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Opinion of the Court
tentions, first, that the Government did not advise plaintiff that a "Chanoine weir" on the Ohio end of Dam 29 was not in an operating condition; and, second, that the defendant operated the bear traps and wickets of the dam in such a way as to cause plaintiff large increased and unnecessary expense in the performance of the work called for by its contract. The invitation for bids required plaintiff to visit the site and acquaint itself with all available information concerning the character of material to be removed and the local conditions having a bearing on the transportation, handling, and storing of material, and that failure so to acquaint itself with all available information concerning these conditions would not relieve it of assuming all responsibility for improperly estimating the difficulties entering into and the costs of successfully performing the complete work as required. Shortly before October 18, 1932, plaintiff's president went to Dam 29, on which the work called for by its contract was to be performed, and viewed the site of the work from a location on the Kentucky shore of the river. He did not go to the opposite shore near which the Chanoine weir was located. This Chanoine weir had not been in operation for several years and the trestle, from which such a weir is manipulated when it is in use, had been removed from Dam 29 several years before October 1932. Plaintiff's president on his visit to the dam saw the lockmaster who, for a number of years, had been in charge of operation facilities of the dam, in regulating the pool level above the same, but he did not inquire of the lockmaster, the government engineer, or the contracting officer, whether the Chanoine weir on the opposite side of the river was in an operating condition; had he done so he would have been advised that such weir had not been used or been in an operating condition for several years. Plaintiff's president was also familiar with the facilities on Dam 29 and the manner and method of their operation in maintaining and controlling the level of the pool above the dam. Plaintiff bid $22,000 for the necessary cofferdam work. In these circumstances and in view of the facts set forth in the findings, and the provisions of pars. 16 and 18 of the specifications, we think it is clear that the defendant is not liable for these increased
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expenses and that plaintiff is not entitled to recover on these claims.
In claim 5 plaintiff seeks to recover $476.48, representing the cost of replacing Crib No. 1 on the upper side of its cofferdam, which crib, after it was first constructed, was washed out by the force of the current in the pool above the dam when Bear Trap No. 1 was opened, as usual, by the lockmaster for the customary purpose of regulating the pool above Dam 29. This crib was designed and constructed as a part of plaintiff's cofferdam. When this crib was rebuilt, it was anchored to Crib No. 2 at the southeast corner of the cofferdam in the upper pool which was farthest away from Bear Trap No. 1. When so rebuilt, Crib No. 1 was not thereafter damaged by the current resulting from the manipulation of the bear traps. We think plaintiff is not entitled to recover on this claim. The contract and specifications clearly contemplated the manipulation of the bear traps and wickets for the purpose of regulating the height of the water in the pool above Dam 29. Under the contract and the specifications plaintiff was responsible for the adequacy of its cofferdam. In these circumstances the defendant cannot be held responsible for the expense claimed. The petition is dismissed. It is so ordered.
GREEN, Judge; and WHALEY, Chief Justice, concur. WHITAKER, Judge, took no part in the decision of this case.
JAMES I. BARNES v. THE UNITED STATES
[No. 43772. Decided October 7, 1940]
Government contract; effect of annulment of National Industrial Recovery Act; payment of prevailing scale of wages.-Where contract provided that the contractor would comply with the provisions of each code of fair competition to which he might be subject, under the National Industrial Recovery Act, and where after said act had been declared unconstitutional (295 U. S. 495), the contractor paid the prevailing scale of wages being paid in the community, it is held that under the provisions of the contract the Government was not entitled to deduct the amount of the savings thereby effected and the plaintiff is entitled to recover for the amount so deducted.
Reporter's Statement of the Case
Same. Where the only penalty provided in the contract for failure to comply with the applicable code issued under the N. I. R. A. was cancelation of the contract by the Government, and where no attempt was made or right claimed to cancel the contract because plaintiff, after it commenced work, paid the prevailing rate of wages rather than the invalidated code rate, it is held that plaintiff is entitled to recover amount improperly deducted in final settlement after completion of the contract in accordance with its terms. Hood & Gross v. United States, 90 C. Cls. 258 cited.
The Reporter's statement of the case:
Mr. John F. Hayes for the plaintiff. Mr. J. C. Trimble was on the brief.
Mr. John B. Miller, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant.
Plaintiff on April 30, 1935, entered into a contract with the defendant, through the procurement division of the Treasury Department, for the construction of a United States Courthouse at Columbia, South Carolina, for $253,920, "in accordance with the specifications, schedules, and drawings" made a part of the contract. Upon completion of the contract, the Comptroller General deducted and withheld $11,482.49 from the amount otherwise due plaintiff under the contract on the ground that the United States was entitled to a reduction, in that amount, of the lump sum contract price because the plaintiff, as a result of the decision in Schechter v. United States, 295 U. S. 495, had been authorized and permitted to employ skilled and unskilled laborers at the prevailing rate of wages being paid in the community and locality where the work was being performed, during the time the contract was being performed.
The Comptroller General based his right to make the deduction on his conclusion that there was a failure of consideration under the contract by reason of the National Industrial Recovery Act having been declared invalid, and plaintiff having paid the prevailing wages in the community and locality of the work rather than the minimum N. I. R. A. code wages.
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Reporter's Statement of the Case
The court, having made the foregoing introductory statement, entered special findings of fact as follows:
1. March 13, 1935, the defendant, through the procurement division of the Treasury Department, issued an invitation for bids for the construction of a United States courthouse at Columbia, South Carolina, in accordance with certain specifications thereto attached. Thereafter plaintiff submitted his bid pursuant to such invitation, which bid was accepted by defendant. April 30, 1935, a written contract was entered into between plaintiff and defendant for the lump sum consideration of $253,920, the construction work to be performed in accordance with the plans and specifications mentioned therein and in the invitation for bids. Copies of the contract, specifications, and bid are in evidence as exhibits A, A-1, and 2, respectively, and are made a part hereof by reference.
2. On March 14, 1934, the President issued Executive Order No. 6646 (which was herein made a part of the specification and invitation for bids), which contained the following:
1. (A) All invitations to bidders hereinafter promulgated by or in behalf of any Executive department or independent establishment or other agency or instrumentality of the United States, including Government-owned and Government-controlled corporations (all of the foregoing being hereinafter described as agencies of the United States) shall contain a provision to the effect that no bid will be considered unless it includes or is accompanied by a certificate duly executed by the bidder, stating that the bidder is complying with and will continue to comply with each approved code of fair competition to which he is subject, and if engaged in any trade or industry for which there is no approved code of fair competition, then stating that as to such trade or industry, he has become a party to and is complying with, and will continue to comply with an agreement with the President under Section 4 (A) of the National Industrial Recovery Act.
(B) No bid which does not comply with the foregoing requirements shall be considered or accepted. The specifications further provided:
The contractor shall comply with each approved code of fair competition to which he is subject, and if he is engaged in any trade or industry for which there is no
Reporter's Statement of the Case
approved code of fair competition, then as to such trade or industry with an agreement with the President under Section 4 (A) of the National Industrial Recovery Act (President's Reemployment Agreement), and the United States shall have the right to cancel this contract for failure to comply with this provision and make open-market purchases or have the work called for by this contract otherwise performed at the expense of the contractor.
Plaintiff's bid contained the following certificate:
It is hereby certified that the undersigned is complying with and will continue to comply with each approved code of fair competition to which he is subject, and/or if engaged in any trade or industry for which there is no approved code of fair competítion, then as to such trade or industry, that he has become a party to and is complying with and will continue to comply with an agreement with the President under Section 4 (A) of the National Industrial Recovery Act (President's Reemployment Agreement), and that all other conditions and requirements of Executive Order No. 6646, dated March 14, 1934, are being and will be complied with.
3. The President, on January 11, 1934, approved a code of fair competition for the construction industry. A copy is of record as Exhibit D and is by reference made a part hereof. The President, on April 19, 1934, approved a supplementary code of fair competition for the electrical contracting industry, a copy of which is of record as Exhibit E, and is by reference made a part hereof. Plaintiff was a member of the construction industry.
4. The code of fair competition was in part as follows:
SEC. 2. Where no applicable mutual agreement as provided in Section 1 of this article shall have been approved, employers shall comply with the following provisions as to minimum rates of pay and maximum hours of labor.
A. No employee, excluding accounting office and clerical employees, shall be paid at less than the rate of 40 cents per hour, provided, however, that the provisions of this paragraph A shall not be construed as establishing a minimum rate of pay for other than common or unskilled labor; and provided further that such provisions shall not be construed to authorize reductions in existing rates of pay.