
    GEORGE H. WHIKE CONSTRUCTION COMPANY v. THE UNITED STATES
    [No. 290-52.
    Decided May 1, 1956]
    
      
      Mr. Earl Whittier Shinn for the plaintiff.
    
      Mr. Fra/ncis X. Daly, with whom was Mr. Assistant Attorney General Warren E. Burger, for the defendant.
   Jones, Chief Judge,

delivered the opinion of the court:

Plaintiff sues to recover certain moneys which it claims are due it under a construction contract with the Federal Public Housing Authority (FPHA).

On February 9,1943, the President issued Executive Order 9301 which required a minimum workweek of 48 hours in all places of employment. This order was not made applicable to the area of Canton, Ohio, where the contract in controversy was performed, until August 9,1943. On February 11,1943, FPHA issued an invitation to bid for the construction of certain war housing in Canton, Ohio. Plaintiff was the low bidder among the three who submitted bids. Plaintiff’s bid was based on the assumption that it would work a 40-hour week. It attached a note to its bid in the following terms:

This bid is based on 40 hour week. If it becomes necessary to work more than 40 hours, by Executive Order, we are to be reimbursed for the extra cost of such overtime, plus taxes and insurance.

Plaintiff’s president and secretary came to the regional office of the FPHA in Cleveland, Ohio, on the afternoon of February 26,1943, for the purpose of executing the contract on which plaintiff had bid. The contracting officer, Mr. C. F. Sharpe, the Regional Director, was not in at that time and the FPHA was represented by two men in the legal department of the regional office of the Authority. The contract presented to plaintiff’s officers for execution contained the following proviso which had not been in the form contract furnished the bidders:

This contract is subject to Executive Order 9801, Establishing a Minimum War Time Workweek of Forty-Eight Hours, and to the regulations and directives, if any, issued under said Executive Order by the War Manpower Commission or by the Chairman thereof.

Plaintiff’s officers objected to the inclusion of this proviso in the contract and refused to sign it on that account. The FPHA lawyers told plaintiff that this provision could not be removed because the Washington office would not approve, but that plaintiff was protected by the provision in the bid which it had submitted.

When the FPHA representatives refused to delete the objectionable language in the contract, plaintiff’s representatives asked for a letter from Mr. Sharpe. They had heard of another Canton contractor who had signed a contract with FPHA about a week before and had received a letter from the Government protecting it against the effects of Executive Order 9801. The letter in question was one written by Mr. Sharpe to Mr. H. S. Melbourne, Melbourne Bros. Construction Co., Canton, Ohio, on February 25, 1943, the day before the date of execution of the contract involved here. This letter contained the following language:

I understand that you feel that the standard language with respect to Executive Order 9301, incorporated in the contract between you and the Government, dated February 24,1943, for the construction of the War Housing Project located at Canton, Ohio (OHIO-33036), will not completely protect you in the event that the Canton area is placed, by the War Manpower Commission or the Chairman thereof, in the category of areas requiring the establishment and maintenance of a minimum war time workweek of forty-eight hours.
This is to advise you that the intent of the contract documents and the understanding of the parties thereto is that, if the Canton area is placed in the category of areas requiring the establishment and maintenance of the minimum war time workweek of forty-eight hours, the Government will reimburse you, by Change Order or otherwise, for the actual expenditures (including necessary insurance) made for the actual overtime required to establish and maintain such a forty-eight hour minimum workweek.

It does not appear, however, whether plaintiff’s officers had seen the letter or knew its exact content.

Plaintiff’s representatives were told that they could not get a letter from Mr. Sharpe since he was not in at that time. The Government lawyers assured them, however, that the qualifications in plaintiff’s bid would protect it if Executive Order 9301 were to become effective in the Canton area, and plaintiff’s president signed the contract on these assurances. The assurances were given in lieu of the letter. Mr. Sharpe executed the contract for the Government later that same afternoon. Plaintiff began work under the contract on March 1,1943.

Due to a great shortage of labor in the Canton area, plaintiff was delayed in the performance of its contract. Prior to August plaintiff repeatedly raised the possibility of working its men more than 40 hours in order to more fully utilize the labor force available and thus speed the completion of the j ob. Plaintiff was not willing to order overtime, however, unless the Government would authorize reimbursement for the additional expense. The Government never gave such an authorization but it did grant plaintiff time extensions.

Executive Order 9301 was made effective in the Canton area on August 9, 1943. On August 13 defendant’s project manager notified plaintiff that the job was to be put on a 48-hour week basis. Plaintiff placed the job on that basis the following day. The project manager did not tell the Whike brothers that they would be reimbursed for the premium time incident to Saturday work performed by plaintiff’s employees as a result of compliance with Executive Order 9301. However, plaintiff was told by the project manager to record the overtime separately on the usual payroll reporting forms which had been furnished to the plaintiff previously.

It has been stipulated between the parties that if the plaintiff is entitled to recover, as a matter of law, by reason of putting its job on a 48-hour week on August 14, 1943, as a result of Executive Order 9301, its damages are $8,165.56.

We have a situation in which plaintiff’s president was induced to sign a contract on the representations of the lawyers of the contracting officer that the provision for reimbursement contained in the bids would protect plaintiff. The assurances were given in lieu of a letter which would have stated that plaintiff would be protected by the terms of the contract as it was being interpreted and applied in that area. They were given by the representatives of an agency that had power to amend contracts unilaterally without regard to consideration if “such action would facilitate the prosecution of the war,” under the First War Powers Act, 55 Stat. 838, 839, 50 U. S. C. App. 611 (Supp. III, 1940 Ed.). They were given by persons peculiarly competent in the matter. Under the circumstances this amounted either to an outright promise or to a representation giving rise to an estoppel.

These assurances were made by the lawyers in the regional office of the FPHA during the temporary absence of the contracting officer. The lawyers were from the Legal Department of the regional office, whose director was the contracting officer. The contracting officer returned later that day, after the plaintiff had executed the contract, and signed it on behalf of the FPHA. This same contracting officer had given written assurances to another Canton contractor that he would be reimbursed in case Executive Order 9301 became applicable in the Canton area. This fact was known to plaintiff’s representatives. In view of all these circumstances it is reasonable to conclude that the assurances given plaintiff had the effect of binding the Government.

These assurances were not contrary to any provisions in the contract. They were acted on by plaintiff which signed the contract in reliance on them. Plaintiff’s subsequent actions did not contradict its reliance on them. Prior to the effective date of the order plaintiff did not use overtime work on the job; afterwards, it kept special records of the exact amount of overtime. After plaintiff had changed its position to its detriment in relying on these assurances the defendant may not now urge that they were not binding on it and should not be enforced. We think the rule given in section 90 of the Eestatement of Contracts is applicable here:

A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.

We think plaintiff is entitled to be reimbursed for the increase in its costs due to being required to adopt a 48-hour workweek after August 14,1943, as a result of the application of Executive Order 9301.

We are aware of the requirement that any representative must have authority in order to bind the Government and we are in full accord with the necessity of such a limitation. We have frequently invoked that rule of law.

But here the man who had authority to modify the contract was in the area, the two men who were his immediate counsel for the occasion were present. These men not only knew of the letter from the contracting officer, they undoubtedly either drew or approved it. They gave the lay contractor a very plausible assurance as to the manner in which the provisions of similar contracts were being applied in that area. In these circumstances to permit Government legal representatives who had such positions and were acting in such circumstances as to lead any normal person to regard them as having capacity to act in the matter, to escape responsibility completely would be like authorizing Government employees to set a trap to lure the unwary into signing a contract. We do not believe it is the purpose of responsible officials of the Government to have a part in such a procedure.

It may be added that this particular contract contained a provision that the specifications, schedules, and drawings are made a part of the contract.

Under the term “General Conditions” the specifications contain, inter alia, the following:

a. The term “Contract” means the agreement executed by the Government and the Contractor of which these General Conditions form a part.
* * * * *
d. The Contract Documents are composed of the Invitation for bids; bid form, [etc.] * * *

From this it appears that the bid form was made one of tbe contract documents, as defined under the “General Conditions”, which, in turn, were a part of the contract. Attached to plaintiff’s bid form was the qualification as to the 40-hour week. All this certainly lends support to the assertions made by the FPHA attorneys that the bids would protect plaintiff. Sharpe’s letter to Melbourne also says that the “contract documents” and the “understanding of the parties thereto” intended reimbursement. Plaintiff’s representatives, as laymen, might well feel that the bids did protect plaintiff.

In view of all these facts we think the Government is bound by the assurances made. Any other result would manifestly be unjust. Plaintiff is entitled to recover the stipulated amount and judgment will be rendered in its favor in that amount. Monks, et al., Execrs. v. United States, 19 C. Cls. 302, 334.

It is so ordered.

MaddeN, Judge; WhitakeR, Judge; and LitteetoN, Judge, concur.

Laramore, Judge,

dissenting:

I respectfully dissent for the following reasons. Executive Order 9301 and the regulations under it were acts of the defendant in its sovereign capacity. Damages cannot flow from sovereign acts unless Congress waives the Government’s sovereign immunity.

Plaintiff, at the time of preparing its bid, knew of Executive Order 9301 and the possibility of extra costs resulting from compliance. Instead of figuring possible costs in preparing its bid, plaintiff chose to ignore the possibility and thereby became the lowest bidder. However, plaintiff sought to take care of the contingency by submitting a qualified bid, which could have been rejected by defendant. Defendant chose to negotiate the qualification out of the bid by entering into a contract which eliminated the qualification. Plaintiff signed the contract which provided that if more than 8 hours a day was worked on the job it would be without additional cost to the Government. The contract provided that it was subject to Executive Order 9301 and the regulations under it.

I believe the plaintiff is bound by the contract as signed and all prior discussions between the parties were merged into the written contract. Furthermore, the persons with whom plaintiff talked prior to signing the contract were without authority to waive the sovereign immunity and lacked authority to bind the Government by any oral promises made.

I would dismiss the petition.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner William E. Day, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a corporation organized and existing under the laws of the State of Ohio, with its principal place of business at Canton, Ohio. During all times material herein, the plaintiff was, and still is, engaged in the construction business.

2. In this case, the defense of the statute of limitations has been waived by an Act of Congress. On March 19, 1952, the President of the United States approved an Act of Congress, more particularly identified as Private Law 491, 82d Congress, 2d Session, H. E. 5317, entitled, “An Act to confer jurisdiction on the Court of Claims to hear, determine, and render judgment upon a certain claim of the George IT. Whike Construction Company of Canton, Ohio”, reading as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the Court of Claims to hear, determine, and render judgment upon, notwithstanding the bar of the statute of limitations, the claim of the George H. Whike Construction Company of Canton, Ohio, against the Government of the United States on account of a construction contract between the claimant and the Federal Public Housing Authority; said construction contract being numbered OH 33037 on Jackson Park homes project in the city of Canton, Ohio. The court shall have such jurisdiction if suit is instituted within one year after the date of the enactment of this Act.
Approved March 19, 1952.

3. On February 9,1943, tbe President of the United States issued Executive Order 9301, providing in part as follows:

By virtue of the authority vested in me by the Constitution of the United States, and in order to meet the manpower requirements of our armed forces and our expanding war production program by a fuller utilization of our available manpower, it is hereby ordered:
1. For the duration of the war, no plant, factory or other place of employment shall be deemed to be making the most effective utilization of its manpower if the minimum workweek therein is less than 48 hours per week.
2. All departments and agencies of the Federal Government shall require their contractors to comply with the minimum workweek prescribed in this order and with policies, directives, and regulations prescribed hereunder, and shall promptly take such action as may be necessary for that purpose.
3. The Chairman of the War Manpower Commission shall determine all questions of interpretation and application arising under this order and shall formulate and issue such policies, directives, and regulations as he determines to be necessary to carry out this order and to effectuate its purposes. The Chairman of the War Manpower Commission is authorized to establish a minimum workweek greater or less than that established in section 1 of this order or take other action with respect to any case or type of case in which he determines that such different minimum workweek or other action would more effectively contribute to the war effort and promote the purposes of this order.

4. On February 11, 1943, the defendant, acting by and through the National Housing Agency, Federal Public Housing Authority, issued an invitation to bid for the construction of War Housing Project No. OH 33037 at Canton, Ohio. Pursuant to such invitation bids were received on February 20, 1943, from three bidders, among them the plaintiff. The bids were in the following amounts:

The plaintiff’s bid contained a note relating to the total amount of the bid in the following terms:

This bid is based on 40 hour week. If it becomes necessary to work more than 40 hours, by Executive Order, we are to be reimbursed for the extra cost of such overtime, plus taxes and insurance.

5. It is not disputed and it is found as a fact that the plaintiff’s bid was based upon performance of the contract work by working its labor force on a 40-hour-week schedule.

6. On February 24 or 25, a telephone call was received at plaintiff’s office from the regional office of the Housing Authority in which the plaintiff’s officers were requested to come to that office in Cleveland, Ohio, at 2 p. m. on February 26,1943, for the purpose of executing the contract since the plaintiff was low bidder. The plaintiff’s president in 1943 was George H. Whike, Jr., who died in 1947. He and his brother Fred Whike, who was secretary of the plaintiff company, arrived at the regional office of the Housing Authority at 2 p. m. on February 26,1943, and the contract was executed by both parties by 6 p. m. that day.

7. The contract provided as follows:

Aeticle 1. Statement of works — The contractor shall furnish the materials and perform the work necessary for and incidental to the construction of the War Housing Project located in Canton, Ohio, and designated OHIO-33037 (hereinafter sometimes referred to as the “Project”) for the consideration of Five Hundred Ninety-Eight Thousand and Two Hundred Forty Dollars ($598,240.00), comprising Two Hundred Ninety-Eight Thousand Two Hundred Forty Dollars ($298,-240.00) for Labor and Three Hundred Thousand Dollars ($300,000.00) for Material in strict accordance with the Specification, Schedules, and Drawings all of which are made a part hereof and designated as follows:
(1) “Specification for the Construction of War Housing Project No. OHIO-33037 in Canton, Stark County, Ohio (containing the General Conditions to this contract, comprising pages GC-1 through GC-15, and the Special Conditions to this contract, comprising pages SC-1 through SC-6, respectively, of the aforesaid Specification) ” dated February 11,1943.
ARTICLE 11. Eight-Hour Law — Overtime Compensation — Convict Labor. — (a) The wages of every laborer and mechanic engaged in work on the project shall be computed on a basic day rate of eight hours per day. "When a single shift is employed, eight hours of continuous employment, except for lunch periods, shall constitute a day’s work. When two or more shifts are employed, seven and one-half hours of continuous employment, except for lunch periods, shall constitute a day’s work. (Wherever practicable shifts shall be rotated.)
(b) When a single shift is employed, work in excess of eight hours per day shall be permitted upon compensation at one and one-half times the basic rate of pay for all hours worked in excess of eight hours on any one day or at any time during the interval from 5 P. M. Friday to 7 A. M. Monday, or on legal holidays. When two or more shifts are employed, work in excess of seven and one-half hours per day shall be permitted upon compensation at one and one-half times the basic rate of pay for all hours worked in excess of seven and one-half hours on any day or at any time during the interval from Friday midnight to Sunday midnight.-
(c) A penalty of five dollars shall be imposed upon the Contractor for each laborer or mechanic for each calendar day in which such employee is required or permitted to labor upon said work in excess of eight hours without receiving compensation in accordance with this section, and all penalties thus imposed shall be withheld for the use and benefit of the Government: Provided, that this stipulation shall be subject in all respects to the exceptions and provisions of U. S. Code, title 40, sections 321, 324 and 325, and 326, relating to hours of labor, as in part modified by the provisions of section 303 of Public Act No. 781, 76th Congress, approved September 9, 1940, relating to compensation for overtime.
(d) Employees of the contractor not subject to the provisions of paragraphs (a) (b) (c) above, including clerks, timekeepers, superintendents, and other clerical and supervisory employees, shall be subject to Executive Order 9240 as amended, Regulations Relating to Overtime Wage Compensation, and to orders and rulings issued thereunder. The contractor’s attention is directed to the fact that laborers and mechanics are exempted from the requirements of the above Regulations by an order of the Secretary of Labor dated September 30,1942, pursuant to Executive Order 9248.
(e) The contractor shall not employ any person undergoing sentence of imprisonment at hard labor.

Under Article 22, alterations appeared:

(V)
The General and Special Conditions to this contract, contained in the Specification referred to in Article 1-(1) hereof, were supplemented and amended as follows:
# * * * *
(6) The following provision is added to the Instructions to Bidders, Form of Contract, and to the General Conditions:
This contract is subject to Executive Order 9301, establishing a Minimum War Time Workweek of Forty-Eight Hours, and to the regulations and directives, if any, issued under said Executive Order by the War Manpower Commission or by the Chairman thereof.

It is noted that the last provision was not included in the form of contract which had been furnished to the bidders as a part of the contract specifications.

8. The Specifications, General Conditions provided in part as follows:

1. DeeinitiONS. Wherever used in any of the Contract Documents, the following meaning shall be given to the terms herein defined:
a. The term “Contract” means the agreement executed by the Government and the Contractor of which these General Conditions form a part.
*****
d. The Contract Documents are composed of the Invitation for bids; bid form, together with form of bid bond, affidavit and statement of Contractor’s qualifications; Form of Contract; performance bond and payment bond forms, if performance and payment bonds are required; instructions to bidders; General Conditions ; Special Conditions; schedule of Drawings; alternates; general scope of work and detail Specifications.
# * & # Sfc
b. Any work necessary to be performed after regular working hours, on Sundays or legal holidays, shall be performed without additional expense to the Government.

9. Wlien the contract was presented to George H. Whike* Jr., for signature, by two men in the legal office of the regional office of the Authority, whose names Fred Whike was unable to remember at the trial of this action, George Whike refused to sign the contract because of the addition of the provision relating to Executive Order 9301, quoted in finding 7. The Whikes were told by the two government lawyers that the contract couldn’t be changed because the Washington office wouldn’t approve, but that the qualification in plaintiff’s bid would protect it if Executive Order 9301 were made effective in the Canton area where the work was to be performed.

The contract was signed on behalf of the plaintiff by its president on the assurance given by the representative of the legal office of the regional office of the Authority.

10. The Whikes had heard of another Canton contractor who had signed a contract with FPHA about a week before and had received a letter from the Government protecting him against the effects of Executive Order 9301. Before signing the contract they asked for a letter, but they were told that Carleton F. Sharpe, the regional director, who was the contracting officer, was not in at the time. The assurances were given in lieu of the letter.

Mr. Sharpe had given such a letter just the day before the discussions described above to another contractor who was engaged in the performance of a similar contract in the immediate area of the plaintiff’s job. That letter is quoted in full below:

February 25,1943.
Mr. H. S. Melbourne,
The Melbourne Bros. Construction Co.
307 Mellett Building
Canton, Ohio
Dear Mr. Melbourne:
I understand that you feel that the standard language with respect to Executive Order 9301, incorporated m the contract between you and the Government, dated February 24, 1943, for the construction of the War Housing Project located at Canton, Ohio (OHIO-33036), will not completely protect you in the event that the Canton area is placed, by the War Manpower Commission or the Chairman thereof, in the category of areas requiring the establishment and maintenance of a minimum war time workweek of forty-eight hours.
This is to advise you that the intent of the contract documents and the understanding of the parties thereto is that, if the Canton area is placed in the category of areas requiring the establishment and maintenance of the minimum war time workweek of forty-eight hours, the Government will reimburse you, by Change Order or otherwise, for the actual expenditures (including necessary insurance) made for the actual overtime required to establish and maintain such a forty-eight hour minimum workweek.
Sincerely yours,
[s] C. F. Sharpe
Carleton F. Sharpe,
Director, Region V.

11. There is no evidence in the record that any discussions were had between Mr. Sharpe, the contracting officer, and either of the Whike brothers at any time. Mr. Sharpe executed the contract later in the afternoon of February 26, 1943.

12. Skilled labor in the Canton, Ohio, area was in short supply since the early days of World War II. This condition became progressively worse during the course of the work under the contract in suit and had an adverse effect upon the plaintiff’s performance by causing delay.

13. Plaintiff began work under the contract on March 1, 1943. By the terms of the contract all work was to be completed, except lawns and planting, within 120 days from the notice to proceed which apparently was not after March 1. One group of buildings was to be completed within 80 consecutive calendar days, another group of buildings was to be completed within 100 consecutive calendar days, and all the rest of the buildings and work, except lawns and planting, was to be fully completed within 120 consecutive calendar days.

14. Robert M. Webb was the project engineer in charge of the work for the defendant. From almost the beginning of the work, the plaintiff requested authority to put the work on a six-day workweek with reimbursement to the plaintiff for the premium time involved. Such requests were made of Mr. Webb orally and in writing. As early as April 6,1943, the plaintiff’s principal subcontractor by telegram requested authority of the plaintiff to put the subcontract work (heating and ventilating) on a longer workweek with reimbursement for premium time. The plaintiff on that day replied to such subcontractor’s telegram in the following terms:

In reply to your telegram, we are trying to have the housing authority authorize a forty-eight-hour week. This would be as many hours as we feel that we would have any possible chance of getting. Of course if the Government will not agree with this and reimburse us, it will be impossible for us to authorize you to work any overtime, other than at your own expense.

On the next day, April 7, 1943, the plaintiff sent the following letter to the project engineer:

We respectfully request that tins project be placed in the forty-eight hour week class. Otherwise we feel that it will be practically impossible to prosecute this work at anywhere near the schedule set up.
Canton plumber business agent has just advised us that he cannot furnish us additional journeymen. No local man available and outside men will not come in for forty hour work week. Neighboring cities are working longer work week and have higher wage scales thereby making it almost impossible to draw men to Canton for only forty hour week. We request authority to work five days eight hours each and Saturday eight hours and with reimbursement for premium time only.

The reply to such letter is not in evidence, but Mr. Webb testified that each time such a request was made by the plaintiff, Mr. Webb consulted with his superiors at the regional office and thereafter Mr. Webb notified the plaintiff of the denial of such request.

15. Again on July 28, 1943, the plaintiff wrote a similar letter to Mr. Webb in the following terms:

For the past month we have made every effort possible to speed up this project, and at the present time we have on our payroll approximately 110 men which is about one-third of what we should have. Our subcontractors face the same situation.
As impossible as it seems to be to get more men, it will take the entire balance of 1943 to complete this project. We therefore request that the proper office be consulted and proceed order issued, instructing us to work 48 hours per week. We believe this 48 hour week would help greatly to increase the number of men employed and we would be able to complete the project by October 22, 1943, thus saving nearly two months’ time.
We are attaching hereto, schedule of the estimated number of employees to be worked on Saturdays.

The attached schedule listed a total of 225 workmen of various classifications for 10 Saturdays for an estimated cost of $13,813.80 for the premium'time.

Mr. Webb forwarded the above letter to the regional office at Cleveland, without comment, on the same day.

On August 3, 1943, Mr. Webb replied to the above letter as follows:

Acknowledgment is made of your recent request for 48-hour working week.
The following has been received from our Regional Office, quote:
“We have no objection to the Contractor working a forty-eight hour week on this project, but we feel that we cannot agree to reimbursing him for the premium time.
In order to approve the payment of premium time, we must have evidence of a substantial benefit to the Government.
It is the legal responsibility of the Contractor to complete his work on time, and to absorb any payment for overtime necessitated by his delay in the work.” Unquote.
Please be governed accordingly.

A letter in substantially the same terms was sent direct to the plaintiff a day or two earlier from the regional office of the Authority.

16. Thereafter on August 9,1943, Canton, Ohio, was classified as an area of critical labor shortage by the War Manpower Commission under authority delegated by Executive Order. This made Executive Order 9301 applicable to the Canton area. Accordingly, defendant’s project manager, Mr. Webb, notified Mr. Fred Whike of plaintiff company and plaintiff’s subcontractors at a conference on August 13, 1943, that the job was to be put on a 48-hour workweek in compliance with Executive Order 9301. A letter signed by Mr. Webb dated August 13, 1943, was also delivered the same day to plaintiff by defendant’s project manager which notified plaintiff that Executive Order 9301 went into effect in the Canton area on August 9,1943, as follows:

The attention of contractors is invited to Executive Order No. 9301 of February 9,1943, 8 Federal Register 1925, and War Manpower Commission Regulation No. 3 and General Orders Nos. 5 and 6, 8 Federal Register 2640, 2685, and 2696, by which a minimum wartime work week in certain areas and in certain activities has been established.
This order went into effect in Canton and Massillon on August 9, 1943, and must be in compliance by September 9,1943.
All contractors are requested to call such orders and regulations, and other information furnished herein, to the attention of their subcontractors. Such orders and regulations pursuant to Executive Order No. 9301, may be obtained by contractors and subcontractors from War Manpower Commission Regional or Area Offices. Any questions concerning the interpretation or the application of the orders or regulations are to be taken up by contractors and subcontractors with their Regional or Area Manpower Director.

17. The progress of the work was delayed, and plaintiff fell behind schedule and was behind schedule as early as June 5, 1943. It was never able to catch up and did not complete the work within the 120 days provided for in the contract, exclusive of lawns and planting. A final change order was issued by defendant which extended the over-all time for completion an additional 120 days. For the most part, these delays fell into three groups: (a) late delivery of lumber, for which an extension of 30 days was allowed; (b) acute manpower shortage, for which an extension of 80 days was allowed; (c) unusually inclement weather, for which an extension of 10 days was allowed. This over-all extension of 120 days was accepted by plaintiff. This extension of 120 days permitted plaintiff to finish the contract within the contract time pins the extensions allowed, and the work was completed by the plaintiff within the contract period as extended by change order.

18. Plaintiff placed the job on a 48-hour workweek starting August 14,1843. It notified its subcontractors on August 13 of the fact that the job was put on a 48-hour workweek and authorized them to begin Saturday operations immediately. In its notice to each subcontractor, the plaintiff asked:

Kindly furnish as soon as possible, after every payday, a copy of your payroll, showing name, classification, social security number and rate of overtime pay and the exact amount of insurance to be added to the payroll.

Plaintiff had been told by Mr. Webb to record the overtime separately on the usual payroll reporting forms which had been furnished to the plaintiff previously.

19. There is a conflict in the testimony as to whether Mr. Webb told the Whike brothers that the plaintiff would be reimbursed for the premium time incident to the Saturday work performed by its employees as a result of compliance with Executive Order 9301. On the basis of the whole record, it is found that he did not do so.

20. Subsequent to the completion of the project and on or about the 30th day of December 1943, the plaintiff filed with the Authority a claim for increased costs due to compliance with Executive Order 9301. On April 13, 1945, the claim was rejected by the Cleveland office of the Authority. Thereafter, plaintiff lodged an appeal from the decision of the Cleveland office with the Commissioner, Federal Public Housing Authority in Washington, who, after due consideration thereof, and on November 8,1945, denied said claim, stating, among other things, that “this is not a proper case to reform the contracts without consideration.”

21. By stipulation between the parties it has been agreed that if plaintiff is entitled to recover, as a matter of law, by reason of putting its job on a 48-hour week on August 14, 1943, as a result of Executive Order 9301, the plaintiff’s damages are $8,165.56.

22. Following the issuance of Executive Order 9301, the Federal Public Housing Authority in Washington sent the following telegram, dated February 12,1943, to all regional directors, including the regional director in Cleveland, Ohio, Mr. Carieton F. Sharpe:

Book telegram — See Attached List of Addresses Ee Executive Order 9301, February 1, 1943, pertaining to 48-hour work week. Until further notice, do not authorize any increase in contract price of lump-sum construction contracts which have already been let, based on the ground that the above executive order increases the contractors’ cost. In the case of all jobs in which bids have not yet been opened, insert a provision in specifications or issue addendum requiring the contractor to comply with above Executive order, but do not alter usual contract conditions relating to overtime pay. No further information can be given as to effect or method of applying Executive order until additional regulations are promulgated by War Manpower Commission. Will keep you informed.
[Signed] David L. Krooth,
Acting Commissioner.
Dispatch — 1943 February 12 PM 12:02

When Mr. Sharpe received this telegram of February 12, 1943, he distributed the contents of it to all key men in the regional office having anything to do with construction, including project managers. At the time plaintiff prepared its bid and before the contract was signed, plaintiff was well aware of Executive Order 9301 and its implications.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover, and it is therefore adjudged and ordered that it recover of and from the United States eight thousand one hundred sixty-five dollars and fifty-six cents ($8,165.56).  