
    SAMUEL S. PALUMBO, DOING BUSINESS AS PALUMBO EXCAVATING COMPANY, A SOLE PROPRIETORSHIP v. THE UNITED STATES
    [No. 49391.
    Decided July 13, 1953]
    
      There was no appearance for the plaintiff. Messrs. D. M. Mealy, C. E. Cessna, Jr., and Mealy, Newby, Cessna & Mealy, were on the brief.
    
      Mr. 8. B. Gamer, with whom was Mr. Assistant Attorney General Mobnes Baldridge, for the defendant.
   Littleton, Judge,

delivered the opinion of the court:

Plaintiff sues to recover the sum of $105,265.80 which he alleges is due him from the defendant under a construction contract as a remission of liquidated damages assessed against him under the contract and as additional compensation for work performed, for which he alleges he was not compensated.

On June 29, 1943, Samuel S. Palumbo, Joseph Palumbo and Carmella C. Palumbo, a partnership, doing business as Palumbo Excavating Company, and Maurice Chernus, Joseph Sharf, and Lena Chernus, a partnership, doing business under the name of Chernus Construction Company, entered into a contract with, the defendant acting through the Department of Commerce, Civil Aeronautics Administration, for the grading, draining, fencing, conditioning, and seeding of the El Dorado, Arkansas Airport. This was a unit price contract and the total consideration was to be based on the quantity of work performed.

On July 1, 1943, defendant gave the contractors notice to proceed with the work. They began the work July 12, 1943. The contract was completed and accepted by the defendant August 11,1944.

March 18,1944, the partners comprising Chernus Construction Company, assigned all of their interest and claims in the contract to Palumbo Excavating Company. Subsequently, on January 2, 1945, all the interest and claims of the Palumbo Excavating Company in the contract were assigned to the plaintiff, Samuel S. Palumbo.

The contract provided for completion of the work within 100 calendar days after the effective date of notice to proceed. The work was thus scheduled to be completed on October 8, 1943, but it was actually completed on August 11,1944. This was 408 days after the effective date of the notice to proceed. The contract time of 100 days was extended 176% days by the defendant through issuance of stop orders, as provided for in the contract, and plaintiff was charged with 131% days’ delay.

Shortly after the work had been completed and accepted by the defendant, the plaintiff was informed by the defendant’s contracting officer that liquidated damages in the sum of $26,300 would be assessed against him for alleged delays of 131% days in completing the work required under the contract. The contract provided that the contractor was to be assessed liquidated damages at the rate of $200 per day for each day of inexcusable delay in completing the work.

The plaintiff immediately objected to the decision of the contracting officer relating to liquidated damages, and on November 17,1944, the contracting officer allowed the plaintiff an additional extension of 24 days on the contract completion time and liquidated damages' were assessed against the plaintiff in the sum of $2i,500, based on alleged delays of 107% days, at the rate of $200 per day. Tire time was extended 14 days for delay encountered by plaintiff in getting its equipment moved to the site and 10 days because of an overrun of approximately ten percent of the expected contracted quantities. The plaintiff had also made claims, after completion of the work, involving the alleged performance of extra work under the contract which were considered and denied by the contracting officer on the merits.

The plaintiff appealed the decision of the contracting officer to the head of the department who, after consideration of the claims on the merits, affirmed the contracting officer’s findings and decision on July 11, 1946, and stated that the entire matter was being forwarded to the General Accounting Office for final settlement. The General Accounting Office, on May 22,1947, made final settlement in accordance with the decision of the head of the department except that the amount of liquidated damages was reduced by the sum of $100, for the reason that the contract did not provide for the assessment of liquidated damages for less than an entire day. In making final payment to the plaintiff, there was deducted from the contract price, otherwise due, the sum of $21,400 as liquidated damages and no payment was made on plaintiff’s claims for alleged extra work, all of which claims were specifically excepted by plaintiff from the final release executed December 4, 1944.

Plaintiff contends that the late completion of the work was not chargeable to him, and that the contracting officer acted unreasonably in assessing the liquidated damages instead of granting adequate time extensions to cover the periods of delay. He further alleges that he was not fully compensated because of the failure of the contracting officer to properly credit him with extra work performed under the contract, and to pay him therefor.

The defendant asserts (1) that the plaintiff has failed to prove that proper time extensions were not given for all .periods when his men were unable to work; (2) that the plaintiff is now estopped to assert these claims since he failed to make timely objections or requests for extensions as required under the contract; (3) that plaintiff was in fact fully compensated for all work completed under the contract; and (4) that in any event the decision of the head of the department which upheld the findings and decision of the contracting officer is final and conclusive on all of the plaintiff’s claims.

The plaintiff has specifically abandoned several of the claims set forth in his petition, while as to others no proof was presented at trial. Hereinafter, under appropriate headings, we will discuss briefly only those items of claims upon which evidence was introduced.

DELAY SURROUNDING THE NOTICE TO PROCEED

Plaintiff asserts that this notice to begin work was issued too soon following the execution of the contract, i. e., 2 days, although the contract contained no restriction as to when this notice could or should be given. Plaintiff began work within 15 days after such notice to proceed, and made no objection at the time. After completion of the work plaintiff complained that this notice did not allow him sufficient time to move his equipment to the site in order to begin work effectively. An extension of 14 days was later allowed the plaintiff on this basis. The proof fails to show that plaintiff lost any working time because of this situation for which the 14-day extension did not fully compensate him.

STOP ORDERS

Plaintiff alleges that he was not given credit for the time consumed in getting ready to resume work after each of the stop orders was lifted. Plaintiff at no time objected to the release of any of the orders with the exception of one, and the proof shows that none of the stop orders was actually released until the plaintiff had resumed work in a substantially normal matter. In fact, the defendant’s resident engineer, who was in charge of the construction work, permitted the plaintiff to do substantial progress work during periods when the stop orders were in effect. Stop Order No. 10 halted work for a long period during the winter months and the plaintiff did object to its release on the basis that he did not have sufficient funds to proceed. As a result, an extension of one week was granted after which work was resumed without further objection on the part of the plaintiff.

BORROW PITS

When insufficient quantities of suitable earth for grading and filling were not available from the excavations indicated on the plans, this material was to be obtained from borrow pits designated by the resident engineer. Extra compensation was provided for borrow pit excavation, and the contractor was obligated by the contract to keep those pits drained. Plaintiff now claims that because the borrow pits became wet, he was forced to use material stockpiled in the field areas. Later when it became necessary to fill the field areas, it was necessary for plaintiff to resort to the borrow pits which resulted in longer hauls than would have been necessary if plaintiff had not previously depleted the field area stock piles. The contractor contends that this delayed the work. No request was made by plaintiff for a stop order or extension of time because of this alleged delay, nor does the evidence show that any delay was caused by first using the stockpiled material.

PAVING CONTRACTOR

Plaintiff alleges that his work on the runways was delayed by the operations of the paving contractor. The plaintiff contends that this resulted from an order given by the resident engineer which required plaintiff to work at a distance of no more than 2,000 feet ahead of the paving operations. The evidence shows that no such order was given and, in direct opposition to the contentions of the plaintiff, the proof shows that it was the faulty operations of the plaintiff which actually interfered with the paver’s progress to the extent that the paver in order to maintain his progress schedule performed tasks which were properly those of the plaintiff.

EQUIPMENT SHORTAGE, PRIORITIES AND REPAIR PARTS

Plaintiff contends that priority problems for which he was not responsible caused delays in the progress of his work because he was unable to acquire the needed equipment and repair parts, or when he did acquire them, it was only after long delays. The evidence shows defendant’s representatives made all reasonable efforts to assist plaintiff in connection with his applications for priorities, and plaintiff at no time during the progress of the work requested a time extension because of these alleged delays.

OPEN DITCH EMBANKMENT

Plaintiff, when excavating for this particular ditch placed the material, as required, in an embankment for later use in filling and grading. It later developed ■ that this soil was not needed and since the embankment bordered on a runway and reached twenty feet in height, the plaintiff was directed to level it off to a height of four feet. The plaintiff now contends that this resulted in extra work for which he should have been paid. Under the contract the contractor was obligated to do such leveling work and the evidence fails to show that the plaintiff was delayed unnecessarily in reducing the height of the embankment.

SILT REMOVAL

Plaintiff was required to remove silt and rock from the bottom of one of the drainage ditches in order that the ditch would meet contract specifications. Plaintiff urges that the presence of the silt and rock delayed his progress and that he was not properly credited for the time lost. Under the contract any silt removal was the responsibility of the contractor and the rock was removed without protest as part of the regular grading process. The proof does not show any loss of time because of this operation.

BENCH MARKS

Before plaintiff began any work the defendant’s engineering staff established and set out the original bench marks. These were placed on the center lines of the proposed runways, the only cleared area at the time. Later these marks were transferred as far as possible outside the graded area in order to have reference points for further work. These bench marks were to be the guides for all later surveying and leveling measurements. After final inspection of the project the plaintiff’s engineer called the resident engineer’s attention to three bench marks which were found to be in error. Plaintiff alleges that because of these errors he was “ordered” to go back and regrade the entire area at a cost of $57,000 thus considerably delaying the progress of the work. The evidence shows that there was no regrading of the entire area due to erroneous bench marks, nor does the proof show that the contractor was delayed or put to additional expense because of the three bench marks, admittedly in error, but found not to have been used in the grading operation. The only regrading shown to have been done resulted from the plaintiff’s failure to grade one particular area according to the specifications. No protest or request for a stop order or extension of time had been made by plaintiff at the time of the alleged regrading.

CONSTRUCTION OE DRAINAGE DITCHES, LEVEES, AND VALLEYS EOR SURFACE DRAINAGE

This work was called for under the contract and the proof fails to show that plaintiff lost any working time by reason of alleged “extra” work in constructing these items.

SOIL COMPACTION

Plaintiff encountered difficulty in compacting soil to contract specification on a portion of two of the runways. On the first, after being directed to aerate or dry out the soil, as the plaintiff was required to do in the first instance, proper compaction was obtained. On the second, a type of clay not encountered before on the job was unearthed. Plaintiff alleges that these two situations entailed difficulties which resulted in delaying his progress and requiring added work for which he was not compensated. The facts, as found, are that as to the first item the plaintiff was obligated under the contract to keep the soil properly aerated, and as to the second a relaxation of the contract specifications was allowed so that the contractor would not be delayed. There is no satisfactory proof of excess material and labor costs as a result of compaction difficulty. The plaintiff made no protests as to any delay occasioned by the compaction difficulties.

REFILLING ANO REGRADING WORK

Certain areas which, had been filled and graded suffered some erosion as a result of weather conditions. Prior to final approval plaintiff was directed to refill and regrade these areas which he did without protest. Later, however, the plaintiff claimed that he was entitled to be compensated for this work and entitled to a time extension because of the delay involved. The evidence shows that this work was part of the finishing operation required of plaintiff under the contract and that plaintiff lost no time by reason of such regrading and refilling.

TAXIWAT NO. 3

In setting grade stakes on one side of this taxiway, the defendant’s layout staff made an error which lowered the side of the taxiway eighth-tenths of one foot. Plaintiff recognized the error and reported it to the resident engineer. Plaintiff alleges that because a portion of the grading on the taxiway had already been done, he was forced to regrade the area a second time. The plaintiff made no protest with reference to this until many months after the alleged regrading was done. This error was corrected by resetting the height of the stakes on the other side of the taxi way which had not at that time been graded. As a result no extra grading was necessary and the taxiway instead of rising in the middle and sloping on each side, as originally planned, sloped entirely across from one side to the other. No extra cost or time loss was occasioned by these stake errors.

CONDITIONING AND SMOOTHING SEEDED AREAS

Under this claim, plaintiff alleges that he had performed conditioning and smoothing work on that area of the airport that had been seeded. This work was required under the contract and plaintiff claims that he was not paid therefor. The plaintiff is in error in his contention as to this item since he did not perform any work under the contract specifications upon which this particular claim is based. See Finding 43. The specifications in question applied only to work to be done on ungraded areas, i. e., where a cultivated field or surface at ground level existed and only a very small amount of smoothing was necessary to finish the area. The evidence shows that no such area was present on the site of this project since the entire area was either cut (tree covered) or fill (low land) for which the plaintiff was paid in accordance with the applicable grading specifications. This protest of plaintiff was not made until months after the work giving rise thereto was completed.

SHOULDER GRADES

Under the original contract specifications the contractor was to grade off the shoulders flush with the edge of the runways. The plaintiff therefore stockpiled in the areas adjacent to the runways sufficient soil for that purpose. However, the defendant’s engineers later required that the original specifications be altered and the shoulders dropped approximately two inches below the edge of the runways. This was done in order to produce better drainage on the surface of the runways. As a result of this change the plaintiff had on hand, close to the runways, more soil than was needed to grade the shoulders. This excess was then removed by the plaintiff involving alleged additional cost and further delay in completion. There is no evidence to establish the amount of time lost because of this change nor is there sufficient proof in the record as to the extra cost, if any. The plaintiff was unable to present his cost records. The evidence fails to show that the plaintiff requested an extension of time because of this change.

In so far as plaintiff’s claims for the remission of liquidated damages are concerned, the proof shows that he did not make timely objections or requests for extensions as required under Article 9 of the contract. This article reads in part as follows:

* * * Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged Avith liquidated damages because of any delays in the completion of the work * * * if the contractor shall within 10 days from the beginning of any such delay * * * notify the contracting officer in writing of the causes of delay, who shall ascertain the facts and the extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 80-days, by the contractor to the head of the department * * * whose decision on such appeal as to the facts of delay * * * shall be final and conclusive on the parties hereto.

The policy behind such provisions is one of enabling disputes concerning delays which may arise under contracts to be handled expeditiously by the contracting officer in accordance with existing facts and circumstances known at the time. In the absence of a showing sufficient to constitute a waiver by defendant of timely objection compliance with them is mandatory before resort to the courts may be made. United States v. Blair, 321 U. S. 730, 736; United States v. Holpuch Co., 328 U. S. 234, 240. With the exception of one claim based on delay, the plaintiff did not make the timely objections required under Article 9. The plaintiff’s objections which formed the basis for all other claims due to delay were not called to the attention of the defendant’s representatives until after the plaintiff’s performance under the contract had been completed. In connection with Stop Order No. 10, the plaintiff did protest immediately upon being informed that it was to be released, but after a further extension of one week he acquiesced in the resident engineer’s ruling to begin work and did not within the 30-day period appeal that ruling as required under the contract.

The plaintiff relies upon De Armas v. United States, 108 C. Cls. 436, in which this court granted the contractor a reduction in assessed liquidated damages on the ground that he was entitled’ to further time extensions not allowed by the contracting officer. Plaintiff asserts that while the contract in the De Armas case, supra, contained requirements identical with Article 9 here, the contractor was permitted to recover even though his notice to the contracting officer of delays in work by reason of adverse weather conditions was not given until some time later. The question of timely objection was not raised by the parties in that case or discussed by the court in its opinion, although the court did make a finding as to the date when notice of the delays was given to the contracting officer. The construction work involved in the De Armas case, supra, was on jetties at the mouth of the Mississippi Eiver and storm conditions were the basis for the contractor’s demands for additional compensation and time extensions. Shortly after the occurrence of the storm the contractor informed the contracting officer of the damage done, and the contracting officer directed the removal and replacement of the damaged material. Only a portion of the work required under the contract had been completed at the time of the storm. However, the contractor was notified that some of the replacement work was to be done at his expense. Nine days after this notification the contractor appealed this ruling of the contracting officer to the head of the department, and on the same day made written demand on the contracting officer for time extensions because of the delays caused by the storm. This we believe was timely notice under the terms of the contract and presented a situation in which the facts differ materially from the facts in this case.

In the case at bar the plaintiff, although he made no protest or request for extension of time, as required by Article 9 of the contract, during the prosecution of the 'work, except in one instance, did file requests for further extensions of time and remission of liquidated damages, and also presented claims for certain extra work, after all contract work had been completed; and these claims were considered on their merits and were denied by the contracting officer and the head of the department.

Assuming, as we may under the circumstances of this case, that the contracting officer and the head of the department waived the failure of plaintiff to make timely protest as to alleged delay and timely claims for alleged extra work, the plaintiff is, nevertheless, not entitled on the record to recover. The evidence of record sustains rather than disproves the correctness of the decisions of the contracting officer and the head of the department, with the slight modification made by the Comptroller General.

The record shows that the plaintiff was not delayed by the acts of the defendant and that he was given adequate time extensions to cover all periods when his men were unable to work. It also appears that in respect to the stop orders the resident engineer was quite liberal in tbeir application and on all occasions permitted the plaintiff to work during the periods when the stop orders were effective. As for the alleged extra work, the plaintiff’s proof fails to disclose that the contractor performed work for which he was not compensated in accordance with the terms of the contract.

Article 15 of the contract provided as follows:

* * * Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed.

This is the standard Disputes Clause in Government contracts and its validity has been upheld. United States v. Moorman, 338 U. S. 457. The questions here in dispute come within the purview of this clause and under it the decision of the head of the department or his duly authorized representative is final and conclusive. United States v. Wunderlich, 342 U.S. 98, 100.

The plaintiff is not entitled to recover, and the petition is dismissed.

It is so ordered.

Howell, Judge; MaddeN, Judge; Whitakeh, Judge; and Jones, Chief Judge, concur.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner George H. Foster, and the briefs and arguments of counsel, makes findings of fact as follows:

1. The plaintiff, Samuel S. Palumbo, doing business as Palumbo Excavating Company, a sole proprietorship, is a resident of the City of Chicago, County of Cook, State of Illinois.

2. On June 29,1943, the plaintiff and Joseph Palumbo and Carmella C. Palumbo, a partnership, doing business as Palumbo Excavating Company, Maurice Chernus, Joseph Sharf, and Lena Chernus, a partnership doing business under the name of Chernus Construction Company, hereinafter referred to as the contractors, entered into Contract No. Cfca-1937 with the defendant, the United States of America, acting through the Department of Commerce, Civil Aeronautics Administration, for the grading, draining, fencing, conditioning, and seeding of the El Dorado, Arkansas, Airport in accordance with Proposal 443-5605, Schedule I (except Item 1.21 (2)), and the specifications and drawings pertaining thereto. The contract was a unit price contract and the total consideration was to be based on the quantity of work performed. The contract and specifications are in evidence as Joint Exhibit 1 and pertinent parts of the contract, the proposals and specifications are annexed to the petition as Exhibit A.

3. On July 1, 1943, defendant gave the contractors notice to proceed with the work provided for in said contract. The contractors began the work on July 12, 1943. The contract was completed and accepted by the defendant on August 11,1944.

4. On March 18, 1944, the partners comprising Chernus Construction Company, assigned all of their interest and claims in the contract to Palumbo Excavating Company. Subsequently, on January 2,1945, all the interest and claims of the Palumbo Excavating Company in the contract were assigned to plaintiff, Samuel S. Palumbo, who is the sole and absolute owner of the claims asserted by him, and he has made no transfer or assignment of said claims or any part thereof, or interest therein. Hereinafter the term plaintiff will be used to mean the grading contractor.

5. The contract provided for the work to be commenced within fifteen (15) calendar days from the effective date of notice to proceed, which notice was given on July 1, 1943. The contract provided for the work to be completed 100 calendar days after effective date of notice to proceed. The work was thus scheduled to be completed on October 8,1943, but it was actually completed on August 11, 1944. This was 408 days after the effective date of the notice to proceed. The contract time, i. e., 100 days, was extended by 1761/2 days for a period equivalent to the time covered by stop orders, and the plaintiff was charged with 131% days’ delay.

6. Shortly after the work had been completed and accepted by the defendant, the plaintiff was informed by W. C. For-man, the defendant’s contracting officer, that liquidated damages in the sum of $26,300 would be assessed against it for alleged delays of 131% days in completing the work required under the contract. The plaintiff immediately objected to the action of the contracting officer and on November 17, 1944, the contracting officer allowed the plaintiff an extension of 24 days on the contract completion time and liquidated damages were assessed against the plaintiff in the sum of $21,500, based on alleged delays of 107% days, at the rate of $200 per day. The time was extended 14 days for delay encountered by plaintiff in getting its equipment moved to the site and 10 days because of an overrun of approximately ten percent of the expected contracted quantities.

7. The plaintiff appealed the decision of the contracting officer to the head of the department, who affirmed it on July 11, 1946, and stated that the entire matter was being forwarded to the General Accounting Office “for final settlement inasmuch as that office has final jurisdiction in matters of this character.” The General Accounting Office, on May 22, 1947, affirmed the action of the head of the department, except that the amount of liquidated damages was reduced by the sum of $100 for the reason that the contract did not provide for the assessment of liquidated damages for less than one whole day. In making final payment to the plaintiff, there was deducted from the contract price the sum of $21,400 as liquidated damages and no payment was made for its claims herein for extra work, all of which were specifically excepted from the final release which was executed on December 4,1944.

8. The notice to proceed was issued July 1,1943, two days following the signing of the contract described in Finding 2 above. This notice was given in accordance with the provisions of Article 1 of the contract. The contractor began work on July 12, 1943. To compensate the plaintiff for an ■insufficient lapse of time between the date of award and the effective date of the notice to proceed, an extension of 14 days was allowed by the contracting officer on November 17, 1944, for any equipment movement delays encountered. Proof fails to show that plaintiff lost any working time for which it was not thus compensated by reason of the date of the notice to proceed, or that plaintiff, during the course of construction, ever protested any delay by reason thereof.

9. In accordance with Article 16 of Standard Proposal Conditions, defendant’s assistant airways engineer in charge of construction (hereinafter called resident engineer), issued 14 stop orders, all of which were acknowledged by the plaintiff. The plaintiff was granted an extension of 176% days to compensate for time actually lost by reason of stop order suspensions. The resident engineer issued stop orders only when the plaintiff had stopped work and had requested an issuance of the same. There was never any protest concerning the issuance of a stop order. Stop orders were released only when the plaintiff had resumed work, in a substantially normal manner. No release of stop order was given if only minor operations were being performed. The plaintiff acknowledged receipt of each release of a stop order, and there was no objection or protest made about the date of its issuance.

10. On December 23, 1943, the resident engineer issued Stop Order No. 10 which was acknowledged by plaintiff’s superintendent. Because it had not rained in El Dorado since March 7, 1944, defendant’s engineer, on Saturday, March 11, 1944, informed the plaintiff’s assistant superintendent, that Stop Order No. 10 would be released on Monday, March 13. This decision was made after án examination revealed that the ground conditions were sufficiently dry to permit working. Plaintiff’s engineer stated that the plaintiff would be unable to begin on March 13 because of insufficient funds. No protest against this release was made based on the soil conditions existing at the time. On March 11, the resident engineer wired the Regional Office at Fort Worth as follows:

ASSISTANT SUPERINTENDENT FOR CHERNUS AND PALUMBO ADVISES US HE WILL BE UNABLE TO START WORK MONDAY BECAUSE OF LACK OF FUNDS TO OPERATE SHOULD HE GET A RELEASE OF STOP ORDER.

This telegram was received by the CAA Engineering Branch in Fort Worth on March 11 and was referred to the contracting officer who called the Massachusetts Bonding Company, bonding company for the plaintiff, and advised that definite action should be taken to see that plaintiff completed its contract. On the evening of March 10, the Government grading inspector informed the plaintiff’s representative that the release of Stop Order No. 10 would be issued on March 13.

On Monday, March 13, the resident engineer issued release of Stop Order No. 10 and the same was received by the plaintiff’s assistant superintendent; however, no work was started on this date and plaintiff advised that work would not be resumed because of insufficient funds. The resident engineer then called the Fort Worth office and also dispatched a telegram on March 13, stating that, although release of the stop order had been given, no work was in progress and plaintiff’s superintendent advised he did not know when work would proceed.

The contracting officer, on March 14, sent the following telegram to:

Chernus Construction Co.
710 No._ 12th Blvd.
St. Louis, Missouri
Palumbo Excavating Co.
2738 W. Harrison St.
Chicago, Illinois
Jack East, Attorney-in-fact
Massachusetts Bonding & Insurance Co.
Little Rock, Arkansas
UNLESS YOU PROCEED WITH THE WORK AT EL DORADO, ARKANSAS, AIRPORT, CONTRACT C 4 C A — 19S7, NOT LATER THAN THURSDAY MORNING, MARCH 16, A WRITTEN NOTICE TO TERMINATE THE CONTRACT WILL BE TRANSMITTED TO ALT, CONCERNED IN ACCORDANCE WITH PARAGRAPH 9 OF THE CONTRACT. IN SUCH CASE THE GOVERNMENT WILL TAKE POSSESSION AND UTILIZE ANY MATERIALS, EQUIPMENT AND PLANTS THAT MAY BE AT THE SITE.

The resident engineer was advised of the sending of this telegram. On March 15, the following interoffice communication was dispatched to Forth Worth:

to : Chief, Airways Engineering Branch
FROM: Jeff S. Fox
subject : Contract C4ca-1937
Chernus and Palumbo, Contractors El Dorado, Arkansas, Airport
Confirming our telephone and telegraphic communications of recent dates, the contractor, Chernus and Palumbo, still fails and refuses to prosecute the work under the terms of the above contract.
As you know, we gave the contractor a stop order on December 23,1943, and due to continued rains, we were not justified in releasing this stop order until March 13, 1944. However, in discussing this with the contractor’s representative on March 11, he advised us that they were in no position to begin work.
The release of this stop order has been in effect for three days and today the contractor’s representative again advises he has no plans or intentions of beginning work. The contractor’s representative’s reasons for not starting up work are as follows:
1. Insufficient funds to purchase material and supplies to prosecute the work.
2. Insufficient funds to pay any labor which he would need.
He also reports that some disagreement between the partners of the two firms, namely Mr. Chernus and Mr. Palumbo, is the reason for them not sending him sufficient funds to operate. We have no way of knowing or verifying this statement and are, therefore, not in a position to comment. However, we are verifying the fact that no work is in progress and no work planned. The paving contractor, T. L. James Co., could be released from his stop order if the grading contractor would provide area for him to pave on.
In view of the fact that Chernus and Palumbo are some 45 days behind in their schedule and are not making any attempt in any way to prosecute the job and the further fact that we have two other contractors waiting on them, namely the paving and lighting contractors, we believe you should take immediate steps to insure the continuation of the work either by the present contractor or by others.

A representative of the bonding company called the contracting officer on March IT and requested an extension of time until March 20 before the plaintiff should be considered in default. This extension was granted. Plaintiff’s assistant superintendent later advised the CAA engineers that plaintiff would begin operation on Saturday, March 18. The plaintiff actually began operation on Monday, March 20, but rain on that date necessitated another work stoppage order and Stop Order No. 11 was issued.

11. During any period controlled by a stop order, the plaintiff was permitted to do considerable work on the project. The operations performed during these periods were not limited to maintenance work but some actual forward progress was made. In fact, Stop Order No. 11 was released in part on April 12, 1944, but the plaintiff was allowed an extension for the entire time between the stop order issuance on March 20 and the full release on April 18. There was some delay in assembling a complete working force after the release of some of the stop orders due to the distance from the site of the work from the residence of some of the workers.

12. The resident engineer, by the terms of the specifications, had complete control over the excavation, moving, placing and disposition of all material. Paragraph IV-E of Specifications N329 contained in part the following:

E. Borrow: When sufficient quantities of suitable material are not available from the excavation indicated on the plans to properly construct the embankment and subgrade or to stabilize the subgrade such material shall be obtained from borrow pits designated or approved by the Engineer. Only material suitable for the purpose intended shall be used, and any unsuitable material shall be disposed of as directed. The contractor shall notify the Engineer sufficiently in advance of the beginning of excavation in order that necessary measurements and tests can be made. Borrow pits shall be excavated to uniform lines so as to permit accurate measurements and shall be left in a neat condition, and drained when feasible.
Borrow excavation shall be placed, manipulated, and compacted as hereinbefore specified for embankment in these specifications.
Unless otherwise specified, borrow obtained from pits on the site will be measured and paid for as “Airport Excavation, Common.”
Borrow obtained from pits off the site shall be classified as “Imported Borrow” and shall be paid for as a separate item. Only that material removed and used in the work will be paid for.

When the plaintiff wished to use borrow pit material, the CAA engineering staff staked out the borrow pits and sectioned off the same to obtain a basis for payment. When it became apparent that borrow pit material was needed, the pits were staked out. This occurred in April 1944 during the latter phases of the project after all of the excavated material from the graded areas was exhausted. The borrow pits were first sectioned off at this time when there were no stockpiles of material remaining.

13. Borrow pit material was used only as select material for the subbase directly beneath the runway or for topsoil and was not used as fill. There was sufficient material for the fills within the graded area; in fact some suitable fill material was wasted. It was the responsibility of the contractor to keep the borrow pits drained. Generally, in cases of a wet borrow pit, the contractor simply moved to a dry section of the designated area and continued operations. If there had been no borrow area free from moisture available, a stop order would have been issued. No request was made for a stop order due to this condition.

There was no delay occasioned by the use of borrow pit material made necessary by the previous use of stockpiled material.

14. The contract for paving the El Dorado, Arkansas, Airport, in accordance with Proposal 443-5605, Schedule II-A, was awarded to T. L. James & Company, Inc., of Kushton, Louisiana (hereinafter called the paver). A notice to proceed. on Saturday, September 25, 1943, was issued to the paver on September 8, 1943, after discussions with plaintiff’s engineer in August during which the engineer stated that by that time there would be areas ready for paving. The paver began stockpiling material for the paving on September 2, 1943. However, there were insufficient quantities of the subgrade prepared to permit paving operations. The resident engineer issued a stop order to paver on September 25,1943. The resident engineer complained to the plaintiff about the failure to prepare the subgrade for paving, and on October 27, 1943, wrote plaintiff as follows:

Chernus and Palumbo, Contractors El Dorado, Arkansas
Attention: Mr. Biggerstaff
Gentlemen:
In accordance with Paragraph 8 of the special Provisions and Paragraph F of the General Specifications of your contract, you are directed to prepare the N-S runway and Taxiway No. 1 from station 0 to station 16 immediately for paving operations. You should begin at station 16 on Taxiway No. 1 and work toward the South end of the N-S runway, thence up the N-S runway. This confirms our repeated verbal instructions.

To enable the plaintiff to process the subgrade prior to paving, the paver aided in the preparation of the subgrade. The plaintiff began to place select subgrade material on November 1, 1943, and the paving stop order was released on November 23,1943, on which date the paver began the paving operations.

15. The progress of the plaintiff interfered with the normal progress of the paver to such an extent that the paver was forced to actually perform portions of the fine grading operation itself in order to maintain a progress schedule. The plaintiff was never required to work at a specified distance ahead of the paving operations.

16. Near the completion of the work, plaintiff was told to fine-grade the area to conform to the contour grade lines as shown on the plans. This detailed grading, indicated on Sheets 5 and 16 of the plans, showed the grade necessary to enable the water to drain into, rather than bypass, the catch-basins. This finishing operation could have been accomplished by final grading to the stakes set out by the CAA engineers. Plaintiff made no protest that the performance of any detailed drainage grading was outside the scope of the plans and specifications. The Administrator of Civil Aeronautics sustained the decision of the Contracting Officer that this grading was properly indicated on the airport plans. No extension of time over and above that allowed by the contracting officer was permissible. The proof fails to show that plaintiff lost any working time by reason of extra work in constructing drainage ditches, levees, or valleys.

17. On July 7,1943, plaintiff desired to purchase two gasoline-powered chain saws and obtained a promise for delivery in two weeks, subject to the issuance of a priority AA-1. After the War Production Board had refused such priority rating, plaintiff, on July 9, 1943, applied for a preference rating for the two saws. On July 10, 1943, the request was forwarded to the Chief, Airways Engineering Branch by the resident engineer with a recommendation that the saws be used. The contracting officer recommended the issuance of a priority rating for the saws. On July 15 the Airways Engineering Division wired the Regional manager of the CAA in Fort Worth, that the requests for priority could not be processed on the forms submitted by the plaintiff and requested that plaintiff resubmit the request on a different form. This was done and, on July 21, the Contract and Service Offices of the CAA recommended to WPB that the request be reconsidered in light of the fact that the airport was being constructed for use by the Army Air Forces. Apparently the request was again denied by the WPB despite the recommendation of the CAA.

18. Plaintiff also in July 1943 desired some long-haul equipment (6 Euclids) and the resident engineer agreed to recommend the purchase of such equipment. The record does not disclose when if ever application for priorities for such purchase was made but the contracting officer was never requested to aid plaintiff in the obtaining of this equipment. Although certain equipment of this kind was released by plaintiff from another job and its movement to this job was requested by plaintiff’s superintendent, the equipment was not so moved. On October 1, 1943, some Euclids for this work were received.

19. The CAA made all reasonable efforts to assist plaintiff’s application for priorities, and plaintiff at no time protested any failure of the CAA to assist the priority applications. No request for extension of time for delay due to this cause was made during the operations on the contract.

20. Plaintiff in November 1943 encountered difficulty in compacting the soil on the NW-SE runway from approximately station 12+00 to 25+00. This difficulty was called to the attention of the resident engineer who verbally informed plaintiff’s engineer to aerate or dry out the soil and thereby adjust the moisture content prior to rolling. This verbal instruction was repeated by letter from the resident engineer on November 13, as follows:

Confirming our verbal instructions of November 12, 1943, you are directed to adjust the moisture content, by drying out the material, in the present top lift of the embankment from approximately station 15+00 to 25+00 on the NW-SE runway, then compact to the required compaction as called for in the pertinent specifications.

The suggested procedure was followed and proper compaction in that area was obtained. During this period in November when the soil from stations 12+00 to 25+00 on .the NW-SE runway was being processed, several lifts or layers of earth were being placed and then compacted. This necessitated scarifying and rolling for each lift, and compaction for each lift was obtained.

21. Proper compaction is determined by testing the soil for density. When soil is at the optimum moisture content and ■in a homogeneous state, it will compact more readily than in any other state or condition. Pressure plus moisture controls the density. Soil tests for proper compaction were made by the CAA engineers and these tests reveal proper compaction was obtained at stations 12+00 to 25+00 on the NW-SE runway. The plaintiff had endeavored to obtain compaction to meet the tests by rolling without sufficient aerating of the soil. When the soil was dried properly, compaction was obtained. No formal protest about any inability to obtain compaction was made during the work.

22. Early in June of 1944, the plaintiff complained of difficulty in obtaining compaction on the NW-SE runway stations 6-10. At this spot, a gray clay of a type not heretofore encountered was found and no Proctor Density curve had been prepared for this type soil. After investigation, the resident engineer called tibe Port Worth Eegional Office on June 4 for permission to allow the plaintiff to fulfill compaction requirements for the section involved by rolling until the sheep’s-foot roller “walked out” on top. In order not to delay the work and because of experience in this type of situation, the Chief, Engineering Branch, granted this permission and the area was completed the night of June 4 or the morning of June 5. Compliance with actual curve specifications for compaction in this area was waived in order not to delay the plaintiff. No order was given by the CAA engineers to obtain 13 or any other percent moisture at any time and no extension of time was requested, nor were there any formal protests made by the plaintiff for delay or extra cost. occasioned by compaction difficulties. The proof fails to show the extent of time over and above normal time occasioned by the difficulty in obtaining compaction. There is no satisfactory proof of excess material and labor costs as a result of compaction difficulty.

23. Article J, of Specification A-329 contained the following :

J. Disposal of iSwrpl/us Material: All surplus' excavated material shall be used to grade the areas of ultimate development, widening embankments, flattening slopes, or wasted, as directed. When used in areas of ultimate development, widening embankments, flattening slopes, it shall be placed and compacted as herein-before required for embankment. * * *

For open ditch excavation, contract item 1.32 (1), the contract price was 17 cents a cubic yard. The resident engineer, pursuant to Specification No. 4-329, directed the plaintiff to place the material excavated from the open ditch at the east end of the east-west runway in an embankment instead of leaving it beside the ditch. The plaintiff protested this direction, and requested permission to cast the dirt out of the ditch and permit the same to remain alongside. After a discussion with the Eegional Engineering Staff, the resident engineer wrote the following letter on August 11, 1943, to the plaintiff:

Your attention is directed to the. temporary placing of the open ditch excavation along the side of the ditch. In accordance with your request, we are permitting you to place this material in this temporary location with the understanding that its final position will be in the embankment as required by the pertinent specifications.

This spoil earth was piled to a height of 20 feet in some places by the plaintiff beside the open ditch along the east end of the proposed east-west runway.

The resident engineer, in accordance with specifications, near the end of the work instructed the plaintiff to grade down the pile in such a manner that it would not be a hazard to aircraft. During the earlier discussion, the plaintiff had decided to pile it beside the ditch (the excavation was being done with a dragline) and later knock down the pile. The plaintiff protested this order to knock down the pile, but subsequently, using only bulldozers and a couple of scrapers, lowered the height to four feet, thereby removing the obstruction. Previously the plaintiff had cut down all the trees in the area out several hundred feet from the end of this proposed runway to prepare the proper approach zone. Lowering the pile consumed only a few days during which time other phases of the operation were progressing.

A drawing (Dwg. 4-X-1446) attached to the contract showed the detail of the ditches and the detailed drawing of a cross section of a typical open ditch showed a pile of dirt at a minimum of four feet removed from the ditch with a descriptive legend directed by an arrow to the pile, “Waste to be piled as directed by Engineer.”

24. The Administrator of Civil Aeronautics determined that in placing this spoil material, plaintiff was required to do only that which was covered by the specifications. Plaintiff was not required to spend unnecessary time in reducing the height of this spoil bank.

25. The fencing for which the plaintiff was paid was sublet to another contractor by plaintiff. To enable plaintiff to pay the fencing contractor, after the fence was partly completed, the resident engineer wrote the following letter on November 6, 1943, to plaintiff:

According to our final measurement of the fence (Class C) item in your contract, the lineal rods are 1,914 and three (3) wooden gates.
This fence as installed meets with our approval except the few hundred feet in front of your shops. This, of course, is in case it is maintained in this condition until the completion of your contract and final acceptance of the job as a whole.

This was a letter approval of only that phase of the operation which had then been completed and not a final acceptance.

26. Article 10 of the contract provided as follows:

Article 10. Permits and care of work. — The contractor shall, without additional expense to the Government, obtain all required licenses and permits and be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work, and shall be responsible for the proper care and protection of all materials delivered and work performed until completion and final acceptance.

Part of the fence was washed out or destroyed by falling trees during the winter layover. This repair, plus the completion of a final portion of the fence in front of the plaintiff’s office that had been left incomplete, was required as a portion of the final cleanup and acceptance. The final work, which was done concurrently with other operations, actually consumed two days with five or six men and a foreman working. No protest was entered and no extension of time was requested during the operation for this final cleanup operation called for in the contract. The Administrator of Civil Aeronautics determined that the repair work necessitated by the effects of the weather on that portion of the work accomplished prior to the winter season did not appear to have been more than could have been normally expected and was not of such nature as would preclude its accomplishment concurrently with the work remaining to be done when the proceed order was issued in March 1944. The proof fails to show that plaintiff lost any working time by reason of extra work repairing fences in the final cleanup.

27. As part of the final cleanup operation, the resident engineer directed the plaintiff to blade and grade those areas which had eroded as a result of weather conditions. This operation, which was part of the work of finishing the job, consumed two or three days, necessitating a couple of patrols and a scraper. No protest was made about this direction. This refilling and regrading operation was a portion of the finishing operation incident to final project acceptance and called for by Article 10 of the contract. The proof fails to show that plaintiff lost any working time by reason of such regrading and.refilling.

28. On November 13, 1943, the layout engineer and his party surveyed the long drainage ditch on the north and east sides of the east-west runway which had been dug by plaintiff and discovered a rock ledge out-cropping in the bottom of the ditch at station 33 + 50. The bed of the ditch was seven-tenths of a foot above proper grade at that point. This ditch failed to pass the preliminary inspection being held at the time, and the grade discrepancy was reported to the resident engineer.

29. During the period of final project inspection in July 1944, the resident engineer discovered that the ditch had silted up from one foot to eighteen inches in the bottom. The resident engineer directed the plaintiff to remove this silt, and the layout engineer set the stakes for this silt removal on July 24, 1944. By letter on July 25, 1944, the plaintiff protested this direction of the resident engineer and received a reply on July 26, 1944, to its protest as follows:

We have your letter of July 25, 1944, stating you expect to be paid for cleaning out open ditches constructed on this project.
Payment for this work is included in the unit price per cubic yard for open ditch excavation in accordance with Paragraph G, Page .9, of the grading' specifications which states, “The ditches constructed on the project shall be maintained to the required cross-section ana shall be kept free from debris or obstruction until the project is accepted.”

30. During the final cleanup of the ditch in the summer of 1944, the plaintiff’s layout engineer took an air compressor and jack hammer and removed the rock, which had been left in the ditch in the fall of 1943. The ditch had a grade of one-tenth of one percent (%0 of 1%), but the rock, which had been left in the ditch, was seven-tenths of a foot high causing the current to slow down as the water drained and the ditch to silt up outward from the rock for 100 feet. Any silt removal was the responsibility of the plaintiff as set forth, in grading Specification No. 4-329, Par. G, and the rock was- removed without protest as a part of the actual grading process. Proof fails to show that plaintiff lost any working time by reason of silt removal from a 3,500-yard ditch for which he is entitled to any remission of liquidated damages.

31. The grade stakes for the grading taxiway No. 3 were set by the CAA layout engineering staff on Dec. 21, 1943. Plaintiff’s engineer immediately reported to the Government layout engineer that there was an error in the grade stakes, as set, along one side of this taxiway. On December 22, the Government layout engineer checked the stakes with a rodman and found that an error of eight-tenths of a foot low had been made in the stakes set on the south-east side of the taxiway 3.

32. The plaintiff had, on December 22, graded to the erroneous grade. The CAA layout engineer on January 3,1944, during the winter stop order (No. 10) revised the grade to conform to the slope already graded by the plaintiff. This was done by allowing the stakes on the southeast side of the taxiway to remain low as set and by revising the stakes on the northwest side (nearer the runway) so that the taxiway would slope entirely to the outside. This adjustment made the taxiway to slope entirely to the southeast instead of having a normal center crown and a twenty-five-foot slope in each direction. This is not an unusual engineering practice and was carried out in this instance so the plaintiff would have to perform no extra work. There was no protest made and no complaint entered by the plaintiff during the course of the project. At the time the error was discovered only a portion of the rough subgrading had been done. The proof fails to disclose any extra expenditure occasioned by these grade stake errors. '

33. The only paving completed by December 23,1943 (date of winter Stop Order No. 10) was the north-south runway which was completed except for lane No. 1, which was on the west side. The outside lane next to a shoulder on the east side was completed. Shortly after December 20, 1943, the resident enginer directed that the select material directly adjacent to the runways be graded from one-tenth to fifteen-hundredths of a foot below the level of the concrete instead of flush with the pavement. This direction was given because experience at other airports showed that the grass along the edge of the pavement grew above the concrete, if the shoulders were level with the pavement, causing the water to stand along the pavement edges. When the direction from the resident engineer, given by authority of Specification 4-329, Art. IV, Sec. K., was given, the plaintiff indicated it would prefer to fill the earth up to the edge of the pavement and then blade it out, and such permission was granted. There was no protest or complaint made because of this order. The instruction contained the proviso that any shoulder work completed prior to this instruction should not be disturbed.

34. At the time the order was given, no shoulder work had been completed. In anticipation that the grade should be level with the concrete, the contractor had placed the estimated quantity of dirt adjacent to the runways to be later graded up to the pavement when pavement was completed in accordance with the plan for the work. After plaintiff was instructed to bring the height of the shoulders slightly below the level of the pavement, the plaintiff had a small amount of excess material in some cases, and when this dirt was moved level with the pavement and then scraped back in the manner suggested by the plaintiff, it was necessary to move the excess dirt farther back from the pavement than would have been necessary had there been no change in the level of the shoulders. There is no definite proof of the time nor expense involved because the plaintiff was unable to present his cost records. The evidence is not sufficient to establish the time that the entire project was delayed by this work.

35. Before plaintiff began any operations, the Civil Aeronautics Administration layout engineering staff established the original bench marks. Starting with the original United States survey bench marks, the layout crew ran a circuit of about four miles. From that circuit other circuits, from two to four miles in length, were run. The end of each circuit was checked back into the starting point and an allowance of one-tenth error was the normal permissible tolerance. The tolerance results of these original circuits were as follows:

Circuit 1 — .12' (later adjusted to .02')
Circuit 2 — .002' (negligible)
Circuit 3 — .011' (no adjustment needed)
Circuit 4 — .001' (no adjustment needed)
Circuit 5 — .015' (within tolerance)
Circuit 6 — .006' (no adjustment needed)
Circuit 7 — .018' (no adjustment needed)

The small amount of difference (well within tolerance) m the last six circuits indicated the adjustment made on the first circuit was accurate, since each of these circuits was closed into the original bench mark. The original cross sections were run from these bench marks. The original benches were set on the center lines of the runways, the only cleared area at the time. The layout staff later transferred as many bench marks as possible outside the graded area in order to have reference points for further work.

36. In August 1944, after the final inspection had been completed, the final cross section made, and the equipment had been removed, the plaintiff’s engineer directed the attention of the resident engineer to three bench marks which the plaintiff felt were in error. The resident engineer instructed the CAA layout engineer and a qualified level man to run check levels on these marks in addition to checking all the available bench marks remaining on the project. These results were plotted on a map together with the original marks and final cross sections. The three bench marks were located as follows:

Number 1 — 275 feet to the left of station 39+75 on the north-south runway
Number 2 — 300 feet to the right of station 45+75 on the northwest-southeast runway
Number 3 — 400 southeast of station 0 on the northwest-southeast runway

37. Bench mark Number 1 was a transfer bench set on August 25, 1943, in connection with staking the drainline from catch basin 14 to headwall E. Soon after this transfer it was discovered by the CAA layout engineer that this bench mark was in error. The original grade stakes for the north-south runway had been set but this bench had not been used to set those stakes. Since this error was discovered early in the project, no grade stakes or finishing stakes were ever set from this bench. Bench mark Number 2 was set September 17, 1948, after all the grade stakes in that area had already been set from other bench marks; so this bench was never used for setting stakes or for grading. Bench mark Number 3 was a stump which was sawed off during the cleaning up operation, after all the work had been done in the area; and this bench was never used after it had been sawed off.

38. The check levels run at the direction of the resident engineer in August 1944 revealed bench Number 1 was approximately .14-foot off and bench mark Number 2 was .11-foot off. A complete circuit was run at this time and all the remaining bench marks were within tolerance. Bench mark Number 3 was not checked because it had been disturbed in the final cleanup and also had not been used for setting grade stakes. This was explained to the plaintiff’s engineer and he at the time appeared thoroughly satisfied.

39. None of the bench marks referred to were used in the final cross sectioning of the project. There was no regrading done as a result of these errors nor was any regrading done after the plaintiff’s engineer called the error to the attention of the resident engineer.

40. An area on the west side of the north-south runway near the north end of the runway had been regraded prior to this time. This was an area approximately 700 feet long and not over 175 feet wide which had been left too high when work was suspended in the fall. The grade here was from .1 foot to .5 foot high and had to be finally graded to conform to layout specifications. This regrading was not the result of any bench mark error, but was the fault of the plaintiff in failing to get the area down to proper grade originally.

41. The Administrator of the Civil Aeronautics Administration concluded as follows:

All original benches that were not destroyed with the final paving grades have been checked. They all check within ordinary third order leveling except one bench mark which is of 0.11 of a foot. This bench is in the root of a tree which was cut down between the time it was established and the time it was found to be in error, and subsequent thereto it was never used. No regrading of the entire area was occasioned by this bench which was apparently damaged during construction. The records indicate that no grades were changed after areas were brought up to final grade and there was no regrading done.

There was no regrading of the entire graded area due to erroneous bench marks, nor was the contractor caused any delay or additional expense at any time because of the three bench marks admittedly in error but never used in the grading operation. No complaint was made during the course of project operation that the entire area was regraded.

42. There was included in the proposed bid schedule a test bid item for ten acres under Item 1.41, “Conditioning Surface” in order to secure a price if the project contained any acreage which fell within this item.

The Administrator of the Civil Aeronautics Administration determined as follows:

No conditioning of surface areas as provided in Item 1.41 in the bid and Specification No. 4r-334 was shown on the plans. None was required during construction and none was included in the final estimate. The schedule of Bid Items lists 290 acres under Item 1.43, “Seeding,” and only 10 acres under Item 1.41, “Conditioning Surface.” This clearly shows the intent of the contract was not to provide for conditioning and smoothing of all seeded areas. The provisions of the grading specifications for the reservation and installation of topsoil on seeded areas are stated by the contractor in his claim. Smoothing operations are also required by the grading specifications, as follows: Specification 4-329, page 11, Article K, “Final grades established by the grading operations shall produce smooth surfaces * * *. After all grading work and drainage and lighting structures are completed, the entire surface of the landing area shall be shaped with a road grader supplemented with a drag, and hand work where necessary, to secure a smooth surface of uniform cross section. All stones 3" or larger in diameter shall be removed and disposed of as directed by the engineer.”
From an examination of the construction methods of the specifications for “Conditioning and Smoothing,” which are quoted below, it can be seen that no work such as is specified therein would be required on areas where the requirements of the grading specifications had fo©©Xl 1X1 ©t
Specification No. 4-334, Section II: * * The conditioning work shall be accomplished by first plowing or discing the surface to a depth of 1" to 3" as required. The surface shall then be smoothed by blading with power-drawn or self-propelled blade grader in such manner as to cut the high spots and fill in low places. After blading, all stones over 8" in diameter shall be removed and disposed of by the Contractor as directed and the entire area shall then be finished with a suitable drag to produce a smooth even surface.” It is not seen therefore wherein conditioning and smoothing under Item 1.41 would have been necessary when all work i*equired by the Grading item was performed.

43. ¡Specification l¡r-33J{. and bid Item 1.41 refer to areas where no grading operation is required; i. e., where a cultivated field or surface already at grade level exists so that no grading work need be performed and only a little smoothing would be necessary to finish the area. No plowing or discing of the type referred to in Specification 4r-334 was done at El Dorado. The entire area was either cut or fill for which the contractor was paid in accordance with the proper grading specifications. There was no work performed in accordance with Specification 4-334 and no area was processed which fell within Item 1.41 on the entire project. The plaintiff did not contend during the course of the operation that it. was doing any conditioning work for which it was not being compensated.

44. On August 31,1944, the Civil Aeronautics Administration submitted the final estimate to the plaintiff. On October 3,1944, plaintiff protested both the determination of liquidated damages for 13114 days’ delay and the determination of the quantities of work performed. On October 14, 1944, the final payment voucher was submitted to plaintiff, showing a total consideration of $537,819.18 for work completed from which was to be deducted $26,300 of liquidated damages for 13114 days of delay. However, a 24-day extension of time reduced the liquidated damages to $21,500 for 107% days’ delay. By release dated December 4, 1944, the plaintiff released the defendant from all claims except an itemized list, containing all the items involved in this case.

45. On December 14,1944, plaintiff protested the decision of the contracting officer to the Secretary of Commerce and requested a hearing. By direction of the Secretary of Commerce, the contracting officer on January 25, 1945, submitted to plaintiff findings of fact regarding the claim for extension of time and the claim for additional compensation. Plaintiff appealed the decision of the contracting officer to the Secretary of Commerce requesting remission of liquidated damages withheld and additional compensation on fifteen separate items. Receipt of this appeal was acknowledged by the Secretary of Commerce in a letter dated March 8, 1945, and plaintiff was further advised that upon receipt of all the facts in the case from the Regional Office, Fort Worth, the Department of Commerce would communicate again with plaintiff.

46. The administrative determination made on July 11, 1946, by the Administrator of Civil Aeronautics was transmitted to plaintiff with a covering letter on July 16, 1946, signed by the 'Director of the Contract and Requirements Service. The Administrator concluded:

Based on the foregoing facts, it is found that the action of the contracting officer in denying the contractor’s claim for remission of liquidated damages and disapproving the contractor’s claim for additional compensation is proper except for Item 1.11 for “Clearing and Grubbing,” inasmuch as no authority is found under the contract whereby the contractor may be relieved from assessment of liquidated damages and additional costs claimed thereunder. The claim of $5,958.08 as additional compensation due for clearing and grubbing is administratively approved for payment in the amount of $4,050.

Plaintiff was further informed that its claim was being forwarded to the General Accounting Office for final settlement. A settlement certificate from the Civil Aeronautics Administration was forwarded to General Accounting Office on July 26,1946, by voucher No. 2319 in the amount of $4,050.

By letter of July 26, 1946, addressed to the Civil Aeronautics Administration, plaintiff refused to settle in accord-anee with the submitted findings, and the Civil Aeronautics Administration replied by letter on July 30,1946, informing of submission of all claim data to General Accounting Office.

47. By certificate of settlement No. 1558789 executed on May 22, 1947, the General Accounting Office allowed plaintiff $4,050 for clearing and grubbing as recommended by the Civil Aeronautics Administration and also allowed a remission of $100 for liquidated damages assessed for a half day, there being no authority for a half day assessment. Total settlement of $4,150 was allowed plaintiff.

CONCLUSION OP LAW

Upon the foregoing findings of fact which are made a part of the judgment herein, the court concludes that, as a matter of law, the plaintiff is not entitled to recover, and the petition is therefore dismissed.

Judgment is rendered against the plaintiff for the cost of printing the record herein, the amount thereof to be entered by the clerk and collected by him according to law.  