BINGHAMTON CONST. CO. v. United States

• Decision Date: 07 October 1952
• Docket Number: No. 48525.,48525.
• Citation: 123 Ct. Cl. 804,107 F. Supp. 712
• Parties: BINGHAMTON CONST. CO., Inc. v. UNITED STATES.
• Court: U.S. Claims Court

107 F. Supp. 712

123 Ct. Cl. 804

BINGHAMTON CONST. CO., Inc. v. UNITED STATES.

No. 48525.

United States Court of Claims.

Decided October 7, 1952.

Jerome Beaudrias, Yonkers, for the plaintiff.

James J. Sweeney, Washington, D. C., Holmes Baldridge, Asst. Atty. Gen., for the defendant.

The Court, upon the evidence, the report of Commissioner William E. Day, and the briefs and argument of counsel, makes the following

Special Findings of Fact.

1. Plaintiff is, and at all times material herein has been, a corporation organized and existing under the laws of the State of New York with its principal office and place of business at Binghamton, New York. Since its formation in 1929, it has been engaged in business as a general contractor.

2. On March 29, 1941, defendant, acting by and through the War Department's Corps of Engineers' Office at Binghamton, New York, invited bids for the construction of Flood Protection Project (Section No. 1) along the north bank of the Chemung River, within the limits of the city of Elmira, Chemung County, New York. In response to said invitation, plaintiff submitted a bid based upon a unit price applied to the various operations involved in the performance of the work in the total sum of $232,669.30. This bid was accepted by defendant on May 14, 1941. On that date plaintiff and defendant entered into a written contract, No. W-321-eng-261, which was approved June 3, 1941. On June 5, 1941, defendant gave plaintiff a formal notice to proceed with the work. Actual work commenced on the site of the job on June 3, 1941.

3. The contract was performed by plaintiff, and it has been paid the contract price, as adjusted, for change orders with the exception of $100 which plaintiff instructed the District Engineer to withhold, and plaintiff has refused to accept said $100 from defendant on advice of its counsel.

4. Plaintiff sues for the sum of $37,317.19, the total of three separate claims, as follows:

                Claim for reimbursement of
                  wage rates paid to carpenters
                  laborers, and concrete puddlers ... $15,597.38
                Claim as regards measuring of
                  sheeting and shoring ..............  14,785.55
                Claim for finishing of concrete         6,934.26
                                                      __________
                     Total .......................... $37,317.19
                Each claim will be discussed separately
                

Wage Rates

5. Before bidding, plaintiff was furnished a copy of the specifications. Section 1-31 of such specifications reads, insofar as here pertinent, as follows:

1-31. Wage and Labor Provisions. (a) The Secretary of Labor has determined the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work. In accordance with Article 17 of the contract, employees at the site shall be paid not less than these wages as listed below:

                Designation Wage rate — hourly
                Carpenters, Journeymen .......... $1.00
                *  *   *   *   *   *
                Laborers, unskilled ............  0.50
                Laborers, Concrete Puddlers ....  0.50
                

* * * * * *

6. Article 17 of the contract reads as follows:

"Article 17. Rate of wages (in accordance with the act of August 30, 1935, 49 Stat. 1011 (U.S.Code, title 40, sections 276a and 276a-1 40 U.S. C.A. §§ 276a, 276a-1), this article shall apply if the contract is in excess of $2,000 in amount and is for the construction, alteration, and/or repair, including painting and decorating, of a public building or public work within the geographical limits of the States of the Union or the District of Columbia).—

"(a) The contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the specifications, regardless of any contractual relationship which may be alleged to exist between the contractor or subcontractor and such laborers and mechanics; and the scale of wages to be paid shall be posted by the contractor in a prominent and easily accessible place at the site of the work. The contracting officer shall have the right to withhold from the contractor so much of accrued payments as may be considered necessary by the contracting officer to pay to laborers and mechanics employed by the contractor or any subcontractor on the work the difference between the rates of wages required by the contract to be paid laborers and mechanics on the work and the rates of wages received by such laborers and mechanics and not refunded to the contractor, subcontractors, or their agents.

"(b) In the event it is found by the contracting officer that any laborer or mechanic employed by the contractor or any subcontractor directly on the site of the work covered by the contract has been or is being paid a rate of wages less than the rate of wages required by the contract to be paid as aforesaid, the Government may, by written notice to the contractor, terminate his right to proceed with the work or such part of the work as to which there has been a failure to pay said required wages and prosecute the work to completion by contract or otherwise, and the contractor and his sureties shall be liable to the Government for any excess costs occasioned the Government thereby."

7. On October 22, 1940, the Elmira business agent of the United Brotherhood of Carpenters and Joiners of America, Local 532, wrote to the United States Engineer's Office in Binghamton, New York, to inform it that the wage scale for carpenters would be increased as of January 1, 1941, from $1 per hour to $1.125 per hour. On October 29, 1940, the District Engineer acknowledged receipt of this letter.

8. On January 31, 1941, the Secretary of Labor furnished to the Corps of Engineers at its request, for inclusion in the contract specifications, the schedule of minimum wages in the Elmira area. Such schedule, which is set out in finding 5, was included in the specifications which were furnished to plaintiff prior to the computation of its bid. As stated in finding 2, invitations for bids were issued on March 29, 1941, and plaintiff's bid was accepted on May 14, 1941.

9. On March 4, 1941, the Secretary of Labor furnished to the Public Buildings Administration of the Federal Works Agency a schedule of minimum wages in the Elmira area for inclusion in the bidding specifications and contract for a Federal Housing Project in Elmira, New York. The prevailing wage rates shown therein, in pertinent part, were as follows:

                Classification Hourly rate
                Carpenters, Journeymen ......... $1.125
                Laborers, unskilled ............   0.55
                

10. Plaintiff employed only union labor on this project. At the time plaintiff began work on the site on June 3, 1941, it had to pay $.625 per hour for laborers and $1.125 per hour for carpenters. The carpenter wage rate had been put into effect by the union on January 1, 1941, and the laborer wage rate on April 1, 1941.

11. On June 16, 1941, plaintiff advised the District Engineer (who was the contracting officer) that the minimum wage rates provided in the contract specifications were less than the rates currently prevailing in the Elmira locality for carpenters, laborers (unskilled), laborers (concrete puddlers), and truck drivers.

12. The District Engineer replied on June 27, 1941, stating that the minimum wage rates were determined in strict accordance with the applicable law and regulations, and that he could not afford relief for any differences between wage rates then prevailing in the area and the minimum rates required by the contract specifications.

13. Plaintiff protested this decision to the Chief of Engineers under date of July 10, 1941, and on August 5, 1941, plaintiff's appeal was denied by the Chief of Engineers in part as follows:

"There is no authority in law for this office to question the correctness of any determination made by the Secretary of Labor pursuant to the provisions of the above cited act 49 Stat. 1011. Therefore, I find that the wage rates as established by the Secretary of Labor, and incorporated in the contract specifications, were the minimum wage rates applicable in the locality for the labor classifications anticipated to be used on the work.

14. Plaintiff under date of February 20, 1943, asked defendant to reconsider its appeal regarding minimum wage rates, and this was responded to by letter dated April 13, 1943, from the Chief of Engineers, in part as follows:

"A determination as to the accuracy of the specified wages is not necessary to a decision in this case. The contract by Article 17 and by paragraph 1-31 of the specifications provides that wages not less than those specified shall be paid. The contract makes no representation as to the availability of labor nor as to the actual wage scales that would be in effect. The alleged increased costs did not result from your contract obligation but from economic conditions which are ordinary contingencies contemplated under the terms of the contract. No reason has been shown which would warrant modification of the previous decision dated August 5, 1941."

15. Paragraph 1-12 of the Standard Government Form of Invitation for Bids, a copy of which was furnished to plaintiff, provides as follows:

"Investigation of Conditions. — Bidders are expected to visit the locality of the work and to make their own estimates of the facilities needed, the difficulties attending the execution of the proposed contract, including local conditions, availability of labor, uncertainties of weather, and other contingencies. In no case will the Government assume any responsibility whatever for any interpretation, deduction, or conclusion drawn from the examination of the site. At the bidder's request, a representative of the Government will point out the site of the proposed operations. Failure to acquaint himself with all available information concerning these conditions will not

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