First-Citizens Bank & Trust Co. v. United States

• Decision Date: 01 March 1948
• Docket Number: No. 17846.,17846.
• Parties: FIRST-CITIZENS BANK & TRUST CO. v. UNITED STATES.
• Court: U.S. Claims Court

76 F. Supp. 250

110 Ct. Cl. 280

FIRST-CITIZENS BANK & TRUST CO. v. UNITED STATES.

No. 17846.

Court of Claims.

March 1, 1948.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Albert E. Conradis, of Washington, D. C. (Hill Yarborough, of Louisburg, N. C., on the brief), for plaintiff.

P. M. Cox, of Washington D. C., and John F. Sonnett, Asst. Atty. Gen., for defendant.

Before JONES, Chief Justice, and LITTLETON, WHITAKER, MADDEN, and HOWELL, Judges.

LITTLETON, Judge.

The First-Citizens Bank and Trust Co., a corporation, is administrator of the estate of C. A. Ragland, Sr., deceased, the successful bidder and contractor for the construction of two projects, consisting of grading, draining, the construction of crushed stone surfacing, and other work, on the Shenandoah-Great Smoky Mountains Parkway. As administrator it has succeeded to whatever rights the decedent contractor may have had under two contracts entered into by him with the Government for the performance of this work. In this opinion the term "plaintiff" is used, for convenience, to refer to the contractor, C. A. Ragland, Sr., unless otherwise indicated.

The work to be performed under the contract executed December 14, 1935, was designated as Project 1T1, and covered a length of 9.222 miles in Floyd, Patrick and Carroll counties, Virginia. On the basis of the estimated quantity of all items of work and the unit prices shown in the bid schedule, the contract price was $213,566.50. Under the contract executed February 17, 1936, the work designated as Project 2E2 covered 8.178 miles in Ashe, Wilkes and Watauga counties, North Carolina. On a similar basis the contract price was $246,812.50. The first contract was signed by Oscar L. Chapman, Assistant Secretary of the Interior, and the second by J. A. Walters, First Assistant Secretary of the Interior, as contracting officers. Both contracts designated the Chief of Bureau of Public Roads, Department of Agriculture, as the authorized representative of the head of the department, and designated the Chief of Bureau, the Chief Engineer and the District Engineer, Bureau of Public Roads, as the authorized representatives of the contracting officers.

Following completion of Project 1T1 on October 12, 1937, and of Project 2E2 in December 1937, plaintiff filed with the Bureau of Public Roads claims for additional compensation in the amount of $14,378.22 on Project 1T1 and in the amount of $46,819.96 for Project 2E2. The general nature of the various items comprising these claims is set forth in finding 4. The claims were reviewed by the Government engineers having immediate supervision of the two projects, and by the District Engineer (who constituted the contracting officer's authorized representative), and were disapproved for payment in any part. Subsequent thereto the claims were rejected by the Comptroller General of the United States, as well. Plaintiff thereafter sought Congressional relief which took the form of Senate Bill 961, 78th Congress, 1st Session, proposing payment to the plaintiff of the sum of the $61,198.18, in full settlement of his claims against the United States for work done under Projects 1T1 and 2E2. By Senate Resolution 256, introduced April 6, 1944, this bill was referred to this court for action in accordance with the provisions of section 151 of the Judicial Code.

Section 151 of the Judicial Code, 28 U.S. C.A. § 257, in addition to requiring the court to investigate and determine the facts in the case and report the same to the referring House of Congress together with such conclusions as shall be sufficient to inform Congress of the nature and character of the demand, either as a claim, legal or equitable, or as a gratuity against the United States, and the amount, if any, legally or equitably due from the United States to the claimant, provides that "If it shall appear to the satisfaction of the court upon the facts established, that under existing laws or the provisions of this chapter, the subject matter of the bill is such that it has jurisdiction to render judgment or decree thereon, it shall proceed to do so * * *." Plaintiff's petition does not seek to invoke the jurisdiction of the court to render judgment on the claims under that portion of section 151 above quoted. It asks that the court hear and determine the facts and make report thereof to the Senate. It appears that the claims were neither filed in this court nor transmitted here by the Senate within six years after they first accrued, as provided in section 156 of the Judicial Code, in order that they be not barred as claims against the United States cognizable by the court under its general jurisdiction. Many of plaintiff's claims involve a demand for equitable adjustment of the contract price on account of alleged increases in the cost of performance due to changes or extras not directed in writing or not timely protested, or not submitted to the contracting officer for decision, nor appealed to the head of the department concerned, as provided for in the contract. The provision of the Senate Resolution that this court shall proceed with the reference and report to the Senate "irrespective of any statute-of-limitations bar, and irrespective of any administrative requirements or contractual provisions relating to notice of protest as to filing claim therefor," does not remove the bar of the statute of limitations nor cure the failure of the plaintiff to follow the administrative procedure provided in the contract for adjusting matters of dispute, so as to give the plaintiff a claim, legal or equitable, upon which this court can render judgment. When the contractor chooses without due cause to ignore such contract provisions for settling disputes under the contract it is error for the Court of Claims to entertain and decide the claims involving those disputes, however meritorious the claims may otherwise be. United States v. Holpuch Co., 328 U.S. 234, 66 S.Ct. 1000, 90 L.Ed. 1192.

The matter of reimbursement to plaintiff with respect to any of the items involved in this proceeding lies, therefore, solely within the discretion of Congress. To that end we proceed to a consideration of the nature and character of the various items making up the claims, in order to give Congress our conclusions whether on the basis of the facts found any of the claims are meritorious and whether there are any amounts legally or equitably due from the United States to the claimant, notwithstanding claimant is not, for the reasons indicated, entitled as a matter of law to a judgment of this court.

The facts established by the evidence, as set forth in special findings of fact, together with this opinion of our conclusions with respect to the various items of claim, will be certified to the Senate in accordance with Senate Resolution 256, referring to this court Senate Bill 961, in order that the Congress may decide what, if any, relief in the premises the plaintiff should receive.

Reimbursement of Liquidated Damages (Finding 10)

This item involves the matter of liquidated damages in the amount of $280 assessed and collected for fourteen days of delay in completing Project 1T1 within the contract time as extended. With the advent of bad weather in December 1936, the contractor had requested and obtained a partial shutdown order, whereunder all operations except unclassified excavation were suspended. The suspension order set up a formula whereby only that portion of the partial shutdown period represented by the ratio of the excavation work to the total contract, to wit 47.2 percent, was to be charged against the contract time. The partial shutdown continued for a period of 121 days. Based on this formula 47.2 percent thereof, or 57 days, were charged against the contract time, during which period substantially no work other than excavation was being performed. Necessarily inherent in the formula employed by the Government was the concept that during the period of partial shutdown the contractor would not only be able to proceed with his normal excavation operations but by virtue of the 64 days of the partial shutdown not charged against the contract time, he would be able to accomplish enough additional excavation work to compensate for the 57 days less time in which to perform the other contract work.

From the evidence we cannot say whether, had the weather during the entire 121 days proved suitable for excavation work, such period for devotion exclusively to excavation work would have been a fair substitute for the loss of 57 days of the contract time. Actually the weather was unsuitable for the excavation work during part of the partial shutdown period. The evidence on this point is inadequate to support a finding in terms of days or groups of days where this condition obtained, but it is sufficient to warrant the conclusion that the time during which conditions were unsuitable even for excavation work was substantial. On the basis of the facts found we conclude that the contractor's failure to complete his contract within the time allowed was attributable to his failure to accomplish, during the months of bad weather when all other contract work was suspended, that amount of unclassified excavation necessary to allow him to complete the balance of the work within the contract time remaining after termination of the partial shutdown. The contractor succeeded in doing roughly about one-half the amount of excavation during the 121 days of partial shutdown necessarily contemplated under this formula.

Under a provision of the specifications entitled "Temporary Suspension of Work" the contracting officer was clothed with authority to suspend the work wholly or in part, for such period as he might deem necessary, due to unsuitable weather. In the absence of proof that during the unsuitable weather a modification of the partial shutdown order was requested and arbitrarily withheld, this provision of the specifications...