292 Reporter's Statement of the Case Article 9 of the contract provided that the contractor should not be charged with liquidated damages because of any delays in the completion of the work due to unforeseeable 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 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, 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. 21. On the approximate date for completion of the buildings the brickwork had been completed. The building is about 700 feet long and for about 10 feet parallel along the wall of this 700-foot length the roofing, wood, etc., were to be removed and replaced with new wood, new roof and a copper gutter to be placed outside to carry the rain to the downspouts. During the time that the roof space was removed that particular portion of the building could not be used. The roof was immediately replaced with new wood which was covered with tar paper and hot tar, making the roof watertight, which permitted resumption of the use of the inside of the building by the defendant, and it was so used. 22. At the date for completion under the terms of the contract, all work was complete except for placing the copper gutter and some items of work under change orders or extra work. It was not necessary for the defendant to vacate any part of the building in order to complete the work. Reporter's Statement of the Case 107 C. Cls. 23. Materials such as copper became scarce in the market and plaintiff found difficulty in obtaining the copper but finally found a source of supply and requested permission to use the copper that was procurable. Permission was given and the copper ordered according to the sizes, etc., of the original contract drawing. A revised drawing furnished by the defendant then indicated a change of the flashing at the edge of the building from nine inches to five inches, being a narrower strip of copper and different from the order already placed. Plaintiff, at the request of defendant, agreed to a deduction for the saving in the amount of material. This revision necessitated a change in plaintiff's order to its supplier from the original to the new width specified. A truckmen's strike at Pittsburgh, point of shipment, delayed the mill work on the order. The strike slowed up freight for approximately ten days and the copper was not received by plaintiff until the contract time had elapsed. 24. On June 17, 1941, defendant advised plaintiff that liquidated damages at the rate of $25 per calendar day on buildings L-3 and M-4 commenced as of June 16, 1941. On June 19, 1941, plaintiff wrote defendant its explanation of the delay and requested an extension of contract time in connection with liquidated damages. June 21, 1941, defendant advised plaintiff in writing that liquidated damages at $25 per day would start on July 1, 1941. June 26, 1941, defendant refused plaintiff's request for extension of time. June 28, 1941, plaintiff again requested an extension of contract time on account of liquidated damage assessment. This request was refused. July 2, 1941, the defendant extended the contract time for 15 days for completion of buildings L-3, M-4, and N-5, but refused to extend time on liquidated damages commencing June 16, 1941, on two of the buildings. 25. Actual completion of the roofing work was accomplished June 15, 1941-Building N-5. 26. Plaintiff performed its work in an expeditious manner, and the delay in completion of the roofing work was caused 292 Reporter's Statement of the Case by circumstances beyond plaintiff's control. Liquidated damages of $950 were assessed against plaintiff. Claim and Appeal 27. Plaintiff filed with the commanding officer, Raritan Arsenal, Metuchen, New Jersey, the contracting officer, its claim dated December 10, 1941, as follows: Additional Brickwork: 411,684 Bricks @ $54.00 per "M"- 10% Overhead....... 10% Profit----- Remove 116 doors @ $10.00 each__-. Difference in wages paid to Bricklayers by change of rate during job.. Insurance and Taxes @ $12.30. 10% Overhead___. 10% Profit 28. Plaintiff, on December 31, 1941, in response to a letter of defendant, and also on March 2, 1942, wrote Major Raymond G. Curtin, Ordnance Department at Raritan Arsenal, detailed explanations of its claim. On March 6, 1942, Colonel Woodberry, the contracting officer, wrote plaintiff rejecting its claim. On April 6, 1942, plaintiff wrote the Secretary of War in detail regarding its claim. The Secretary of War, by letter of June 29, 1942, wrote plaintiff denying its claim and advising that the letter concerning the claim had been forwarded to the General Accounting Office. On April 8, 1943, the General Accounting Office wrote plaintiff stating its conclusions and rejecting the claim. 107 C. Cls. 29. Opinion of the Court Recapitulation Plaintiff's additional costs under its claim for additional brick work was.. Under its labor claim, the difference plaintiff paid in wages was----- The amount assessed against plaintiff for liquidated damages was Total $17,600.00 1,216.95 950.00 19,766.95 The court decided that the plaintiff was entitled to recover. MADDEN, Judge, delivered the opinion of the court: The plaintiff, a partnership, sues to recover the cost of alleged extra work, additional pay to bricklayers, and liquidated damages withheld by the Government, in connection with its contract with the United States for the renovation of three buildings at the Raritan Arsenal, Metuchen, New Jersey. The claim for extra work is based upon an allegedly misleading drawing which the Government sent the plaintiff as a part of its invitation for bids on the project. There were three buildings to be renovated, numbered N-5, M-4, and L-3, each about 600 feet long and 115 feet wide. Each was divided by cross partitions into seven so-called bays, lettered A to G. There were piers along the east and west walls of each building, leaving spaces 13 feet wide between them. Thus there were 74 of these spaces in each building, 37 in the east wall and 37 in the west wall. Before the renovation, in building N-5, 56 of these spaces were occupied by large windows, and 18 by doors. In buildings M-4 and L-3, with which this suit is concerned, all the spaces were occupied by doors. The planned renovation was to consist in bricking up all of these doors except one or two in each bay, to replace the remaining doors with new ones of smaller size, which would require some new brick work around them, to install new offices, toilets, etc., to make extensive repairs to the roofs, and other repairs. The invitation for bids which was sent to the plaintiff contained, as is usual, a copy of the proposed contract and specifications, and two large drawings, one relating to building N-5, numbered D-198, and the other relating to buildings 292 Opinion of the Court M-4 and L-3, numbered D-197. The specifications, which are quoted in finding 7, say, as to the latter two buildings, "The renovation by the replacing of existing doors with brick, metal doors, and sash as indicated. * * Nothing is said as to the number of doors to be replaced. Drawing D-198, relating to building N-5, indicated intelligibly all the existing openings and all the proposed openings to be left in that building. Drawing D-197, which was otherwise similar to D-198, showed only one large door in each bay of those buildings, which would have been fourteen doors in each building, or 28 in all. The drawing had written on it the note "Replace existing doors, east and west walls, with brick and doors as indicated." There was also the word "Brick" in light letters, printed on the space on each side of the door on the drawing. Its light lettering indicated that it meant that the space was presently occupied by brick. To indicate new brick it should have been heavily printed, and heavy hatching should have been placed in the area. The draftsman of the drawing probably intended that the doors shown were to be the new doors in the completed work, and the brick was to be the new brick replacing doors that were to be closed up. But the drawing did not disclose this intention and the plaintiff did not so read it. The plaintiff reading D-197 in connection with D-198 computed the amount of new brick work required for the two buildings M-4 and L-3 as being very small, and made its bid accordingly. It was warned by G-C2 of the specifications to visit the site for various stated purposes, which purposes did not include that of determining whether the drawings were correct. It did not visit the site though it could easily have done so, its office in New York being only some thirty-five miles away. The plaintiff was the low bidder and was immediately requested by the contracting officer to come to the arsenal and sign the contract. One of the plaintiff's partners went to the arsenal, and immediately discovered that there were 116 more openings to be bricked up than the plaintiff had expected. The plaintiff requested that new bids be called for. The Government threatened to forfeit the plaintiff's bid bond if it did not sign the contract and proceed with the work. Some |