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Reporter's Statement of the Case

Many promises have been made no doubt in good faith but thus far no tracks have been removed.

"This matter has now become of very critical importance to us.

"This delay is running the construction of the tunnels into cold weather and very difficult labor problems are coming upon us daily.

"Mr. Moore promised the writer that the track at the foundry and also the track near the sump would be removed during the past week. It was also promised that the cement shed and track at the power house would be removed.

"It is called to your attention that there is a great mass of refuse concrete covering the tunnnel site at this point, which did not exist when the work was estimated, and it is respectfully requested that this also be removed."

VII. The cement which the Navy Department undertook to furnish to the plaintiffs as stated in the Navy Department's letter of September 29, 1917, which is in evidence as plaintiffs' exhibit 11 and which is made a part hereof by reference, and the sand and gravel which the Navy Departinent undertook to furnish to the plaintiffs under bureau letter no. 104, addressed to the plaintiffs on October 5, 1917, which letter is in evidence as plaintiffs' exhibit 12 and which is made a part hereof by reference, were not delivered in accordance with the plaintiffs' schedules of requirements but were delivered by the United States in limited quantities and at inconvenient places, with the result that the plaintiffs' work of construction was thereby delayed and their costs were substantially increased. The plaintiffs' work was also delayed by reason of a lack of promptness in the delivery to the plaintiffs of the reinforcing steel which the United States through the Bureau of Yards and Docks, Navy Department, undertook to provide. Other factors which contributed to the delay subsequent to the expiration of the initial contract period were labor difficulties, cold and inclement weather, and a serious epidemic of influenza.

VIII. In paragraph 17 of the general provisions forming a part of the specifications the Government reserved the right to make such changes in the contract, plans, and specifications as might be deemed necessary or advisable, and the contractor agreed to proceed with such changes as directed

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Reporter's Statement of the Case

in writing by the Chief of the Bureau of Yards and Docks. It was further provided that the cost of such changes should be estimated by the officer in charge, and if less than $500 should be ascertained by him and if the cost of such changes was $500 or more, as estimated by the officer in charge, the same should be ascertained by a board of not less than three officers or other representatives of the Government.

Changes in the work requiring additional time and the use of additional labor and materials were from time to time ordered by the Government and were performed by the plaintiffs, and the plaintiffs were paid for their costs of performance of such changes in amounts determined by boards appointed under the provisions of the paragraph hereinabove referred to. The performance of such changes was still another factor which contributed to the ultimate delay in the completion of the work, the Government in certain instances having instructed the plaintiffs that the changes and extra work should take precedence over the work of the original contract. In a letter written by the public-works officer to the plaintiffs on February 8, 1918, the plaintiffs were instructed to build a tunnel inside the structural shop as an extra to their contract 2504-A, and they were instructed at the same time that it was important that that portion of the tunnel be completed at the earliest possible date and were authorized, if it seemed necessary, to sacrifice the rate of progress on the tunnel outside of the structural shop forming a part of their original contract, if such sacrifice would result in expediting the work inside of the structural shop. Had it not been for the delays caused by acts of the Government and those delays which resulted from causes which were beyond the control of the contractor, the plaintiffs could have by July 18, 1918, entirely completed the work required under their original contract, as well as the extra work which they were called upon to perform. The change orders aggregated approximately $100,000.

IX. It was provided in paragraphs 8 and 13 of specification no. 2504, as modified by paragraph 6 of the contract, that damages for delay in the completion of the work to be performed under the contract should be at the rate of $75 per calendar day. It was provided in paragraph 12 of

Reporter's Statement of the Case

the general provisions forming a part of the specifications that for certain causes of the character thereinafter enumerated extensions of time might be allowed upon proper application to be made to the Navy Department, Bureau of Yards and Docks, for consideration and action, and that the contractor should accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding. Paragraph 14 of the said general provisions defines unavoidable delays as being:

such as result from causes which are beyond the control of the contractor, such as acts of Providence, fortuitous events, inevitable accidents, abnormal conditions of weather or tides, or strikes of such scope and character as to interfere materially with the progress of the work. Delays caused by acts of the Government will be regarded as unavoidable delays.

*

The original work with the changes and extras ordered was completed in fact on November 8, 1919, or 637 days after the date agreed upon for the completion of the original work.

X. The first application made by the plaintiffs for an extension of time for the completion of the work required to be done by them under their contract was made on January 15, 1918. In that application they requested an extension of 90 days, or such length of time as the contracting officers might think necessary to complete the work. That application was predicated upon the failure of the Govern ment to provide exact locations and cleared sites for the performance of the work, and is in evidence as plaintiffs' exhibit 78 and made a part hereof by reference.

The plaintiffs' next application for extension was made on February 7, 1918, and was based upon the delay in the delivery of steel, upon the failure of the Government to provide exact locations and cleared sites, on cold and inclement weather, on account of change orders, and on account of being required by the Government to defer their work because it would interfere with other construction work then in progress. That application was for 90 days from February 12, is in evidence as plaintiffs' exhibit 79, and is made a part hereof by reference.

Reporter's Statement of the Case

Another application for extension of contract time was made by the plaintiffs on February 11, 1919. Said application, which is in evidence as plaintiffs' exhibit 87 and which is made a part hereof by reference, requested that the contract time be extended to June 1, 1919. It was predicated generally upon the failure of the Government to promptly furnish reinforcing steel, gravel, and cement, upon the failure of the Government to provide cleared sites and locations, upon the ordering of extra work by the Government, and the requirement that certain of the extra work be given precedence over the work required by the original contract, and upon Government control of labor, wage restrictions, and discrimination in distribution of labor.

On December 5, 1919, the plaintiffs filed another application for extension of time, asking that the time of performance be extended by 637 days. That application is in evidence as plaintiffs' exhibit 91 and is made a part hereof by reference. It was predicated generally upon the same grounds upon which the preceding applications were based and set up as further grounds the influenza epidemic and unusually severe weather of January, 1918.

On December 20, 1919, the public-works officer made a report to the Bureau of Yards and Docks on the plaintiffs' applications for extension, and on January 13, 1920, the Chief of the Bureau of Yards and Docks of the Navy Department transmitted a copy of that report to the plaintiffs, informing them that the Yard had recommended a time allowance of 551 days and the assessment of liquidated damages for 86 days at $75 a day, aggregating $6,450. The letter and the report are in evidence as plaintiffs' exhibit 92 and are hereby made a part hereof by reference.

On February 20, 1920, the plaintiffs addressed a letter to the public-works officer at the United States Navy Yard at Norfolk, Virginia, and on the following day they addressed a letter to the Chief of the Bureau of Yards and Docks, asking for reconsideration of the Bureau's letter of January 13, 1920, and for an allowance of the 637-day extension theretofore requested. The said two letters are in evidence as plaintiffs' exhibit 93 and are made a part hereof by reference.

Reporter's Statement of the Case

Thereafter and on January 5, 1922, the following letter was written by the Chief of the Bureau of Yards and Docks of the Navy Department to the plaintiffs:

"The Bureau_forwards, herewith, a copy of its letter no. 2504-A, dated January 5, 1922, addressed to the commandant, Norfolk Navy Yard, Portsmouth, Va. Please note that by this letter the Bureau has extended the time under this contract by a total of 637 days, and accordingly, in the final adjustment of the contract, liquidated damages as for delay will not be assessed."

The communication from the Chief of the Bureau of Yards and Docks to the commandant, Norfolk Navy Yard, Navy Yard Station, Portsmouth, Va., dated January 5, referred to in the above letter, is as follows:

"1. The contract, of which a copy was delivered to the contractors October 12, 1917, required performance within 120 days thereafter; that is, by February 9, 1918. The work was completed November 8, 1919, the period of delay being 637 days.

"2. Time allowances as for unavoidable delay are approved, as follows: For obstruction of site, 65 days; Government's delay in constructing sewer syphon, 17 days (including the 5 days given by change 'D'); Government's delay in furnishing reinforcing steel, 6 days; abnormal weather conditions, 18 days; construction of structural shop tunnel, 85 days; lack of sites after assigning work under original contract, 20 days; additional work under changes 'A and 'B', 80 days; Government's delay in furnishing cement, 15 days; changes in work under change 'J', 15 days; Government's delay in furnishing steel pipe, 30 days; influenza epidemic, 25 days; lack of sites in latter part of 1918 and in 1919, 60 days; Government's restrictions on recruiting of labor and labor rates, 115 days; and elimination of overtime and Sunday work after the date of the armistice in 1918, 86 days; total 637 days.

66 3. Accordingly in the final adjustment of the contract, liquidated damages as for delay will not be assessed."

XI. A voucher in the sum of $13,656.70 was duly prepared by the Bureau of Yards and Docks, approved by the proper officers, and sent to the General Accounting Office for direct settlement. The General Accounting Office, contrary to the findings of the Chief of the Bureau of Yards and Docks as

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