
    L. L. HAUL CONSTRUCTION COMPANY v. THE UNITED STATES
    [No. 269-61.
    Decided December 16, 1966]
    
      
      0. Robert Mathis, attorney of record, for plaintiff. James P. Parker, Davies, Riehberg, Tyclings, Landa & Duff, of counsel.
    
      Frances D. Nwrm, with whom was Assistant Attorney General Barefoot Sanders, for defendant.
    Before CoweN, Chief Judge, Labamoee, Duefee, Davis and ColliNS, Judges.
    
   Pee Cueiam :

This case was referred to Chief Trial Commissioner Marion T. Bennett with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on September 20, 1966. On October 17, 1966, the parties filed a joint motion that the court adopt and publish in its entirety as the opinion and findings of the court the opinion and findings of the commissioner. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, it hereby adopts the same as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is, therefore, entitled to recover from defendant the sum of $18,004.51 and judgment is entered for plaintiff in that amount.

OPINION OE COMMISSIONEE

Bennett, Chief Commissioner: This action for breach of contract arises out of an agreement between plaintiff and the defendant, the latter acting through the Department of the Navy, Bureau of Yards and Docks, for the repair, re-stabilization of runway overruns, and the improvement of crash strips at the U.S. Naval Air Station, Cecil Field, Florida, at a total cost of $186,417.74. This contract contained the standard general provisions in Government construction contracts for changes, changed conditions, termination, and disputes, but there was no suspension-of-work clause.

In general, plaintiff sues because of the failure of defendant to make available the necessary runways for timely completion of plaintiff’s work. The reason given by defendant for delay was that the remaining runways were required for military operations, since those plaintiff had worked on were still being repaired by other contractors at the site. Plaintiff’s equipment was thereby idled, eventually removed from the site, and used on other jobs. It was returned some 3 months later for completion of this contract. This and other delays, aggregating about 5 months, caused additional expense to plaintiff, not contemplated at the time of the original contract, and was contrary to the terms and intent of the contract. After a trial de novo, it is concluded upon the law and the facts that plaintiff is entitled to recover delay-damages, although not to the extent claimed. The facts are set forth in the findings and will be summarized here.

I

Cecil Field consists of two pairs of parallel runways, two running north and south and two running east and west. Navy regulations at this installation require that at least one runway in each direction be available for military use at all times.

This contract (No. NBy-19936, Spec. 19936/58) was entered into by the parties on June 30, 1959, and provided that work should commence on July 5, 1959, and should be completed 60 days thereafter on September 3,1959. Defendant held a preconstruction conference on July 2, 1959, to advise plaintiff of various aspects of the contract, including the fact that other contractors would be performing work simultaneously with plaintiff on these runways. At that time defendant did not contemplate, and plaintiff did not anticipate, any lengthy shutdown of the type later encountered by plaintiff.

Plaintiff began work on July 6, 1959, and proceeded diligently until about 50 percent of the work was completed in late July 1959. On or about July 29,1959, plaintiff requested that defendant make the adjacent runways available so that plaintiff could complete its work. Plaintiff was denied access to such, runways until tbe other contractors at the site had completed work on runways where plaintiff had already finished. This was because it was necessary to maintain flight operations. However, defendant estimated such access could be given on or about September 15, 1959. Further efforts failed to obtain the additional runways in August, and plaintiff proceeded at a greatly reduced tempo, idling its equipment where necessary and removing it to other jobs where possible. Plaintiff was not permitted to continue operations about September 15 as anticipated, so by the end of September all plaintiff’s equipment had been removed from the jobsite.

Toward the latter part of November 1959, it became clear to plaintiff’s representative at Cecil Field, through his contacts with defendant, that plaintiff would be allowed to continue work in the near future, and plaintiff began remobi-lizing during late November and early December. On December 2,1959, defendant advised plaintiff it could commence work on December 7,1959, on one runway, that on December 14 another would be available, and that by about December 21 the last runway would also be available. Plaintiff was allowed to commence work on December 8, one day after it expected to do so, and when it requested that it be allowed to continue work on the last runway on December 21 as expected, and as defendant had previously advised, plaintiff was denied access to this runway until January 14, 1960. Plaintiff satisfactorily completed the contract on February 2, 1960, and was granted extensions of time through and including this date (152 days) at no change in the contract price. The contracting officer found that the delays were beyond the control and without fault or negligence on plaintiff’s part. Liquidated damages assessed were refunded.

Plaintiff submitted its claim for equitable adjustment under the contract to the resident officer in charge of construction and the base commanding officer on May 27, 1960, and thereafter .to the contracting officer through the officer in charge of construction. Plaintiff was denied recovery on the grounds that its claim was for additional costs due to delays — a claim for damages for breach and not for additional work performed, and thus could not be the subject of compensation under the contract. Plaintiff appealed to the Armed Services Board of Contract Appeals which affirmed that the board was without authority to adjust the contract price to compensate for damages due to a delay. The board dismissed plaintiff’s claim on defendant’s motion. Thereupon, plaintiff filed timely suit in this court. The claim is properly in this court because it could not be resolved administratively under the contract provisions for adjustment of disputes. United States v. Anthony Grace & Sons, 384 U.S. 424 (1966); United States v. Utah, Constr. & Mining Co., 384 U.S. 394 (1966). The only relevant finding of fact made administratively was that plaintiff was not to blame for the delay, and that finding is adopted here.

II

Defendant has admitted all along that there is no issue as to any fault or negligence on the part of plaintiff for the delays encountered. The issue respecting liability is whether or not the delays forced on plaintiff by defendant’s failure to give access to working areas were excusable under the terms and language of the contract. Defendant contends that they were and that defendant gave notice of the possibility of delays by reserving the right to make changes. Plaintiff maintains that such delays as encountered were not excusable under the terms of the contract and were not contemplated by it. Further, plaintiff says the delays were grossly unreasonable and due to negligence and lack of due diligence on the part of defendant. Plaintiff relies principally on George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 69 F. Supp. 409 (1947), and the cases cited therein, and upon Peter Kiewit Sons' Co. v. United States, 138 Ct. Cl. 668, 151 F. Supp. 726 (1957); Chalender v. United States, 127 Ct. Cl. 557, 119 F. Supp. 186 (1954); and Kehm Corp v. United States, 119 Ct. Cl. 454, 93 F. Supp. 620 (1950).

Defendant contends no evidence was offered that the delays were the fault of defendant and further states that Government representatives were diligent in efforts to speed up work of the other contractors at the site. It relies primarily on the doctrines announced by the Supreme Court in United States v. Howard P. Foley Co., 329 U.S. 64 (1946), reversing 105 Ct. Cl. 161, 63 F. Supp. 209 (1945), United States v. Rice, 317 U.S. 61 (1942), reversing 95 Ct. Cl. 84 (1941), and H. E. Crook Co. v. United States, 270 U.S. 4 (1926). Defendant places further reliance on specification 1.23 of the contract which it states indicates that possible additional delays and interruptions might occur in this contract. The specification reads as follows:

1.23 Scheduling of Work. — The contractor shall schedule all work so as to minimize any interruptions to flight operations. The government will make every effort to schedule aircraft operations to permit accomplishment of the contractors daily schedule. However, in the event of emergencies, intense operational demands, adverse wind conditions, etc., the contractor will be required to move his operations to a different location in the interest of safety to personnel and flight.

The above-quoted specification which states that the contractor might, in emergencies, “be required to move his operations to a different location in the interest of safety to personnel and flight,” refers only to a temporary delay or interruption and in no way covered the approximate 4-month shutdown from August to December encountered in this case. The delays encountered by plaintiff, and as claimed herein, are not of the type listed in the above specification but are of a different nature entirely. As to the contention that plaintiff was on notice of possible delays because the changes article of the contract reserved in defendant the right to make changes that might entail delay, the short answer is that no changes such as provided for in this changes article were made in plaintiff’s contract and no delay ensued therefrom. With regard to the other contract terms, it is clear from the cases cited by the parties and the numerous other decisions of this court, that where the Government unreasonably hinders or delays a contractor’s performance, even though it does not prevent the eventual completion of the contract, it has breached its implied obligation not to delay the contract, in the absence of a clause expressly exempting it from such liability. Further, it is clear from the United States v. Howard P. Foley Co. and George A. Fuller Co. v. United States cases, supra, and others cited, that defendant is not liable for delays which it did not cause, over which it had no control, or delays encountered by a contractor notwithstanding defendant’s diligence in performance of its responsibilities under the contract. Thus, the questions on which liability turns in this case are whether defendant was the cause of the delays here, whether it failed to use reasonable diligence and good faith in performance of its responsibilities under this contract, and whether the contract contemplated and excused the delays. Commerce Int'l Co. v. United States, 167 Ct. Cl. 529, 535-36, 338 F. 2d 81, 85 (1964).

Defendant ordered plaintiff to commence work on July 5 and to finish by September 3, 1959, 60 days later. Plaintiff efficiently conducted its work so as to meet these requirements, but when about half the contract was completed, defendant failed to allow plaintiff to continue at new work areas because of the delays in work performed by other contractors at Cecil Field. The evidence reveals that these other contractors were substantially behind schedule and proceeding slowly. An internal memorandum of August 16, 1960, in evidence, reveals that defendant chose to allow these contractors to proceed rather than allow plaintiff to do so, on the basis that it considered these two other contracts to be more critical. Thus, plaintiff, whose operations were efficient and expeditious, was penalized in favor of the two seemingly inefficient contractors, in the alleged best interest of the Government. Further, the evidence discloses that one of the contracts, originally scheduled for completion on July 1, 1959, before plaintiff was scheduled to start work, was still being delayed as of October 5, 1959, because of failure to receive Government-furnished material. Defendant gave plaintiff other dates by which it could expect to resume work hut these too proved illusory as heretofore shown.

Defendant has identified no contract provision and presented no evidence whatever to justify its shutdown of plaintiff’s efficient operations in favor of two other contracts which were slow-moving, nor did it give any excuse for failure to supply the material on one of these other contracts delaying plaintiff’s operations. It was incumbent upon defendant to supply such evidence of excusable delay else it must be assumed that there is no justification or excuse for its action. Since such evidence is lacking, it must be assumed that there is none, that defendant is at fault, and it is so found herein. Fuller, supra at 101; Brand Inv. Co. v. United States, 102 Ct. Cl. 40, 44, 58 F. Supp. 749, 751 (1944), cert denied, 324 U.S. 850 (1945).

In Peter Kiewit Sons’ Co. v. United States, supra at 675, this court determined that the Government may not, with impunity, do whatever is in its own best interests regardless of the harm which may be done to its contractor. In that case, as with the instant case, there was another contractor at the site who was having difficulties meeting its schedule, yet a proceed order was issued to Peter Kiewit. Defendant gave the inefficient contractor priority in delivery over the contract on which the efficient contractor depended. This court found the Government breached its implied obligation not to delay the blameless contractor. It is plain that the Government is obligated to prevent interference with orderly and reasonable progress of a contractor’s work by other contractors over whom the Government has control. That is the situation here. Nor will affirmative wrongful action or failure of the defendant to discharge its obligations under the contract be cured simply by waiving liquidated damages. Rogers v. United States, 99 Ct. Cl. 393, 411 (1943).

The failure of defendant to furnish any reason or justification for unreasonable and uncontemplated delay in supplying Government-furnished material on another contract, the completion of which was deemed necessary before defendant allowed plaintiff to continue its work, would be sufficient reason of itself to hold that the defendant was at fault and is liable for plaintiff’s additional expenses of delay herein. This court has long held that in the absence of a clause in the contract specifically exempting it from such liability the Government is liable for such delays where it furnished no excusable reason. As the court said in Fuller, supra at 96, “the decisions of this court so holding are too numerous to list them all,” but many cases are collected there and are here adopted by reference. See also Chalender v. United States and Kehm v. United States, supra.

The cases relied on by defendant are distinguishable because therein defendant either performed with diligence or was not to blame for delay unreasonable in character or beyond contemplation of the contract and parties. Here defendant caused the delay; it was unreasonable under the circumstances; defendant was not shown to have used reasonable diligence and good faith in avoiding or mitigating it; the contract did not contemplate such delay or excuse it; defendant breached an implied warranty that the site would be available to plaintiff within the contract period; and there was no provision in the contract for relief to plaintiff faced with such a breach. This is a clear-cut, delay-damages, breach-of-contract case and, as such, is properly before the court for resolution. United, States v. Utah Constr. & Mining Co., supra. Plaintiff is entitled to recover delay-damages for the unreasonable delays it suffered due to defendant’s faults which have not been shown as excusable under the contract.

Ill

The parties disagree as to the amount of damages, if any, applicable to the delays. At issue is the method of computing plaintiff’s additional equipment costs resulting from the delays. The parties agree that actual equipment costs cannot be extracted from plaintiff’s books and records with reasonable accuracy for the period of delay. They are in agreement that all equipment involved in this claim was owned by plaintiff and none was rented.

Plaintiff computed its additional equipment costs on the basis of equipment rental rates disclosed in the 1958 edition of the Associated Equipment Distributors Manual, generally known as A.E.D. rates, because in plaintiff’s opinion these rates, which are national averages, represent a fair and reasonable approximation of plaintiff’s costs, were previously accepted by this court in the case of Carlo Bianohi & Co. v. United States, 157 Ct. Cl. 432 (1962), rev’d on other grounds, 373 U.S. 709 (1963), and defendant was on notice that plaintiff intended to rely on such rates and did not object. Plaintiff here applied 50 percent of these rates for idle time (because the equipment suffers no wear and tear when idle) and deducted 15 percent to eliminate the element of profit.

Defendant opposes the use of the A.E.D. rates by plaintiff. It submits that in the absence of actual costs obtained from plaintiff’s books and records, the best criterion for determining a contractor’s cost for owning its own equipment would be the equipment ownership rates published by the Associated General Contractors of America, Inc., generally known as A.G.C. rates, on the basis that these rates permit a determination of a contractor’s ownership cost based on a percentage of the contractor’s own capital investment for each piece of equipment. Plaintiff’s actual acquisition cost for each piece of equipment was readily available from its books and records, and is in evidence here.

Defendant contends that, since this manual computes the ownership cost on an operating basis, only 50 percent of operating costs should be applied in computing idle equipment costs, as was done in the case of Winston Bros. Co. v. United States, 131 Ct. Cl. 245, 130 F. Supp. 374 (1955).

It is true, as plaintiff says, that the Court of Claims allowed A.E.D. rental rates for contractor-owned equipment, less a 15-percent profit factor, as the measure of damages in Bianohi, supra, rev'd on other grounds, 373 U.S. 709 (1963). The findings and opinion in that case do not indicate there was any challenge by defendant to such rates as a reasonable measure of damages and, perhaps for that reason, they were applied without discussion or explanation as to their propriety. Beferenee to the transcript in that case shows, at pages 1845 and 1846, that plaintiff had actually for many years either hired equipment for its own use, or rented out to others, equipment it owned and, further, that plaintiff paid A.E.I). rentals during the period in issue.

In Brand Inv. Co. v. United States, supra at 45, the court in a delays-damages case arising from breach of contract, absent any better proof, allowed 50 percent of the rental value of machines and equipment plaintiff had on the job which were made idle during the period of delay due to defendant’s fault. This was described as a “jury verdict.” There was no proof of any practice by plaintiff in renting machinery or equipment and the opinion and findings do not reveal the source of the rental rates used. The reduction of the rental rates by one-half was explained by the fact that if rented the machinery would not have suffered wear and tear while idle.

Brand Inv. Co., supra, explicitly overruled Phoenix Bridge Co. v. United States, 85 Ct. Cl. 603, 631 (1937). In the latter case, plaintiff claimed rental rates as the measure of its damages for equipment rendered idle by defendant-caused delays. The court there denied application of such rates and denied any recovery for idle equipment on the grounds that plaintiff had not shown that actual damages approximated the rates claimed or that plaintiff was put to any extra expense for the rental of equipment on other projects because of the delays. Further, the evidence failed to show that plaintiff was engaged, during the delay period, in other work where its equipment could have been used. As in Brand Inro. Oo. the source of the rental rates proposed to be used is not disclosed. The Phoenix Bridge Go. decision perhaps did run contrary to the now well-established rule that although the proof may not be so positive as to enable the court to make an absolute determination of the precise excess costs resulting from delays chargeable to one party, an approximate and reasonable determination may be made on the basis of the facts and circumstances and the best available evidence, in such amount as, in the judgment of fair men, resulted from the breach. Dale Constr. Co. v. United States, 168 Ct. Cl. 692, 729 (1964).

The court reaffirmed application of rental rates, less 50 percent, for contractor-owned equipment rendered idle in Henry Ericsson Co. v. United States, 104 Ct. Cl. 397, 62 F. Supp. 312 (1945), cert. denied, 327 U.S. 784 (1946), citing Brand Inv. Co. as authority. See, to the same effect, Laburnum Constr. Corp. v. United States, 163 Ct. Cl. 339, 325 F. 2d 451 (1963); Warren Bros. Roads Co. v. United States, 123 Ct. Cl. 48, 83, 105 F. Supp. 826 (1952), where rental rates of the Office of Price Administration were used; and Morrison-Knudsen Co. v. United States, 113 Ct. Cl. 536, 84 F. Supp. 282 (1949). Each case since Bramd has cited it as basic authority. The principle seems well ingrained in precedent. However, examination of the foregoing cases reveals very little that is helpful in understanding why rental rates were applied there to contractor-owned equipment or that they were contested, as in the instant case, with A.G.C. rates. They have presumably, been applied without contest and as the best formula available in the circumstances to approximate actual equipment costs which were not available. That is also about the most that can be said of court approval of A.G.C. rates. See, for example, Ben C. Gerwick, Inc. v. United States, 152 Ct. Cl. 69, 285 F. 2d 432 (1961), a delay-damages case wherein A.G.C. rates, less 50 percent for idle time, applied to acquisition cost, or to appraised acquisition cost, were used to measure damages or additional ownership expense as a result of delay.

Defendant’s reliance on Winston Bros. Co. v. United States, supra, does not throw much light on the problem because that was a congressional reference case, no judgment could be entered, and Congress was advised that plaintiffs had no legal or equitable right to recover. A.G.C. rates were, however, used to demonstrate plaintiffs’ damages or losses on idle equipment. As in Gerwick, this was done by applying the percentages of ownership and operating expense contained in the A.G.C. manual of equipment ownership expense to plaintiffs’ original capital investment or acquisition cost of equipment idled. There was no rental market for the eqtiipment and no other work on which it could be used during the slowdown. It is interesting to note, in passing, that the same judge who thus spoke for the court in 1Winston did so in Brand, Ericsson and Morrison-Knudsen where rental rates were used. Clearly, the court has not yet definitively passed on the problem now in issue and has made no hard and fast choice that one or the other of the rates now proposed must be used to exclusion of the other. In approving rental rates, Brand did not discuss or reject A.G.C. rates in overruling Phoenix Bridge Co., supra. By the same token, the dissenting judge in Brand, who wrote the opinion for a unanimous court in Phoenix Bridge rejecting rental rates for reasons stated above in the discussion of that case, said in his dissent that rental rates would be proper as a yardstick of damages where the fairness and reasonableness of the rental value is established by proper evidence and is not speculative, conjectural, and uncertain. Further, rental rates would be applicable if it could be shown (1) that had the equipment not been tied up due to delay by the Government, it could and would have been rented to others, or (2) that plaintiff had other work on which it could have used the equipment at a date earlier than it was able to use it because of the Government’s delay. Finally, it is not enough to show that equipment has a rental value. That does not establish a loss such as a rental market could. The dissent in Brand collects the cases up to that date and shows that rental rates are applicable and have been widely used, and widely disregarded, depending upon how well they measure the lost useful value of idle equipment in a particular situation, with a minimum of speculation.

There is a special problem in the instant case in that plaintiff from the very beginning of the delay elected not to establish its costs for equipment during idle time but to rely on A.E.D. rental rates and so advised defendant which did not protest at that time. This poses the same problem as had it elected to rely on A.G.C. rates without showing actual costs. Can a contractor properly do so ? Might not suck an election result in higher damages ? Is not the best evidence the actual costs ? After all, these rate manuals are only guides and estimates based on national averages and subject to many adjustments. Where they are in evidence, and actual costs are not, they are only a tool with which to hammer out a reasonable “jury verdict.”

Contractors generally do not keep books to prove damage claims. A large contractor sometimes does so when faced with delays caused by the Government, and where this is done those records are the best evidence. It is not always practicable for a small contractor to maintain actual book records of equipment costs. Even the defendant admits in its brief that such costs are rarely kept by small contractors. The expense and difficulty of doing so on a small job, such as the 60-day contract here, are obvious. Perhaps that explains defendant’s initial acquiescence when plaintiff told defendant that it would not keep a record of costs. Of course, if every contractor could ignore actual equipment operating-costs, assuming it had or could reasonably maintain records of such costs, and rely instead on A.E.D. or A.G.C. rates, it would be absurd. Some showing must be made that secondary evidence is appropriate because the primary evidence (actual costs) is nonexistent or unavailable for good reason. It is believed that plaintiff meets that test here, and the problem thus boils down to a determination of which set of rates will least distort probable actual costs and most nearly reflect them. The objective is to place the contractor in as near the same financial position as he would have been had the breach complained of not occurred.

Plaintiff was not in the business of leasing its equipment to others, nor does its claim include any equipment actually rented from outside sources for its own use. Whatever reason there may have been for the use of A.E.D. or other rental rates in previous cases, e.g., proof of lost rental, agreement between the parties, a provision in the contract, or some other reason not pertinent to the case in suit, there is no justification for use of rental rates as a substitute for unavailable actual equipment-use costs in the instant case. The A.E.D. manual was not designed for any such purpose. It shows on its face that it was compiled for the information of equipment distributors and those who lease equipment. Its use under the facts of the instant case would grossly distort and inflate plaintiff’s losses. On some items of equipment which were fully depreciated, the yearly A.E.D. rental rate is more than 900 percent of plaintiff’s acquisition cost. On other items with many remaining months of life, the yearly A.E.D. rate is as high as 296.6 percent of such cost. On three-fourths of plaintiff’s equipment, rental rates would enable it to recapture original cost in short order regardless of whether the equipment was already fully depreciated or had many months of remaining life. Even after a discount of 50 percent for idle time and 15 percent for profit as proposed by plaintiff, such rates clearly do not in any way fairly reflect the normal cost of maintaining contractor-owned idle equipment or satisfy the purpose of awarding damages in a contract case, i.e., to put plaintiff in the same financial position as if the breach had not occurred.

The fair and reasonable measure of damages for plaintiff’s equipment expenses in this case, for contractor-owned equipment, lacking actual cost records for the delay period, is the acquisition cost of each piece of equipment involved applied to the formula set forth in the A.G.C. ownership expense manual and reduced by 50 percent for idle time, during which time the equipment suffers no wear and tear. Such a procedure especially makes sense here because the amount of idle time is cleaxly established and shown to be defendant’s fault, and the projection using A.Gr.C. rates is based on plaintiff’s proven costs of capital investment in equipment. A reduction of the applicable rates by 50 percent for idle time has heretofore met the approval of the court, as noted above.

Plaintiff’s claim erroneously includes full rental (not reduced one-balf for idle time) for all days its equipment was on the job more than 60 days. Plaintiff did not perform any additional work under the contract and thus any claim for full operational time on the part of the equipment is erroneous. All time properly claimed should be for idle time. While it was plaintiff’s original intention to complete this job in 60 days, there were reasons other than delays sued for herein which would have extended plaintiff’s work beyond 60 days. Two such reasons revealed by the evidence were (1) plaintiff’s failure to remobilize as completely in December as in the previous summer since it was not allowed access to all areas even then, and (2) the additional work of supplying and dumping limerock in place, which plaintiff had originally subcontracted, but when its subcontractor refused to continue in December, plaintiff was required to do this additional work itself. The evidence shows it had substantial difficulty in getting sufficient limerock to the site.

Another area of dispute is the proper general and administrative (G & A) expenses to allow on this claim. Plaintiff’s method was erroneous, as described in findings 39 through 41. Defendant allowed nothing for G & A expenses, apparently on the basis that plaintiff’s method was erroneous. There can be little doubt that plaintiff suffered certain additional G & A expenses in connection with these delays. Defendant supplied sufficient evidence, and its auditor, in fact, testified to a proper method of computing this additional expense. This proper method was the relation of total G & A expenses to all other expenses for the full fiscal year in which this contract ran, applied to the additional expenses as found herein to be attributable to defendant’s delays. This method is used in the computation of plaintiff’s just and proper damages in this case.

Plaintiff claims, additionally, $4,003.4:7 as expenses of presenting this claim to the Armed Services Board of Contract Appeals. This amount was composed of attorneys’ fees of $2,000, the salary of plaintiff’s president of $1,250, with the balance being composed of the salaries of two other employees and certain traveling expenses. Plaintiff failed to produce any bill or check or other record supporting payment of $2,000 in attorneys’ fees for the alleged services. Plaintiff produced no evidence other than self-supporting oral testimony for these alleged expenses, although it is stipulated that plaintiff’s president and other employees were paid salaries exceeding the amounts claimed during this period. Therefore, this portion of plaintiff’s case must fall for lack of adequate proof to relate the same to the pending claim. Further, legal, accounting, and secretarial expenses, and other costs not connected with the performance of the contract are not compensable as a part of damages for breach of contract. Rash v. United States, 175 Ct. Cl. 797, 810, 360 F. 2d 940, 947 (1966); Dale Constr. Co. v. United States, 161 Ct. Cl. 825, 831 (1963). Plaintiff is entitled to damages of $18,004.51 as detailed in finding 43.

FINDINGS of Fact

1. Plaintiff is a corporation organized and existing under the laws of the State of Florida, with its principal office and place of business at Orange Park, Florida, and is now, and at all times hereafter mentioned was engaged in business as a general paving and construction contractor.

2. On June 30,1959, plaintiff and the Department of Navy entered into contract No. NBy-19936 (Spec. 19936/58) whereby plaintiff undertook to repair and restabilize certain runway overruns and to improve certain crash strips at the United States Naval Air Station, Cecil Field, Florida. The contract price was $186,417.74. Work was to begin on July 5, 1959, and be completed by September 3,1959. The contract contained the standard Government contract general provisions for changes, changed conditions, termination, and disputes, but there was no suspension-of-work clause.

3. Cecil Field is located within the jurisdiction of the United States Naval Air Station in Jacksonville, Florida. It is approximately 18 miles from the city of Jacksonville and is one of the principal landing fields on the East Coast equipped to receive carrier-based jet aircraft.

4. The flight installation at Cecil Field consists of a pair of parallel runways bisecting a similar pair of runways at right angles, so that there are two runways north and south and two runways running east and west. The regulations of Cecil Field, necessary to the proper operation of this naval installation, require that at all times there be available for landing aircraft at least one runway in each direction. During all times pertinent to this case, Cecil Field was in operation and was available for use by carrier-based aircraft.

5. The contract required that plaintiff work at both ends of the east-west dual runways but at the north ends only of the north-south runways. Thus, the work involved six of the eight ends of the dual runways. In addition, plaintiff was required to lay a pipe or culvert and do a certain amount of clearing of the crash areas at the ends of some of the runways. The specific work involved in the performance of this contract and the sequence of operations as planned by plaintiff was as follows: (a) Set the grade stakes; (b) remove the overburden; (c) remove the excess dirt, or fill depressions, necessary to bring the area to grade; (d) haul in and mix limerock to a certain density and compaction; (e) replace the overburden on the overrun area; (f) seed the overrun area; and (g) apply an emulsified asphalt cover to keep the seeds from blowing away.

6. On July 2,1959, plaintiff’s president, L. L. Hall, and its assistant secretary and chief construction supervisor attended a preconstruction conference at Cecil Field held by the assistant resident officer in charge of construction, Lt. (j.g.) Donald F. Lutz. In addition to other matters pertinent to the contract which were discussed, Lt. Lutz indicated on a site plan of the runways at Cecil Field the work to be performed and the areas of performance by plaintiff and other contractors. Plaintiff was advised that during the course of plaintiff’s performance other independent contracts would be in progress simultaneously. Plaintiff’s representatives were also advised about the safety regulation providing that one runway in each direction was to be available for landing aircraft at all times. While Lt. Lutz advised plaintiff of possible interruptions because other contract work was going on at the same time as plaintiff’s contract, he did not at that time contemplate any lengthy shutdown of work such as later encountered by plaintiff.

7L Plaintiff scheduled its operations upon a systematic and orderly basis with the reasonable expectation of continuous performance of the work for the full 60-day period of the contract. Plaintiff was, however, aware of the possibility that it might be required to move its operations to different locations in the event of certain emergencies as set forth in specification 1.23, which read as follows:

1.23 Scheduling of Work. — The contractor shall schedule all work so as to minimize any interruptions to flight operations. The government will make every effort to schedule aircraft operations to permit accomplishment of the contractors daily schedule. However, in the event of emergencies, intense operational demands, adverse wind conditions, etc., the contractor will be required to move his operations to a different location in the interest of safety to personnel and flight.

8. Plaintiff started its work on July 6,1959, and proceeded diligently without major interruption until the latter part of July, at which point plaintiff was on schedule, or perhaps somewhat ahead of schedule, with approximately 50 percent of the work on this contract completed. On or about July 29, 1959, plaintiff requested that it be allowed to continue its work on runways then open to flight operations but was orally advised by the Navy that it could not proceed on these runways inasmuch as they were required for flight operations, since the adjacent runways in each direction were still closed because of work being performed thereon by other contractors.

9. By letter dated July 29, 1959, plaintiff protested to the resident officer in charge of construction (Roico), as follows:

We are requesting permission to proceed with our work, as per above contract on Over-Run areas 18R, 9R, and 27L.
These areas must be opened to us this date if we are to maintain our work schedule for the job.

10. In reply, plaintiff received the following letter dated August 8,1959, from the deputy resident officer in charge of construction:

Eef erence is made to your letter of 29 July 1959 by which you request permission to proceed with subject contract work on the over-run areas of NAS Cecil Field runways 27L, 9E and 18E.
As discussed with your Mr. Hall at the pre-construction conference on 2 July 1959, no contract work on a runway over-run area can commence until the station is able to close the affected runway to flying operations. At the same time, the station must keep one of each of the dual runways in operating condition at all times.
At the present time, one of each of the dual runways is closed to flying operations to permit the work required by your contract as well as other contracts to be prosecuted. As soon as the work affecting these closed runways has been completed, the station can once more commence flying operations on these runways. At that time, the other two dual runways can be closed to permit you to commence contract work on the over-run areas of runways 27L, 9E and 18E. The progress of the other construction contracts affecting the presently closed runways indicates that runways 18E, 27L and 9E will be able to be closed by approximately 15 September 1959. However, as this date is only an approximation, this office will keep your office advised as to the date it is expected that you will be able to repair the overruns of runways 27E, 9L and 18E.
Until such time as the over-run areas mentioned above can be released to you to permit contract work, it is suggested that you prosecute as much of the other contract work as possible. This office will advise you as soon as the over-run areas in question can be released to allow completion of subject contract work.

11. By letter dated August 13, 1959, plaintiff again protested the virtual shutdown of plaintiff’s contract work until approximately September 15,1959, pointing out that the contract completion date was September 3,1959, and that an extension of contract time would be requested. Plaintiff also pointed out that it had sufficient equipment and personnel at the job to complete the job on time and that it had complied with all contract requirements. Plaintiff advised that it intended to claim additional compensation for idle time on equipment, based on Associated Equipment Distributor (A.E.D.) rental rates of 1958, since the equipment was then 90-percent idle.

Defendant replied to the above protest by letter dated August 18, 1959, advising that it had made every effort to release the necessary runways for completion of plaintiff’s contract and denied that it had curtailed plaintiff’s operations beyond that which plaintiff should normally expect on work locations of this nature.

12. During early August plaintiff continued such work as it could, at a greatly reduced tempo, and also began moving its idle equipment to other jobs. Some few pieces of small equipment remained on the job until finally removed in September 1959. Plaintiff was not permitted to continue operations on September 15, 1959, as anticipated because of the work of other contractors. Plaintiff was not given access to the remaining runways until December 8,1959.

IS. In reply to plaintiff’s request for an indefinite time extension on September 30, 1959, the Eoico advised the district officer in charge of construction by memorandum dated October 5, 1959, that plaintiff had diligently prosecuted and completed all work in the areas in which it had been permitted to work, and that it would be some time before the two remaining runways would be made available to plaintiff due to a delay in receipt of Government-furnished materials on contract No. NBy-10242 then in progress at Cecil Eield by another contractor. A time extension of 103 days to December 15,1959, was recommended on account of this delay which was admitted to be without fault on plaintiff’s part.

By memorandum dated August 16, 1960, the Roicc advised the commanding officer of Cecil Field that plaintiff was unable to proceed with its contract after July 29, 1959, because it would have necessitated either the closing of all flight operations, or ceasing contract operations in two more critical contracts, and thus the delay of plaintiff’s contract was in the best interests of the Government.

14. Those contracts found by defendant to be more critical than plaintiff’s, for which it elected to close down plaintiff’s operations rather than cease operations on these contracts or close flight operations, were as follows:

(a) Government contract No. NBy-10242 entered into with B. B. McCormick & Sons, Inc., Jacksonville Beach, Florida, on Jirne 30, 1958, for the extension of runway 18L-36B., at the contract price of $3,597,408. The starting date was July 6, 1958, and the completion date was July 1,1959, which completion date was prior to the date that plaintiff’s contract was to be started (July 5,1959). By change B, dated August 20, 1959, the date for completion of this contract was extended 120 calendar days to and including October 29, 1959, and by change C, dated May 19, 1960, the contract date of completion was extended 215 days to and including May 31,1960.

(b) Government contract No. NBy-24824 entered into with Geismer & Mitchell, Jacksonville, Florida, on June 30, 1959, for the installation of aircraft arresting gear on runways 9L and 18B. at the contract price of $57,900. The starting date under the contract was July 5, 1959, and the completion date was August 19,1959, which time of performance was within plaintiff’s work. By change A, dated October 1,1959, the date for completion of this contract was extended 87 calendar days, to and including November 14, 1959, and by change B, dated March 9, 1960, the completion date was extended to and including April 29,1960. This contract was not started until July 14, 1959, although the starting date was to be July 5, 1959. The inspection reports reveal that the work thereafter proceeded at a slow and unsatisfactory pace, and was still incomplete by November 4, 1959.

15,. Plaintiff’s representative, Mr. Eppert, was at the field almost every day. He conferred with Lt. Lutz and the Government inspectors and personally observed the progress of the other contractors. Toward the latter part of November, plaintiff began to return its equipment to Cecil Field on a piece-by-piece basis with its single piece of hauling equipment. All of the equipment was returned with the exception of five pieces, although another piece of equipment was brought in as a substitution for one of the five. Since plaintiff had only one piece of hauling equipment and some of the equipment returned to the job required a 400-mile round trip, the return of this equipment required substantial time, effort, and expense.

16. By letter dated December 2, 1959, the defendant advised plaintiff as follows:

In confirmation of the information given your Mr. J. Eppert on 1 December 1959, the east end over-run area of runway 9K-27L will be made available for subject contract work on Monday, 7 December 1959.
It is anticipated that on 14 December 1959, the west end of runway 9IÍ-27L will be available to your firm and by approximately 21 December 1959, the north end of runway 36L-18B. will also be available. Therefore, it is anticipated that the remaining runway over-run repairs can be carried through to completion without any further delay.

In accordance with the foregoing notice to proceed, plaintiff had men and equipment on the job on Monday, December 7, 1959, at 7 a.rn., ready to proceed, but was unable to do so until the following day, December 8, due to the fact that the runway had not been closed to air operations.

17. By letter dated December 17, 1959, plaintiff notified the defendant that in accordance with defendant’s letter of December 2, 1959, wherein it was stated that it was anticipated that the north end of runway 36L-18K, would be available to plaintiff on December 21, 1959, plaintiff would be ready to start stripping operations on said runway on that date. The north end of this runway was not made available to plaintiff until January 14,1960.

18. Plaintiff satisfactorily completed its contract on February 2,1960.

19. At the request of the plaintiff, the time for completion of the contract was extended to and including February 2, 1960, being an extension of 152 calendar days. In granting this extension, the defendant stated in pertinent part, as follows:

Due to delays, beyond the control and without the fault or negligence of the contractor, the contract date for completion is extended 152 calendar days to and including 2 February 1960. There is no change in contract price.

Defendant had previously refunded all liquidated damages assessed against plaintiff.

20. Substantial and credible evidence establishes that plaintiff was unreasonably delayed beyond any extent covered by the contract or contemplated by either party at the time the contract was entered into by the parties. The delays suffered by plaintiff were beyond the control and without the fault or negligence of plaintiff. The primary reasons for plaintiff’s delays were defendant’s election to proceed for its own convenience with two more critical contracts, one of which was delayed, at least in part, by a delay in receipt of Government-furnished material, and the other which proceeded much slower than defendant contemplated.

21. By letter dated May 27, 1960, plaintiff submitted its claim for an equitable adjustment (increase) of $51,824.58 under the changes clause of the contract, because of the delays encountered for the defendant’s convenience and without, plaintiff’s fault. Following conferences between plaintiff and defendant’s representatives, the Eoioo advised the commanding officer of the Naval Air Station, Cecil Field, Florida, by memorandum dated August 16, 1960, that delay of plaintiff’s contract was in the best interest of the Government and that the contractor suffered actual damages of additional plant rental, demobilization, remobilization, and additional direct labor and material costs. This memorandum recommended delay damages of $34,111.81. By letter dated August 19,1960, the Boicc was advised by the public works officer of the Sixth Naval District, Charleston, South Carolina, that since there had been no change in the work called for under plaintiff’s contract, no costs arising from the delay caused by the Government could be paid by the contracting officer; that the plaintiff’s claim, together with the findings of the Boicc, should be submitted to the contracting officer through the Oicc, and then, successively, to the Secretary of the Navy and Armed Services Board of Contract Appeals, and, ultimately, to the Court of Claims.

22. After several conferences between plaintiff and Government representatives, plaintiff’s initial claim was revised and reduced to $37,592.77 by letter dated September 12,1960. This claim was checked by Lt. Lutz primarily for arithmetical accuracy. His findings along with a recommendation by the Roigo that plaintiff’s claim be favorably considered, subject to a detailed fiscal audit, were transmitted to the Bureau of Yards and Docks, United States Navy, via the Oico of the Sixth Naval District, by memorandum dated October 7,1960.

23. Plaintiff’s claim of September 12, 1960, was denied by the Oigo on October 18,1960, and by the chief of the Bureau of Yards and Docks who was the contracting officer, on November 4, 1960, on the grounds that the claim was for additional costs due to delays, which represented a claim for damages, and not for additional work performed under the contract and, thus, could not be the subject of compensation under the contract. Plaintiff appealed to the Armed Services Board of Contract Appeals, which granted defendant’s motion to dismiss, for the board was without authority or jurisdiction to adjust the contract price to compensate for damages due to a delay. Thereupon plaintiff filed timely suit in this court.

Damages

24. Plaintiff claims damages of $48,570.58 comprised of its additional equipment costs (based on rental rates reduced by 15 percent for profit) for all equipment on the job in excess of 60 days, whether the equipment was idled or working, and for various other specific expenses which were either caused or increased by the delays caused by defendant. Plaintiff’s claim for equipment damages consists of full rental expense (less profit) for all equipment not completely idled and one-half such expense for idled equipment. With regard to the idled equipment, plaintiff’s representative at Cecil Field kept records showing when each piece of equipment became idle, when it was removed from the job, and when it returned to the job. Defendant’s representatives also maintained a schedule showing similar information. Since there were some minor disagreements between the parties as to when the equipment actually became idle, defendant and plaintiff pooled their information and developed a schedule of dates when equipment became idle, when it departed the jobsite, and when it returned. Both parties utilized the information from this schedule as the basis for the idle equipment claim herein, but differ on the application of this information.

25, Plaintiff did not maintain an accurate record of its actual additional equipment costs, which were allegedly due to defendant’s refusal to permit access to the various work areas, since its intention from the beginning was to use Associated Equipment Distributors rental rates. The parties agree that this cost cannot now be extracted from plaintiff’s books and records with reasonable accuracy. The parties are in dispute, however, as to the proper method of computing plaintiff’s equipment damages, in lieu of actual cost records.

Plaintiff based its equipment claim upon a compilation of rental rates prepared by the Associated Equipment Distributors of Chicago, Illinois, for the year 1958, hereinafter referred to as A.E.D. rates. It applied 50 percent of such rates for idle time and deducted 15 percent to eliminate the element of profit from its claim herein. The rental rates set forth in the 1958 edition of the A.E.D. manual were national averages compiled from reports of approximately 800 individual distributor member firms throughout the United States. These rental rates are stated to be published for informational purposes only, and while they are used as a guide by distributors and persons in the business of renting equipment, such dealers often receive more, or less, rent than as shown in this publication, depending on individual circumstances. Plaintiff’s reasons for using these rates for its claim herein are that it feels they are a fair and reasonable approximation of plaintiff’s costs and, in addition, have previously been used and accepted by this court.

26. The parties agree that plaintiff was the owner of all equipment involved in this claim and did not have any outside rental expense for equipment. All plaintiff’s equipment was in good condition when it arrived on the job and was maintained in good condition throughout this job.

27. Defendant contends that the use of rental rates is an inappropriate basis for claiming damages when the contractor owns all the equipment involved, as herein. Defendant correctly submits that the use of any compilation based on nationwide rates is at best artificial — the best evidence of damages being plaintiff’s actual cost of maintaining its equipment during the controversial period, as contained in its books and records. In this instance, defendant admits that such costs are not available and contends that the most realistic basis available for computation of damages, assuming liability, would be plaintiff’s equipment ownership expense computed from the Contractors’ Equipment Ownership Expense Manual, published for the year 1959 by the Associated General Contractors of America, Inc., of Washington, D.C., hereinafter referred to as A.G.C. rates. Defendant asserts that this court has previously adopted A.G.C. ownership rates for contractor-owned equipment in findings of fact, allowing one-half of such ownership expense where idle equipment is concerned and that this is the preferable method to follow herein.

28. The A.G.C. manual for 1959, the year of this contract, sets forth, on the basis of countrywide averages, a contractor’s alleged expense of owning and operating his own equipment on his own work. The proper use of this manual for the case in suit, requires the application of the capital investment (cost) of each piece of equipment in order to determine monthly expenses. The various expenses are then shown as a percentage of this capital investment. These expenses are broken down into the following categories:

■(a) Depreciation, which the manual reveals usually requires the largest percentage of expense of any of the three expense categories.
(b) Overhauling, major repairs, and painting.
(c) Interest on investment (assumed to be 5 percent), taxes, storage, incidentals, equipment overhead, and insurance.

The average annual use, in months, is then applied to determine the expense per working month. Where actual cost (capital investment) of each piece of equipment is known from plaintiff’s books and records, as herein, this is the proper cost figure upon which to apply the various expense percentages in order to duplicate more nearly plaintiff’s actual costs of owning and operating it, lacking other records.

29. A fair and reasonable measure of damages for plaintiff’s equipment expenses herein, lacking its actual equipment cost records, as in this case, would be as near to its actual expenditures as can reasonably be computed from the evidence submitted by the parties. It is clear that the use of plaintiff’s actual cost (capital investment) for each piece of equipment involved, applied to the equipment ownership rates set forth in the A.G.C. manual, would more nearly approach plaintiff’s actual expenditures than the A.E.D. rental rates as previously described. Whatever reason there may have been for use of A.E.D. rental rates in a previous case, i.e., proof of lost rental, a custom or practice of leasing equipment, agreement between the parties, or some other reason not pertinent to the case here in suit, there is no justification for the use of rental rates herein.

3.01 A schedule in evidence projects from plaintiff’s cost of acquisition of each piece of equipment the monthly and yearly A.E.H. rental rate and yearly A.E.D. rate over cost. It shows, also, the estimated remaining life, in months, of each piece of equipment. Seven pieces were fully depreciated. The result of this study illustrates that on plaintiff’s 20 pieces of equipment, 5 items reflect a yearly A.E.D. percentage rate under cost that the rate represents. On the remaining 15 items, the rate would exceed cost from 12.1 percent to 936.8 percent. In other words, it is clear that A.E.I). rates enable a construction equipment owner to recover the entire cost of the equipment much more rapidly than it is depreciated or charged off. For instance, on a 12-4P scraper (pan) costing plaintiff $838, which had been fully depreciated and with no estimated remaining life, the monthly A.E.D. rate would be $724, the yearly rate $8,688, and the latter would be 936.8 percent more than the original cost. Plaintiff had a 2-inch water pump costing $263.22 with an estimated remaining useful life of 24 months. The A.E.D. monthly rental rate for this pump is $87, the yearly rate $1,044, and the latter is 296.6 percent of initial cost. On three-fourths of plaintiff’s equipment, rental rates would enable it to recapture original cost in short order regardless of whether the equipment was already fully depreciated or had much remaining life. Even discounting the rate by 50 percent for idle time and eliminating the profit factor, it is clear that the foregoing is still true and that the A.E.D. rental rates, therefore, do not fairly reflect normal cost of maintaining contractor-owned idle equipment or satisfy the purpose of awarding damages to put the contractor in the same financial position as if the breach had not occurred.

31. The evidence establishes additional errors in plaintiff’s computation of equipment costs. While plaintiff used a schedule of the best-pooled information of the parties to compute the days of idleness for each piece of equipment, it sometimes included the date of departure from the job as an idled day. In addition, it sometimes omitted December 7, 1959, as an idle day and omitted certain other idle days shown by its own schedules, which is corrected herein.

32. Plaintiff claims that all days on the job exceeding 60 were for defendant’s convenience. It claims one-half of the rental rates for idle time per the generally agreed-upon schedule; however, where the working time of a piece of equipment exceeded 60 days, plaintiff claims this as additional time chargeable to defendant at the full rental rate, not reduced by one-half as it did with idle time, on the basis that defendant is responsible for all time exceeding 60 days on this job. This claim for all working times in excess of 60 days is incorrect for the following reasons:

(a) The claim herein is for the delays caused by defendant’s failure to allow plaintiff access to the work areas in reasonable time. No additional work was performed by the equipment, except for certain additional expenses of demobilization, remobilization, and other specific expenses directly caused by the delays, all of which are claimed separately by plaintiff. Thus, all additional equipment costs should be on the basis of idle time. This idle time between August 6, 1959, when the first two pieces of equipment became idle, and December 8,1959, when the job was continued, is generally agreed upon and supported by schedules of pooled information used by both parties. Plaintiff claims that it was unjustifiably delayed on only one other occasion, between December 21, 1959, and January 14, 1960, during which, time plaintiff alleges it was not allowed access to its last work area as promised by defendant. Assuming that plaintiff’s equipment was completely idled during this period, which is not claimed or supported by the inspector’s daily reports, this would amount to a maximum additional idle túne of 24 days, which includes certain holidays and weekends. Plaintiff’s claim includes no equipment idleness during this period, but erroneously claims this period, as well as all other work days in excess of 60 in which equipment was on the job, at full rental rates for all equipment. The inspector’s reports reveal that during December 1959 and January 1960, the equipment was not fully operating even though the job was never shut down.

(b) Plaintiff originally intended to complete the job in 60 days; however, when it returned to the job in December, it did not remobilize completely because it was not given sufficient work areas requiring as complete a mobilization as in July, and with less equipment the job would take somewhat longer.

(c) When plaintiff returned to the job in December, its subcontractor, who originally was to dump the limerock in place, refused to continue under the contract and plaintiff was required to do this additional work itself. Plaintiff had substantial difficulty in getting sufficient limerock to the site and placing same.

33. Plaintiff claims that four pieces of equipment that were not remobilized or replaced in December 1959 originally were scheduled to work only 30 days. For this reason, it claims all working days in excess of 30 days at full rental. This equipment includes two D-6 tractors, one D-8 tractor and the No. 11 caterpillar patrol. This claim is incorrect for the same basic reason that plaintiff’s claim for equipment working more than 60 days is incorrect, namely, that this is a claim for delay by failure to allow plaintiff access to work areas in reasonable time. No additional work was performed, thus all additional equipment time should properly be restricted to idle time. The allegation that this equipment would have worked only 30 days instead of 60 days is refuted by the testimony of plaintiff’s president, Mr. Leonard Hall, who testified that the reason this equipment was not returned in December was that plaintiff was not given sufficient runways to utilize all the equipment, and had this opportunity been given, plaintiff would have returned all the equipment originally on the job. Further, in the case of the No. 11 caterpillar patrol, which worked for the first 35 days and was allegedly idle for the next 31 days, plaintiff claims the 31 days as idle time as well as the 5 additional days working time at full rental, all of which exceeded the 30 days of alleged anticipated use. It is clear that if plaintiff actually anticipated the use of this piece of equipment for only 30 days and worked it for 35 days, idling it thereafter with no intention of returning it to the job, the idle time was not for the defendant’s convenience, whether left at Cecil Field or at plaintiff’s own storage facility.

34. Plaintiff’s schedule, allegedly showing an amount as “anticipated cost per bid” for equipment upon which its excess costs are based, is unsupported by the bid estimate or by any other of plaintiff’s books or records, and is computed by the use of A.E.D. rates which, as found herein, is not a good or proper method to compute equipment costs for the case in suit.

35. The evidence establishes the following errors in defendant’s computation of plaintiff’s equipment costs:

(a) While defendant also used the schedule of the best-pooled information of equipment idleness used by plaintiff, it deleted idled equipment time during the remobilization period in late November and early December 1959. Plaintiff originally mobilized equipment during early July, at its own expense, and was required to demobilize because of the delay caused by defendant. Its remobilization is an additional expense which properly should be borne by defendant unless found to be unreasonable. The evidence establishes that plaintiff began remobilization in late November and early December 1959 on a piecemeal basis. Since some of its other work was a long distance from Cecil Field and plaintiff owned only one piece of hauling equipment, this required substantial additional time to get its machinery back on this job. demobilization and the time required were necessary and reasonable expenses attributable to the delay. Idled equipment expense during this period is properly claimed.

(b) Defendant takes exception to idle time claimed for the five pieces of equipment which were not returned and the one additional piece of equipment that was mobilized in December that had not previously been on the job. The evidence establishes that these five pieces of equipment were idled at the time of the original delay in August and early September 1959 by defendant’s refusal to grant additional work areas to plaintiff. At that time it was contemplated that plaintiff would be given other work areas about September 15, 1959. When it became clear this was not forthcoming, plaintiff moved this equipment to other jobs. The reason the equipment was not completely remobilized was that even in December plaintiff was not given all the remaining areas in which to work, and complete remobilization was not necessary. The weight of the evidence establishes that the idle time of this equipment during August and early September 1959 was for the convenience of defendant. Further, the evidence proves that while all five pieces of equipment did not return, plaintiff substituted a D-7 tractor for one of the 'four tractors that did not return and thus the 6 days’ idle time at mobilization in December 1959 for this piece of equipment is properly claimed.

(c) Defendant takes exception to all time claimed by plaintiff for delays between December 21, 1959, and January 14, 1960, and in fact ignored this portion of plaintiff’s claim, apparently because it is claimed on the basis of full rental, and is not set out specifically in days but is covered by the overall claim of all time in excess of 60 days on the job to which defendant has taken exception in full.

Defendant advised plaintiff by letter dated December 2, 1959, that it could begin work on one runway area on December 7, 1959, and anticipate work on another by December 14 and that “by approximately 21 December 1959” the last runway area would become available. This latter runway did not become available until January 14, 1960. Plaintiff claims delay during this period. The inspector’s reports reveal that on December 18 plaintiff had completed grading-on runway 9-L and was ready to move to the last remaining runway. Plaintiff was then advised that this runway was not available. The December 28, 1959, inspection report reveals that plaintiff claimed it was being delayed because of the unavailability of this last runway. This complaint was reiterated on December 30,1959, and January 7,1960. These reports indicate that, while much of plaintiff’s equipment was gainfully employed during this period, some of the equipment which the parties agree was at the job was not operating. It is reasonable to conclude that while plaintiff did not remove any equipment from the job during this period, its equipment was approximately 50 percent idled during this period of 24 days between December 21, 1959, and January 14, 1960, because of defendant’s failure to give access to the last runway. Thus, for the purposes of computing damages herein, all plaintiff’s equipment on the job between December 21 and January 14 will be considered to be idled for a period of 12 days.

36. The weight of the credible evidence herein establishes that plaintiff’s additional equipment expense should be computed using A.G.C. rates as applied to plaintiff’s actual cost for each piece of equipment, and reduced 50 percent for idle time. The evidence further proves that plaintiff’s idle time should include all equipment idled from August 6 to December 8, 1959, as set forth in the agreed-upon schedule used by both parties, including idled equipment time during remobilization. An additional amount of idled time amounting to 12 days is reasonably justified by the evidence for all the equipment at the jobsite between December 21,1959, and January 14,1960. Equipment expense on a working, rather than idle, basis is not justified from the evidence except as specifically shown in other categories of this claim for actual additional work performed as necessitated by the delays. On this basis, the total additional equipment cost attributable to the delays for which defendant is responsible amounts to $5,128.81, computed as follows:

37Í. Plaintiff claims $4,619.56 as its additional equipment moving expense to and from the jobsite. Defendant agrees this expense should be allowed to the extent of $3,709.71, making deletions for certain pieces of equipment moved from the job which were not returned. Defendant allowed the cost of remobilizing the D-7 tractor which replaced an HD-20 tractor, but did not allow for the demobilization of the HD-20 tractor. Defendant’s deletions are proper except as to this HD-20 tractor which the evidence supports was demobilized but replaced by the D-7 tractor. The expense of moving this HD-20 tractor is properly claimed. Plaintiff’s claim, as corrected herein, for equipment-moving expense totals $4,032.51, which is composed of $3,185 transportation costs and $847.51 labor costs.

38. The parties are in agreement as to plaintiff’s additional costs of suspending work on December 7,1959, job overload, added limerock expenses, additional social security and unemployment taxes, and insurance. The claimed amount for taxes and insurance was reduced by $6.04 to correspond with the reduction of direct labor under plaintiff’s claimed moving expenses. This properly is $359.95 rather than $365.99 claimed by plaintiff. The costs on the other items are set forth only in the last or ultimate finding to avoid repetition.

39. The parties are in dispute as to the proper general and administrative (Gr & A) expenses allowable on this claim. Plaintiff claims $13,949 as its additional G & A expenses, computed as follows: Plaintiff relates its G & A expenses as a percent of its total volume of sales for the fiscal year during which this contract ran. It applied this percentage to the sales volume of this contract, which revealed total G & A expenses applicable to this contract as $16,591.18. From this point, plaintiff contends that this contract should have been finished in 60 days, and computed the daily G & A expense rate of $377 per day by dividing the amount found applicable to the contract ($16,591.18) by 60. Plaintiff applied this daily rate to all days it worked on the contract in excess of the original 60 days contemplated and arrived at $13,949 as its additional G & A (overhead) expenses. In this computation for the claim herein, plaintiff used $92,744.96 as its total yearly G & A expenses rather than the $72,655.84 shown by its audit report and as revealed in its books and records. This change was the result of adjustments made by Mr. Hall, changing some direct costs to indirect costs where he felt they properly belonged, which increased G & A expenses by some $20,000. These adjustments in contemporarily kept records, specifically for the claim herein, are not justified.

40. Plaintiff’s claim for G & A expenses is incorrect not only as to amount but as to method. The basis of its claim is the relationship of G & A expenses to volume of business. To apply its additional G & A expenses consistently on this basis, plaintiff should have applied the same percentage upon the amount directly claimed as additional expense for the case in suit. This was not done. The use of the daily rate computed by plaintiff and applied as additional overhead has no relation to this contract or plaintiff’s actual daily overhead rate. If a daily overhead rate is preferable for this case, this should be computed on a full year’s basis and applied to all contracts equitably, charging part days to various contracts where applicable and applying weekends, holidays, and idled time to all contracts on an equitable basis. This was not done by plaintiff. This is not an acceptable method in this case, since such detailed information is not normally contained in books or other records with any degree of accuracy, and in this case such information is impossible to obtain at this late date.

41. While defendant has presented evidence in the record on which to base a proper computation of plaintiff’s additional G & A expenses, and its accountant has testified to a proper method, defendant has allowed no additional G & A expenses herein on the basis that plaintiff’s method was erroneous. There can be little doubt that there were some additional G & A expenses attributable to the contract in suit. The best method to compute plaintiff’s additional G & A expenses from the evidence presented, would be the relation (percent) of total G & A expenses to all other expenses for the fiscal year in which this contract ran, applied to the additional expenses attributable to the delays found applicable herein. This is computed as follows:

Items Totals Fiscal years 4/I/S9 — S/31/60

Direct construction costs. $828, 394. 69

Indirect costs:

Depreciation_ $34, 981. 75

;Sliop expense_ 84, 190. 98

Payroll insurance_ 13,-985. 87

Payroll taxes_ 8, 396. 39

■--■ 141, 554. 99

Total expenses other than G & A expenses. 969, 949. 68

Total G & A expenses_ 72, 841. 34

Percent of G & A expenses to all other costs_ 7. 51 %

The weight of the credible evidence supports additional Gr & A expenses to the extent of 7.51 percent of all direct expenses found herein to be caused by defendant’s failure to make available work areas within a reasonable time. This percentage will be applied in computing proper damages herein, as shown below in the ultimate finding.

42. Plaintiff claims $4,003.47 as its additional attorneys’ fees and other expenses of presenting this claim to the Asboa. This sum is composed of estimates of three compay salaries totaling $1,920.80, of which $1,250 is the salary of plaintiff’s president, $82.67 for travel expenses and miscellaneous office expenses, and $2,000 for attorneys’ fees for work done in the presentation before the Asboa.

"While salaries exceeding the amounts claimed were actually paid to individuals listed, none of these expenses could be verified from the books or other records as attributable to presentation of the claim before the Asboa. Attorneys’ fees were not supported by any check or voucher. Plaintiff has failed to present credible evidence to support any of these alleged expenses, and they fall for lack of proof.

Ultimate FINDING

43. The following allowable costs are found to be plaintiff’s additional expenses as a result of the delays caused by defendant’s failure to make work areas available within a reasonable time:

Conclusion op Law

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover of and from the United States and judgment is therefore entered for plaintiff in the amount of eighteen thousand four dollars and fifty-one cents ($18,004.51). 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57 (a).
     
      
       3. CHANGES
      The Contracting Officer may at any time, by a -written order, and without notice to the sureties, make changes in the drawings and/or specifications of this contract and within the general scope thereof. If such changes cause an increase or decrease in the amount due under this contract, or in the time required for its performance, an equitable adjustment shall be made and the contract shall be modified in writing accordingly. ■Any claim of the Contractor for adjustment under this clause must be asserted in writing within 30 days from the date of receipt by the Contractor of the notification of change: Provided, however, That the Contracting Officer, if he determines that the facts justify such action, may receive and consider, and adjust any such claim asserted at any time iprior to the date of final settlement of the contract. If the parties fail ito agree upon the adjustment to be made the dispute shall be determined as provided in Clause 6 hereof. But nothing provided in this clause shall excuse the Contractor from proceeding with the prosecution of the work as changed. Except as otherwise herein provided, no charge for any extra work or material will be allowed.
     
      
       The contractors’ annual equipment expense as shown by the A.G.C. Contractors’ Equipment Ownership Expense Manual 1959, is composed of six items, as follows: (1) Depreciation, (2) Major Repairs and Overhauling, (3) Interest on the Investment, (4) Storage, Incidentals and Equipment Overhead, (5) Insurance, and (6) Taxes. These six items are expressed as percentages of the capital investment.
      The manual states: “* * * Each contractor must use the value of his own particular piece of equipment, and by applying the recommended percentage per month (adjusted if necessary) against that figure the ownership cost can be determined.” [Plaintiff’s exhibit 47, p. 1.]
      “It has been set forth herein that the purpose of this schedule is to reflect the average expense to a contractor owning and operating his own equipment on his own contracts. The charges which a contractor is justified in mating under such circumstances are to be distinguished from those charges which are justifiable where the contractor may lease or rent a machine to others.” [7<C P. 3],
     
      
      
        George A. Fuller Co. v. United States, supra; Chalender v. United States, supra.
      
     
      
       In Perini Corp. V. United States (Ct. Cl. No. 228-58, Commissioner Gamer’s report, November 30, 1-965) footnote 11, finding 108, rejects plaintiffs’ estimated costs based on A.G.C. rates where it claimed its books were deficient in showing actual costs. It was found plaintiffs’ books were adequate and were the best evidence and plaintiffs could not disavow them for purposes of their claim.
     
      
       The foregoing appears in harmony with the Armed Services Procurement Regulations (ASPR 10r-492.1(c)), 3 CCH Gov't Cont. Rep. ¶ 34,969. See also extensive discussion where replacement cost and A.E.D. rental rates were rejected in favor of acquisition cost and A.G.C. rates less 5'0 percent for idle time of contractor-owned equipment. J. D. Shotwell Co., ASBCA 8961, 615-2 BCA ¶ 5243 (10,65 ). This is the accepted view of the administrative boards in computing equitable adjustments for standby costs. David L. Brewer, ASBCA 9633, 05-1 BCA ¶ 4591 (1964) ; Blake Constr. Co., GSBCA 1176, 66-1 BCA ¶ 55S9 (196,6) ; 3 McBride & Wachtel, Government Contracts § 24.67|0[4], Application of A.G.C. rates to cost of acquisition of equipment is generous to plaintiff in the instant case as illustrated, among other things, by the fact that 7 of plaintiff’s 20 known pieces of equipment were fully depreciated and thereon plaintiff suffered no depreciation during idle time, yet the A.G.C. rates as set forth in the A.G.C. manual in evidence allows substantial percentages therefor.
     
      
       The indirect costs as shown, are properly included, with total expenses other than G & A expenses, since the direct charges claimed herein, including the A.G.C. rates allowed, contain the expenses of depreciation, shop expense, payroll taxes, and insurance.
     