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Reporter's Statement of the Caso 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 Caso 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 'Aand '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.
“ 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
Opinion of the Court
set forth in finding X hereof, found that the contract did not provide for furnishing material by the Government and that in volunteering so to do the Government did not become responsible for delays incident thereto; that there was no authority for restricting recruiting and employment of labor or the wages paid; that the required application was not made for extensions of time on account of weather conditions or any of the delays alleged to have been caused by the Government; that extensions of time should not therefore be allowed on the above items; that the plaintiffs were responsible for 184 days' delay at $75 per day, amounting to $13,800, a sum exceeding by $143.30 the balance otherwise due; that the plaintiffs had been overpaid $143.30 and the said sum was due the United States.
The said sum of $13,656.70 has never been paid to the plaintiffs by the United States.
XII. The cost of labor subsequent to July 18, 1918, was largely in excess of what the same labor would have cost had the plaintiffs been permitted to employ and use it in completion of the work prior to that date, and the contractor was also subjected to additional overhead and other charges by reason of the prolongation of the work beyond the said date. The plaintiffs' increased costs of labor actually amounted to $52,752.99, and their costs of additional superintendence, which may reasonably be attributed to the causes hereinabove referred to, and upon which the Bureau of Yards and Docks granted the plaintiffs an extension of 637 days, were $17,369.55. The plaintiffs' additional costs of overhead and management have not been satisfactorily proven.
The court decided that plaintiffs were entitled to recover $83,779.24.
BOOTH, Chief Justice, delivered the opinion:
The plaintiffs are Harry R. Carroll and Louis D. Carroll, copartners doing business under the firm name of Carroll Electric Company. This suit arises out of a written contract executed by the plaintiffs and the Chief of the Bureau of Yards and Docks of the Navy Department on October 4,
Opinion of the Court 1917. The contract obligated the plaintiffs to furnish, deliver, and install the outside tunnels, tunnel piping, and the outside pipe distributing systems at the Navy Yard, Norfolk, Virginia, in accord with the written contract and specifications. The contract was what is known as a lump-sum one, i. e., for the work to be done thereunder the plaintiffs were to receive $264,700. The work to be done under this contract embraced the laying of a concrete tunnel approximately 3,000 feet in length leading from a power house to three other buildings, inside of which were to be installed heating pipes and other pipes, subject to expansion and contraction, so as to prevent loss of heat and provide easy access in cases of needed repairs thereto. It also included a distributing system involving the laying of piping for the transportation of salt water throughout the navy-yard grounds—a fire precaution-another piping system for the distribution of fresh water to the various buildings on the grounds, and still another known as the compressed-air distributing system. The distribution of salt and fresh water required the use of cast-iron piping, whereas the compressed-air system exacted the use of wrought-steel piping properly welded and buried in the ground. The contract work was of such a character as to exact a minimum of skilled labor, and was to be completed within 120 days from the date of the delivery of the contract to the plaintiffs. The date of the contract is of importance, for on that date the war activities of the Government were acute, and at the Norfolk Navy Yard the Government was engaged in an extensive program of enlargement and improvement, involving the construction of various buildings and drydocks, and it was intended by the contract to supply these various units, as well as fire prevention, by means of the distributing system provided for in the contract.
The first item in suit is predicated upon a breach of the contract with respect to the failure upon the part of the Government to definitely fix the lines and situs of the work to be done, and to remove from the site the various obstructions which precluded the plaintiffs from proceeding with the work.