
    G. & H. HEATING CO. v. THE UNITED STATES
    [No. E-122.
    Decided February 14, 1927]
    
      On the Proofs
    
    
      Contract; worlc dependent upon other contractors; delays caused by them. — Where a Government contractor, upon the acceptance of his bid, agrees to perform certain work which is dependent upon and may be delayed by the work of other contractors on the same building, and the contract provides that the bidder should examine the site of the proposed work and inform himself thoroughly as to actual conditions, and does not bind the Government to a fixed time for completion of the work, the said contractor can not recover labor and superintendence charges which he was forced to pay on account of delays caused by the other contractors.
    
      
      The Rep otter's statement of the case:
    
      Mr. Marvin Farrington for the plaintiff. Mr. Charles S. Baker was on the brief.
    
      Mr. Ralph C. Williamson, with whom was Mr. Assistant Attorney General Merman J. Galloway, for the defendant.
    The court made special findings of fact, as follows:
    I. The plaintiff is a corporation organized and engaged in business under the laws of the District of Columbia with its principal office at Washington, D. C. Its corporate name was duly changed March 4, 1922, from Biggs Heating Co. to G. & H. Heating Co.
    II. On February 21, 1917, the plaintiff entered into a written contract with the defendant whereby it agreed, for the sum of $40,560, to furnish and install a heating system in a structural shop at the navy yard, Norfolk, Va. The contract provided that the work was to be completed within 180 calendar days from the date of the receipt of a copy of the contract by the contractor.
    A copy of said contract is attached to the petition as Exhibit A, and is made a part hereof by reference.
    By the terfns of the contract specification No. 2801 constituted a part thereof and is attached to the petition as Exhibit B, and is made a part hereof by reference. General Provisions, Bureau of Yards and Docks, is also a part of the contract but is not exhibited with the petition, but among other provisions are the following:
    “ 11. Continuance of work after time. — It is mutually understood and agreed that in the event of the work not being completed within the time allowed by the contract, said work shall continue and be- carried on according to all the provisions of said contract, unless otherwise directed by the Government, in writing, and said contract shall be and remain in full force and effect during the continuance and until the completion of said work, unless sooner revoked or annulled according to its terms: Provided, That neither an extension of the time beyond the date fixed for the completion of said work nor the permitting or acception of any part of the work after said date shall be deemed to be a waiver by the Government of its right to annul or terminate said contract for abandonment or failure to complete within the time specified or to impose and deduct damages as hereinafter provided.
    “ 12. Extension of time. — For causes of the character hereinafter enumerated extensions of time for the completion of the work may be allowed. Should the contractor at any time consider that he is entitled to an extension of time for any cause, he must submit in writing to the officer in charge an application for such extension, stating therein the cause or causes of the alleged delay. The officer in charge will refer the same at once with full report and recommendation to the Navy Department, Bureau of Yards and Docks, for consideration and for such action as the circumstances may warrant. The failure or neglect of the contractor to submit, as above provided, his claim for extension of time within 30 days after the happening of the cause or causes upon which his claim is predicated, shall be deemed and construed as a waiver of all claim and right to an extension of time for the completion of the work on account of the alleged delay, and the contractor agrees to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding. * * *
    “ 14. Unavoidable delays. — Unavoidable delays are such as result from causes which are beyond the control of the contractor, such as acts of Providence, fortuitous events, inevitable accidents, abnormal conditions of weather or tides, or general strikes. Delays caused by acts of the Government will be regarded as unavoidable delays. Delays in securing delivery of materials, or by rejection of materials on inspection, or by changes in market conditions, or by necessary time taken in submitting, checking, and correcting drawings or inspecting material, or by similar causes, will not be regarded as unavoidable. Should any delay in the progress of the work seem likely to occur at any time, the contractor shall notify the officer in charge in writing of the anticipated or actual delay, in order that a suitable record of the same may be made. (See paragraph 12.)
    * * * # *
    “ 17. Ghcmges. — The Government reserves the right to make such changes in the contract, plans, and specifications as may be deemed necessary or advisable, and the contractor agrees to proceed with such changes as directed in writing by the Chief of the Bureau of Yards and Docks. The cost of said changes shall be estimated by the officer in charge, and if less than $500 shall be ascertained by him. If the cost of said changes is $500 or more, as estimated by the officer in charge, the same shall be ascertained by a board of not less than three officers or other representatives of the Government. The cost of the changes as ascertained above, when approved by the Chief of the Bureau of Yards and Docks, shall be added to or deducted from the contract price, and the contractor agrees and consents that the contract price thus increased or decreased shall be accepted in full satisfaction for all work done under the contract: Provided, That the increased cost shall be estimated actual cost to the contractor at the time of such estimate and that the decreased cost shall be the actual or market value at the time the contract was made, both plus a profit of 10 per cent.
    
      “ 18. Extras. — The contract price shall cover all expenses, of whatever nature or description, connected with the work to be done under the contract. Should the contractor at any time consider that he is being required to furnish any material or labor not called for by the contract, a written itemized claim for compensation therefor must be submitted by him to the officer in charge, who will refer the same at once with full report and recommendation to the Navy Department, Bureau of Yards and Docks, for decision and formal order covering approved items, if any. The failure or neglect of the contractor to present, as above, his claim for material or labor alleged to be extra within 60 days after being required to furnish or perform the same shall be deemed and construed as a waiver of all claim and right to additional compensation for the furnishing or performance of the alleged extra material or labor, and the contractor agrees to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding.
    “ 19. Oral modifications. — It is distinctly understood and agreed that no oral statement of any person whomsoever shall be allowed in any manner or degree to modify or otherwise affect the terms of the specifications, plans, or the contract. Changes shall be made only as herein elsewhere specified.”
    III. The plaintiff received its copy of the contract so as to set the date for the completion of the work as of September 3, 1917. The construction of the structural shop in which plaintiff was to install said heating system, as well as the foundation for the heaters, the completion of which was essential before plaintiff could commence its work under said contract, was being done by independent contractors.
    IY. The plaintiff began work under the contract about June 7, 1917, but because of delay on the part of the contractors of the building was unable immediately to commence the principal work of installing the main heaters with their connection pipes, casings, and ducts. There was also additional delay to plaintiff’s work by reason of changes made by the defendant from time to time.
    Y. The foundation of the said building was not completed until December 9, 1917, and the entire building was not accepted by the Government until February 16, 1918. This delay upon the part of the other contractors engaged upon the building prevented the plaintiff from complying with the terms of its contract, which called for the completion of its contract on September 3, 1917. The contract of the plaintiff was fully performed on April 19, 1918, with the exception of the necessary tests. The Bureau of Yards and Docks determined that the delay of the plaintiff in performing its contract was unavoidable on its part.
    VI. From April 19, 1918, until September, 1918, plaintiff was engaged in making the hydrostatic tests required by paragraph 22 of the specifications. These being completed, the next step was the making of steam tests, but because of the inability on the part of the defendant to supply steam through the failure of other contractors to complete their work, these tests were not held until April 15, 1920. At that time the defendant furnished the necessary steam and plaintiff made the steam tests required. The system was found in good order and the defendant thereupon accepted plaintiff’s work under the contract and the final payment of the contract price was made, less an arbitrary deduction of $85.44.
    VII. During the performance of the work, workmen’s wages increased. By reason of the delays caused by other contractors on the work the plaintiff paid in addition to what would have been its costs in labor and superintendence the sum of $1,803.83. This additional amount was paid from September 3, 1917, the date when the work was required to be completed under the contract, to April 18, 1918, when the work was completed.
    The plaintiff also paid out for cost of superintendence and labor the sum of $788.90, which was in excess of what it would have had to pay if the contract had been completed on September 8, 1917, the said sum being paid from April 18, 1918, to September 12, 1918, on which later date the superintendence and labor on the contract was ended, although the final test was not made until April 15, 1920. Included in the above sums are the following items: Trips of executives, $175; superintendent’s room and board, $282.75. The plaintiff made no claim for these excess costs until April 30, 1918.
    VIII. The plaintiff claims the sum of $1,291.99 as extra costs paid to its subcontractors, New York Blowers Co., which extra costs it claims had been caused by the delays aforesaid. The plaintiff failed to introduce evidence sufficient to sustain this item of alleged damage.
    IX. All of the above items, including that of profit, were made the subject of a claim before the public-works officer of the Norfolk Navy Yard and were approved by that officer and sent to the Bureau of Yards and Docks. This bureau forwarded the same to the General Accounting Office for action without approval or disapproval. No payments have been made by the defendant to the plaintiff in any amount under these claims.
    The court decided that plaintiff was entitled to recover, in part.
   Hat, Judge,

delivered the opinion of the court:

This is a suit brought by the plaintiff to recover from the United States the sum of $4,272.20 for certain excess labor and superintendent charges, which it claims it was obliged to expend by reason of delays caused by the United States in the performance of its contract, and also for the sum of $85.44, which the United States arbitrarily deducted from the agreed contract price.

The contract was that the plaintiff should furnish and install a heating system in the structural shop at the navy yard, Norfolk, Virginia, for the sum of $40,560. It was agreed that the work to be done under the contract should be completed within one hundred and eighty days from the date of delivering a copy of the contract to the plaintiff. A copy was delivered to the plaintiff so as to set the date for the completion of the work as of September 3, 1917.

In the contract the United States reserved the right to make changes and thereby to interrupt the continuity of the work. The contract showed that the building in which the heating system was to be installed was in process of construction, and that the contractor for the heating system should work in conjunction with the contractor who was constructing the building in which it was to be installed. The plaintiff was thus given notice that the building in process of construction might not be completed in time to allow the plaintiff to complete its contract within the time fixed in the contract. As a matter of fact, the building was not completed in time, and the plaintiff was delayed seven months. Nowhere in the contract is there any provision in which the Government binds itself to a fixed time for the completion of the work. The Government granted to the plaintiff extension of time for the completion of the work, and exacted no penalties from the plaintiff for its failure to perform within the time fixed in the contract.

The delays complained of were beyond the control of the Government, and it can not be implied from the provisions of the contract that the Government is bound for any excess wages and superintendent charges which the plaintiff had to pay by reason of delays which the Government could not control and which the plaintiff must have contemplated as being possible when it executed the contract, since the contract provided that bidders should examine the site of the proposed work and inform themselves thoroughly of actual conditions. We think that the petition of the plaintiff must be dismissed as to the item of $4,272.20.

The item of $85.44 which was arbitrarily deducted from the contract price is a valid claim, and we have directed that judgment for that amount be entered against the United States. It is so ordered.

Moss, Judge; Gkaham, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  