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The change orders thus effected an increase in contract price from $1,123,000.00 to $1,140,782.25.
Article 16 (d) of the contract provided :
Upon completion and acceptance of all work required hereunder, the amount due the contractor under this contract will be paid upon the presentation of a properly executed and duly certified voucher therefor, after the contractor shall have furnished the Government with a release, if required, of all claims against the Government arising under and by virtue of this contract, other than such claims, if any, as may be specifically excepted by the contractor from the operation of the release in stated amounts to be set forth therein.
98 C. Cis. Reporter's Statement of the Case 5. Plaintiff's final requisition for payment, dated February 23, 1934, was executed after the acceptance and completion of the work on February 14, 1934. It contained the following material matter: Final amount due.-
$59.282.25 We certify that the above requisition is correct and just and that payment has not been received.
JACOBSON BROTHERS COMPANY,
Assistant Secretary and Treasurer. The amount, $59,282.25, claimed in plaintiff's final requisition, was the difference between the contract price as increased by the change orders and the amount theretofore paid plaintiff on account of the contract.
Before final settlement, the assistant to the Architect of the Capitol conferred with plaintiff's representative and explained the desire of the contracting officer to be just and reasonable with respect to the extensions of time under the contract requested by plaintiff and sought plaintiff's assurance that no claims relating to the contract would be made by it. Plaintiff's representative said that no claims would be made.
The contracting officer in an effort to be fair and just took into consideration the fact that the work had been performed during a time of financial difficulty, that a good job had been done, that the defendant had occupied a part of the premises before completion of all the work, that the contractor had, without any excuse recognized by the contract, on occasions delayed the work, but that there had been delays caused by both parties. Considering the whole situation and the assurance made by plaintiff that no claims would be asserted under the contract, he determined not to assess any liquidated damages against plaintiff.
March 23, 1934, the Architect approved the final voucher in the full amount claimed by plaintiff, and forwarded to plaintiff two unexecuted copies of a release, together with the following letter:
Kindly execute this Release and return both of the copies to this office at your earliest convenience in order that the final payment voucher in favor of your com
Reporter's Statement of the Case pany, which is now being held in this office, may be promptly forwarded to the General Accounting Office for consideration and final settlement.
It is of course understood that, although this office has certified the final payment voucher in the full amount requested by your company, the matter of actual assessment or waiving of liquidated damages which may have accrued for periods of delay in the completion of your contract is one that is beyond the jurisdiction of this office, such authority being, instead, vested by law in
the Comptroller General of the United States. Plaintiff delivered the release executed in duplicate to the Architect of the Capitol by letter dated April 16, 1934, and stated :
We have executed these releases and are returning both of them to your office as per our telephone conversation of today with your Mr. Rouzer, and as I understand it, as soon as the releases are received at your office you will at once release the payment voucher in favor of our company, which has been held up in your office
awaiting these releases. This letter and the release were signed by Jacob Jacobson, president of the plaintiff corporation. The release provided as follows:
Pursuant to provisions of Contract AC-cong-70, dated March 31, 1932, by and between The United States (the Government) and Jacobson Brothers Company (the contractor) for furnishing all labor and materials and performing all work required for the construction of an Addition to the Library of Congress, Washington, D. C., and in consideration of the payment by the Government of the total sum of One million, one hundred forty thousand, seven hundred eighty-two and 25/100 dollars ($1,140,782.25), the receipt of which is acknowledged, the contractor does hereby release the Government from all claims arising under or by virtue of said contract. Original contract
$1, 123, 000.00 Net addition (C. 0. 1-60).
17, 782. 25 Final Contract Price
1, 140, 782, 25 6. In accordance with practice, the Architect of the Capitol forwarded the final voucher and the release to the Comptroller General for settlement. The certificate of settlement issued by the General Accounting Office deducted 98 C. Cis. Reporter's Statement of the Case the sum of $900.00 from the amount approved by the Architect of the Capitol, the Comptroller General ruling that liquidated damages should be assessed under Article 9 of the contract for nine days' delay due to a controversy as to the prevailing rate of wages. The Architect of the Capitol had found as a fact that plaintiff's operations were delayed “from December 30, 1933, to January 7, 1934, inclusive, a period of 9 calendar days,” and included this period of time in the 272 days' extension of time allowed by him in waiving all delays. A Treasury check in the sum of $58,382.25, the amount of plaintiff's final requisition as shown in finding 5, less $900, was issued to plaintiff.
On May 29, 1934, a firm of attorneys addressed a letter to the Comptroller General, stating:
We represent the United States Fidelity & Guaranty Company and Jacobson Brothers Company in the matter of the contract between the latter and the United States for the construction of an addition to the Library of Congress, Washington, D. C., under contract No. ACcong.-70, dated March 31, 1932.
There has been received by the United States Fidelity & Guaranty Company notice of settlement of claim under said contract, being certificate No. 0327832— claim No. 0447134, together with check for $58,382.25, payable to the order of Jacobson Brothers Company c/o Mr. George W. Hynson, Treasurer United States Fidelity and Guaranty Company, Calvert and Redwood Streets, Baltimore, Maryland, which check purports to be in final settlement of said contract.
Our clients are desirous of receiving the proceeds of this check, as there are numerous claims outstanding for labor and materials, upon which demands are constantly being made. We are informed, however, that there are possible claims against the United States for damages incurred by the contractor during prosecution of the work. It is, therefore, important from the standpoint of our clients that they refrain from being put in a position of releasing these claims by using the check.
We accordingly request that you authorize our client to use this check upon the understanding and condition that by cashing it they do not waive any rights against the United States, but specifically reserve any and all rights now held by them to prosecute any lawful claim
Reporter's Statement of the Case before any Department having jurisdiction, or in the
Court of Claims. In acknowledging the receipt of this letter the Comptroller General said:
The jurisdiction-administratively, as contrasted with judicial—is in this office, as provided in the Budget and Accounting Act of June 10, 1921, 42 Stat. 24, to settle claims arising under the contract, and so far as this office is concerned the check for $58,382.25 may be accepted without prejudice to further consideration here of any legal claims which the contractor may present under the terms of the contract. This office cannot inform you as to what effect the acceptance of the check might have in any proceedings in the Court
of Claims. The check was thereafter cashed.
7. The change orders enumerated in Finding 4 as a rule followed negotiations between the parties—a request by the contracting officer to plaintiff for a proposal covering the extra work, the changed work, or the omission of work, as the case might be; and a proposal by plaintiff describing the work and the proposed addition to or deduction from the contract price. The change orders in many instances were issued after the work called for therein was already accomplished. The additions to the contract price were, in general, except where unit prices named in the contract were used, based upon cost plus ten percent thereof for overhead, plus ten percent of the aggregate of cost and overhead for profit.
Change Order No. 23, covering structural steel lintels over two windows, specifically increased the contract time by 6 calendar days. No other change order specifically increased the contract time.
Details in connection with other change orders are hereinafter set forth.
8. The construction called for by the contract was an addition to the Library of Congress, Washington, D. C., wallbearing, and projecting from the east side of the main building. The addition was designed to conform as closely as possible to the main structure, which was considered unique