Reporter's Statement of the Case 107 C. Cls. Fort Andrews for the 10 and 9 days, respectively, which the Quartermaster General held were the periods of delay due to interference. This rented equipment cost plaintiff $460 at Fort Banks and $1,418.25 at Fort Andrews, exclusive of overhead. 9. Article 9 of the contract was as follows: 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 unforseeable 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, acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather or delays of subcontractors due to such causes, if the contractor shall within 10 days from the beginning of any such delay (unless the contracting officer, with the approval of the head of the department or his duly authorized representative, shall grant a further period 627 Reporter's Statement of the Case of time prior to the date of final settlement of the contract) notify the contracting officer in writing of the causes of delay, who 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, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 30 days, by the contractor to the head of the department concerned, or his duly authorized representative, whose decision on such appeal as to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto. Paragraph SC-3 of the specifications was as follows: Liquidated damages. If the contractor delays the completion of the work under this Contract beyond the time for completion stated in the Contract, then the Contractor shall pay the United States as fixed, agreed and liquidated damages the amount of Five Dollars ($5.00) per building, per calendar day of delay, until the work is completed or accepted, subject to the provisions of Article 9 of U. S. Government Contract Form No. 23, Revised September 9, 1935. If one or more of the buildings are accepted in advance of the whole, then liquidated damages will be collected only on those buildings that are completed or accepted after the completion date of the Contract in the amount aforesaid. The contract required that all buildings at Forts Levett, McKinley, and Strong, and all barracks, officers' and nurses' quarters, and mess halls at Forts Andrews and Banks be completed within 60 calendar days after reecipt of notice to proceed, or by January 5, 1941, and the balance of the buildings at Forts Andrews and Banks within 90 days, or February 4, 1941. Plaintiff was delayed by the utilities contractor, inclement weather, and other causes, other than heating equipment work, for which extensions of time were granted. The record does not show that the extensions of time granted were less than delay occasioned by these causes. A total sum of $5,615 in liquidated damages properly computed for the days of completion past the extended time for completion was withheld from the final payments and a claim for this amount was reserved in the final release. Reporter's Statement of the Case 107 C. Cls. The cause of noncompletion within the extended time was plaintiff's delay in completing the heating equipment installation. Plaintiff, after entering into the contract, promptly placed contracts for the hot-air heating equipment and its installation with a subcontractor. The subcontractor was unable to secure the heating equipment in time to install it in the buildings within the contract time as extended. At or about the time of plaintiff's contract, the defendant had awarded other contracts for other buildings requiring similar equipment and the same kind of labor for installation. The claims for extension of time beyond the extensions allowed and recited above were denied by the contracting officer, who held that the delay was caused by plaintiff's inability to secure sheet-metal workers and the difficulty of plaintiff in securing the heating equipment, and that such delays did not fall within the excusable delays enumerated in the contract. The record does not show that this matter was appealed to the head of the department. The matter reached the Comptroller General, who held that the decision of the contracting officer was final and disallowed the claim. The amount withheld by the defendant as liquidated damages was withheld by plaintiff from its subcontractor for the heating equipment, who was responsible for the delay in completion of the buildings within the extended time. 10. Plaintiff constructed 34 buildings at Fort Banks, the last being completed March 2, 1941. On April 5, 1941, plaintiff requested the constructing quartermaster to issue extra orders for 9,780 cubic feet of fill for four of the buildings and 6,132 cubic feet of fill for three of the buildings. The total claim was 589 cubic yards at $2.00 per cubic yard, or $1,178. The stakes locating the buildings at Fort Banks were placed and marked to show the grade. The location of four single storehouses was changed after the contract was signed. The proof does not establish whether the grades established at the new locations increased or decreased the amount of fill required for these four buildings above or below the amount that would have been required if the grades as originally staked out had been adhered to. The amount of fill 627 Opinion of the Court required, beyond the amount that would have been required had the natural grade been adhered to, was 589 cubic yards. The proof does not establish the cost of this fill to plaintiff. The court decided that the plaintiff was entitled to recover on its claims 3 and 6. MADDEN, Judge, delivered the opinion of the court: The plaintiff is a partnership which, on November 6, 1940, made a contract with the United States to construct temporary barracks at two forts in Maine and three in Massachusetts for $748,000. The Government issued its invitation for bids on October 24, 1940, and issued addenda thereto on October 29 and October 30. The proposed contract, specifications, and drawings sent out with the invitations for bids did not purport to show where the numerous buildings would be located on the areas of the forts. But the specifications, under the heading "Special Conditions," in paragraph 2, said that not less than five days prior to the opening of bids the constructing quartermaster would locate the position of each structure, and location stakes were accordingly placed. The plaintiff's first claim is that, when it began to excavate for the foundations for some of the buildings at Fort Strong, Massachusetts, it encountered some old foundations, and was put to heavy expense in bringing in special machinery and in extra labor to overcome these obstacles. The plaintiff says that the existence and location of these old foundations were subsurface and latent conditions which brought into play the provisions of article 4 of the contract which provided that an equitable adjustment should be made to compensate the contractor for extra expense caused by such conditions. The Government says that the old foundations were not latent, but that parts of them were visible at the surface of the ground and would have put one who visited the site on notice of what might be expected under ground. We have found that this was true. The plaintiff concedes that the old foundations at Fort Andrews were visible, but says that the service club building which was originally planned for the site of the old foundations was eliminated by an addendum on October 29, and a recreation building was added which Opinion of the Court 107 C. Cls. was placed in the same location. This seems to us to be immaterial. We note that the plaintiff did not, in fact, visit either site before making its bid. We think the plaintiff's first claim is not well founded. The plantiff's second claim is for extra wages paid to carpenters above the eighty cents per hour wage which was named in the contract as the minimum wage which must be paid. The facts in regard to this claim appear in finding 6. The Special Conditions of the specifications, paragraph 8, stated that eighty cents an hour had been determined by the Secretary of Labor to be the prevailing rate of wages in the vicinity of Forts Levett and McKinley, in Maine. This statement was true. But on October 24, which happened to be the day the invitations for bids, containing these specifications, were sent out, the carpenters union in the area had decided to demand $1.00 per hour, beginning November 15, and to refuse to work for less. So far as appears, neither the Government nor the plaintiff knew this when they made their contract on November 6. From November 15, the plaintiff was obliged to pay the higher wages and it sues for the difference. It may not recover. The Government's statement in the specifications was only a statement of an existing fact. It was not a warranty that, within the period of performance of the contract, workmen would not demand increases in wages. This case is different from that of Albert & Harrison, Inc. v. United States, 107 C. Cls. 292, decided December 2, 1946, in which the Government's statement as to what the prevailing wage had been found by the Secretary of Labor to be, was erroneous. The plaintiff's third claim is for excavation, and its sixth claim is for fill, which, it says, it was required to make, but was not bound by its contract to make. Paragraph 2 of the Special Conditions of the specifications is copied in full in finding 7. It says, inter alia: *The natural grade of the site will be the finished grade, except where it must be altered to prevent the accumulation of water under and about the buildings as required by the specifications. The amount of excavating and backfilling is in no way affected by the variation in grade level; there |