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92 C. Cls.

Syllabus

Under these decisions, the principles of which are applicable to the facts of this case, the plaintiff is entitled to recover the allowances claimed for a period beginning 6 years prior to August 31, 1937, the date on which the petition herein was filed. The case, however, is a continuing one, and entry of judgment will be suspended pending the receipt from the General Accounting Office of a statement of the amount due plaintiff in accordance with this opinion.

It is so ordered.

LITTLETON, Judge; GREEN, Judge; and WHALEY, Chief Justice, concur.

WHITAKER, Judge, took no part in the decision of this case.

[On the court's own motion, it was ordered, April 29, 1941, that in the above case (No. 43642), the special findings of fact, conclusion of law entering judgment for plaintiff, and opinion therein filed February 3, 1941, be vacated and withdrawn.]

(See subsequent volume for opinions and judgment rendered in this case (No. 43642) May 5, 1941.)

H. W. ZWEIG COMPANY v. THE UNITED STATES [No. 43750. Decided February 3, 1941] On the Proofs

Government contract; mutual delays.-In a suit to recover the amount of liquidated damages assessed and collected by the Comptroller General in the final settlement of a contract to furnish to the Army certain articles of clothing at a stipulated price, within a specified time, it is held that where delay in the completion of the contract is shown by the evidence to have been the fault of both parties to the contract the plaintiff is entitled to recover. Same; liquidated damages.-The law is well settled that where delays

have been caused by both parties to a contract, and the completion of the contract has been thereby extended beyond the time fixed, the obligation for liquidated damages has been annulled. Standard Steel Car Co. v. United States, 67 C. Cls. 445; Bethlehem Steel Co. v. United States, 75 C. Cls. 845, cited. Same; decision of contracting officer.—Where it is shown that the contracting officer's decision was not fair and impartial, it is held that such decision was not final under the terms of the contract. Same; lack of authority of Comptroller General.-A decision on the facts, as provided for in the contract, must be made by the Government's contracting officer and not by the Comptroller General, who was not a party to the contract, and to whose decision the

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Reporter's Statement of the Case

plaintiff had never agreed to submit. Sun Shipbuilding Co. v. United States, 76 C. Cls. 154.

Same; appeal.-Where the contracting officer made no decision on the facts and made only a certification of his findings to the Comptroller General, no appeal as provided in the contract could be taken.

The Reporter's statement of the case:

Mr. Erwin Feldman for the plaintiff. Mr. Joseph Walker was on the brief.

Mr. Louis R. Mehlinger, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Paris Houston was on the brief.

The court made special findings of fact as follows: 1. H. W. Zweig is an individual trading as H. W. Zweig Company.

2. January 14, 1935, H. W. Zweig, as owner of H. W. Zweig Co., entered into a contract with the United States, represented by E. J. Heller, Captain, Quartermaster Corps, U. S. Army, whereby the contractor agreed to furnish and deliver at the 8th Corps Area General Depot, Fort Sam Houston, Texas, 54,750 pairs of blue denim working trousers and 78,750 blue denim working jumpers, for $105,043.50, in accordance with schedules and specifications designated "Schedule of Supplies; U. S. Army Specifications Nos. 100-2D, 6–124A, 6-125 and Errata thereto dated February 11, 1926; Federal Specifications Nos. CCC-D-156, V-T276A, NN-B-621A; Standard Government Form of Bid No. 669-35-203; Erratum No. 1, dated January 2, 1935." Delivery of each item was to be 2% within 10 days after date of the contract and 14% each 7 days thereafter, until the entire quantity was completed.

Article 4 of the contract reads as follows:

ARTICLE 4. Inspection.-(a) All material and workmanship shall be subject to inspection and test at all times and places and, when practicable, during manufacture. The Government shall have the right to reject articles which contain defective material or workmanship. Rejected articles shall be removed by and at the expense of the contractor promptly after notification of rejection. (b) If inspection and test, whether preliminary or final, is made on the premises of the contractor or sub

92 C. Cls.

Reporter's Statement of the Case

contractor, the contractor shall furnish, without additional charge, all reasonable facilities and assistance for the safe and convenient inspections and tests required by the inspectors in the performance of their duty. All inspections and tests by the Government shall be performed in such a manner as not to unduly delay the work. Special and performance tests shall be as described in the specifications. The Government reserves the right to charge to the contractor any additional cost of inspection and test when articles are not ready at the time inspection is requested by the contractor.

(c) Final inspection and acceptance of materials and finished articles will be made after delivery, unless otherwise stated. If final inspection is made at a point other than the premises of the contractor or a subcontractor, it shall be at the expense of the Government except for the value of samples used in case of rejection. Final inspection shall be conclusive except as regards latent defects, fraud, or such gross mistakes as amount to fraud. Final inspection and acceptance or rejection of the materials or supplies shall be made as promptly as practicable, but failure to inspect and accept or reject materials or supplies shall not impose liability on the Government for such materials or supplies as are not in accordance with the specifications. In the event public necessity requires the use of materials or supplies not conforming to the specifications, payment there for shall be made at a proper reduction in price.

Article 15 of the contract was as follows:

ARTICLE 15. Delays.-Liquidated Damages. If the contractor refuses or fails to make delivery of the materials or supplies within the time specified in Article 1, or any extension thereof, the actual damage to the Government for the delay will be impossible to determine, and in lieu thereof the contractor shall pay to the Government, as fixed, agreed, and liquidated damages for each calendar day of delay in making delivery, the amount as set forth in the specifications or accompanying papers, and the contractor and his sureties shall be liable for the amount thereof: Provided, however, That the Government reserves the right to terminate the right of the contractor to proceed and to purchase similar material or supplies in the open market or secure the manufacture and delivery thereof by contract or otherwise, charging against the contractor and his sureties any excess cost occasioned the Government thereby, together with liquidated damages accruing until such time as the Government may reasonably procure similar material

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Reporter's Statement of the Case

or supplies elsewhere: Provided further, That the contractor shall not be charged with liquidated damages or any excess cost when the delay in delivery is due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God or the public enemy, acts of the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather but not including delays caused by subcontractors: Provided further, That the contractor shall, within ten days from the beginning of any such delay, notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and extent of the delay and his findings of facts thereon shall be final and conclusive on the parties hereto, subject only to appeal, within thirty days, by the contractor to the head of the department concerned, whose decision on such appeal as to the facts of delay shall be final and conclusive on the parties hereto.

The Schedule of Supplies, made part of the contract, gave the factory names and location as Sheer Pants Mfg. Co. and Vaughan Mfg. Co., both at Dallas, Texas; the completion date as March 14, 1935; the articles to be made of unshrunk denim. Liquidated damages, referred to in Article 15, for each unit undelivered, were set at "a sum equal to one-fifth of one percentum (% of 1%) of the price of each unit, for each day's delay after the date or dates specified." Discount for prompt payment was 14 of 1% for 10 calendar days. All patterns were to be furnished by the Quartermaster Corps.

The bid, which formed a part of the contract, stated: NOTE. The attention of all bidders is called to the fact that the garments must be cut from patterns furnished by the Government. These patterns are cut oversize approximately 72% in the length, and 22% in the width where unshrunk denim is used, and according to shrinkage in laundering, if shrunk (sponged) denim is used; however, if a thoroughly shrunk (sanforized) denim is used, patterns will be to exact size.

The successful bidder will be required to submit to the Contracting Officer, Philadelphia Q. M. Depot, a finished sample of each garment awarded, in addition to a 12-yd. sample of the denim he proposes to use, for examination and test, also one finished sample of each garment for each depot of delivery for which award is made.

92 C. Cls.

Reporter's Statement of the Case

Copies of the contract, specifications, schedules, and form of bid are filed in evidence and made part of these findings by reference.

3. On January 11, 1935, the contractor received from the contracting officer, Philadelphia Quartermaster Depot, patterns for the jumpers, and on January 16, 1935, patterns for the trousers.

The contractor promptly thereafter proceeded with the manufacture of the jumpers and trousers, the work being done in part by the Vaughan Manufacturing Co. in that company's plant at Dallas, but did not finish in contract time. This plant had been idle for some time. A new force of workers was recruited for the contract in suit, which had to receive training and be organized.

On the 24th of January 1935, the Quartermaster Supply Officer at Fort Sam Houston received from the contractor the first lot of jumpers, consisting of 3,600 garments. They were poorly made and did not in all respects conform to the specifications. The Quartermaster Supply Officer rejected them January 24, 1935, in the following letter to the contractor:

We received this date from you, 3,600 jumpers, working, denim, blue, large, to apply on Philadelphia contract W-669 ECF-448 and the shipment has been rejected due to the following reasons:

Buttonholes are poorly stitched.

Edges are rough.

Threads loose.

Collar and armpits have loose threads.
Buttons are not securely fastened.
Workmanship poor.

The vent on the sleeves measures a scant 4 inches,
whereas the specifications call for 412 inches.

Before making any further shipments, it is suggested that you make a trip to this depot with the view to inspecting garments to correct defects, otherwise, further rejections will result.

Request that disposition instructions be given covering the rejected garments and that replacement be made at the earliest practicable date.

January 28, 1935, 1,860 pairs of trousers and 1,740 jumpers were likewise rejected by the Quartermaster Supply Officer at Fort Sam Houston, for the same reasons.

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