specifications also required the plaintiff to furnish temporary heating, if necessary, before completion, when sensitive work such as plastering and laying of tile and linoleum was being done; and where it is found that the Government did, in breach of the contract, delay the plaintiff in the completion of the project; it is held that to the extent that the plaintiff was obliged to keep the buildings heated at its expense before the Government accepted the project, in excess of what would have been necessary but for the Government's breaches of contract, this expense is a proper element of the plaintiff's damage and plaintiff is entitled to recover.
XXVI. Where in connection with a Government construction contract, in accordance with Executive Order No. 7046, issued under the Emergency Relief Act of 1935 (49 Stat. 319), it was provided in the specifi- cations that the minimum wage rates paid by the contractor and its subcontractors should be ad- justed in the event of fundamental changes in eco- nomic conditions and that the contract price should be increased or decreased accordingly; and where, during the progress of the work (1937), there was a fundamental change in economic conditions, within the meaning of the specifications, necessitat- ing the payment of higher wages; and where the Federal Emergency Administrator of Public Works declined to consider the question of changed eco- nomic conditions; it is held that it was the Admin- istrator's contractual duty to consider the question and upon the evidence the plaintiff is entitled to recover the increased amounts paid by the con- tractor and subcontractors in accordance with the prevailing wages in the area during the perform- ance of the contract. United States v. Blair, 321 U. S. 730. Id.
XXVII. No recovery is allowed where mere inconvenience and no delay was experienced in connection with installation of water facilities; nor in connection with installation of wood thresholds where no order in writing was given by the contracting officer and no protest made by contractor; nor in connection with repainting of walls where no written order was given and no protest made. Id. XXVIII. Where the Government specifications with respect to painting and finishing concrete walls contemplated a finish which, in fact, would not result if the speci
fications were followed and the contractor was required, at extra expense, to remove defects and use another method of finishing; it is held plaintiff is not entitled to recover since no order in writing was given and no protest filed as required by the provisions of the contract. See Struck Construction Co. v. United States, 96 C. Cls. 186. Id.
XXIX. Job and office overhead is allowed in connection with breach of contractor by defendant in causing delay in performance. Id.
XXX. The Government's statutory plea of fraud is dismissed for lack of adequate proof.
XXXI. State Social Security Tax to provide for unemploy- ment incident to termination of war paid by a contractor under the Minnesota Employment and Security Act in connection with services furnished the War Department at government-owned plant for the manufacture of small-arms ammunition under a cost-plus-a-fixed-fee contract were charge- able as a cost of performance under the provisions of the contract and plaintiff is entitled to recover. Federal Cartridge Corporation, 372.
XXXII. It was the intention of the parties that the contractor should be reimbursed for every sort of expense or liability incurred as a result of the carrying out of the contract with the sole exception of such ex- penses as were incurred as the result of the failure of plaintiff's officers to exercise good faith or that degree of care which they exercised in the carrying out of their own business. Id.
XXXIII. The disbursements under the Minnesota Employ- ment and Security Act were disbursements required by law which the contractor was obligated to pay on account of the personnel employed in carrying out the contract. Id.
XXXIV. Under a contract with the Government to construct Lock 21 in the Mississippi River, near Quincy, Illinois, where it is established by the evidence that the contractor encountered subsurface conditions which, as all of the conduct of both the plaintiff and the Government engineers showed, were not foreseen by them when the contract was made; and where on account of these "changed conditions" the contractor was put to extra expense by the collapse of its cofferdam, as well as the necessity for changing the drainage system, the hard driving of wooden piles and the necessity for the use of
steel sheet piles; it is held that under the provisions of the contract, the contractor was entitled to an equitable adjustment of the contract price to cover its increased costs with respect to the collapse of the cofferdam and plaintiff is entitled to recover on that item of its claim. Joseph Meltzer, Inc., of New Jersey, 389.
XXXV. Where in response to plaintiff's claim for an equitable adjustment of the contract price because of unfore- seen conditions the contracting officer at first denied any relief but later, upon reconsideration, granted relief only as to some costs of drainage excavation, difficulty of driving timber piles and the necessity for driving steel sheet piles; and where the Chief of Engineers, on plaintiff's appeal, affirmed the deci- sion of the contracting officer, which was based on the existence of unanticipated conditions; it is held that the Chief of Engineers and the contracting officer misinterpreted the contract and did not, in fact, decide the plaintiff's claim and appeal on the basis of the contract, and plaintiff is not therefore foreclosed by their adverse decision from seeking judicial relief with respect to extra costs caused by the collapse of the cofferdam. Id.
XXXVI. Where, under the orders of the Government's agents who had the power to determine what the content of the concrete mix should be, the plaintiff placed a quantity of Class A concrete around certain ducts in the lock walls and cross-overs; and where plaintiff was paid only the price of Class B concrete; it is held that the plaintiff is entitled to recover the difference between the stipulated unit price of Class A and Class B concrete on this item of its claim. Id.
XXXVII. Where it is found that the refusal of the Government's agents to allow the contractor an extension of 21 days in connection with dredging excavation was arbitrary and unreasonable; and where it is also found that refusal of an extension of time because of the collapse of the cofferdam and the conse- quences of that collapse, resulting in a delay of 46 days, was likewise unjustified, under the terms of the contract; it is held that plaintiff is entitled to recover liquidated damages assessed for the two periods of 21 and 46 days. Id.
XXXVIII. Where the contractor, under the terms of the contract,
had the choice of accepting labor supplied by the
United States Employment Service or obtaining its labor in the open market; it is held that plaintiff is not entitled to recover on any of the elements of its labor claim based on the alleged inefficiency of the labor obtained from the Employment Service. Id. XXXIX. In a suit arising out of a contract for the construction of an irrigation canal on the Deschutes River near the city of Bend, Oregon; upon the evidence and the terms and conditions of the contract, it is held that plaintiff is entitled to recover on the first item of the claim for certain dry and subaqueous rock excavation beyond and outside the limits of the work called for, and that plaintiff is not en- titled to recover for certain canal excavation alleged to have been covered by the contract price for excavation nor for mixing and placing certain con- crete for which it is alleged payment should have been made under the contract. Orino, 491.
XL. "Approach channel" standing alone, in its ordinary and accepted meaning, denotes a channel from a source of supply capable of supplying capacity of structure which it serves to connect, but in the instant case the meaning must be determined from the context in which the term is used and from other portions of the contract documents wherein the work to be performed under the contract is specifically defined or otherwise indicated. Id. XLI. The "approach channel" included in the excavation for headworks for purpose of payment at appli- cable unit prices set forth in the bid schedule had reference to channel which was to be constructed upstream from station where headworks proper terminated, and was not a channel to be constructed out into river by contractor as part of his work under the contract. Id.
XLII. Doubtful expressions in construction contract with Government are to be construed most strongly against the party who uses the language. Garrison v. United States, 7 Wall. 688, 690; Gibbons v. United States, 15 C. Cls. 174, 192; Callahan Con- struction Co. v. United States, 91 C. Cls. 538, 611- 612.
XLIII. The contractor should not be held to know or sus- pect that the representatives of the Government who drafted the specifications may have intended, without expressing it, to interpolate some such amplifying expression as "from the bed of the
river" between the words "approach channel" and the words which followed, with reference to excava- tion for headworks. John K. Ruff v. United States, 96 C. Cls. 148, 164; Loftis v. United States, 110 C. Cls. 551. Id.
XLIV. Where it was admitted by the defendant that con- tractor protested directions that certain work be done under the contract, but it was denied that he asked for written instructions and testimony with respect to request for written instructions was in irreconcilable conflict, the court would accept as true the testimony of the contractor and his super- intendent and reject that of the witnesses for the Government. Id.
XLV. Where it is found that the construction of the con- tract provisions relating to the matter, by the Government's administrative officers as well as by the Government's representatives directly in charge of the project, was erroneous, and that compensa- tion for the subaqueous rock excavation in question was not properly measured by the unit price appli- cable to dry rock excavation; it is held that the con- tractor was entitled to recover a fair price, includ- ing overhead and profit, for such subaqueous rock excavation. Id.
XLVI. Where contractor protested decision that he was not entitled to additional payment for excavation and concrete work, but there was no claim that he re- quested instructions for decision regarding the work; and where he did not make written protest that work involved change in plans and specifica- tions or that it was work outside that called for by the contract; it is held that plaintiff could not re- cover payment unless it appeared that there was no occasion for protest or reason why contractor should have insisted upon written instructions or order therefor, as if it involved extra work. Id. XLVII. Where each portion of the contract in suit was capa- ble of being understood without reference to any other portion, the court could not read two parts as one so as to impute to provisions for removal of rock masses, loose and liable to fall, an undertak- ing by the Government to pay, found only in pro- vision respecting changes which Government might find it desirable to make. Id.
XLVIII. Excavation from beyond neat lines of side walls of unlined canal section of rock comprising overbreak
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