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Reporter's Statement of the Case

On December 7, 1933, plaintiff applied to the Supervising Architect in writing for an extension of 35 days for completion of the contract, to cover delay due to encountering unsatisfactory soil conditions necessitating widening and deepening the footings.

Thereafter, December 19, 1933, the Supervising Architect informed plaintiff that consideration of further extension of contract time would await final settlement.

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On or about March 14, 1934, plaintiff petitioned the Procurement Division, Public Works Branch, Treasury Department, for a reconsideration of the claim for $418.99 (the difference between $1,482.99 and $1,064.00).

The Director of Procurement, Public Works Branch, advised plaintiff March 20, 1934, that additional allowance could not be made, and September 8, 1934, the Acting Secretary of the Treasury notified the plaintiff that the decision of the Director of Procurement was sustained.

8. On September 30, 1933, plaintiff applied to the Supervising Architect for an extension of contract time of 30 days, based on alleged wait "for details (particularly mill work), approvals of samples, and other information which the local Architects are required to furnish," and concluding:

It is not a desire to prolong the ultimate completion of the job that we ask the extension but rather protection against any liquidated damages and to bring the facts properly before the Supervising Architect.

The Acting Supervising Architect informed plaintiff by letter October 21, 1933, that consideration of the question of additional contract time would be given at the time of final settlement.

9. The Supervising Architect sent to the plaintiff October 18, 1933, a copy of the specifications for the models to be furnished the plaintiff contractor.

Plaintiff returned specifications included therein for models for bronze lamp standards October 23, 1933, claiming that no lamp standards were included in its contract. These standards were for lamps outside the building, one on either side of the approach thereto.

The Acting Supervising Architect sent back the lamp standard specification to the plaintiff November 3, 1933, asserting that the work was required by plaintiff's contract.

92 C. Cls.

Reporter's Statement of the Case

The plaintiff again protested against doing the work, on the ground that it was not a part of its contract, and so protesting, on November 15, 1933, stated in writing to the Supervising Architect:

We wish to call to your attention further the fact that the job is ready for acceptance and the manufac ture and erection of these lamp standards will require approximately 90 days' time. If the Government requires us to purchase these standards we will be compelled to include in our price for the installation of these standards an additional three months' job overhead.

On December 9, 1933, the plaintiff by letter withdrew its claim that it was not required to furnish and erect the lamp standards.

10. The plaintiff on November 16, 1933, requested final inspection, and on December 7, 1933, sent the following telegram to the Supervising Architect:

Reference Bingham Canyon postoffice we request final inspection without waiting for installation of lamp standards which we agree to manufacture and install as soon as Government models are received building complete except for these standards we request immediate decision and reply.

The Supervising Architect wired back December 8, 1933, that the district engineer had been ordered to make final inspection.

11. The plaintiff wrote to the Supervising Architect December 19, 1933, that the work had been completed except for the lamp standards, that the models therefor had not yet been received, proposed that the lamp standards be omitted from the contract with appropriate credit, that otherwise overhead on the job would accumulate, and requested an extension of contract time for the period between completion of the job and such time as the standards should be omitted from the contract.

On January 2, 1934, plaintiff demanded of the Supervising Architect completion payment.

12. January 3, 1934, the plaintiff presented a claim to the Supervising Architect for job overhead of $2,400, based on

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Reporter's Statement of the Case

120 days' delay at $20 per day, setting forth the delays as follows:

1. Change in Plans and Specifications:

Footing changes_-_

Footing struts__

Deepening curbs___.

Property line cutter.-

2. Time lost due to lack of prompt decisions by architects
Scott & Welch.__.

Superintendent salary-----
Superintendent expenses--
Equipment rentals___.
Equipment maintenance_.
Light, water, etc-----

Telephone, telegrams, stamps-

Photos

Insurance, fire, etc

Interest on capital invested___

Days

35

15

5

5

60

Therein daily job overhead cost was itemized as follows:

$10.00

2.00

2.17

120

.83

.67

.83

.33

1.67

1.50

$20.00

These expenses are a reasonable and necessary part of the overhead, with the exception of the items for insurance and interest on capital invested. Deducting the total of these two items, which is $3.17, from $20, we find the reasonable daily cost of overhead was $16.83.

The system adopted by the defendant for contracting the construction work necessarily caused delay. A firm by the name of Scott & Welch was employed to draw the plans and specifications. The architectural materials, such as millwork, paint, stone, exterior stone, and matters of that nature, had to be approved by the architects and after having been approved by them were still required to be approved by the Supervising Architect of the defendant. Plaintiff made repeated requests for the millwork detail drawings to be prepared so that the millwork could be ordered from a concern engaged in that business. Further difficulty was encountered due to the fact that the defendant refused to accept the details that the architects

291825-41-CC-vol. 92——39

Reporter's Statement of the Case

92 C. Cls.

had made and they had to be returned and done over again. There was also a delay by reason of the failure of the defendant's architects to act on samples of paint.

The effect of these delays on the time of the completion of the building is not definitely shown as there is nothing in the evidence to show that the other work on the building was held up or delayed by reason of these matters, which in point of time overlapped more or less the period used in the general construction of the building. There is no direct evidence showing at what time the building would have been completed had these delays not occurred but it does appear that the defendant's engineer stopped the pouring of concrete in the retaining walls from January 7 to January 18, 1933, and also stopped work on February 15 for 28 days, on account of unsatisfactory footings and soil conditions.

Plaintiff was also delayed by the failure of the defendant to make a decision on the matters which required changes in the footings, including the addition of some struts. Although the entire length of the delay is not satisfactorily shown by the testimony, upon all of the evidence the conclusion is that it required at least 60 days longer for plaintiff to complete the building by reason of delays caused by the defendant for which there was no reasonable excuse.

On February 14, 1934, the plaintiff requested of the Procurement Division, Public Works Branch, Treasury Department, payment to cover completed work in the amount admittedly due thereon.

February 21, 1934, the Supervising Engineer, Procurement Division, Public Works Branch, Treasury Department, advised plaintiff by letter as follows:

With reference to your letter of January 3d, you are advised that under the terms of the contract your claim in the amount of $2,400.00 for cost of overhead during the periods you claim you were delayed by the government cannot be allowed.

At the time of final settlement of your contract you have the privilege of accepting final voucher, without waiving your right to appeal, and submitting this claim direct to the Comptroller General of the United States.

Reporter's Statement of the Case

13. The Assistant Director for Public Works, Procurement Division, Public Works Branch, Treasury Department, communicated with plaintiff by letter April 13, 1934, as follows:

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Receipt is acknowledged of your communication dated March 17, 1934, with reference to the carrying of insurance on the Federal building at Bingham Canyon, Utah.

While the Standard Government Form of Contract does not specifically state that the contractor shall carry fire insurance, Article 10 thereof states, in part, that: "The contractor * *shall be responsible for the proper care and protection of all materials delivered and work performed until completion and final acceptance."

In view of this requirement in the contract it would appear to be to the interest of the contractor and the surety on the bond that the work and materials be protected by insurance, as in case of destruction of work it would be his obligation to replace it without additional expense to the Government. The contractor would not be responsible for any damage caused to the building by the Government's employees. Of course, any damage by fire to the occupied portion of the building resulting through any act or negligence on the part of the contractor's employees would have to be made good by the contractor without expense to the Government.

*

14. On April 23, 1934, the plaintiff in writing advised the Procurement Division, Public Works Branch, Treasury Department, that the lamp standards were expected to be erected and ready for acceptance between May 15 and 20, concluding as follows:

When the lamp standards are acceptably erected and we are so notified by you we will calculate the extension of time from December 20th to the date of acceptance and request that our contract time be extended in this amount of time to compensate us in time for the delays on your part in furnishing us models for the lamp

standards.

At this same time we shall also calculate our costs and damages incurred by reason of your failure to furnish the models for the lamp standards in sufficient. time for us to furnish and erect them at the time we completed the job December 20th.

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