Arcole Midwest Corp. v. United States, 49761.

• Citation: 125 Ct. Cl. 818,113 F. Supp. 278
• Decision Date: 13 July 1953
• Docket Number: No. 49761.,49761.
• Parties: ARCOLE MIDWEST CORP. v. UNITED STATES.
• Court: Court of Federal Claims

113 F. Supp. 278

125 Ct. Cl. 818

ARCOLE MIDWEST CORP. v. UNITED STATES.

No. 49761.

United States Court of Claims.

July 13, 1953.

Daniel J. Gluck, Chicago, Ill., Harry H. Kahn and Robert B. Simon, Chicago, Ill., on the briefs, for plaintiff.

Gordon F. Harrison, Washington, D. C., Warren E. Burger, Asst. Atty. Gen., for defendant.

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

WHITAKER, Judge.

Plaintiff entered into a contract with the United States Corps of Engineers of the Department of the Army of the United States for the construction of a dam on the Fall River, Greenwood County, Kansas, for the sum of $6,107,053.90. The contract was fully performed and the plaintiff has been paid the contract price. It sues for excess costs which it incurred as a result of an alleged misrepresentation by the Government. These excess costs were incurred in constructing a power line about sixteen miles long in order to secure from the Kansas Electric Power Company the power required in performing the contract. The total cost of constructing this line was $32,349.85, for which amount plaintiff sues. It alleges that the defendant represented that the power company would deliver adequate power to the site without cost to it.

Paragraph SC-14 of the specifications, which were attached to the invitation for bids, required that the contractor should furnish all necessary electricity at no expense to the Government, but in subparagraph (b) it was stated:

"The Kansas Electric Power Company of Lawrence, Kansas, has stated that electric power (three-phase, 60-cycle alternating current at 7,200/12,470 volts wye) can be made available to the contractor at the site of the work at the metering point indicated on the drawings. * * * The power company will furnish and install metering equipment at the metering point indicated on the drawings. The contractor will be required to provide his own local distribution system and transformation equipment."

Furthermore, drawing C112-61.1, attached to the invitation for bids, designated a point on the site of the work as "metering pole to be installed by others," and it indicated a line to this metering pole which it designated as "incoming power supply to be installed by others."

In accordance with the requirement of paragraph GC-2 of the specifications, requiring plaintiff to make an investigation of the site and local conditions, including the availability of electric power, the contractor sent its representative to see the Kansas Electric Power Company to confirm the representation made in the specifications and the drawings that electric power would be available at the site of the work. Plaintiff's representative was told that it would be.

However, it developed that the defendant in its inquiry to the Kansas Electric Power Company about the availability of power had stated that it had estimated that the contractor would need about 200 kilowatts for both lighting and power, and the power company's statement that power would be available at the site was based upon this estimate.

Defendant did not advise plaintiff that it had so estimated its need for power, nor that it had advised the power company of this estimate; hence, plaintiff was misled by defendant's statement in its specifications, that the Kansas Electric Power Company had stated that electric power would be "available to the contractor at the site of the work at the metering point indicated on the drawings," and the statements on the drawings. It...