. It Opinion of the Court 105 C. Cls. paid subcontractors and materialmen a total of $34,461.17 on account of the contractor's default. It has been reimbursed to the extent of $14,047.30, resulting in a net loss to it of $20,413.87. It brings this suit alleging that defendant has unlawfully deducted from the amount due the contractor the sum of $3,120.00 in liquidated damages. It first says that the contracting officer wrongfully failed to act upon the contractor's application for an extension of time and that the contractor was justly entitled to the extension under the terms of the contract. Secondly, it says that the Comptroller General erroneously deducted liquidated damages in accordance with the invitation for bids rather than in accordance with the terms of the contract it entered into. 1. At the time the contractor was performing its work under its contract, another job was going on at the same time on the grounds of the Walter Reed Hospital. The Merando Company ran an "open shop," but on the other job only union labor was employed. On this other job these laborers struck on account of a jurisdictional dispute between the unions. As a result the grounds of the Walter Reed Hospital were picketed and no union man whose union was affiliated with the striking union was permitted to enter the hospital grounds. As a result the contractor was much inconvenienced and considerably delayed in securing deliveries of necessary materials. The contracting officer recognized that the contractor was probably entitled to an extension of time on account of this strike, and on his own initiative wrote the contractor to know to what extent it had been delayed by the strike. The contractor first requested 10 days' extension of time on this account. The contracting officer did not act upon this request, but inquired whether or not any further extension of time would be requested on this account. Thereupon the contractor wrote the contracting officer in detail complaining of the delays due not only to this strike but to delays in securing priorities resulting in tardy delivery of materials. In this letter it requested an extension of time of thirty days on account of the strike. 342 Opinion of the Court For some reason the contracting officer never acted upon this application. The contract provides that the contractor shall not be charged with liquidated damages because of unforeseeable causes of delay, including strikes, and it provides that the contracting officer "shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension." This, of course, makes it mandatory upon the contracting officer to make findings of fact upon an application for an extension of time and to grant or refuse the extension. His failure to do so is a breach of the obligation cast upon him and justifies this court in remitting liquidated damages deducted to the extent of any extension of time that should have been granted by the contracting officer. The commissioner of this court has found that the contractor was delayed 8 days by this strike. Plaintiff excepts thereto, but it does not refer the court to portions of the record it relies upon to support its exception. This fails to comply with rule 46 of this court and, hence, the exception is disallowed and the commissioner's finding has been adopted as the finding of the court. See Schmoll, assignee, et al., v. United States, No. 44761, this day decided. An extension of time of 8 days should have been allowed by the contracting officer. Liquidated damages at $20.00 a day for 8 days amount to $160.00. This amount was erroneously deducted and plaintiff is entitled to recover this amount. 2. The contractor was 126 days late in completing building A, and 132 days late in completing building B. The invitation for bids provided: Liquidated damages for delay will be Twenty Dollars ($20.00) for each building per calendar day of delay However, this invitation for bids was not made a part of the contract, and the specifications, which were made a part of the contract, provided that liquidated damages should be in "the amount of Twenty Dollars ($20.00) for each cal |