
    C. HEINZ, G. HINTERREGER & SONS, Fa. HOFMAN & MACULAN v. THE UNITED STATES
    [No. 557-57.
    Decided February 6, 1963]
    
      Gilbert A. Cuneo for plaintiffs. David N. Barus, D. Erich Jung, Arthur B. Carton, and Clarence B. Maguire, on th& briefs.
    
      Kendall M. Barnes, with, whom was Acting Assistant Attorney General Joseph D. Guilfoyle, for defendant.
   Laramore, Judge,

delivered the opinion of the court:

Plaintiffs, three Austrian contractors, who had contracts for the construction of certain buildings at Camp Eoeder,. Salzburg, Austria, sue to recover damages for alleged breach of contract by defendant. Substantially the same facts and issues are involved in each contract.

Many questions are presented by both plaintiffs and defendant. However, in our opinion, the basic and primary question as to whether the Government agreed to something and failed to carry out said agreement, is entirely dispositive of this case.

The facts are these: Plaintiffs, herein referred to as Heinz, Hinterreger and Hofman, are construction firms in Salzburg, Austria.

■ In the Spring of 1951, the U.S. Forces, Austria, had received- a directive to construct a 10,000-man camp at Salz-burg. Bids were received, disclosing that the lowest bids were by German firms. It then became apparent that the German firms could not do work in Austria without special licenses. The low Austrian bidders were Heinz and Hin-terreger. It was the opinion of the Army that all bids received were too high and negotiations were undertaken to attempt, to secure reductions to bring them more in line with the German bids.

As a result of the negotiations Heinz was awarded the-contract for the construction of one group of five barracks.

During the course of negotiations Heinz asked for certain concessions. One was that it be paid for materials as they were delivered to the job site. Another was that it be allowed to submit invoices every two weeks rather than at monthly intervals as specified in the contract. When, in connection with the latter request, they asked how long payment would take, they were advised that this was not within the control of the engineers, but it was the opinion of the representatives present that it would not take more than 14 days after a correct invoice was received. The concern of plaintiffs over prompt payment reflected an endemic capital scarcity in Austria at the time and consequent high bank rates on borrowed money.

Heinz agreed to a reduction in the bid price of 5.505 percent, and the agreement was recognized by an exchange of letters. Heinz wrote the engineers confirming its understandings. The letter, in pertinent part, is as follows:

2) Payment for construction work according to biweekly presentation of bill based upon achieved work, whereat up to completion of 50% of the total building extent 10% of individual partial bills will be kept back. After attainment of more than 50% of total contractual volume the biweekly partial bills will be reimbursed in full value.
3) In addition to the biweekly submitted partial bills for performed building work, building material stockpiled in advance on the building site will be shown separately in bill and this reimbursed simultaneously with the biweekly partial bills.
4) Payment for final invoice takes place immediately after completion of buildings without guarantee— deposit, in within not more than 2 weeks after submitting of bill.
5) At observation of conditions for payment shown in Paras 1-4 by you, we will grant a reduction of 5 %% of the respective partial bill based upon the unit prices of our bid.

Under date of June 11, 1951, the contracting officer, who had not been present at the prior conferences, wrote to Heinz. His letter, in material part,' reads as follows:

In reply to your letter of 8 June 1951 * * * and in confirmation of certain statements made by my representative, * * * to your group, the Contracting Officer hereby informs you that in accordance with the terms of the contract form * * *, the following terms will govern the administration of your proposed contract for the construction of five buildings in the Siezenheim Area:
1. Your invoices for the estimated work accomplished to include building materials on the site may be submitted every two weeks and will be paid as soon as practicable thereafter (a period which it is anticipated will not normally exceed two weeks), except that 10% of the amount payable on each occasion will be withheld until final completion and acceptance of all work under the contract.
2. While the Contracting Officer may waive the further application of the 10% withholding upon successful completion of 50% of the work to be done under the contract, your attention is invited to the fact that as a condition precedent to such waiver you must have shown evidence of satisfactory progress in the work.
3. Specific attention is invited to the fact that upon payment for building materials on the work site, title thereto rests with the US Government and said materials must be held free therefore from possible claims or actions on the part of third parties, and may not be obligated by lien, mortgage, loan or other encumbrance. By title resting in the US Government, you are not thereby relieved from your responsibility under the contract for proper protection and use of the said materials. Further, where payment is made separately, if so made, for building materials on the work site, such payment must quite obviously be subsequently absorbed into the payments for work in place.
*****
5. In consideration of the above you therefore agree-to reduce the sum of your bid by 5.505%, said reduction to be applicable to the work in place portion of each-partial invoice and in the final invoice covering the work as a whole.

At the request of Heinz, there was inserted in the contract only on the copy given Heinz, the words “My letter from [sic] 11 June 1951 applies to this contract.”

In about July of 1951, the Army was ready to continue with the construction of Camp Boeder, and- again bids were-solicited. The situation relative to'the bids was practically the same as in the Heinz bid and contract. Eventually an. agreement was reached between the defendant and Hinter-reger and Hofman, respectively, whereby a 19 percent price-reduction was given in exchange- for certain concessions. The only concession here involved was that Hinterréger and Hofman be permitted to submit invoices every two weeks, rather than at monthly intervals as had been allowed in connection with the earlier contract. They were told that this< would be permitted, but were given no assurance as to how much time would be required to effect payment of such invoices. It appears that of the 19 percent price reduction respecting both Hinterreger and Hofman, only 5 percent was-granted in consideration of the change in the early submission of invoices provision. The balance of the discount was-granted for considerations not material herein.

Under date of August 11, 1951, the contracting officer-addressed a letter to Hofman. This letter is identical to» that of September 7 to Hinterreger which reads, in material part, as follows:

With reference to our negotiations of 11 August 1951 * * *• and in confirmation of certain statements made by my representative * * * to your firm, the Contracting Officer hereby informs you that in accordance with the terms of the contract form * * *, the following terms will govern the administration of your proposed contract for the construction of fifteen buildings at Camp Boeder, Siezenheim.
1. Your invoice for the estimated work accomplished may be submitted every two weeks and will be paid as soon as practicable thereafter, except that 10% of the amount payable on each occasion .will be withheld until final completion and acceptance of all work under the contract. Payments of these bills may be made in Deutsch Marks up to 50% of the contract price, the remaining 50% may be paid in A. Schillings. Legal US conversion rates will apply.
2. While the Contracting Officer may waive the further application of the 10% withholding upon completion of 50% of the work be done under the Contract, your attention is invited to the fact that as a condition precedent to such waiver you must have shown evidence of satisfactory progress of the work.
5. In consideration of the above you therefore agree tó reduce the sum of your bid by 19%, said reduction to be applicable to the work in place portion of each partial invoice and in the final invoice covering the work as a whole.

Hofman, by its authorized representative, replied . as follows:

The construction group Hofman & Maculan represented by Dipl. Ing Sponer hereby agrees to reduce our corrected bid price A.S. 11,727,234 — for the construction of 5 barracks by 19%.
It is understood that we will be allowed to submit bills for payment of work in place bimonthly. It is further understood that payment is to be 50% maximum deutsch mark and 50% schillings.
Individual bills will be submitted either in D-marks or schillings. Legal US conversion rates will apply.

As in the Hinterreger case, Hofman claims that only five percent of the price reduction granted was in consideration of the change in the contract provision relating to payment. These letter requests and answers by defendant were, as in the case of Heinz, attached to the Hofman contract.

Plaintiffs thereupon embarked upon the performance of their respective contracts and submitted invoices. For various reasons, few, if any, of the vouchers were paid within two weeks of their original submission. This stemmed from a combination of factors, which are particularly set forth in finding 10. In general, the payment date took more than two weeks because of necessary checking of measurements; lack of centralized control by plaintiffs in the manner of preparing schedules; errors in schedules; checking quantities of work done and materials on hand; substantial variations in final 'claimed quantities and ensuing negotiations; erroneous delivery of documents; late deliveries of documents; errors in calculations; preparation of new and corrected documents after changes were made, etc. No priority was given the plaintiffs in the processing of their bills for payment over other contractors performing contracts at Camp Boeder. Defendant’s officer who supervised the processing of invoices for payment was not aware that plaintiffs’ bills were to be expedited because of a discount for prompt payment feature, and did not know the reasons for the discounts from plaintiffs’ bid prices.

The plaintiffs each demanded payment from defendant of amounts representing the reduction in bid prices resulting from said discounts. Defendant, acting through the contracting officer, denied plaintiffs’ demands. Plaintiffs each appealed to the Board of Contract Appeals. Said Board rendered decisions denying each claim, which decisions were subsequently approved by the Commanding General, U.S. Forces in Austria.

Plaintiffs Heinz and Hofman could not appeal the decisions to the Armed Services Board of Contract Appeals, Washington, D.C., under the “Disputes” clause of their respective contracts, because the amount involved was under $50,000. Plaintiff Hinterreger did, however, appeal and said appeal was dismissed insofar as it related to this claim.

Plaintiffs, through their attorney, filed requests in writing with the Comptroller General of the United States for his consideration and determination of the claims. The Comptroller General advised that there was no basis for plaintiffs’ claims.

Further facts are found relating to the lack of arbitrary and capricious action pertaining to any of the foregoing decisions. Additional facts are found relating to a release executed by Heinz. For reasons which will become apparent, we are not called upon to relate or discuss these findings.

It is plaintiffs’ position that in the light of the contract price reductions, the defendant had the obligation not only to permit filing of invoices every two weeks, but to give these invoices special treatment in processing so that each of defendant’s payments thereon to the plaintiff contractor would be made more promptly than ordinarily.

It is defendant’s position that there was no obligation on the United States to pay plaintiffs’ invoices within any particular period of time and that in any event all of plaintiffs vouchers were paid as soon as practicable after their submission.

Respecting the Heinz contract, the result of the negotiations and the concessions granted him were quite simple. Heinz was given a right to submit invoices every two weeks rather than at monthly intervals and was to be paid for materials delivered to the job site. Beyond question, Heinz submitted invoices every two weeks and beyond question Heinz was paid for materials delivered to the job site.

In connection with the payment provision, it is clear that in answer to Heinz’s question regarding time, no one present on behalf of the United States knew or was in a position to make a promise as to how long it would take to make payment. True, an opinion was given, but was it a representation binding upon the United States? We think not. So many factors entered into such a situation that it would be practically impossible for any person to accurately foresee bow much time would be consumed in the processing thereof. As a matter of fact, in this case the facts as outlined above pertaining to all three contracts show that there were many factors which necessarily must have caused certain delays in payment. What more must the defendant do in circumstances such as this when payment is promised as soon as practicable?

Plaintiffs each say that the defendant promised special treatment and priorities regarding payment,:and it is a fact that no priority was given the plaintiffs in the processing of their bills for payment over other contractors performing contracts at Camp Boeder. However, as we read the agreements, no priority in payment was promised. The defendant in each instance in effect merely promised to do its best. In fact, plaintiffs each did receive a substantial benefit resulting from the contract price reduction. Each contractor did file invoices every .two weeks and the defendant engineers actually were able to begin processing them much earlier than possible under a standard form contract where invoices are submitted monthly. We know that this processing is, under any circumstances, time consuming and certainly plaintiffs enjoyed an appreciable gain in this time element. What happened at. the payment level is of no concern here. However, the evidence, shows that very little, if any, delay was experienced from the date the bills were sent to the finance office and the .date of payment. If there was delay in the processing of the claims before they were received in the finance office, the facts conclusively show that all delays were the fault of the respective contractors.

In summary, the maximum obligation of the Government was to permit early submission of invoices and pay for materials on the job site and in respect to each make payment as soon as practicable thereafter. We think the Government fully lived up to its agreement and plaintiffs each received what it bargained for.

For the above stated reasons it is unnecessary to discuss other issues presented by defendant.

Plaintiff’s petition will be dismissed.

Reed, Justice (Bet.), sitting by designation; Davis, Judge? Dukfee, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Trial Commissioner C. Murray Bernhardt, and the briefs and argument of counsel, makes findings of fact as follows:

1. The Plaintiffs. Plaintiffs, C. Heinz, G. Hinterreger & Sons, and Fa. Hofman & Maculan, are construction firms, all of Salzburg, Austria, and doing business in Austria. The record does not show whether they are corporations, partnerships, or individual proprietorships. ■ For convenience, the plaintiffs will be referred to hereafter as “Heinz”, “Hinterreger”, and “Hofman”.

2. The Contracts, (a) Heinz. On July 13, 1951, Heinz entered into a contract (DA-91-808-USFA-63) with defendant, acting through the Army, for the construction of five barracks at Camp Boeder, Salzburg, Austria.

(b) Hinterreger. On August 21, 1951, Hinterreger entered into a second contract (DA-91-808-USFA-126) with defendant, acting through the Army, for the construction of 15 additional messhalls at Camp Boeder. Hinterreger had previously contracted to build ten other messhalls. No claim is asserted in connection with the earlier contract.

(c) Hofman. On September 8,1951, Hofman entered into a contract (DA-91-808-USFA-112) with defendant, acting through the Army, for the construction of five barracks at Camp Boeder.

3. The Heinz hid. (a) In the spring of 1951 the United States Forces, Austria (hereinafter referred to as “USFA”), had received a directive to construct a 10,000-man camp at Salzburg. Bids were opened for the first increment of 10 barracks and 10 messhalls in May -1951. The lowest bids were submitted by German construction firms. However, the Austrian bidders made representations to the Austrian Government, and were advised that these firms would require special licenses to work in Austria. The apparent low Austrian bidder on five of the barracks was a group of Austrian firms headed by Heinz, and the apparent low bidder on the messhalls was another group of Austrian firms headed by Hinterreger. It -was the opinion of the Army that all of the bids received were too high, and negotiations were undertaken to attempt to secure reductions to bring them more into line with the German bids. As a result of these negotiations, reductions ranging from five to five and one-half percent from their original bids were granted by Heinz and the other firm bidding on the barracks.

(b) During the course of these discussions, the representatives of Heinz also asked for certain concessions. The contracts were to be “unit-price”, i.e., contracts under which the contractor was to be paid specified prices for each unit of construction. The contractors requested that in addition they be paid for materials as they were delivered to the job-site. They also requested that they be allowed to submit invoices every two weeks, rather than at monthly intervals as specified in the standard form of construction contract. When, in connection with the latter request, they- asked .how long payment would take, they were advised that this was not within the control of the Engineers, but that it was the opinion of the representatives present that it would not take more than 14 days after a correct invoice was received. The concern of plaintiffs over prompt payment reflected an endemic capital scarcity in Austria at the time and consequent high bank rates on borrowed money.

4. Heinz correspondence, (a) In submitting its bid, Heinz had requested a waiver of the contract provision under which the Government could withhold 10 percent of progress payments. Following the conference referred to in the preceding finding, Heinz wrote the Engineers confirming its understandings. So far as here material, that letter stated:

2) Payment for construction work according to biweekly presentation of bill based upon achieved work, whereat up to completion of 50% of the total building extent 10% of individual partial bills will be kept back. After attainment of more than 50% of total contractual volume the biweekly partial bills will be reimbursed in full value.
3) In addition to the biweekly submitted partial bills for performed building work, building material stockpiled in advance on the building site will be shown separately in bill and this reimbursed simultaneously with the biweekly partial bills.
4) Payment for final invoice takes place immediately after completion of buildings without guarantee— deposit, in within not more than 2 weeks after submitting of bill.
5) At observation of conditions for payment shown in Paras 1-4 by you, we will grant a reduction of 5%% of the respective partial bill based upon the unit prices of our bid.

(b) Under date of June 11, 1951, the contracting officer, who had not been present at the prior conferences, wrote to Heinz. His letter,, in material part, reads as follows:

In reply to your letter of 8 June 1951 * * * and in confirmation of certain statements made by my representative, * * * to your group, the Contracting Officer hereby informs you that in accordance with the terms of the contract form * * *, the following terms will govern the administration of your proposed contract for the construction of five buildings in the Siezenheim Area:
1. Your invoices for the estimated work accomplished to. include building materials on the site may be submitted every two weeks and will be paid as soon as practicable thereafter (a period which it is anticipated will not normally exceed two weeks), except that 10% of the amount payable on each occasion will be withheld until final completion and acceptance of all work under the contract.
2. While the Contracting Officer may waive the further application of the 10% withholding upon successful completion of 50% of the work to be done under the contract, your attention is invited to the fact that as a condition precedent to such waiver you must have shown evidence of satisfactory, progress in the work.
3. Specific attention is invited to the fact that-upon payment for building materials on the work site, title thereto rests with the US Government and said materials must be held free therefore from possible claims or actions on the part of third parties, and may not be obligated by lien, mortgage, loan or other encumbrance. By title resting in the US Government, you are not thereby relieved from your responsibility under the contract for proper protection and use of the said materials. Further, where payment is made separately, if so made, for building materials on the work site, such payment must quite obviously be subsequently absorbed into the payments for work in place.
*****
5.In consideration of the above you therefore agree to reduce the sum of your bid by 5.505%, said reduction to be applicable to the work in place portion of each partial invoice and in the final invoice covering the work as a whole.

5. Heinz contract. The contract which was tendered to Heinz contained only the clauses normal in such contracts. However, before the Heinz representative signed the contract, he requested that the contracting officer insert a reference to the latter’s letter of June 11, 1951, supra. There was therefore inserted above the contracting officer’s signature, and only on the copy of the contract given to Heinz, the words “My letter from [sic] 11 June 1951 applies to this contract”.

6. The Hinterreger and Hofman bids. In about July of 1951 the Army was ready to continue with the construction of Camp Boeder, and again solicited bids. Again the low bids were submitted by German firms. Again there were negotiations with the Austrian firms to bring their bids more into line with those submitted by the Germans. Although the present record is not clear, it appears that these negotiations were originally conducted in Vienna with representatives of the Austrian Government, the Austrian Contractors’ Association, the American Embassy, and possibly the commanding officer of USFA. Apparently the Austrian contractors there agreed to give a 19-percent reduction in their prices, and certain concessions were tendered to them. This was followed by a conference in Salzburg with the commanding officer of the Engineers Detachment, to formulate the details. Among the concessions requested by representatives of Hinterreger and Hofman at this time was that they be permitted to submit invoices every two weeks, rather than at monthly intervals, as had been allowed in connection with the earlier contracts. They were told that this would be permitted, but were given no assurance as to how much time might be required to effect payment of such invoices.

7. The Hinterreger and Hofman corresfondence. (a) Under date of September 7,1951, the contracting officer, addressed a letter to Hinterreger. This letter, in material part, read as follows:

With reference to our negotiations of 11 August 1951 * * * and in confirmation of certain statements made by my representative * * * to your firm, the Contracting Officer hereby informs you that in accordance with the terms of the contract form * * *, the following terms will govern the administration of your proposed contract for the construction of fifteen buildings at Camp Boeder, Siezenheim.
1. Your invoice for the estimated work accomplished may be submitted every two weeks and will be paid as soon as practicable thereafter, except that 10% of the amount payable on each occasion will be withheld until final completion and acceptance of all work under the contract. Payments of these bills may be made in Deutsch Marks up to 50% of the contract price, the remaining 50% may be paid in A. Schillings. Legal US conversion rates will apply.
2. While the Contracting Officer may waive the further application of the 10% withholding upon completion of 50% of the work be done under the Contract, your attention is invited to the fact that as a condition precedent to such waiver you must have shown evidence of satisfactory progress of the work.
* iji # # *
5. In consideration of the above you therefore agree to reduce the sum of your bid by 19%, said reduction to be applicable to the work in place portion of each partial invoice and in the final invoice covering the work as a whole.

(b) Only five percent of the 19 percent reduction was granted in consideration of permission given for early submission of invoices. The balance of the discount was granted because of (1) the promise to pay half of the amount in German marks, (2) the promise of a loan from ECA funds, (3) an alleged agreement by the Austrian Government to bear the cost of any wage increases that might occur, and (4) an alleged agreement by the Austrian Government to see that needed steel was delivered promptly. These other items are not now in issue.

(c) Under date of August 11,1951, the contracting officer addressed a letter to Hofman. This letter is identical with that of September 7 to Hinterreger quoted in paragraph (a) of this finding. By letter dated the same day, signed by the authorized representative of Hofman who had negotiated the contract, it was stated as follows:

The construction group Hofman & Maculan represented by Dipl. Ing Sponer hereby agrees to reduce our corrected bid price A.S. 11,727,234 — for the construction of 5 barracks by 19%.
It is understood that we will be allowed to submit bills for payment of work in place bimonthly. It is further understood that payment is to be 50% maximum deutsch mark and 50% schillings.
Individual bills will be submitted either in D-marks or schillings. Legal US conversion rates will apply.

In the Hofman case only five percent of the price reduction granted was in consideration of the change in the contract provision relating to early submission of invoices.

8. The second Hinterreger contract and the Hofman contract. The contracts tendered to Hinterreger and Hofman, following the negotiations and correspondence described in preceding findings, contained only the clauses normal in such contracts. However, a copy of the contracting officer’s letter of August 11, 1951, was attached to the Hofman contract.

9. The contract terms. All three of the contracts in issue contained the following provision in the specifications:

GC — 24. SCOPE AND EFFECT OF AGREEMENT:
a. These General Conditions, together with the Special Conditions, technical Specifications, Contractor’s bid and formal Contract document embody the entire agreement between the Government and the Contractor and supersede all other understanding, written or oral, which may have been previously entered into between the parties hereto.
b. This agreement may be modified or amended in writing by the Contracting Officer under its provisions, or by .mutual agreement of the parties hereto; but no oral statement or agreement will in any manner modify or otherwise affect its terms * * *.
c. It is mutually agreed that the English text of the agreement * * * shall be the official text and shall in cases of disputes be controlling.

10. Payment of vouchers, (a) In the case of all three contracts in issue, few if any of the vouchers were paid within two weeks of their original submission.. This stemmed from a combination of factors. In the first place, since these were unit-price contracts, and since they had been prepared in the Austrian fashion with hundreds of unit prices in each structure, there was necessarily a large volume of units of construction to be verified and measured; of necessity, this required some time.

(b) In the second place, each of the three plaintiff contractors was in fact the head of a group of contractors. Each contractor composing a group had one or more of the buildings covered by the contract, which he was constructing independently of the rest of his group. Each of these contractors prepared, for attachment to each voucher, a schedule of the claimed progress on his building. No centralized control was exercised by plaintiffs over the manner of preparing these schedules, and different types of errors were discovered in the schedules for different buildings.

(c) In the third place, credit frequently was not given on subsequent invoices for the value of materials delivered to the jobsite and previously paid for, but incorporated into the building during the period covered by the invoice. This required a checking not only of quantities of work done, but also of quantities of materials on hand. It was also necessary to verify that the materials on hand, for which payment was claimed, were of the types necessary for the buildings, and not in excess of the quantities reasonably required.

(d) Peculiar to the Hinterreger contract was the fact that the correspondence with the contracting officer did not provide for payment for material delivered but not installed, but plaintiff included such material on its original invoices.

(e) Finally, on the final vouchers it was discovered that, in the construction of identical buildings, there were substantial variations in the final claimed quantities of many pay items, even under the same contract. A meeting of all of tbe contractors and subcontractors was eventually held, at which the Army disclosed the variations in claimed quantities, and stated what quantities it had computed and would allow. This was followed by individual negotiations with each contractor or subcontractor who might request it.

(f) The procedure used in preparing and processing vouchers under these contracts was as follows: A detailed statement was prepared for each building, setting forth the quantities of work performed at each “position” (i.e., pay item) to the date of the statement. These were assembled by the respective plaintiffs from the subcontractors who were actually doing the work on the buildings in question and were summarized on a so-called “cover sheet”. This listed the amount claimed on each building, and a total claimed for the contract; there was then deducted the amount of any applicable discounts and amounts previously paid on prior vouchers.

(g) These documents were then delivered to the Project Engineer, although in some cases they were erroneously delivered to field engineers. In the later stages of the contract they were delivered to the office of the commanding officer of the Engineering Construction Detachment, and by him delivered by hand to the Project Engineer. Apparently because of difficulties experienced by the contractors, and their subcontractors, in preparing these documents, they were frequently not delivered until from 10 days to two weeks after the date as of which they were prepared. Copies were then delivered to the inspectors on the buildings to verify that the amount of work claimed had in fact been satisfactorily performed, and that credit had been given against the unit prices for materials, previously paid for. In addition, a check was made in the office.to determine that the correct unit prices had been applied, and that the projections (i.e., the multiplication of the quantities by the unit prices) were correct. Errors were often found in these calculations.

(h) The changes made were then discussed with and explained to a representative of the contractor. Upon agreement being reached, a new cover sheet was prepared reflecting the corrected totals, and reexecuted by him. This was necessitated by the fact that the Finance Office, to which this cover sheet went as support for the voucher, was unwilling to make payment on documents with excessive alterations. These corrected cover sheets were generally dated on the day upon which they were prepared, which may have antedated their actual execution by a representative of plaintiffs.

(i) They were then approved by or on behalf of the Project Engineer, the commanding officer of the Engineering Construction Detachment, and the contracting officer, and were forwarded to Finance for payment. In general, they were hand-carried from one approving official to the next, and a special messenger service was employed to carry them to Finance.

(j) USFA was aware of plaintiffs’ needs for cash and endeavored to avoid any undue delay. Logs were maintained as to the receipt and approval of the vouchers, and a weekly report was required to be made to the USFA engineer as to the status of the processing of these.

(k) The final vouchers presented a different problem. A large group of buildings had been erected which, except for possible variations in foundations, were supposed to be identical. Yet substantial variations often appeared in the final quantities claimed of the various pay items. After studying the varying claims, the Project Engineer, with the concurrence of the contracting officer, called a meeting of all contractors and subcontractors who had constructed identical types of buildings. At this conference the range of claimed quantities was disclosed, without revealing which contractor had submitted which figure, and the results of •the Govermnent’s measurements were disclosed. There was general discussion in an attempt to reach an agreement. The Project Engineer had been authorized to, and did, depart from his measured quantities to a reasonable extent, to secure such agreement. Following this general conference, individual conferences were held with each contractor and subcontractor, taking two or three days each, to consider his particular problems and to attempt to secure his agreement on quantities.

(1) No priority was given the plaintiffs in the processing of their bills for payment over other contractors performing contracts at Camp Eoeder. Defendant’s officer who supervised the processing of invoices for payment was not aware that plaintiffs’ bills were to be expedited because of a discount for prompt payment feature, and did not know the reasons for the discounts from plaintiffs’ bid prices.

11. The evidence is not entirely satisfactory as to the precise dates when vouchers were originally submitted by plaintiffs, the dates when they were paid, and the reasons for such delay as occurred. In general, however, the information summarized in Tables I, II, and III represents such information as is available.

12. Plaintiffs each demanded payment by defendant of amounts representing the reductions in bid prices resulting from the said discounts.

13. Defendant, acting through the contracting officer, denied plaintiffs’ demands.

14. Plaintiffs each then appealed to the Board of Contract Appeals, United States Forces in Austria, for payment of the respective amounts demanded and denied.

15. Said Board rendered decisions denying each of these claims asserted by plaintiffs, although certain other claims were allowed. These decisions were subsequently approved by the Commanding General, United States Forces in Austria.

16. Plaintiffs Heinz and Hofman could not appeal the decisions of said Board to the Armed Services Board of Contract Appeals, Washington, D.C., under the “Disputes” clause in their respective contracts, because the amount involved was under $50,000.

17. Plaintiff Hinterreger appealed to said Armed Services Board, which dismissed the appeal as far as it related to this item of claim.

18. Through their attorney, plaintiffs filed on November 20, 1956, a request in writing with the Comptroller General of the United States for his consideration and determination of the claims of plaintiffs administratively. By letters dated June 25, 1957, September 19, 1957, and November 26, 1957, the Comptroller General advised that there was no-basis for plaintiffs’ claims.

19. There is no allegation, and no evidence that any of the foregoing decisions were arbitrary, capricious, fraudulent, so grossly erroneous as necessarily to imply bad faith, or not supported by substantial evidence. The entire records which were before the USFA Board, and, in the case of Hinterreger, the Armed Services Board of Contract Appeals, are in evidence. There was substantial evidence in the administrative records and the proceedings in this court to support these decisions.

20. (a) The USFA Board awarded Heinz 15,533.56 Austrian schillings (about $600) on other claims. At the time that a voucher covering this sum was processed for payment, a release was presented to Heinz, and was signed by a duly authorized representative of the firm. This release read as follows:

FINAL FATMENT RELEASE
Under Contract No. DA-91-808-USFA-63 dated 13 Jul 51 for gen. constr. services at 5-200 Man Barracks, Camp Roeder.
The work under the above numbered contract between the United States of America, represented by the Contracting Officer, and the undersigned contractor, having been completed and finally accepted, or terminated for the convenience of the Government, the United States of America, its officers and agents, are hereby released from all claims and demands whatsoever arising under or by virtue of said contract, except—
(a) Claims in stated or estimated amounts, as follows:
none
(b) Any and all claims arising out of the performance of this contract based upon the responsibility of the undersigned to third parties not known at the timwe of executing this release.
Executed this 17th day of November 1954.

(b) Thereis no evidence that any fraud or duress was practiced upon Heinz in inducing the execution of this release. Hinterreger and Hofman, in similar circumstances, inserted in their releases a reservation of the present claim, rather than the word “None”. Nor does the record support Heinz’ claim that he orally agreed with defendant to reserve the present claim.

21.- No evidence was offered as to damages. The issue of liability was not separated for trial.

CONCLUSION OB' LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiffs are not entitled to recover, and the petition is therefore dismissed. 
      
       Copied from English translation with correction of obvious errors.
     
      
      
         Except for the payment for materials delivered to the joh site, the facts and issues are substantially the same in all three contracts. Consequently, what we say regarding the Heinz contract will be equally applicable to the other two contracts.
     
      
       The correspondence referred to in the summary of facts reveals that Hinterreger and Hofman could submit invoices every two weeks and “* * * will be paid as soon as practicable thereafter * *
     
      
       Copied from English translation with correction of obvious errors.
     
      
       The evidence offered by plaintiff of oral negotiations on the discount for prompt payment varying the terms of the written agreement does not, even if admissible, persuade a belief that the July 11 letter failed to reflect the oral understanding correctly.
     
      
       As in the case of the Heinz contract, the oral evidence offered by Hinter-reger and Hofman as to a firm discount agreement for prompt payment fails to dislodge the effect of the written contract, even assuming admissibility.
     