Anthony P. Miller, Inc. v. United States, 45556.

• Decision Date: 03 May 1948
• Docket Number: No. 45556.,45556.
• Parties: ANTHONY P. MILLER, Inc., v. UNITED STATES.
• Court: U.S. Claims Court

77 F. Supp. 209

111 Ct. Cl. 252

ANTHONY P. MILLER, Inc., v. UNITED STATES.

No. 45556.

Court of Claims.

May 3, 1948.

COPYRIGHT MATERIAL OMITTED

Herman J. Galloway, of Washington, D. C., (King & King, of Washington, D. C., on the brief), for plaintiff.

L. R. Mehlinger, of Washington, D. C., and H. G. Morison, Asst. Atty. Gen. (Irvin M. Gottlieb and S. R. Gamer, both of Washington, D. C., on the brief), for defendant.

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

MADDEN, Judge.

The plaintiff on August 20, 1936, made a contract with the Government to construct for it the superstructure of the Westfield Acres Housing Project in Camden, New Jersey. The price was $2,488,500. The Government agency which acted in the making of the contract was the Federal Emergency Administration of Public Works, Housing Division. The time for performance was 365 days from the date of receipt by the contractor of notice to proceed. The notice, as issued, made the starting date of the contract September 8, 1936, and the completion date September 7, 1937. In the course of performance a large number of change orders were issued by the Government, which resulted in reducing the contract price by some $30,000 and extending the time of performance by 177 days, i. e., to March 3, 1938. The work was completed within the extended time, and no liquidated damages were assessed. The plaintiff, after completion, executed a certificate of settlement and release in which it reserved its right to assert the claims which are the subject matter of this suit.

The plaintiff's several grounds of complaint fall, in general, into two categories: first, those relating to work which it was required to do but which, it asserts, it was not obliged by its contract to do, and, second, damaging delays caused to it by acts or omissions of the Government which, the plaintiff asserts, were breaches of contract by the Government.

Discrepancies in Foundation Work

The foundations for the project were constructed by another contractor under a separate contract with the Government. The plaintiff's contract required it to examine immediately the work of the foundation contractor and point out any discrepancies so that they could be remedied. The plaintiff did so and made a report to the Government's Contracting Officer who directed the foundation contractor to make corrections. There was controversy as to whether corrections had been made. A representative of the Government's inspection division in October, 1936, requested the plaintiff to make a resurvey of the foundations to point out remaining defects. The plaintiff, in a letter written November 17, asked that it be paid $400 for the expense of the survey, which by that time had been made. The Government's agents took no action on the plaintiff's request for payment. Under Section 10 of the specifications, quoted in our finding 7, the plaintiff's claim was made too late, and it cannot assert it here.

Delays Due to Proposed Architectural Changes

The next item of the plaintiff's claim is the damage alleged to have been caused by the Government by its delay in deciding whether to build the buildings according to the plans incorporated in the contract or to change those plans substantially. The plaintiff, of course, had an orderly procedure laid out for the economical use of its working force on this large project. This procedure is described in finding 5. But this procedure was made impossible, as our findings show, by the Government's dilatory conduct.

The plans for the buildings had been made by local architects in Camden, New Jersey. But in the final preparation of the papers for the invitation for bids, these plans were changed in the Washington office of Housing Division. The architects were not reconciled to the changes, and initiated conferences with the plaintiff and its subcontractors with a view to having their original plans restored as far as possible. As shown in our findings 14 to 21, the Government's deliberations upon this question dragged along until December 1936, at which time it ordered certain relatively unimportant changes. We have found that the plaintiff's progress on the job as a whole was delayed 50 days by this uncertainty. In the circumstances, the Government's conduct was a breach of contract. It had, in the contract, reserved the right to make changes, but a sensible reading of that provision does not give it the right to deliberate, in disregard of the interests of the other party to the contract, for as long as it pleases, upon changes so fundamental that the work can go forward only haltingly and uneconomically until the deliberations are concluded.

The plaintiff is not barred from recovery on this item of its claim by the action of the Contracting Officer, affirmed on appeal to the head of the Department, the Administrator of the United States Housing Authority, denying the plaintiff compensation for the delay. Articles 9 and 15 of the contract, quoted in finding 6, do not give this power of decision to the Contracting Officer. His power under Article 9 is to determine whether liquidated damages shall be assessed against the contractor for late completion of his work, and not whether unliquidated damages shall be assessed against the Government for its breach of an express or implied obligation under the contract.

If a contracting officer should award such damages against the Government, the Comptroller General would not allow them to be paid, and contracting officers generally disclaim any power to award such damages or deny them. See B-W Construction Co. v. United States, 101 Ct.Cl. 748, 771. If we allow the adverse decision of the Contracting Officer to prevent us from considering such cases on their merits, we are reading Article 9 as giving the Contracting Officer the power to decide claims for damages for breach of contract against contractors, but no power to decide such claims in their favor. Such a reading would be unfair as well as irrational. What we have said applies also to the power given to the head of the Department in Article 15 of the contract, to decide disputes on appeal. Langevin v. United States, 100 Ct.Cl. 15, 31.

We therefore allow the plaintiff to recover on this item of its claim. We discuss hereinafter the measure of its damages for the 50 days of its delay.

Screen Doors

The plaintiff asserts that it was damaged because the specifications in the contract with regard to screen doors were not sufficiently detailed to allow the plaintiff to order their manufacture, and, by the time the Government had definitely described them, some months later, the price had gone up $147. The Contracting Officer, and the head of the Department on appeal, denied the plaintiff's claim. We think that the indefiniteness of the specifications as to the screen doors was as obvious to the plaintiff as to the Government, and that the plaintiff should have, at least when the defect was called to its attention by a third party, brought the matter to the attention of the Contracting Officer in a sufficiently formal way to indicate that it was important that the matter be clarified promptly. Instead, the plaintiff made an oral request to a subordinate, and made no written request to the Contracting Officer until two and one-half months later, after which request the question was resolved with reasonable promptness.

Electrical Changes

The gist of this item of the plaintiff's claim is that the Government specified electrical installations which were not in accord with the requirements of the Utility Company which was to supply electricity to the project, or with the requirements of the National Electric Code. In consequence there was confusion and delay in revising the plans and getting the electrical equipment installed, and the completion of the whole project was delayed by 10 days. We think it was a breach of contract for the Government, in writing the parts of the contract relating to electrical work, to neglect to write them in conformity with applicable requirements, so that when the time came for their installation, in the regular course of the work, they could be installed. We have, therefore, awarded the plaintiff damages for these 10 days of delay.

Radiator Changes

The contract required the plaintiff to install radiators in the kitchens, and this was done. The electrical ranges in the kitchens were to be installed by the Government and, when it began to install them it was discovered that the doors of the ranges could not be opened because of the location of the radiators. This difficulty was the result of careless planning by the Government. The radiators had to be relocated and the plaintiff was paid for that work and for the additional material used. We have found that this change did not delay the completion of the contract work as a whole. The plaintiff was not, therefore, damaged by the Government's mistaken planning, and may not recover on this item of its claim.

Color Schedules

In the contract the Government reserved the right to vary the color of the paints to be used throughout the project. It employed a color consultant to decide what colors to use. The consultant was dilatory in furnishing color schedules to the plaintiff, but we have found that the contract work as a whole was not delayed by this conduct, and the plaintiff has not shown that it was otherwise damaged by it. No recovery is allowed on this item.

Temporary Heating

The plaintiff's contract included the construction of the central heating plant and the heat distribution system. The specifications of the contract also required the plaintiff to furnish temporary heating, if necessary, when sensitive work such as plastering and tile and linoleum laying was being done. On October 7, 1937, the Government ordered the plaintiff to maintain the temperatures required by the specifications, work of the kind named above being then in process. The central...