
    POLORON PRODUCTS, INC. v. THE UNITED STATES
    No. 48997.
    Decided December 1, 1953.
    
      
      Mr. Josephus O. Trimble for the plaintiff. Mr. Max L. Rosenstein was on the brief.
    
      'Mr. Edward L. Metzler, with whom was Mr. Assistant ■Attorney General Warren E. Burger, for the defendant.
   LittletoN, Judge,

delivered the opinion of the court:

Plaintiff, a New York corporation with its principal place of business at New Rochelle, New York, brings this suit to recover an alleged loss of $61,110.58 which it contends resulted from the wrongful acts of the defendant in partially terminating a contract under which plaintiff agreed to manufacture for the Quartermaster Corps of the Army a quantity of stainless steel canteens. Pursuant to Rule 38 (c) and a stipulation of the parties, the only question now presented is on the issue of liability.

In answer to invitations to bid issued by the Jeffersonville Quartermaster Depot, Jeffersonville, Indiana, for the procurement of 2,671,000 stainless steel canteens, the plaintiff firm on March 17, 1943, submitted an offer to produce the entire quantity. Following negotiations with personnel of the Depot, plaintiff, on March 26, revised its offer to apply to 500,000 canteens, at 74 cents each, to be delivered at specified intervals beginning on July 10, 1943. This revised bid was accepted by the Quartermaster Depot in a telegram of the same date. A definitive contract, dated March 30, 1943, was prepared by the Depot and forwarded to plaintiff, whose officers executed the “Contractor’s Acceptance” thereto on April 5, and returned it to the Depot for the signature of the contracting officer.

Because the Office of the Quartermaster General in Washington did not approve of the award of this contract to the plaintiff, the contracting officer at Jeffersonville Quartermaster Depot did not immediately execute the contract. This disapproval or dissatisfaction was based on the fact that actual experience in the manufacture of canteens from stainless steel had involved more difficulties in fabrication than were originally anticipated, and the Quartermaster personnel in Washington objected to this award to a contractor without experience and tools while other contractors with .experience and adequate facilities were left out or that awards- were made for smaller orders. The Washington office warned the contracting officer of the serious possibility of delays by plaintiff in meeting delivery dates, and because of the urgent need for the canteens recommended that plaintiff’s contract be canceled. This the contracting officer did not do, but after further inspections of plaintiff’s plant and facilities, the parties amended the contract so as to reduce the quantity called for to 300,000. This revision, Modification A, also increased the unit price to 85 cents and revised the delivery schedule to read as follows:

30,000 canteens on or before July 31,1943.
30,000 canteens on or before August 10,1943.
30,000 canteens on or before August 20,1943.
30,000 canteens on or before August 31,1943.
30,000 canteens on or before September 10,1943.
30,000 canteens on or before September 20,1943.
'30,000 canteens on or before September 30,1943.
30,000 canteens on or before October 10,1943.
30,000 canteens on or before October 20,1943.
30,000 canteens on or before October 31,1943.

Plaintiff was unable to meet any of the delivery dates for the canteens, as set out in Modification A of the contract. The first delivery of July 31,1943, was met only when plaintiff subcontracted with one of two experienced firms in the field who delivered the 30,000 canteens due on that date. In. answer to its request for a time extension, the officer in charge of procurement at the Jeffersonville Quartermaster Depot wrote plaintiff on July 21, 1943, that the contract delivery schedule,

* '* * must be met; otherwise the undelivered balance at the end of each scheduled period will be terminated and purchased in the open market, and any excess cost charged to your account.
These canteens for acceptance may be produced in your own plant, or partially or wholly fabricated by a subcontractor.
Your request for an extension of time cannot be granted, as you stated in your bid dated 11 March 1943, that you could deliver 300,000 by 30 June 1943, and 475,000 by 31 July 1943, or a total of 775,000 canteens. The Supplemental Agreement, dated 8 May 1943, modifying your contract of 30 March 1943, includes a delivery schedule of 30,000 Canteens, stainless steel to be accepted by the Government Inspector between 20 and 31 July 1943. This is an extension of approximately seven weeks from the time indicated in your bid .to the time actual acceptances were required. * * *
In the original bid space was provided for listing any additional equipment or facilities required to produce this item. Under this item no additional facilities were listed. On 12 May 1943, a Government Inspector visited your plant, at which time you stated all tools and dies would be ready by 15 June 1943, and at no time in the course of submitting your bid, or in correspondence, did you indicate that new capital equipment would be necessary; therefore, you have now had approximately ten weeks in which to complete the tools and dies and get into production.

Upon failure to meet the August 10 delivery date, the contracting officer on August 16,1943, wrote plaintiff as follows, terminating its right to proceed with the second delivery:

Due to your failure to comply with the schedule of delivery, as provided for in the subject contract, you are hereby notified that pursuant to the provisions of the Delays-Damages Article, known as Article 10 therein, your rights to proceed with the manufacture and delivery of 30,000 Canteens, Stainless Steel, which quantity is delinquent as of 10 August 1943, at a unit price of $.85 each and in the total amount of $25,500.00 is hereby terminated effective as of this date.

Provisions of the contract relating to damages for .delay and disputes pertinent here were as follows:

10. Delays-Damages. — If the Contractor refuses or fails to perform this contract within the time specified, or any extension thereof, the Government may, by written notice, terminate the right of the Contractor to proceed with deliveries or with such part or parts thereof as to which there has been delay, and may hold the Contractor liable for any damage caused the Government by reason of such termination. * * *
11. Disputes. — Except as otherwise specifically provided in this contract, all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail a copy thereof to the Contractor. Within 30 days from said mailing the Contractor may appeal to the Secretary of War, whose decision or that of his designated representative,' representatives or board shall be final and conclusive upon the parties hereto. Pending decision of a dispute hereunder the Contractor shall diligently proceed with the performance of this contract.

Plaintiff, not being possessed of the facilities to make the necessary dies, was required to subcontract for the making, of that equipment. After much inquiry, plaintiff on April 21, 1943, entered into a contract with the Sim Tool & Die Company of Brooklyn, New York, for a complete set of dies to produce the lower half of the canteens deliverable on or before June 15, 1943. However because of that company’s inability to produce satisfactory dies, plaintiff on August 8, 1943j re-ordered the dies from another tool and die maker who finally delivered workable dies to plaintiff on November 18, 1943. It was not until that date that plaintiff was equipped to produce canteens under the contract.

Similar “notices of terminations” were sent plaintiff upon plaintiff’s failure to meet its delivery schedule for canteens due on the following dates:

30,000 canteens on August 20, 1943. Notice dated August 23,1943.
30,000 canteens on August 31, 1943. Notice dated September 3, 1943.
90,000 canteens on September 10, 20, and 30, 1943. Notice dated October 4,1943.

During August and September of 1943, plaintiff by letters protested the termination actions of the contracting officer. The contracting officer again rejected plaintiff’s requests for time extensions, ruling that the sole cause of plaintiff’s delay was its failure to obtain satisfactory dies which excuse he held not to be excusable under the contract. These letters read in part as follows:

The information that you have listed in your letter of 24 August 1943 for failing to comply with delivery schedule on subject contract has been carefully reviewed and studied. After due consideration and a careful review of delivery inspection reports submitted by the Government Inspector assigned to your Plant, it has been decided that two of the references which you have given did not cause the delay in- production. Even though the stainless steel had been delivered to you in large quantities and the Canteen Caps were delivered in accordance with schedule with your sub-contractor, delivery could not have been made because you would not have the necessary equipment set up, as well as the dies on hand to produce stainless steel Canteens.
Consideration to reinstate the 60,000 Canteens terminated on subject contract cannot be given and you are again advised that there will be further terminations if you become delinquent on the contract as scheduled.
The reasons you give for being delinquent on subject contract are not considered excusable and this office has again made an investigation of the causes for delay and found that the reason has been your inability to secure suitable dies.. Even though an abundance of material has been delivered to your plant, production could not have been started because your equipment was not ready to produce. [Italics supplied.]

Plaintiff made no effort to appeal any of these rulings to the head of the department within the 30 days required under Article 11 of the contract, but in October 1943, because of its inability to meet any of the delivery dates, plaintiff initiated negotiations with Quartermaster Corps personnel which resulted in a revision of the contract, reducing the total amount to be delivered and establishing a delivery schedule of 25,000 for October, 35,000 for November, and 30,000 for December of 1943.

Upon failure of plaintiff to meet the October delivery, the contracting officer in a notice of termination similar to those mentioned above terminated plaintiff’s right to deliver that quota. While plaintiff continued in default under this third revision, no further terminations were put into effect, but instead the contract was again amended in an effort to enable plaintiff to complete delivery of the reduced contract quantity by March 1,1944. Plaintiff’s completed deliveries under the contract for which it has received payment were as follows:

December 28, 1943_ 25,050
February 1,1944- 27,000
March 8, 1944_12, 950
April 1, 1944_6,750
Total delivered-71,750

Although plaintiff on several occasions, beginning in July 1944, directed protests to the War Department and General Accounting Office requesting formal findings of fact by the contracting officer and arguing the excusability of its delays, it was not until November 13, 1945, that an appeal was filed with the Secretary of War asserting that the above mentioned partial terminations in 1943 and 1944 of the contract were illegal.

Following hearings on March 21, 22, and 23, 1946, the appeal was dismissed by the War Department Board of Contract Appeals acting as the duly authorized representative of the Secretary of War. The pertinent portions of the Board’s decision are set out in finding 37.

Plaintiff then instituted this action on the grounds that (1) it had never been furnished with sufficient findings of fact by the contracting officer upon which to base an appeal, (2) the delays entailed resulted from the acts of defendant, (3) those causes of delay chargeable to plaintiff were excusable under the contract, and (4) the conduct of defendant’s representatives amounted to a fraud upon the plaintiff.

Defendant takes the position that under the express terms of the contract the contracting officer’s notices of termination were sufficient, and that plaintiff is precluded from recovery because of its failure to perfect the necessary appeal within 30 days as required by Article 11 of the contract. . Defendant further contends that apart from the failure of timely appeals, the decision here must be for the Government on the grounds that the decision of the War Department Board of Contract Appeals, which ruled adversely to plaintiff on the merits of its claims, is final and binding on this court. That decision, defendant points out, is fully supported by the evidence and no showing has been made of wrongdoing on the part of defendant’s representatives.

The Board of Contract Appeals granted plaintiff a full hearing on the merits of its claims because it deemed a consideration on the merits necessary to a decision on the jurisdictional question presented, that is, whether a timely appeal had been made. The Board then, in addition to dismissing the appeal for failure to perfect it within the required time, made and incorporated as part of its decision, detailed findings of fact which were adverse to plaintiff on all its claims. While the decision of the head of the department as to the facts is binding on this court under United States v. Wun-derlich, 342 U. S. 98, its decision as to whether a timely appeal has been perfected within the meaning of the contract, being a question of law, is not one to which the limitation of Wunderlich attaches. W. C. Shepherd v. United States, 125 C. Cls. 724, 729; See Callahan Construction Co. v. United States, 91 C. Cls. 538, 616.

Thus, we have in effect a two fold decision by the Board, part of which is binding here and part which is not. We will first consider the issue of timely appeal.

Plaintiff in an effort to void any effect which the adverse Board ruling may have argues that since it was never presented with formal findings of fact by the contracting officer there never was in existence a decision which was appealable; thus, even to this time, the period time within which it was required to appeal has never begun to run. In so contending, plaintiff refuses to accept the written “notices of terminations” and the reasons given therefor by the contracting officer, as being sufficient notice of the contracting officer’s decisions. The essence of these notices was that the terminations were made because of plaintiff’s failure to meet the required delivery dates.

Defendant meets this contention with reliance on Kilgore v. United States, 121 C. Cls. 340, 371-372. However, that case as well as Climatic Rainwear Co., Inc. v. United States, 115 C. Cls. 520, 559, relied on by plaintiff is inapplicable here since the Government in terminating contracts in both those cases acted under contract provisions materially different from those present in the instant case.

The contracting officer made the terminations under Article 10, supra, and the plaintiff’s right to contest those terminations is to be found in the “Disputes” clause, Article 11, supra. This latter article requires only that the contracting officer “reduce his decision to writing and mail a copy thereof to the Contractor.”

In addition to the notices of termination received by plaintiff, the contracting officer during August and September of 1943, in answer to protests by plaintiff, wrote on two occasions making it entirely clear why the partial terminations were made and why plaintiff’s alleged excuses for the delays were being rejected. Even after receipt of these letters plaintiff made no appeal. Instead, at its request, further negotiations were initiated with the Office of the Quartermaster General in Washington and with personnel at the Jeffersonville Depot, which resulted in a revision of the contract. Finding 25.

Universal Power Corp. v. United States, 112 C. Cls. 97, cited by plaintiff as supporting its contentions is in point insofar as it involved the termination of a contract under provisions identical with Articles 10 and 11 here. However, we ruled in that case that the contracting officer was in error not merely because he failed to furnish findings of fact, but that he had failed to take any notice whatsoever of protests by the contractor, and as a result he neglected even so much as to notify the contractor as to what, he, the contracting officer found to be the causes of the delay in question. Here the plaintiff was placed on adequate notice as to what the contracting officer believed to be the cause of the delays, and that such cause was not excusable under the contract.

We hold, therefore, that the “notices of terminations” and the letters of August and September 1943 constituted sufficient notice to the plaintiff of the contracting officer’s decisions, under the contract provisions applicable here, and because of. the failure to appeal those decisions within the thirty days as required by Article 11, plaintiff is barred from recovery. United States v. Blair, 321 U. S. 730, 735; United States v. Holpuch Co., 328 U. S. 234, 240.

The consideration of plaintiff’s claims on the merits leads to the identical conclusion. As mentioned above, the findings of fact made by the Board of Contract Appeals are binding here. The findings of the Board are supported by the evidence, and there is no evidence of the factors which would free those findings from the force which Wunderlich gives to them. Finding 38. Therefore, any discussion of plaintiff’s case on its merits must begin with the recognition that the sole and primary cause of plaintiff’s delay was the failure of its subcontractor to furnish satisfactory dies which default was due to that company’s inability to produce the dies. However, the Board’s conclusion that this was not an excusable delay under the contract is not binding because it rests upon a construction of the contract.

Article 10, under which the partial termination actions were taken, provides in part as follows:

* * * The right of the Contractor to proceed with the performance of this contract shall not be terminated * * * if the delay is due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor * * *. [Italics supplied.]

Plaintiff’s position is that the delay caused by the subcontractor’s failure to produce adequate dies due to its inexperience was an unforeseeable cause within the above article, and that the failure of the contracting officer to grant time extensions for the resulting delay was a breach of contract on behalf of the Government.

Defendant meets this contention with the opposite argument, asserting that the inability of the subcontractor to perform was not excusable. This is particularly so, defendant urges, when it is remembered that the process for making stainless steel canteens was comparatively new, and what progress had been made had been done so only with difficulty.

Plaintiff relies primarily on two cases, H. B. Nelson Construction Co. v. United States, 87 C. Cls. 375, and Climatic Rainwear Co. v. United States, supra, as supporting its position. In the Nelson case delay resulted when some of the contractor’s materials were delivered in a damaged condition due to the negligence of the railroad in transporting them. That delay was held to have been an unforeseeable one not chargeable to the contractor since prompt and satisfactory service on the part of the railroads was to be expected, and the contractor in binding himself to specified completion dates was entitled to rely on it. In the Climatic Rainwear case, plaintiff manufactured raincoats for the War Department, and delay resulted when a number of the finished coats were rejected because of leakage at the seams. The samples had originally been approved as satisfactory, but after delivery had begun on a large scale, this defect was discovered. It was remedied by the use of different strapping material at the seams but only after extensive tests by all parties concerned. Citing the Nelson case, we held that the failure of the strapping material to be watertight after it had been previously tested and found to be acceptable by the Government was an unforeseeable cause beyond the control and without fault by the contractor. Neither case can be controlling here since difficulties in manufacturing stainless steel canteens was to be expected, and plaintiff was expressly and clearly put on notice, of such difficulties when it bound itself to “deliver on the dates called for in the contract. The difficulty which ensued can hardly be said to have been unforeseeable when it is recalled that the plaintiff obligated itself to embark upon work new to it, with no dies with which to fabricate the canteens and possessed of no facilities to produce those dies, thus necessitating its looking elsewhere for that- basic equipment-. See Lebanon Woolen Mills, Inc. v. United States, 99 C. Cls. 318, 328.

Nor does the inexperience of the subcontractor operate to excuse plaintiff’s delays. Under a contract such as we have here, lack of “know-how” is no excuse for failure of performance. Carnegie Steel Co. v. United States, 240 U. S. 156.

There remains one point more, and that deals with the plaintiff’s contention which runs throughout its brief to the effect that there existed from the very beginning, on the part of the Quartermaster personnel, a concerted effort to remove this contract from the plaintiff. This, plainiff asserts, was tantamount to fraud on the part of defendant’s representatives. It is not disputed that the Office of the Quartermaster General in Washington was displeased with the award of this contract. But the facts support their position. The Depot at Jeffersonville had evidently been prompted to let this contract to plaintiff because of the activities of the Smaller War Plants Corporation in Washington, whose efforts were directed at obtaining war contracts for the smaller plants, and at the same time provide for greater diversification of war contracts. The process of fabricating canteens from stainless steel was a comparatively new process and, at the time of this award to plaintiff, only two firms had been able to solve adequately all difficulties encountered. Finding 5. The Quartermaster officers in Washington realizing time was of the essence in securing delivery of the canteens believed that the experienced firms should receive the bulk of the canteen contracts. As it developed, their fears in connection with plaintiff’s contract proved to be well grounded. Plaintiff’s officers were warned from the very beginning that failure to meet delivery dates would result in termination action. Finding 5. Plaintiff was afforded the opportunity to withdraw from its bid but declined. Thus, the Government determined that it would adhere strictly to the delivery date requirements which its officers did, but not to the extent of defrauding plaintiff of its right to proceed under the contract. We'find no substantial evidence supporting plaintiff’s assertions to the effect that the contracting officer acted under the compulsion of higher authority in terminating-portions of the contract rather than on the merits of the situation. The absence of any such intent on the part of Quartermaster personnel is evidenced by the several revisions which they permitted to be made in the contract in order that plaintiff could, even in the face of its inexcusable difficulties, .deliver portions of the contract quantity. We think the Government was fair to plaintiff in every way.

In conclusion, we hold that plaintiff is not entitled to recover because it failed to perfect a timely appeal as required by the contract, and even apart from that bar, plaintiff is precluded on the facts since it must be held that the delays incurred were chargeable to it, thus entitling the defendant to terminate the contract as it did. Plaintiff’s petition is dismissed. It is so ordered.

Madden, Judge; Whitaker, Judge; and Jones, Chief Judge, concur.

FINDINGS OE FACT’

The court, having considered the evidence, the report of Commissioner Marion T. Bennett, and the briefs and argument of counsel, makes findings of fact as follows:

1. The plaintiff is a corporation organized and existing under the laws of the State of New York with its principal office- and place of business at 55 Avenue E, New Eochelle, New York, and is engaged in manufacturing. Prior to World War II the plaintiff manufactured thermal picnic jars, charcoal grills, and picnic boxes. In July 1942, it converted to war production and successfully completed sevei'al contracts with the defendant.

;.2i In response to invitations to bid dated February 25, 1943, issued by the Jeffersonville Quartermaster Depot, Jeffersonville, Indiana, for the procurement of 2,671,000 canteens, M1942, stainless steel, the plaintiff on March 17, ■1943, offered to produce the entire quantity at a price of 74 cents each, to be delivered 300,000 by June 30 (40,000 by June 1, 1943, and 120,000 per week thereafter), 475,000 by the last day of July and 474,000 on the last day of each of the months of August, September, October, and November 1943.

3. On March 26, 1943, after conversations with personnel in the Office of the Jeffersonville Quartermaster Depot, the plaintiff revised its offer to apply to 500,000 canteens at 74 cents each to be delivered upon a schedule of approximately 33,000 canteens every ten days beginning on July 10, 1943. This bid was accepted by the Quartermaster Depot in a telegram to the plaintiff of the same date. The plaintiff was afforded an opportunity to withdraw its bid but declined.

4. A definitive contract dated March 30, 1943, was prepared by the Depot setting forth the agreement as described above and forwarded to the plaintiff for its approval. The plaintiff executed the “Contractor’s Acceptance” thereto on April 5, 1943, and promptly returned it to the Depot for the signature of the contracting officer.

5. The contracting officer did not immediately execute the contract and return the duplicate to the plaintiff. After consultations with personnel in thé Office of the Quartermaster General in Washington, D. C., and after further inspections of the plaintiff’s plant and facilities, the contracting officer entei’ed into negotiations with the plaintiff to reduce the number of canteens called for in the contract from 500,000 to 300,000. The motivation for this delay and change in attitude of the contracting officer arose largely from the severe disapproval by the Office of the Quartermaster General over the Jeffersonville Depot giving a contract to the plaintiff. Actual experience in the manufacture of stainless steel canteens brought out more difficulties in fabrication than were originally anticipated. These were solved, for the most part, by one contractor, the Yollrath Company, working with technically trained personnel of the Quartermaster General. This experience was subsequently passed along to the Strong Manufacturing Company which, together with Yollrath, had been producing all of the requirements for stainless steel canteens. The Quartermaster General’s Office objected to an award to a new contractor without experience and tools while other contractors with experience, a pioneering background in the item, and adequate facilities were left out or awarded a small order. The old contractors were vigorous in voicing their own displeasure to the authorities over this trend of events. The Office of the Quartermaster General immediately forecast serious delays by the plaintiff in establishing a satisfactory production rate for these urgently needed canteens, and recommended that the plaintiff’s contract be canceled at once and that the'award be placed principally with Yollrath at a renegotiated price. This recommendation was not immediately followed by the contracting officer and, in fact, was not done at all until the plaintiff had later defaulted on its deliveries. The plaintiff was warned, however, as shown in later findings, that its contract would be promptly terminated for defaults on delivery.

6. On or prior to April 26,1943, the plaintiff was induced to accept a reduction in the number of canteens to be produced by it to 300,000 and Modification A, dated May 8,1943, was executed. This modification, attached to the original contract bearing the date of March 30, 1943, which changed the number of canteens to be produced, increased the unit price from 74 cents to 85 cents and revised the delivery schedule, became the agreement under which the plaintiff finally embarked upon its production of canteens for the Army. Modification A, in part, provided:

This Supplemental Agreement constitutes a waiver of any and all claims which may arise by reason of decrease in quantity, increase in unit price and change in delivery schedule, to either party.

7. The provisions of the contract, as amended by Modification A, pertinent to the issues are:

(a) The delivery schedule to be as follows:

30,000 canteens or or before July 31,1943.
30,000 canteens or or before August 10,1943.
30,000 canteens on or before August 20,1943.
30,000 canteens on or before August 31,1943.
30,000 canteens on or before September 10,1943.
30,000 canteens on or before September 20,1943.
30,000 canteens on or before September 30,1943.
30,000 canteens on or before October 10,1943.
30,000 canteens on or before October 20,1943.
30,000 canteens on or before October 31,1943.

(b) The “Delays-Damages” clause, as follows:

10. Delays-Damages. — If the Contractor refuses or fails to perform this contract within the time specified, or any extension thereof, the Government may, by written notice, terminate the right of the Contractor to proceed with deliveries or with such part or parts thereof as to which there has been delay, and may hold the Contractor liable for any damage caused the Government by reason of such termination. The right of the Contractor to proceed with the performance of this contract shall not be terminated under this General Provision 10 if the delay is due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including without being limited to, any preference, priority or allocation order issued by the Government or any other act of the Government.

(c) Article 16, entitled “Termination for the Convenience of the Government,” which was the standard article invoked when the Government desired to terminate the contract without cause.

(d) A standard “Changes” clause (Article 9).

(e) A “Disputes” clause (Article 11), which reads as follows:

11. Disputes. Except as otherwise specifically provided in this contract, all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail a copy thereof to the Contractor. Within 30 days from said mailing the Contractor may a,ppeal to the Secretary of War, whose decision or that of his designated representative, representatives or board shall be final and conclusive upon the parties hereto. Pending decision of a dispute hereunder the Contractor shall diligently proceed with the performance of this contract.

8. An executed copy of the contract, together with a copy of Modification A, was finally forwarded to the plaintiff and received by it on May 17,1943.

9. Previous to the execution of the contract the plaintiff had no experience in the making of canteens. The plaintiff had no experience in fabricating anything out of stainless steel prior to this contract and had no tools and dies with which to fabricate the canteens. The plaintiff did not have the facilities to make the tools and dies and was obliged to subcontract the making of the tools and dies to someone equipped for that purpose.

10. The lack of plaintiff’s experience in the art of drawing stainless steel and the lack of tools and dies to perform that operation were conditions not peculiar to the plaintiff. The same conditions had obtained as to all manufacturers of similar products when the program of procuring canteens of stainless steel was first initiated in November 1942, and those facts were well known to the procurement officers of the Government.

11. Without awaiting the return of the definitive contract, the plaintiff promptly went about the business of acquiring tools and dies with which to perform its contract. It investigated numerous tool and die makers, and, on April 21, 1943, primarily on the basis of these investigations, entered into a contract with Sim Tool & Die Company, of Brooklyn, New York, for a complete set of dies (5 individual dies) to produce the lower half of the canteens, to be delivered on or before June 15, 1943. It also placed an order for dies for the upper half of the canteens with another company, which, though it produced the dies later than agreed, delivered them in time not to be involved in any of the delays later incurred. Sim Tool & Die Company was recommended to the plaintiff by a representative of the defendant. There is no evidence the plaintiff did not use due care in the selection of its subcontractor or that the defendant objected to its selection.

12. The Sim Tool & Die Company failed to produce workable dies in accordance with its contract although both the plaintiff and the defendant made efforts to expedite proper performance. Its first delivery of dies was made on July 9, 1943. One was cracked when it arrived, one broke when tested, and other defects were noted. Though the plaintiff alleged that the Government delayed issuing priority certificates for the producing of the dies until the contract was finally delivered to the plaintiff, such delay in no way contributed to the default of Sim Tool & Die Company. The default was due to that company’s lack of ability to produce the dies. Plaintiff later instituted suit in New York against the Sim Tool & Die Company for breach of contract. This suit was settled upon payment of $4,000.

13. By August 8, 1943, the plaintiff removed the making of its dies from the Sim Tool & Die Company and placed the order with another tool and die maker, Frederick Neueske & Company, who finally produced and delivered workable dies to the plaintiff on November 18, 1943. The plaintiff could not produce any canteens under its contract without woi’kable dies. Therefore, it was not until November 18, 1943, that the plaintiff was equipped to start producing canteens.'

14. In the meantime, the plaintiff was able to procure stainless steel in sufficient quantity to test all dies that were delivered. Stainless steel was not delivered to the plaintiff in quantities sufficient to meet its delivery schedule had it been equipped with workable dies. After November 18,1943, the date when the plaintiff was first able to produce by reason of having received workable dies, there was no time when the plaintiff was held up because it did not have a sufficient amount of stainless steel.

By July 19, 1943, the plaintiff had received 1,500 pounds of steel and by July 22, 1943, received an additional 3,500 pounds. As of July 27, 1943, the plaintiff had on hand 23,358 pounds of steel and enough to produce 15,000 canteens. On August 21,1943, the plaintiff had enough steel on hand to produce 20,000 canteens. By September 7, 1943, enough steel for an additional 14,000 canteens was received so that as of that date enough steel was available for approximately 34,000 canteens in addition to 19,500 pounds diverted to the Strong Manufacturing Company, which acted as subcontractor of the plaintiff in producing 30,000 canteens. Ad.ditional- quantities of steel were not. delivered to the plaintiff in order to prevent an excessive accumulation and because other contractors bad immediate need for steel.

" 15. The Quartermaster Depot did not promptly approve the plaintiff’s samples of bakelite caps as there was ho necessity under the circumstances for immediate approval. However, after the date when the plaintiff was able to produce canteens by reason of its having workable dies there was no time when the plaintiff’s production was held up because it did not have a sufficient number of bakelite caps.

. 16. The record of the plaintiff’s deliveries of canteens is as follows:

'July 31,1943_ 30,000 (Subcontracted to Strong Mfg.

December 28, 1943_ 25,050 Co.)

February 1,1944_ 27,000

March 8, 1944_ 12,950

95,000

April 1, 1944___ 6,750 Contract overrun accepted.

101,750 Total delivered.

, 17. Under date of June 14, 1943, the plaintiff wrote the Quartermaster Depot that it expected to receive stainless steel early in July and was “of the opinion we can still make the July delivery.” However, on July 8, the plaintiff wrote the contracting officer requesting that its initial delivery of 30,000 canteens be postponed 30 days from July 31, 1943, to August 31,1943.

On July 9,1943, the Quartermaster Depot wired the plaintiff that the Strong Manufacturing Company co.uld furnish the plaintiff’s July requirements if notified immediately and that company did deliver the required 30,000 canteens under plaintiff’s contract. This reduced the quantity the plaintiff was to manufacture from 300,000 to 270,000 canteens.

. ..18. Under date of July 21, 1943, the officer in charge of procurement at the Quartermaster Depot wrote the plaintiff that- it had been decided that the contract delivery schedule,

* * * must be met; otherwise the undelivered balance at the end of each scheduled period will be terminated and purchased in the open market, and any excess cost charged to your account.
These canteens for acceptance may be produced in your own plant, or partially or wholly fabricated by a subcontractor.
Your request for an extension of time cannot be granted, as you stated in your bid dated 17 March 1943-, that you could deliver 300,000 by 30 June 1943, and 475,000 by 31 July 1943, or. a total of 775,000 canteens. The Supplemental Agreement, dated 8 May 1943, modifying your contract of 30 March 1943, includes a delivery schediile of 30,000 Canteens, stainless steel to be accepted by the Government Inspector between 20 and 31 July 1943. This is an extension of approximately seven weeks from the time indicated in your bid to the time actual acceptances were required.
The original contract was made on 30 March 1943, and Supplemental Agreement on 8 May 1943. Therefore, the period in which the contract was questionable was only five weeks, and an extension of two weeks over and above the questionable period was granted, and th,e quantity requested in the first period reduced.
In the original bid space was provided for listing any additional equipment or facilities required to produce this item. Under this item no additional facilities were listed. On 12 May 1943, a Government Inspector visited your plant, at which time you stated all tools and dies would be ready, by 15 June 1943, and at no time in the course of submitting your bid, or in correspondence, did you indicate that new capital equipment would be necessary;. therefore, you have now had approximately ten weeks in which to complete the tools and dies and get into production.

19. Upon the plaintiff’s failure to meet its second delivery of 30,000 canteens on August 10, 1943, the Quartermaster Depot telegraphed the plaintiff as follows:

REFERENCE CONTRACT W, 431 QM-139 89 01 1098 0-S-X CANTEENS STAINLESS STEEL 30,000 DELINQUENT AS OF 10 AUGUST IS BEING TERMINATED THIS PORTION WILL BE PURCHASED IN OPEN MARKET AND ANT EXCESS COST PROBABLY CHARGE TO YOUR ACCOUNT REMAINING QUANTITY NOT DELIVERED ON SCHEDULED DELIVERY DATES WILL BE LIKEWISE SUCCESSIVELY TERMINATED.

. 20. Under date of August 16, 1943, the contracting officer notified the plaintiff by registered mail of the termination of its right to proceed with the second delivery in a letter which read as follows:

-, Due to your failure to comply with the schedule of delivery, as provided for in the subject contract, you are hereby notified that pursuant to the provisions of the Delays-Damages Article, known as Article 10 therein, your rights to proceed with the manufacture and delivery of 30,000 Canteens, Stainless Steel, which quantity is delinquent as of 10 August 1943, at a unit price of $.85 each and in the total amount of $25,500.00 is hereby terminated effective as of this date.
You are further notified that the Government hereby reserves and asserts all rights under the Delays-Damages Article aforesaid and pursuant thereto may secure the manufacture and delivery of said quantity of 30,000 Canteens, Stainless Steel. If such procurement is made any cost in excess of the unit or total price of the terminated quantity occasioned to the Government in accomplishing such procurement, shall be your liability and will be charged to or set off against your account with the Government.
Acknowledgment of receipt of this Notice of Termination is requested.

' In August 1943, two manufacturers with whom contracts for canteens had been placed initially were in production and were ahead of their delivery schedules. The defendant secured the canteens from these other sources of supply.

. 21. Similar notices of termination were sent to the plaintiff for its failure to meet its delivery schedules, as follows:

30,000 canteens on August 20,1943

30,000 canteens on August 31,1943

90,000 canteens on September 10, 20, and 30, 1943.

Notice dated August 23,1943.

Notice dated September 3,1943.

Notice dated October 4,1943.

All of the foregoing notices of termination were preceded by telegrams to the plaintiff from the contracting officer, warning the plaintiff of the terminations, which telegrams were dispatched either upon the due dates of delivery schedule, or the day following the same.

22. The plaintiff made its first written protest about the terminations on August 24,1943, when the plaintiff wrote the Quartermaster Depot, attention of the contracting officer, reading in part as follows:

As we explained to you when you placed this order with us, it was necessary that we subcontract the construction of our tools and dies. The Sim Tool and Die Company promised to supply the completed dies for the bottom of the canteen on June 15. The August W. Holmberg Company promised to supply the dies for the top. on June 30. We still do not have a complete set of dies suitable for manufacturing the bottoms, even though we were able to make a sufficient quantity of samples. The dies for the tops were only delivered complete and in good working order last week. Both subcontractors state that they were unavoidably delayed in producing this necessary equipment.

The plaintiff also attributed its inability to deliver the required 60,000 canteens on August 10 and 20 to its inability to obtain steel, its lack of approval of the sample of a bake-lite canteen cap, and to the change in the original contract quantities, resulting in alleged delay of about eight weeks in delivering the contract to the plaintiff.

23. The contracting officer replied by letter dated August 28,1943, as follows:

The information that you have listed in your letter of 24 August 1943 for failing to comply with delivery schedule on subject contract has been carefully reviewed and studied. After due consideration and a careful review of delivery inspection reports submitted by the Government Inspector assigned to your Plant, it has been decided that two of the references which you have given did not cause the delay in production. Even though the stainless steel had been delivered to you in large quantities and the Canteen Caps were delivered in accordance with schedule with your sub-contractor, delivery could not have been made because you would not have the necessary equipment set up, as well as the dies on hand to produce stainless steel Canteens.
Consideration to reinstate the 60,000 Canteens terminated on subject contract cannot be given and you are again advised that there will be further terminations if you become delinquent on the contract as scheduled.

24. Under date of September 4, 1943, the plaintiff again wrote the Quartermaster Depot, attention of the contracting officer, that the reasons for its delinquencies were still as stated in its letter of August 24 except for approval of the bakelite caps and that “the delays were due to unforeseeable causes beyond our control and without our fault or negligence.”

The contracting officer under date of September 13,1943, replied to the plaintiff’s letter of September 4 as follows:

Reference is made to your letter of 4 September 1943, taking exception to the termination of 31 August on subject contract covering 30,000 Canteens, Stainless Steel:
The reasons you give for being delinquent on subject contract are not considered excusable and this office has again made an investigation of the causes for delay and found that the reason has been your inability to secure suitable dies. Even though an abundance of material has been delivered to your plant, production could not have been started because your equipment was not ready to produce.

The correctness of this determination as to the cause of default was admitted by the plaintiff and his former attorneys.

During September 1943, the Quartermaster Depot also repeatedly advised the plaintiff of the necessity of making delivery dui’ing September. Finally on September 30, the plaintiff wrote the Quartermaster Depot that it was sorry it had been unable to make deliveries during September and stated further as follows:

As explained to you over the telephone, there is still one die out of the entire set of 20 dies which is not working properly. All of the dies for the top of the canteen are in operation and working satisfactorily. One of the series that make the bottom has been corrected and is being returned from the die maker today.

The plaintiff did not appeal any of the decisions of the contracting officer under Article 10 of the contract to the Secretary of War within 30 days after mailing. The plaintiff’s first appeal to the Secretary of War was made under date of November 13,1945.

25. In the face of the plaintiff’s inability to get into production and to meet its delivery schedule, the plaintiff contacted representatives of the Quartermaster General, the Smaller War Plants Corporation in Washington and the Quartermaster Depot early in October 1943 requesting its contract balance be reduced to 90,000 canteens with delivery of 25,000 in October, 35,000 in November, and 30,000 in December. Based on its promises at that time the plaintiff was then afforded a final opportunity to produce and Modification E incorporating the above revision was issued under date of October 8,1943.

26. The plaintiff failed to deliver the 25,000 canteens on October 31, 1943, and the contracting officer in a notice of termination similar to those of August 16, August 23, September 3, and October 4, 1943, terminated the plaintiff’s right to deliver that quantity under date of November 5,1943.

27. No further terminations were put into effect by the contracting officer. Under date of January 4, 1944, the Quartermaster General requested the Quartermaster Depot to allow the plaintiff to complete the reduced contract quantities on or before March 1,1944. This request was complied with and a supplemental agreement to that effect, Modification G, was issued under date of January 11, 1944. Deliveries were made as set forth in finding 16.

28. The plaintiff initiated its efforts to collect what it characterized as a “payment or allowance” of $64,110.58 by letter to the Under Secretary of War under date of July 11, 1944. Neither the plaintiff nor any Government agency considered or treated this claim as an appeal from the contracting officer’s decisions. The letter set forth the history of plaintiff’s experience under the instant contract, argued the excusability of its causes of delay, as well as the claimed interference it had undergone in its attempts to perform the contract, asserted the hardship which it would endure if it were not made whole, and expressed its belief that it should be treated, under the circumstances, as if the contract had been terminated for the convenience of the Government. It requested an opportunity to be heard in connection with its claim. A copy of this claim was forwarded by the plaintiff’s attorney to tbe Commanding General, Quartermaster Depot, Jeffersonville, Indiana. In this claim the plaintiff freely admitted that its failure to perform was attributable to the lack of suitable dies for which subcontracts had been made. The plaintiff also admitted the canteens could not have been manufactured because of the lack of dies even if stainless steel were available and that the plaintiff sued one of the die subcontractors for breach of contract and accepted that subcontractor’s offer of settlement.

29. The Legal Section of the Office of the Commanding General, Jeffersonville Quartermaster Depot, replied to the plaintiff on August 8,1944, asserting that inasmuch as shipments and payment had been made in full and the contract completed, the Depot no longer had jurisdiction, and advised that the plaintiff might file its claim, through the Depot, with the General Accounting Office. The letter concluded, as follows:

* * * We await your advice and in the meantime, this Depot will hold the claim pending receipt of instructions from you.
On August 10, 1944, the plaintiff replied, stating:
We would appreciate it, if in line with the suggestions in your letter, you would transmit this claim to the General Accounting Office, Washington, D. C.

30. The Office of the Under Secretary of War replied to the plaintiff’s claim letter of July 11, 1944, under date of December 26,1944, as follows:

The data submitted in support of your claim of July 11,1944, addressed to the Under Secretary of War, with respect to Contract No. W-431-QM-13989, has been carefully considered by the War Department. It has nevertheless been determined that the War Department should not take favorable action on the claim, and accordingly the claim is hereby denied.
Pursuant to your letter of August 10, 1944, addressed to the Commanding General, Quartermaster Depot, Jeffersonville, Indiana, the claim which at your request has been held pending final decision by the War Department relative thereto, is now being transmitted to the General Accounting Office. Any further correspondence should be addressed to that office.

31. The ruling of the General Accounting Office, in the name of the Comptroller General, was issued and dispatched to the plaintiff on May 12, 1945. It concludes as follows:

In view of the record of your delinquencies and failure to furnish the canteens on the dates specified in the agreement, thereby necessitating cancellation of certain quantities and resulting in the alleged loss to you, there appears to be no legal basis for allowance of your claim.
I, therefore, certify that no balance is found due you from the United States.

32. Under date of August 20,1945, the plaintiff addressed a letter to the Commanding General, Jeffersonville Quartermaster Depot, which stated:

Reference is made to your several partial terminations for default of subject contract as follows:
Date Quantity
16 August 1943_ 30,000
23 August 1943_ 30, 000
2 September 1943_ 30, 000
4 October 1943_ 90, 000
6 November 1943_ 25, 000
Total_205,000
We have waited patiently for formal findings of fact from you to the end that we may take an appeal in accordance with the terms of subject contract to the Secretary of War.
Your early attention to this will be greatly appreciated.

33. Reply was made on August 23, 1945, by the Legal Branch of the Jeffersonville Quartermaster Depot, stating that the notices of termination constituted the findings of fact by the contracting officer as provided in Article 11 of the contract entitled “Disputes”. The letter concluded:

Since you did not take an appeal to the Secretary of War within the 30 days allowed by the above Contract, this appeal at your written request dated 10 August 1944 was forwarded to the General Accounting Office, Washington, D. C. Any further inquiries in connection with this matter should be addressed to the General Accounting Office, Washington 25, D. C.

34. In October 1945 the plaintiff filed with the Quartermaster General, Washington, D. C., a petition, which, after contending that the notices of termination did not constitute formal findings of fact by the contracting officer, concluded with the following prayer:

WHEREFORE, the contractor respectfully requests the following relief:
A. That the Quartermaster General determine that the time of the Contractor to appeal to the Secretary of War under General Provision 11 of the subject contract has not started to run and will not start to run until the Contracting Officer serves formal findings of fact upon the Contractor, and it is further requested that the Contracting Officer be directed to make such findings promptly.
B. In the alternative, that the Quartermaster General, if he determines that the time to appeal, as aforesaid, has expired, extend the time of Contractor to take such appeal until thirty days after the granting of such relief.

35.The Office of the Quartermaster General, through the Jeffersonville Quartermaster Depot, replied to the plaintiff’s petition of October 2, 1945, by letter of October 16, 1945, stating:

The Quartermaster General has requested this depot to advise you that The Quartermaster General has no Eower to grant the request for an extension of time to le an appeal in this matter and the Office of The Quartermaster General has further advised that the letters of 16, 23, and 26 August 1943, 3 and 13 September 1943, 4 October 1943 and 5 November Í943 did contain findings comprehensive enough for you to base an appeal.

36.The plaintiff perfected its appeal to the Secretary of War under date of November 13, 1945, asserting that it was an appeal from all of the denials it had received as herein-before set forth. After hearings on March 21, 22, and 23, 1946, the appeal was dismissed on June 28,1946, by the War Department Board of Contract Appeals. The Board granted .the full hearing and went into a consideration of the appeal on its merits because it decided that such was necessary in order to pass on the jurisdictional questions presented.

37.Pertinent findings and portions of the decision of the War Department Board of Contract Appeals are as follows:

* * * this Board concludes that lack of “know-how” on the part of appellant, so far as its own delays are concerned, and failure of appellant’s subcontractor to supply dies, due to its lack of “know-how”, are not the kind of causes of delay which are excusable under the contract, and may not be relied upon by appellant to excuse its delays in deliveries in the instant appeal. Delays of a supplier, or subcontractor, not specifically declared by the contract to be excusable causes of delay of the prime contractor, are the responsibility of the contractor, and the consequences thereof may not be visited upon the Government. * * *
Appellant’s claim that it did not have on hand stainless steel in sufficient quantity to meet its delivery schedules of 81 July, 10 August, 20 August, 30 August, and 10 September 1943 (par. (3) above) may not be relied upon by appellant as an excusable cause of delay for the reason that any shortage of that material was not the real cause of delay. Without proper, workable dies on hand, it would have made no difference if appellant had on hand an abundance of stainless steel; it could not have produced the canteens. The evidence is convincing that from the time appellant was in condition to produce, there was no shortage in its plant of stainless steel. This is admitted by appellant (tr. p. 372). • This asserted cause, therefore, must be rejected as an excusable cause.
* <c * $ #
Whether it was by reason of the fact that the matter was called to their attention by the Vollrath Company, or, it was upon their own volition, there is no doubt that the key personnel in the Office of the Quartermaster General were dissatisfied that a portion of the contracts executed under this directive was not placed with the Vollrath Company which had, by them, acquired the “know-how” and the tools and dies, to produce canteens of stainless steel. They frankly expressed this dissatisfaction not only to the contracting officer but to appellant as well. We have no reason to doubt that they attempted to induce appellant to give up its contract, and upon failure in that objective, instructed the contracting officer to terminate portions of the contracts upon the delivery dates of those portions, if and when any of the three new contractors became delinquent, and to repurchase the quantities terminated from one of the three producers which had demonstrated that they could produce stainless steel canteens. We find that this did, m fact, become the policy of the Office of the Quartermaster General, and that that policy was communicated .to the Jeffersonville Quartermaster Depot, and to the contracting officer, in the nature of an order. We find, however, that no instructions, directions or. orders were issued to the contracting officer which controlled, guided, or in any manner affected that officer’s exercise of his independent judgment as to the question whether there was a delay, or as to the causes of delay, or as to the type of termination to be put into effect (whether under the “Delays-Damages” clause (Art. 10), for inexcusable delays, or for convenience of the Government (Art. 16), or by mutual agreement). We find, further, that the policy was established for the sole purpose of expediting the procurement of canteens, and that there was no collusion between the Office of the Quartermaster General and the Vollrath Company, or any undue or unseemly influence brought to bear upon the Office of the Quartermaster General by the Vollrath Company.
# Sjt * # *
We find no order compelling the contracting officer to terminate for cause. He was entirely free to exercise his own judgment as to the type of termination. The only thing he was ordered to do was to terminate in case there were delays — in other words, to comply with the contract, strictly. The contracting officer found, as we have found, that appellant’s causes of delay were not excusable causes under the contract, where upon he exercised his authority under the contract to terminate under the “Delays-Damages” article. The fact that he acted initially in conformity with orders from headquarters, does not, in the opinion of the Board, evidence arbitrariness or predetermination of the issues involved. We find that he acted in strict conformity with the contract.
$ $ $ :£ $
The Board concludes, therefore, that there is no merit to appellant’s contention that the decisions of the contracting officer were not his independent, unbiased rulings. On the contrary, we find that his decisions were deliberate, considered, and supported by the evidence. We find no error therein. •
* * * Actually, we can find no delay in production which flowed from the conduct of the personnel in the Office of the Quartermaster General, or that of the contracting officer. • •• ’•
Appellant’s witness admitted, in testimony, that the delays claimed to have been caused by deferring priority certificates and the approval of bakelite caps (see Pars. (6) and (7) above), were not serious but that the lack of tools and dies was the real cause of delay. Having already found that the obligation of procuring tools and dies was one which rested upon the shoulders of appellant, and not upon those of the Government, we are obliged to conclude that none of appellant’s causes of delay may, within the terms of the contract, be regarded as excusable.
* * * The Government contends, relying upon previous rulings of this Board * * *’ that the notices of terminations embrace such findings of fact that, if a contractor is aggrieved thereby, require an appeal to be taken within 80 days after the mailing thereof to the contractor. That in the act of terminating under the “Delays-Damages” article, there is implicit therein the finding that the contractor’s causes of delay are not excusable.
In the instant appeal, there were not only the notices of terminations, but promptly upon appellant’s protests thereto the contracting officer specifically ruled that he found that appellant’s causes of delay were not excusable under the contract. Even if there were doubt in the minds of appellant’s officers that the notices of terminations were comprehensive enough to embrace rulings upon their claims of excusability, surely, there could have been no doubt after receiving the contracting officer’s letters of 28 August and 13 September 1943 (see Findings 23 and 24 above). It is the opinion of this Board that appellant’s contention of no sufficient findings of fact, comprehensive enough for it to take an appeal within the appeal provisions of the contract, is without merit.

38. There is no evidence that the findings and decision of the War Department Board of Contract Appeals was the result of fraud.

CONCLUSION OF 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 dismissed. 
      
       Plaintiff’s claims under the Lucas Act, 60 Stat. 902, 62 Stat. 869, contained in paragraphs 17 through 20 of the petition were dismissed in open court on January 3, 1950, on defendant’s motion.
     
      
       Plaintiff subcontracted with another firm for the production Of dies for the upper half and although those dies were late in delivery, it was not a contributing factor to any of the delays later incurred.
     
      
       Plaintiff later instituted suit against Sim Tool & Die Company in a New York court for breach of contract, for its failure to deliver the dies. This suit was settled upon the subcontractor’s payment of $4,000 to plaintiff.
     
      
       (Contract overrun accepted)
     
      
      
         In the Kilgore case the applicable provision, Standard Article 9, read in part as follows: "Provided, That the right of the contractor to proceed shall not be terminated * * * 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 0} fact justify such an extention, and his findings of fact thereon shall be final and conclusive * * * subject only to appeal, within 30 days * * * to the head of the department.” .[Italics supplied.] This language is substantially the same as that which appears in the Article 26 provision found In the Olimatio Rainwear case.
     