
    HENRY HOWARD, TRADING AS HOWARD BROTHERS, v. THE UNITED STATES
    [No. C-532.
    Decided April 13, 1925]
    
      On the Proofs
    
    
      Contract; arbiter in case of dispute. — Where plaintiff enters into a contract with the United States which provides among other things that in case of dispute between the parties the Bureau of Yards and Docks shall be the final arbiter, and such dispute having arisen and said bureau having finally acted on the matter in dispute, the Court of Claims has no jurisdiction to review the action of said bureau.
    
      The Reporter’s statement of the case:
    
      Mr. George R. Shields for the plaintiff. King & King were on the briefs.
    
      Mr. Percy M. Oox, with whom was Mr. Assistant Attorney General William J. Donovan, for the defendant.
    The following are the facts as found by the court:
    I. The plaintiff is a resident of the State of Massachusetts, engaged in the contracting business under the trade name of Howard Bros., with office in the city of Boston.
    
      II. On July 13, 1917, the plaintiff entered into a written contract with the United States, represented by the Chief of the Bureau of Yards and Docks, Navy Department, for the construction .of two mine storage buildings at the naval magazine, Hingham, Mass., at the price of $73,863, the same to be completed within 120 days, or by November 27, 1917. A copy of said contract with the specifications attached thereto and made part thereof is annexed to the petition as Exhibit A and is made a part hereof by reference.
    III. On June 23, 1917, the plaintiff, in response to the advertisement of the Bureau of Yards and Docks for bids, submitted an offer “ to furnish under your specification No. 2385 and subject to all the requirements of the same, all the necessary labor and material to accomplish the public work ” of constructing within 120 days the buildings at Hingham, Mass., for the sum of $73,863. A part of the bid was that the price is based on McClintic-Marshall Co.’s bid for furnishing and delivering the structural steel for said buildings, their price being based on the Government furnishing to them plain material at the rate of 2.50 cents per pound for the bars and shapes and 2.90 cents per pound for the plates f. o. b. Pittsburgh, Pa. A copy of said bid is annexed to the petition marked “ Exhibit B,” and is made a part hereof by reference.
    On June 27, 1917, before the contract was entered into, the Bureau of Yards and Docks telegraphed the plaintiff inquiring if his bid included cranes specified in 104-107 of the specifications. The plaintiff answered that his estimate included the cranes, and added, “subject to the Government using their power to deliver the plain material and motors to the manufacturers, so as the same could be installed in the buildings within the required time.” The Navy Department made no answer to this proposition, and on July 13,1917, the formal contract was entered into by the parties. The contract thus entered into contains no reference to the aforesaid proposition of the plaintiff, but on the contrary specifically provides that delays in securing delivery of materials will not be regarded as unavoidable.
    
      IY. By the last of August, 1917, the plaintiff had made the necessary excavation, placed concrete foundations, and Avas prepared to proceed with the erection of steel parts of the building. Both the Bethlehem Co. and the Carnegie Steel Co. were tardy in supplying the necessary steel, and the steel for roof trusses, the last delivered was not delivered until January 5, 1918. Delivery of the necessary electrical equipment was delayed until April 5, 1918. The plaintiff in his evidence in this case says: “ So we submitted the bid, and took the chance of the Government’s furnishing the crane.” It does not appear that the Government was responsible for the delay which occurred.
    Y. The buildings were substantially completed and placed in use by the Government, one on April 13 and the other on April 15, 1918. The delay in completion beyond the agreed date therefor, November 27, 1917, was due in major part to the nonreceipt of necessary steel, and in small part to the delay in receipt of electrical equipment for the cranes.
    YI. The nonreceipt of necessary steel carried the work into the abnormally severe winter months of 1917-18, and the contractor was obliged to and did excavate accumulations of ice from the interior of the buildings, work that Avould not have been necessary or required had steel been received in time to inclose and roof the building before November 27, 1917. This work cost $720. On'the same account the contractor Avas obliged to and did expend $278.25 in the heating of concrete materials and $77.52 in the transportation of Avorkmen to and from the Avork, neither of which items of expense would have been necessary or incurred except for the delay in receipt of steel.
    YII. Under paragraph 17 of the general provisions of the contract specifications a board was appointed to determine the change in compensation and time, if any, to be made on account of delays in completion, and this board, under date of June 10,1918, reported its findings as follows:
    “(1) It is the opinion of the board that the contractor is entitled to compensation in the amount of $1,966.10 on account of the additional Avork made necessary by the delay in securing delivery of structural steel and of electrical equipment for cranes, the consequent necessity for prosecuting work during winter months, and on account of certain duly authorized extra work. This amount is itemized in inclosure ‘ D.’
    
      “ (2) The board further recommends an extension in contract time of 153 calendar days on account of delays occasioned by the inability to secure delivery of structural steel, the orders for which were placed with certain firms at the direction of the bureau, and of motors and controllers, hoist and trolley, controller and resistances, and switchboards for the cranes furnished by the Sprague Electric Works, for which the bureau had furnished priority certificates. This delay is regarded as unavoidable within the meaning of the contract.”
    VIII. The Chief of the Bureau of Yards and Docks approved the report of the board to the extent of allowing items of cost of changes in the work amounting to $105.75, which did not include either of the items set forth in Finding VI, ■ but as to cause of delay and time of completion ruled:
    Navy DepartmeNT,
    Bureau of Yards AND Docks,
    
      Washington, D. 0., Dec. W, 1918.
    
    From: Bureau of Yards and Docks.
    To: Navy Yard, Boston, Mass.
    Subject: Contract No. 2385-C (Dept. No. 551)-, July 13, 1917, of Howard Brothers for two mine-storage buildings, Hingham, Mass.
    Reference's: (a) Board report 10481, 6/10/18.
    (b) Bureau letter 2385-C, 6/23/18.
    (c) P. W. O. letter 9912, 5/2/18.
    1. The contract called for the completion of the two buildings by November 27, 1917. One of the buildings was put to use April 13, and the other April 15, 1918, which dates (though the work was not entirely finished until April 28) will be treated as those of completion for the purpose of the damage clause. The delay was due chiefly to difficulties in securing steel and electrical equipment. These delays are not, however, regarded on further consideration as attributable to acts of the Government so as to warrant time extensions on account thereof. The allocating of the steel orders by the Government was not for the purpose of securing a credit on the price, but to assist the contractor, and it undoubtedly resulted in his securing the material sooner than would have been practicable without Government assistance. The risk of delays growing out of questions of priority is regarded as resting upon the contractor. There were, however, doubtless delays owing to abnormal weather conditions during the winter of 1917-18, and, while these occurred after the date prescribed for the completion of the work, an adequate time allowance on account thereof is authorized.
    2. In accordance with the board’s report (reference a) the contractor will be allowed as additional compensation, (a) $241.99, the difference between stock price and Government price of steel purchased from stock; (b) $45.00, for extra excavation to secure solid foundation for piers, steps, and wall footings; (c) $360.00 for extra concrete in piers, steps, and wall footings; and (d) $16.00 for shutter stops, together with 10 per cent profit on time (b), (c), and (d), the total allowance being $705.75. No profit is allowed under the bureau’s practice on the steel credit.
    3. The remaining items of the contractor’s claim, $720 for excavation of ice that formed on floor slabs of buildings before they were roofed, $278.25 for heating of concrete materials in freezing weather, $77.52 for transportation of labor from Boston after expiration of contract time, and $48.00 for remedying faulty design of crane, are not regarded as chargeable to the Government and are accordingly disapproved.
    4. In the settlement of the contract the contractor will accordingly be charged with liquidated damages for the periods of delay in the completion of the buildings as reduced by a proper time credit on account of abnormal weather conditions, and allowed additional compensation in the sum of $705.75 for the items mentioned in paragraph 2. The preparatioin of vouchers accordingly is authorized.
    5. Should the contractor desire to reserve the right to prosecute further his claim for the items disallowed, he may submit a release of claims that excepts from its operation his claim for these items.
    /s/ R. E. BakeNhtts,
    
      Assistant to Bureau.
    
    The contract provided both as to extension of time and as to extras that the finding and action of the Navy Department, Bureau of Yards and Docks, should be conclusive and binding. (Paragraphs 12 and 18.)
    IX. The plaintiff was paid the contract price, $73,863, plus the allowance of $705.75 for changes approved by the bureau, less a deduction of $3,600 representing liquidated damages at the rate of $15 per day for each building for a delay of 119 days and 121 days, respectively, for the two buildings, no allowance or extension of time being made on account of delays to the work from nonreceipt of steel or on other account, except that 18 days’ extension was allowed on account of abnormal weather conditions.
    The court decided that plaintiff was not entitled to recover.
   MEMORANDUM BY THE COTOT

The plaintiff in this case must abide by the provisions of the contract which he entered into. He offers no reason and adduces no evidence which would justify the court in reforming the contract. In both the contentions which he makes he signed a contract which specifically provided that the Bureau of Yards and Docks should be the final arbiter if any dispute arose between the parties. The bui’eau has acted, has passed upon his claim for extension of time, and his claim for extra work. That action is final, and can not be reviewed by this' court. It is not necessary to, cite the numerous authorities which establish this principle.

The claim that the Government was responsible for the delay which occurred is not supported by the evidence. The delay was occasioned by the failure to secure delivery of materials. The contract provides: “Delays in securing delivery of materials, or by rejection of materials on inspection, or by changes in market conditions, or by necessary time taken in submitting, checking, and correcting drawings or inspecting materials, or by similar causes, will not be regarded as unavoidable.” Thus the plaintiff when he signed the contract had notice that any delay in the delivery of the materials could not be relied on by him as giving him a claim for unavoidable delay, and he took the chance that the material would be delivered in time for him to complete the work within the time prescribed in the contract. He was not obliged to sign the contract; but having done so, he can not be heard to complain that he has lost by it.  