Best v. United States
| Decision Date | 04 October 1961 |
| Docket Number | No. 394-59,106-60.,461-59,18-60,11-60,12-60,394-59 |
| Citation | 292 F.2d 274,154 Ct. Cl. 827 |
| Parties | Josef BEST, D/B/A Firm Josef Best v. UNITED STATES. A. DIEHL, D/B/A Firm A. Diehl v. UNITED STATES. A. HOELLEIN, D/B/A Firm A. Hoellein GMBH v. UNITED STATES. August FABER, D/B/A Construction Firm, Faber & Schnepp v. UNITED STATES. Julius BERGER v. UNITED STATES. MUELLER-ALTVATTER COMPANY v. UNITED STATES. |
| Court | U.S. Claims Court |
Hyman J. Cohen, Washington, D. C., for remaining plaintiffs. Potter & Lancian, Frankfort, Germany, were on the briefs.
George S. Leonard, Washington, D. C., with whom was Asst. Atty. Gen., William H. Orrick, Jr., for defendant. Kendall M. Barnes and Bruno A. Ristau, Washington, D. C., were on the briefs.
These cases involve, so far as the Government's motion is concerned, the same legal questions, and this opinion will cover all of them. The word "plaintiff" in this opinion will refer to the plaintiff Josef Best. The facts of the Josef Best transaction will be used as the basis of this opinion.
The question at issue is whether the United States Army in Germany, in the dealings with the plaintiff, a German in the construction business, was making a contract on behalf of the United States, as the plaintiff claims, or was, as the Government claims, exercising the authority of an occupying power to requisition needed supplies and services from the population of the occupied territory.
In 1953 the Army desired to have built an ammunition storage area in a forest near Koeppern, Germany. It caused plans and specifications to be prepared by a German firm, which was to be the architect-engineer of the project. The Army solicited bids from 12 contractors in the Koeppern area. When the bids were opened, the Army decided that they were all too high, and withdrew the project from consideration. Later, the Army, through newspaper advertising, solicited bids from contractors outside the area of Koeppern. The plaintiff, Josef Best, was the successful bidder, and he was so notified. Thereupon a "Requisition Order-Demand" was served upon him. No copy of this document has been supplied to the court. We assume that it described the work which had been specified in the invitation to bid, and named the price, DM (Deutsche Mark) 973,008, which the plaintiff had bid.
The plaintiff went to work on the project. He says that tree cutting which was supposed to have been done by others had not been done; that there were some 1,900 more trees for the plaintiff to cut than had been represented in the Government's invitation; that much more excavation and filling were required than had been estimated by the Architect-Engineer; that rainfall 260 percent in excess of the 40-year average aggravated the plaintiff's difficulties, making transportation difficult and requiring the employment of extra help; that as a result of the foregoing the plaintiff and his subcontractors incurred large extra costs.
The project was completed on October 10, 1953. The project completion date was August 28, 1953, and liquidated damages in the sum of DM 85,760.15 were assessed against the plaintiff. The plaintiff's asserted extra costs, plus the liquidated damages, amounted to DM 962,174.09.
After the completion of the project, the plaintiff went bankrupt. The receiver asserted a claim for extra costs and for the remission of the liquidated damages. The Army denied the claim and advised the receiver of his right to appeal to the Board of Requisition Demand Appeals, U.S. Army, Heidelberg, Germany. The receiver appealed to that Board. The Board referred the claim back to the claims section of the Army for a further attempt at settlement. The claims officer filed a report, dated August 30, 1955, which was favorable to the plaintiff. At a conference on September 6, 1955 between the plaintiff, the Army claims officer, representatives of the Army Audit Agency, the Engineer division, the Judge Advocate Division, and a Claims Examiner, it was determined that a payment of DM 900,000 would be fair and just, if the amount were paid at once.
Thereupon the claims officer and the Chief of the Procurement Branch recommended the payment of DM 900,000 on the appeal. Lt. Col. Fleischman, acting for Headquarters USAREUR (U.S. Army European Command), refused to make the payment. The claim then went back to the Appeals Board, on which Lt. Col. Fleischman sat, and the Board awarded the plaintiff DM 109,262.41, which amount was paid.
The plaintiff filed a claim with the General Accounting Office in 1957, which claim was denied. The instant suit is for DM 938,671.83, or $234,667.96.
The foregoing recital might appear to show a normal case of the Army having let a contract for construction; the contractor having encountered difficulties and having done extra work; the Army administrative appellate authorities having approved a small part of the contractor's claim and denied the rest of it; and a suit by the contractor in this court asserting that he was not bound by the administrative decision and was entitled to recover more.
As we have seen, the Government, in its present motion, takes the position that the transaction between the Army and the plaintiff was not a contract at all, but a lawful requisition of labor and materials from the population of a defeated and occupied country. The Government also urges other defenses.
The unconditional surrender of the armed forces of Germany to the Allied Powers occurred on May 8, 1945. The Allied Powers, in the "Declaration of Berlin" on June 5, 1945, declared, among many other things:
"The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority."
For the purposes of the military occupation, Germany was divided into four zones, each of the four Allied Powers having primary authority and responsibility in its zone of occupation.
In the "Potsdam Protocol" of August 1, 1945, of the Allied Powers, it was declared, relative to the economic control of Germany:
The Allied Powers established the "Control Council," consisting of the supreme military commanders in Germany of the armies of the four Allied Powers, as the government of Germany. The Control Council government was a military government.
On September 20, 1945, the Allied Governments imposed "additional requirements" on Germany, including the following ones:
During the early years of the occupation of Germany, the Allied Powers permitted local German governmental units to be established, and to carry on much of the day-to-day business of government. These German activities were subject to the control of the Allied military authorities. By 1949 the rehabilitation of the three western zones of occupation had reached the point where it was feasible to permit the establishment of a provisional German government in those zones. By this time the Soviet Union was no longer cooperating with the Western Allies. In 1949 the United States, the United Kingdom and France agreed on the principles on which the future Allied control of Germany should be based; the extent to which the Allied Powers should relax their controls and transfer them to a German government; and the procedures by which the Allied Powers would exercise the controls which they retained.
Under the proposed new arrangement, instead of the Control Council, consisting of the four supreme military commanders, there should be an Allied High Commission, consisting of a High Commissioner from each of the three Western Allies, the Allied High Commission to be the supreme Allied agency of control of Germany. The German government was to have the power to take administrative and legislative action which should be valid unless disapproved by Allied authorities.
The arrangements described above were embodied in an "Occupation Statute", approved by the Western Allies. Before the...
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...at 710; D.R. Smalley & Sons, Inc. v. United States, supra, 372 F.2d at 508, 178 Ct.Cl. at 598. In the case of Best v. United States, 292 F.2d 274, 154 Ct.Cl. 827 (1961), involving a situation analogous to that at hand, the court refused to find a contract binding on defendant. There, the U.......
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DeMauro Const. Corp. v. United States, 359-75.
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