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age provisions in Government contracts see Bethlehem Steel Company v. United States, 205 U. S., 105; Maryland Dredging Company v. United States, 241 U. S., 361; Wise v. United States, 249 U. S., 361; Hathaway and Company v. United States, 249 U. S., 460.
The contention of claimant relative to the effect of the Quartermaster General's recommendation is not tenable because neither the contracting officer, the Quartermaster General, nor any other officer of the Government granted an extension of time in this case. The action of the Quartermaster General in recommending that liquidated damages be charged only for the delay subsequent to June 1, 1921, was based upon his construction of the intent and purpose of the liquidated damage provision and not upon an extension of time.
The only question left for determination is as to the proper construction or interpretation of the liquidated damage provision. It is noted that said provision consists of three paragraphs. The first paragraph fixes a schedule of completion for the 35 storage magazine buildings; that is to say, it provides substantially that 7 of these buildings shall be completed on or before December 11, 1920, 7 on or before February 1, 1921, 7 on or before March 1, 1921, and "all storage magazines” by April 1, 1921. The requirement that "all storage magazines " be completed by April 1, 1921, would appear to be in conflict with the specific requirement as to 21 of said magazines unless the term “all storage magazines ” in this instance was intended to mean only the remaining 14 storage buildings. The second paragraph provides a schedule for completion of the work other than the 35 storage buildings as follows: The garage on or before February 1, 1921, and all other buildings in such order as the constructing quartermaster may direct. Said paragraph further provides that the entire project shall be completed on or before June 1, 1921. Then follows the third paragraph, which reads:
The contractor further agrees, in case of failure to complete any of the above mentioned units of the project within the time above stipulated, to forfeit to the United States, as liquidated damages, the sum of two hundred dollars ($200) per day for each and every day completion of said units is delayed beyond the time above stipulated.
Did this paragraph contemplate that each portion of the work for which a separate completion date had been provided in the schedule prescribed in the two preceding paragraphs should be regarded as an independent unit? And was it intended to provide that liquidated damages at the rate of $200 per day should be charged with respect to each unit for each and every day's delay beyond the respective dates fixed for each, as though there were a separate contract for each of said units? Or does it mean that if
any part of the work is uncompleted on June 1, 1921, the date specifically fixed for completion of “the entire project,” liquidated damages at the rate of $200 per day will be charged for each day's delay thereafter
It is noted that the language of the provision is “in case of failure to complete any of the above-mentioned units within the time above stipulated.” The “time above stipulated ” for completion of the entire project is June 1, 1921, and since the paragraph does not state“ time above stipulated for completion of each unit” its intended meaning is not clearly expressed. Is the “time" referred to June 1, 1921, or the scheduled dates for the various units, respectively? The same lack of definiteness appears in the concluding part of the paragraph, to wit,“ for each and every day completion of said units is delayed beyond the time above stipulated.”
Taking the first and second paragraphs of the provision together they provide a schedule for completion as follows: Seven storage magazines by December 11, 1920; 7 storage magazines by February 1, 1921; garage by February 1, 1921; 7 storage magazines by March 1, 1921; 14 (?) storage magazines by April 1, 1921; other buildings (about 25) as constructing quartermaster may direct.
If the liquidated damage provision is to be construed as relating to the schedule for completion of the different portions of the work rather than to the completion of the entire project, then it would have to be held that damage at the rate of $200 a day should be charged for delay in completion of the garage by February 1, 1921, as well as for delay in completion of the seven storage magazines required to be completed on said date, and that the damage provided would apply to failure to complete the other buildings as directed by the constructing quartermaster, as well as the failure to complete the storage magazines and garage by the dates stipulated in the schedule. In this connection it is noted that the contract does not fix a separate price for each portion of the work for which a separate completion date is scheduled, but fixes a lump-sum price for the entire work.
In view of the uncertainty arising from the indefiniteness in the language of the paragraph now under consideration, as hereinbefore indicated, it is necessary and proper to consider the contract as a whole, including the circulars to bidders, memoranda, etc., which are expressly made a part thereof, for the purpose of determining the true intent and meaning of the language used in said paragraph.
Paragraph 1 of the original “ Circular of Information and General Instructions to Bidders,” in which bids on this work were solicited, divided the work into six classes as follows:
1. The construction proper.
Paragraph 4 contained the following stipulations with reference to time of performance:
Bidders for construction proper must state the least number of days, after notification of award of contract, in which they will agree to commence the work. Bidders must state in the proposals the time in which they will complete each class of work.
While time of performance will be considered in making award. yet in stating the time bidders should make due allowance for both probable and unforeseen difficulties that may be encountered, and they should make no proposition which they are not positive, beyond question, that they can absolutely fulfill. No credit will be given to a bidder who, with view to drawing favorable attention to his proposal, gives a time so short that it will not be reasonable and practicable for him to complete the contract, or separate part thereof, within the limit for same.
Paragraph 56, headed “Failure and delays of contractor," is identical with article 8 of the formal contract. This “ Circular of Information and Instructions to Bidders" contains no stipulation with reference to liquidated damages, but subsequent letters of instruction to bidders were issued under dates of August 12, 1920, August 21, 1920, and August 26, 1920. Each of these letters was addressed directly to claimant and, presumably, to other bidders.
The letter of August 12, 1920, was entitled " Additional Instructions to Bidders," and read as follows:
1. For your information and guidance in preparing bid on construction of buildings and utilities at the Ogden Arsenal, Ogden, Utah, you are hereby advised that a penalty of $200 per day for each and every day required in excess of the time specified in bidding for completion of this work will be charged against the successful contractor.
2. You are further advised that it is the desire of the Government to have this work completed not later that April 1, 1921, and with the provision that the Government shall have access to each storage building, for the purpose of storage, as soon as completed.
3. This letter will be considered as an addenda and a part of " Instructions to Bidders" governing conditions surrounding the letting of contract for the above-mentioned work.
This letter contained the first stipulation with reference to liquidated damages; and that it contemplated liquidated damages at the rate of $200 per day for each and every day's delay beyond the date fixed for final completion of the entire project there would appear to be no doubt.
The letter of August 21, 1920, contained no mention of liquidated damages, but stated that it was the desire of the Government to have available for storage purposes one set of storage magazines soon after December 1, 1920, the other sets to be completed as soon thereafter as practicable in order that the Government may begin the transportation and storage of materials at the earliest possible date. It would seem to be the plain purpose of this letter to inform the bidder that the Government would require that the 35 storage magazines be completed in sets and that they be finished before the other buildings and utilities, the reason for giving this information to the bidder being that the order in which the Government required completion of the different buildings or sets of buildings would govern the contractor's
plan of operation and might materially affect the date of final completion of the entire project. If the contractor should ignore the Government's expressed desires in this matter and plan the work with a view solely to final completion in the shortest practicable time without reference to the stipulation as to order of completion the Government would have the right under the contract to take the work out of the contractor's hands under the provision in the contract with reference to failure to comply with the requirement as to progress of performance.
Thus far there is nothing to indicate an intent to charge liquidated damages for failure to comply with the requirement as to progress of performance, the liquidated damage provision, mentioned for the first time in letter of August 12, 1920, relating solely to failure to complete the entire contract by the date to be fixed therefor.
The letter of August 26, 1920, was to the effect that the Government would insist that one row of seven storage magazines be completed by December 1, or soon thereafter, and that the remaining storage mag. azines be completed in units of seven each as soon thereafter as practicable, and that “while the Government must have all storage facilities complete before April 1, 1921, it does not necessarily follow that such requirements will be placed upon the contractor for the completion of the entire project."
The concluding paragraph of this letter clearly shows that the purpose in giving the bidder the requirements as to progress of performance was to enable the bidder to take said requirements into consideration in fixing the date of final completion. Said paragraph reads:
Therefore, in submitting your bid and stating the time of completion, you are requested to take this matter into consideration, wit!: a view that all storage magazines must be completed by April 1, 1921, and the entire project as soon thereafter as you deem practicable, and in no case later than June 1, 1921.
Claimant's proposal dated September 4, 1920, which was submitted in the light of the instructions, information, and requirements hereinbefore indicated, contained only the following provision with reference to time of completion or damages for delay:
We agree to begin construction work within ten (10) calendar days after notice of award of contract. We agree to complete the work on which we bid according to the time set forth in your letter of August 26, 1920.
Reading the three paragraphs hereinbefore quoted from article 1 of the formal contract in the light of the instructions, information, and proposal which preceded the formal contract and in connection with article 8 of said contract, I am constrained to hold that their purpose and effect is to provide for liquidated damages at the rate of $200 a day for each day's delay beyond June 1, 1921, in final completion of the entire project.
The work under the contract was finally completed June 23, 1921. Therefore there was a delay of only 22 days for which liquidated damages at the rate of $200 a day were chargeable.
Upon a review of the matter, a difference of $25,600 is certified due claimant.
PAY OF SUPERINTENDENT OF NAVAL ACADEMY AND COM. MANDANT OF MARE ISLAND NAVY YARD ON AND AFTER JULY 1, 1922.
The additional pay provided for sea duty by the act of May 13, 1908, 35 Stat.,
128, is not pay to which a naval officer is entitled by reason of "his grade and length of service," and is accordingly not within the purview of the saving clause in section 16, act of June 10, 1922, 42 Stat., 632, and as all laws providing extra pay for sea duty were repealed by sections 2 and 22 of the latter act a naval officer who is serving as Superintendent of the Naval Academy or as commandant of the Mare Island Navy Yard is not
entitled on or after July 1, 1922, to any sea duty increase. Comptroller General McCarl to the Secretary of the Navy, September 19, 1922:
I have by your direction the letter of the Chief of the Bureau of Supplies and Accounts, dated August 29, 1922, requesting decision as to the pay to which an officer is entitled under the act of June 10, 1922, 42 Stat., 625, who since June 30, 1922, has been serving as Superintendent of the Naval Academy or as commandant of the navy yard, Mare Island, Calif., or who may hereafter be assigned to such duty.
The questions have reference to former laws specifying the pay to which officers were entitled for assignment to said duties and to the effect thereon of the “saving clause" in section 16 of the act of June 10, 1922, 42 Stat., 632.
The act of September 28, 1850, 9 Stat., 515, provided : That the pay of the superintendent of the naval school at Annapolis shall be at the rate allowed to an officer of his rank when in service at sea.
The joint resolution of March 3, 1863, 12 Stat., 825, provided :
That the pay of the officer of the Navy assigned to the command of the navy yard at Mare Island, California, shall be the sea pay of his grade.
It has been held that the above-quoted provisions were not repealed by the failure to carry them into the Revised Statutes, nor by general repeal provisions of subsequent laws. See 6 Comp. Dec., 885; 15 id., 36, and decisions and opinions therein referred to.
The act of June 10, 1922, 42 Stat., 627, 632, 633, provides in part:
SEC, 2. That no commissioned officer while on field or sea duty shall receive any increase of his pay or compensation by reason of such duty.
SEC. 16. That nothing contained in this Act sball operate to reduce the pay of any officer on the active list below the pay to which he is entitled by reason of his grade and length of service on June 30, 1922, not including additional pay authorized by the Act
approved May 18, 1920;