
    418 F. 2d 522
    H. JOHN HOMAN CO., INC. v. THE UNITED STATES
    [No. 128-66.
    Decided November 14, 1969]
    
      
      Edwin J. McDermott, attorney of record, for plaintiff.
    
      Sheldon J. Wolfe, with, whom was Assistant Attorney General William D. RucTeelshaus, for defendant.
    Before Cowen, Chief Judge, LaRamoee, Dtjreee, Davis, Collins, Skelton and Nichols, Judges.
    
   Per Curiam :

This case was referred to Trial Commissioner William E. Day with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 57(a) [since September 1, 1969, Rule 184(h)]. The commissioner has done so in an opinion and report filed on February 4, 1969. Exceptions to the commissioner’s opinion, findings and recommended conclusion of law were filed by defendant and plaintiff requested that the court adopt the commissioner’s findings, opinion and recommended conclusion of law except for a requested addition to one finding. The case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, with a modification in the amount of recovery, it hereby adopts the same, as modified, as the basis for its judgment in this case. Therefore, plaintiff is entitled to recover and judgment is entered for plaintiff in the sum of $59,715.10.

Commissioner Day’s opinion, as modified by the court, is as follows :

This is a contract case. The plaintiff sues for breach of contract, charging that its performance of contract work was unreasonably delayed by the defendant, to plaintiff’s damage. At pretrial it was agreed that the only issue for trial was whether or not the defendant caused plaintiff to be unreasonably delayed in the performance of the contract work. The proof shows that the plaintiff is entitled to prevail on this issue and it is therefore entitled to a judgment for the damages it established. There is no question in this case relating to the application of the Wunderlich Act because the claims made are not redressable under the contract, there being no suspension of work clause included in the contract provisions. United States v. Utah Constr. & Mining Co., 384 U.S. 394 (1966).

The material facts have been set forth in detailed findings which will be summarized for consideration of the controlling legal principles.

In June 1964, the defendant, through the General Services Administration (hereafter called GSA) issued an invitation for bids at a fixed price for the extension and modernization of the United States Post Office at Mount Holly, New Jersey. Bid opening was conducted on June 16, 1964, and (at $269,841) the plaintiff’s was the lowest of the six bids received. The other bids ranged from $286,445 to $343,897, with the third low 'bid at $290,000. The government estimate for the work (made on August 12, 1964) was $248,800.

The specifications for the work on which bids had been sought and received, provided a definite sequence for the work, because it was understood that the post office was to continue its function of postal operations during performance of the work.

A few days after the bid opening, the GSA superiors of the officials who had issued the invitations for bid directed a change in the sequence of operations. Thereafter and before the award of a contract to the plaintiff, a conference was held between representatives of the plaintiff and the GSA regional office to discuss the change in sequence of the work which had been directed by higher GSA authority. At this conference, the plaintiff agreed to perform the work, with the changed work sequence, at the bid price. Based upon such agreement, contract GS-02B-11,826, dated August 12, 1964, was awarded to the plaintiff, with the change in work sequence denominated as Change Order No. 1. The contract price for the work was $269,841, with the work to be completed in 270 days from receipt of notice to proceed. Since the notice to proceed was received on August 24,1964, the scheduled completion date was May 20,1965.

The contract work was substantially completed in 350 days, thus there was an overrun of 80 days beyond the scheduled completion date. There was a provision for liquidated damages of $50 per calendar day, but none were assessed or paid.

The contract as let provided for the modernization and revision of a 64' x 56' post office so as to extend it by 30' x 64', with a new mailing platform 40' x 24' and an extension of the parking and truck maneuvering area behind the structure from an area 40' x 70' to an area 60' x 144', as well as extensive interior and exterior modernizations and alterations.

The work got off to a bad start, due to the fact that the site survey was defective, in that the metes and bounds as shown on the site plan (one of the contract drawings) would not close.

The discrepancy in the survey was called to the attention of GSA representatives at a meeting on September 2, 1964. This was apparently prior to the time the defendant retained the Alfred Clauss firm as its supervising architect, two of whose representatives attended the meeting. On September 9,1964, Chester Jones (one of the two), project engineer of the Clauss firm, was on the job for an inspection visit. He was told of the discrepancy in the site survey and of the impossibility of beginning the excavation for the extensive retaining wall until the discrepancy was corrected. Jones phoned the GSA construction engineer, Curotola, at his New York office, advising him of the discrepancy in the site survey. Jones was told to have the plaintiff proceed with demolition of the old swing room until the survey problem was resolved.

GSA formally solicited bids from various surveyors for a resurvey of the site plan and it was not until September 30, 1964, that a surveyor was hired by GSA to do the work. The survey was not completed until October 21, 1964. Until this was accomplished, it was not possible for the plaintiff to proceed with the excavation for the retaining wall, the erection of which (plus backfilling) was the key to an orderly beginning of the work for the reason, among others, that with the wall in place and backfilled, much needed ground space would have been provided for the storage of material and equipment needed for the work, as well as space for the parking and maneuvering of post office trucks moving mail in and out of the post office. With the retaining wall constructed and backfilled, there would have been a great deal more space for the use. of trucks delivering and unloading of material and equipment as well as for general construction activities.

As shown in finding 4, there were 11 steps in the mandatory construction sequence covered by Change Order No. 1. The preamble stated that all construction work musí be planned in conformance with the 11-step sequence and construction sequence drawings 27-3. It further provided that the work must further be coordinated with the construction engineer and custodian of the building to the end that normal seasonal functions of the post office would not be impaired by reason of the construction work. It further provided:

* * * * *
b. The following sequence steps are specific in nature and are to be used as a sequence of construction for the subject project:
(1) Construct all new retaining walls * * * around new maneuvering area, backfill and grade and make suitable for vehicle usage.
(2) Locate oil tank in offset maneuvering area, excavate, install tank, backfill and make suitable for vehicle usage.
(Steps 1 and 2 may be done concurrently. Step 3 should not be started until the previous steps are completed.)
* * * * *

Since plaintiff was prevented (by the defective site survey) from beginning the work as planned and in an orderly manner, it proceeded with work as directed, which was step 5 in the construction sequence. The defendant argues that the retaining wall work was not essential and other productive work was being accomplished. On the facts, however, the defendant’s position is untenable. To be sure, the plaintiff did not stop work; it did other work. But the beginning of the job was seriously interfered with and the work which was done, was done under the handicap of inadequate working space and at greatly reduced efficiency. The failure to have a correct site survey required the concreting operations on the retaining walls to be accomplished in cold weather, whereas the work would undoubtedly have been performed in the early fall. It was not until October 23,1964, that plaintiff (relying on the new survey which had not even then been officially furnished to its superintendent) was able to stake out the lines for the retaining walls. Excavation for the walls began promptly (by November 2) and was finished for that part of the wall along the creek, by November 6, with piling to follow. After the placement of the piling by pile drivers, the framing for the concrete walls was set in place with the required reinforcing steel.

Photographs in evidence show that the concreting operation for the retaining walls was well under way by December 1, and that the framing was stripped away by January 4, 1965. By the latter date, it had been possible to backfill only a part of the length of the retaining wall along the creek. This was accomplished by the plaintiff as soon as plaintiff was able to do so in order to provide much needed work space in the construction area. Item 2 of the work sequence (under the change order) was the relocated oil storage tank. It was in place by February 1, 1965, and plaintiff was then — and only then — able to backfill the retaining wall in the offset maneuvering area where that tank was located.

Photographs in evidence bearing the February 1, 1965, date show that it was necessary to use the top of the newly poured retaining wall as a temporary storage place for the metal roof joists which were ultimately destined for the building addition. This is mentioned only because it points up the dire need of working space by the plaintiff until the entire retaining wall was backfilled.

When the retaining wall was completed and backfilled, interference with the work which was in process came to an end and the outside work proceeded without incident.

The contracting officer (upon the plaintiff’s request) extended the contract time 24 days on his finding that the delay in completion of the plot survey delayed the plaintiff’s work. An extension of one additional day of time was granted because the plaintiff (although ready with his forces to do so on a holiday — February 22, 1965) was unable to work because no employee of the post office was present at the building, even though arrangements had been made earlier for the presence of the necessary post office officials.

It should be noted that the defendant had no resident engineer on the job. The supervising architect (Alfred Clauss) had two architects who made periodic visits. Mr. Cranmer (the senior of the two) visited the job weekly and Mr. Chester Jones, the project architect, visited the job more frequently but not every day. Whenever any problem of any consequence was called to Mr. Jones’ attention, the reports he filed show that he referred the problem to the GSA engineers for their consideration and resolution.

The plaintiff was delayed in connection with ducts in the existing workroom. Structural members supporting the roof required relocating the ducts. The ATC panel board and the air-conditioning panel board as shown on the drawings interfered with the air-conditioning ducts. After conferences at which this subject was discussed, it was decided that a new layout would be submitted for approval by the defendant with the changes made as needed to meet the interferences referred to above. A hold order was placed on the fabrication of structural steel designed to support the weight of the new vault. This was because the structural steel to be placed in the basement to support the vault on the first floor had to fit in with other work in the boiler area of the basement. This hold order interfered with the installation of piping in the boiler room by the mechanical subcontractor and also with the laying of brick in the wall on the first floor, since the wall could not be erected until the structural steel supporting it below was in place. Revisions in the duct work delayed the plaintiff’s work from January 8 to March 16, 1965. The structural steel hold order delayed the work from January 22 to March 23,1965.

The plaintiff was prevented from installing the temporary dust partitions (TDP) in the work areas of the first floor according to the contract plans. The plans called for one TDP between the public lobby and the existing workroom at the counter line. This TDP was installed in the place shown on the plans. The plans showed two further TDP’s separating the first floor area into three work spaces. The defendant required that one TDP be omitted and that the other be moved towards the center of the existing workroom. This caused disruption to the plaintiff’s floor work which involved the removing of an existing wood floor, replacing it with concrete and then covering the concrete with asphalt tile. Instead of doing the floor work in three sections, completing the various steps mentioned, one section at a time, the plaintiff was forced to do the work in smaller areas which made for markedly reduced work efficiency requiring two weeks to do what would have been done in 5 or 6 days without this disruption.

The TDP at the public lobby has been mentioned. The plaintiff had intended to use patent scaffolding to carry this TDP. Such scaffolding is easily and quickly erected. The plaintiff was not permitted to use the simpler, faster method, but was required to erect a substantial load-bearing scaffold. The entire work in areas 7 and 8, had plaintiff been permitted to proceed with temporary dust partitions and patent scaffolding, could have been accomplished in about 14 working days — whereas 8 to 9 weeks were needed to do the work, with the method directed by the defendant.

As indicated earlier, the contract called for the construction of a new vault. The existing vault (which was to be replaced by the new vault in a different location) was to remain intact until the new vault was completed. The specifications, however, required that the door from the existing vault was to be used as the door for the new vault. It was obviously not possible to use the door for the old vault and begin the new vault construction, though completion of the new vault with the old vault door was called for. As in the other instances of delay and disruption heretofore mentioned, delay in connection with the vault door, in turn, delayed other parts of the work. On or about March 22,1965 (the day the plaintiff was ready to begin work on the new vault), the defendant began efforts to locate and obtain another door for use in constructing the new vault. The door and frame thereof had to be set in place before the brick walls could be erected for the front of the vault. The structural steel supports for the walls were in place by March 24. The door, which was needed March 22, was not at the site until April 9, despite the fact that when one was located, the plaintiff sent for it and had it delivered by its own truck. As soon as it was received at the site the door was set in place with its frame, and brick masons promptly set to work laying the brick walls which could not be done until its arrival. The new vault was completed by April 30, 1965.

Until this date, it was not possible to pour the concrete pads to support the air-conditioning units. This was due to the fact that ducts for such units could not be installed until openings for them were made in the old vault floor, which had to remain intact until the new vault was completed. With the new vault door at hand, together with its frame, the plaintiff could have accomplished the work in connection with the new vault and the demolishing of the old vault in 20 to 22 days instead of the 2 to 2y2 months actually required for the work.

The plaintiff, it is to be noted, was given a 24-day time extension for performance of the contract work, by reason of delayed delivery of a door for the new vault.

On February 10, 1966, the plaintiff filed a claim with the contracting officer on account of delays to the work by reason of the inaccurate boundary survey, late delivery of the vault door and the revised sequence of operations. In a reply received by the plaintiff shortly thereafter, the contracting officer advised that absent a suspension of work clause in the contract, he was without authority to consider a claim for delay.

The plaintiff in the performance of the entire job was an efficient contractor. This is supported by the whole record and particularly by the reports of field inspection submitted to the defendant by the project engineer of its privately retained architect-engineer.

Despite its efficient prosecution of the work, the plaintiff required an additional 80 days for its performance and sustained a net loss of approximately $92,000 upon its completion. For 18 of those days defendant issued a change order which extended the contract time and equitably adjusted the price. These periods, totaling 18 days, were concurrent with the part of the delay involved in the case and, accordingly, plaintiff lias already been compensated for those 18 days..

The facts of this case as outlined above bring this case within the rule announced by this court in Luria Bros. & Co. v. United States, 177 Ct. Cl. 676, 687, 369 F. 2d. 701, 707 (1966):

* * * It is well-settled that when the Government orders a structure to be built, and in so doing prepares the specifications prescribing the character, dimension and location of the construction work, it implicitly warrants that if the specifications are complied with, satisfactory performance will result. United States v. Spearin, 248 U.S. 132 (1918); Laburnum Constr. Corp. v. United States, 163 Ct. Cl. 339, 325 F. 2d. 451 (1963). * * *

The findings show that 62 of the 80-day overrun on the contract was attributable to the disruption to the work caused by the defective contract specifications as well as the failure of the defendant to provide timely the vault door and frame for the new vault, upon which so much depended. Under the authority of the cited cases, the plaintiff is entitled to recover the damages it incurred because of this delay.

The defendant argues that the plaintiff’s loss on the contract, which the proof shows to be $92,000, was due to an improvident bid. It is demonstrated, however, that the plaintiff’s bid was higher than the government estimate and quite in line with the next two bidders. It is concluded that the plaintiff’s bid was provident. The amount of the plaintiff’s loss is mentioned only as a comparison to the amount of damages which the plaintiff has established by the proofs. The plaintiff has shown that it expended $68,104 for labor in five categories of work, which were directly involved with the defective specifications and the vault door problem. It had estimated $31,014 for this labor — the difference is $37,090 and this amount is fairly chargeable to the defendant. It is true that the total cost theory of proving damages in a contract case is not generally favored. Under proper safeguards and where there is no better proof it has been upheld. J. D. Hedin Constr. Co. v. United States, 171 Ct. Cl. 70, 86, 347 F. 2d. 235 (1965), F. H. McGraw & Co. v. United States, 131 Ct. Cl. 501, 511, 130 F. Supp. 394 (1955).

The plaintiff’s direct costs on the instant contract amounted to $297,706, compared with $463,830 for all other work during the period of performance. The percentage relation between the instant contract to all work is 39.1 percent. Applying this percentage to plaintiff’s overhead expense for the period August 1, 1964, to August 31, 1965, of $289,252, it is shown that the overhead allocable to the instant contract during that period is $113,098. The evidence shows that of the latter amount, $30,039 was the type of overhead expense incurred on a calendar day basis, and $83,059 was incurred on a working day basis.

Since it is found that 62 of the 80-day overrun on the contract performance was caused by disruption to the plaintiff’s work by the defendant, the plaintiff is entitled- to recover its additional overhead of:

Per Dam Days Amount
80/350X $30,039= $6,866.01 $85,825 62 $5,321.15
68/240X $83,059=$23,533.11 $346,079 50 $17,303.95
Total $22,625.10

Adding the extra labor costs of $37,090 to the above amount results in a total of $59,715.10, for which judgment should be entered.

FINDINGS on Fact

1. The plaintiff is EL John Homan Co., Inc., a New Jersey corporation, with its principal office now at Cherry Hill, New Jersey. The contract in suit was performed at Mount Holly, New Jersey.

2. Defendant (by General Services Administration) issued Invitation No. 01011, Job Order No. 80,396, with bid opening fixed for June 16, 1964, calling for bids for the extension and modernization of the United States Post Office at Mount Holly, New Jersey. Bids received at opening were as follows:

H. John Homan Co., Ine_$269, 841
John D. Lawrence, Ine_ 286,445
Oan-Am Conste. Co., Ine_ 290,000
Heights Construction Co_ 322,000
Robert F. Horn, Inc_ 832,000
Crosby Contracting Co., Inc_ 334,000
Robilt Construction Co_ 343,897

3. On June 26,1964, by memorandum, the Chief Engineer, Post Office Department, Philadelphia, Pennsylvania, wrote to the Chief, Design and Construction, General Services Administration, 30 Church Street, New York, New York, Subject: Mount Holly New Jersey Extension and Modernization, as follows:

Please refer to our memorandum to you of June 22, 1964, subject as above.
Item 2 of our comments under Drawing No. 27-3 stated that the proposed construction sequence as outlined in the specifications and illustrated on Drawing No. 27-3 was operationally -unacceptable.
Enclosed with this memorandum is a sequence of construction which will permit postal operations to proceed during the construction period. Please advise the low bidder that it is mandatory that this sequence is to be used in lieu of the original. [Emphasis supplied]
Please also note that operational feasibility also involves a relocation of the fuel oil storage tank into the newly paved offset of the maneuvering area.

4. After bid opening of June 16, 1964, and prior to August 12, 1964, a meeting was held in New York, which was attended on behalf of plaintiff by Stanley Bishop and Frank Wambold, and on behalf of General Services Administration by Anthony J. Curotola, construction engineer, and by T. M. Owens, Chief, Construction Branch. Plaintiff was there advised of the mandatory change in sequence subsequently incorporated into Change Order No. 1, and after conference and discussion, plaintiff agreed to accept the change in sequence at no increase in its bid price, except a very small increase related to the relocation of the fuel oil tank. Based upon such agreement, contract GS-02B-11,826 dated August 12, 1964, was awarded by General Services Administration to plaintiff. Change Order No. 1, dated September 1, 1964, provided as follows:

DELETION
Delete construction sequence as outlined in paragraph 2-18 of the contract specifications and as shown on contract drawing 27-3.
ADDITION
Substitute revised construction sequence as outlined on attachment entitled “SEQUENCE OF WORK”.
Condition No. 2 on the reverse side of this form is deleted.
PROPOSAL:
All changes involved in the above, with the exception of the additional cost resulting from the physical relocation of the oil tank (b. (2) of attached SEQUENCE OF WORK), will be accomplished at no change in contract price or time.
He ^ 4c H* He
SEQUENCE OK WORK
a. All construction work must be planned in conformance with the below outlined sequence and Construction Sequence Drawings 27-3. This work must further be coordinated with Construction Engineer and Custodian of this building to the end that normal seasonal functions of the Post Office will not be impaired by reason of the construction work. A schedule of dates for commencement and completion of the various steps of the construction sequence shall be submitted to the Construction Engineer and Custodian of the Building for their approval.
b. The following sequence steps are specific in nature and are to be used as a sequence of construction for the subject project:
(1) Construct all new retaining walls and curbing around new maneuvering area, backfill and grade and make suitable for vehicle usage.
(2) Locate oil tank in offset maneuvering area, excavate, install tank, backfill and make suitable for vehicle usage.
(Steps 1 and 2 may be done concurrently. Step 3 should not be started until the previous steps are completed.)
(3) Existing platform steps to be removed so trucks may use stair opening as a loading point.
(4) Construct new stairwell, stairs, swing and locker room, men’s toilet and lookout shafts leaving existing walls at stairs, swing room, toilet and lookout gallery wing.
(5) Construct new mailing platform, new mailing vestibule and a portion of new work room, install weather proof partition between new work room and exterior, make opening in existing rear wall sufficient to permit operational traffic access to new mailing platform. Temporary lighting and heat to be provided in new areas, temporary security door if necessary at rear wall opening. Area to be completed to a point suitable for post office trucking and platform tailboard to be available for a minimum of two post office trucks. Existing platform may be demolished only on east side as far as existing column 5'-6" west of east edge.
(6) Complete remainder of building addition, make available for postal usage with at least temporary heat and light.
(7) Complete structural work in existing building. New vault to be completed before demolition of existing vault. Construction to be scheduled so that there is a minimum of time required for the relocation of the existing vault door.
(8) Install 1375C drop unit, 1370C blank panel, relocate existing boxes as per plan, remainder of space designated for new boxes and blank panels to be used for temporary window service.
(9) Partition public lobby, remove existing service screenline, install new 1100 series service counter.
(10) Transfer patron service operations,-finish lock box section of screenline.
(11). Pave maneuvering area, widen driveway, etc. Paving to be accomplished in two or more stages so that at least 50% of theplatform tailboard space is available at all times. Step No. 11 may be accomplished concurrently with any of the preceding steps from step 7 through step 10.

5. The contract in suit was the usual standard form 23, General Services Administration construction contract. It contained no suspension of work clause. The general provisions of the contract provided in part, as follows:

13. CONDITIONS AFFECTING THE WORK
The Contractor shall be responsible for having taken steps reasonably necessary to ascertain the nature and location of the work, and the general and local conditions which can affect the work or the cost thereof. Any failure by the Contractor to do so will not relieve him from responsibility for successfully performing the work without additional expense to the Government. The Government assumes no responsibility for any understanding or representations concerning conditions made by any of its officers or agents prior to the execution of this contract, unless such understanding or representations by the Government are expressly stated m the contract.
14. OTHER CONTRACTS
The Government may undertake or award other contracts for additional work, and the Contractor shall fully cooperate with such other contractors and Government employees and carefully fit his own work to such additional work as may be directed by the Contracting Officer. The Contractor shall not commit or permit any act which will interfere with the performance of work by any other contractor or by Government employees.

The special provisions of the contract provided, in part, as follows:

2-10 COMPLETION DATE
a.Time for completion shall be two hundred and seventy {270) calendar days from date of receipt of notice to proceed, which will be issued upon approval of bonds.
2-11 LIQUIDATED DAMAGES
a. Liquidated damages shall be fifty dollars ($50.00) per calendar day.
‡ ‡
2-17 OCCUPANCT OF PREMISES
*****
2-18 SEQUENCE OF WORK.
[This was superseded by the provisions of Change Order No. 1 quoted m the preceding finding.]
2-19 PROTECTION
a. The Contractor shall provide adequate protection for all parts of the building, its contents and occupants wherever work under this contract is performed. Furniture, office fixtures and carpets shall be moved as necessary for proper performance of the work; stored on the premises, protected and properly replaced.
b. The Contractor shall provide dustproof enclosures or partitions for protection where dusty or dirty work is performed. Debris shall be dampened when removed to avoid dusting.
c. Temporary weatherproof partitions with suitable doors and windows shall be provided before exterior walls are removed.
2-29 GOVERNMENT’S OCCUPANCY
a. Prior to final acceptance of the completed project, tlie Contracting Officer reserves the right to place in the building certain Government property or to occupy portions of the building, including, subject to equitable adjustment, access facilities, utilities and services necessary for such partial occupancy. Such action shall not be construed as implying completion, or acceptance of any part of the work by the Government.
* * * * *
2-31 PROGRESS AND PINAL PHOTOGRAPHS
$ $ $ ‡ $
b. Progress photographs shall be taken on the first working day ox each month (whether or not any work has been done during the preceding month), until the project is completed. They shall be taken from four points, selected by the Construction Engineer. One set shall be delivered to the Architect and four sets to the Construction Engineer.

6. The contract specifically incorporated drawings Nos. 27-1 through 27-28, inclusive.

7. Notice to proceed was received on August 24,1964. The work was substantially completed within 850 calendar days.

8. The site of the post office extended back to Bancocas Creek. The contract entailed the enlargement of the maneuvering and parking area, the erection of a new retaining wall along Bancocas Creek (in excess of 150 feet) and around the new parking area, the excavation for and the extension of the basement, the erection of a new mailing platform, a new addition enlarging the workroom at the back of the building and extensive interior modernization and alterations.

9. Contract Drawing 27-2, designaJted “Site Plan” constituted the survey for the contractor’s purposes, for the drawing of lines, the installation of retaining wall, and for other purposes. Drawing 27-3, entitled “Construction Sequence,” set forth designated areas of work and contained directions for installation of temporary dust partitions in workroom and lobby.

10. During the course of the contract performance, defendant issued change orders and thereby extended the time an aggregate of 18 days, as follows:

Days
Change Order No. 4: For changes and additional electrical work in title main lobby lighting fixtures- 2
Change Order No. 6: For installation of structural supports— 1
Change Order No. 8: For revision of drawings for structural supports for vault- 2
Change Order No. 9: For relocating air conditioning panels_ 1
Change Order No. 10: For driving extra lengths of retaining piles----1
Change Order No. 11: For replacing front entrance doors_ 2
Change Order No. 14: For installation of new columns at south wall of existing workroom_ 2
Change Order No. 20: For installation of 6-inch interior wall in lieu of 4-inch interior wall__ 1
Change Order No. 21: For revision in concrete driveway_ 1
Change Order No. 28: For revision of interior wall and relocation of door_ 1
Change Order No. 38: For installation of concrete drainage lines under parking area_ 1
Change Order No. 84: For painting interior surfaces in basement ___ 2
Change Order No. 85: For furnishing and relocating new lights in basement_ 1

The above-mentioned change orders not only extended the contract time by 18 days but also equitably adjusted the contract price. In addition to these 13 change orders, 27 other change orders were also issued which adjusted the contract price, either upwards or downwards, but did not extend the completion date of the contract. All 40 change orders were agreed to by the parties. Plaintiff was ultimately paid $283,697, inclusive of the aforementioned equitable adjustments.

11. Plaintiff claims that defendant breached its contract as follows:

(a) the site survey established by Drawing 27-2 was erroneous, requiring defendant to obtain a new survey, disrupting the work sequence, requiring plaintiff to reschedule the job and changing the contract work from a smooth operation to a makeshift operation;

■(b) faulty specifications and drawings required revisions to duct work and to structural steel supports for vault, disrupting the work sequence;

(c) defendant prevented plaintiff from installing dust partitions as provided by Drawing 27-3; and

(d) delayed plaintiff’s performance by delay in securing new vault door for newly constructed vault.

Plaintiff claims that as a result of such breaches of contract, its costs of construction were increased and performance of the contract was protracted unduly and into periods of adverse weather conditions.

12. At a meeting held September 2,1964, at Mount Holly, New Jersey, attended by Curotola and Fein for GSA; Cranmer and Jones for Alfred Clauss, supervising architect; White, the postmaster; Varga, Wambold and Bishop for plaintiff and O’Connor of the Post Office Department, Varga announced that there was a discrepancy in the survey. Curotola made notes and said that the matter would be taken care of — no action was taken until September 9, 1964. Jones made a telephoned report to Curotola at GSA on September 10, 1964. Curotola, in turn, reported to his chief (Owens). Upon being directed to do so, Curotola called back Jones and asked Jones to obtain the names of area surveyors. On September 14, 1964, Jones wrote to Thomas Owens at the GSA and reported that an inspection of the site made September 9, 1964, revealed that the monuments identifying the site proper indicated some discrepancies so that it was impossible for the contractor to perform his duties according to the contract; requested that a bonded survey be made of the site for verification of the property as outlined in order to expedite the construction and submitted the names of six surveyors in the area. When the Jones letter was received by Curotola, he turned the list over to Chutroo of the GSA, who solicited bids. The purchase order for the survey was issued September 30, 1964, to B. Harold Wills Associates, Mount Holly, New Jersey. On October 21, 1964, the survey was completed by Wills and was submitted by him to W. A. Boyd, GSA, by letter of October 23, 1964. Plaintiff could not proceed with construction of the retaining wall until the new survey was completed. On October 23, 1964, Varga “was shooting the angles and lines for the retaining wall from the points established by survey.” On October 27, 1964, according to Jones’ field inspection report, “the lines of the retaining wall were marked out on the ground, the intention [sic] of excavation is beginning in the morning.” Pouring of the foundation walls began October 28, 1964.

13. Plaintiff was unable to proceed with construction of the retaining wall and received instructions from defendant to proceed with demolition. Plaintiff commenced the demolition of the old swing room. Instead of performing revised sequence of work step 1, plaintiff was performing step 5. Had plaintiff been able to build the retaining wall and finish the areas denoted parking and maneuvering area, set forth on drawing 27-3, and finish off the area between the retaining wall and the new loading platform, its trailer and equipment would have been placed in the area between the retaining wall and the new loading platform. The construction work would have been accomplished on the eastern side of the parking area and the mail delivery and pickup would have been accomplished on the western side of the parking area. This would have greatly aided the entire job by affording much greater ground space for the movement of materials, equipment and workmen, as well as post office vehicles and mail. However, upon starting the demolition and construction work shown on plaintiff’s exhibit 6 (Nos. 1, 2, 7, 8,13 and 14), the equipment and supplies were placed at the parking area on the western side of the lot and the equipment and supplies had to be taken from the parking area to the new mailing platform across the driveway in use by the post office. If the mail trucks came in, plaintiff had to wait for them. This was most serious in the morning when plaintiff had to hold up work sometimes for a half hour. In the afternoon, outgoing mail started about 3:30 or 3:45. Plaintiff’s hours of work were 8:00 a.m. to 4:30 p.m. Until the completion of the retaining wall and the relocation of the fuel storage tank, plaintiff was able to effectively use its equipment for only 6 of its 8 hours of work. During this time, half of the back of the existing mailing platform was used for mail deliveries and the other half for construction. Prior to the construction of the retaining wall (from September 24, 1964 when demolition started until January 4, 1965, when retaining wall construction was far enough along to permit the use of the area between the mailing platform and retaining wall) plaintiff was required to bring its brick, mortar and supplies from the parking area (temporarily brought up to grade at the southwest corner of the site) to the new mailing platform location (a distance of about 90 feet across the driveway and maneuvering area in use by mail trucks.) This resulted in confusion and congestion in front of the bricklayers working on the wall between the mailing room and the dock platform. Instead of a mason tender and a mortar mixer handling material on ratio of one helper for two bricklayers, the ratio was down to one laborer for each bricklayer. When the retaining wall was completed, and brick and mortar stored at the eastern part of the maneuvering area, the interference from the mail trucks came to an end and plaintiff’s work proceeded as planned, as far as the outside work is concerned.

14. By letter of April 9, 1965, defendant’s contracting officer rendered the following decision:

Reference is made to your letter of March 10, 1965, forwarded with letter of March 19,1965 from the Architect, Alfred Clauss, in which you request that the completion time of the above contract be extended because of delay in completion of the plot survey.
In view of the fact that the property had to be surveyed to eliminate discrepancies and encroachment and this situation delayed your work, the performance time is hereby extended (24) twenty-four calendar days and (1) one calendar day because you were not able to work on February 22, 1965 or a total of (25) twenty-five calendar days. The contract completion date is therefore changed from May 21,1965 to June 15,1965 to allow you to complete the work.
You are directed to pursue the work diligently so as to complete the project within the revised completion time.

15. The contract drawing required that the ducts in the existing workroom be constructed above the ceiling. It was found however that due to existing construction, such placing of the ducts was physically impossible since the structural members supporting the roof would not permit ducts to be installed as shown on the contract drawing. The location of the ATC panel board and the air-conditioning panel board (as indicated on drawing 27-25), interfered with the installation of air-conditioning duct work (as shown on drawing 27-20). The architect requested that these panels be relocated to the north wall of the air-conditioning equipment room permitting the ducts to penetrate the short east wall.

16. At a meeting held at the post office site on January 28, 1965 (attended by Chester Jones, Larry Morton, A. Curotola and M. Fein) the rearrangement of the duct work was discussed, and it was concluded that a new layout should be submitted for approval, showing the changes in headroom as well as piping and conduit conflicts. The work scheduled on structural steel to support the weight of the new vault was held up by engineering difficulties. A hold was placed on structural steel fabrication for such support (by Chester Jones, for the supervising architect) because the structural steel had to fit in with other work in the boiler basement area, and certain vertical ducts could not be bricked up until drawing 27-32 was issued (as revised January 20,1965). The hold order interferred with the mechanical subcontractor’s installation of piping in the boiler room and also with the laying of brick in the wall on the first floor directly overhead, since until the structural steel was in place, the wall above could not safely be erected.

The duct work revisions delayed plaintiff’s performance from January 8, 1965 to March 16, 1965, and the structural steel hold order and revisions delayed plaintiff’s performance from January 22,1965 to March 23,1965.

17. Contract drawing 27-3 contained directions for the installation of temporary dust partitions marked upon plaintiff’s exhibit 49 as TDP 1, TDP 2, and TDP 3. Plaintiff was prevented by defendant from installing TDP Nos. 2 and 3. TDP No. 1 could not be constructed as shown on the drawing because its line was the exterior wall of the new vault and to erect the wall of the new vault, bricklayers’ scaffolding needed 6 feet of clearance. Accordingly, a dust partition was erected, shown on plaintiff’s exhibit 49 as TDP No. 4, so as to permit the work to proceed and the scaffolding required for the construction of the new vault to be in place.

18. The floor work entailed the ripping out of an old birch floor (which covered the whole working room area) ripping out 2-inch nailers below that and the concrete fill that had been put around the 2-inch nailers; pouring new structural concrete over the top of the structural floor, finishing off to accurate grade and covering with one-half inch asphalt tile. Had the temporary dust partition No. 2 been erected in addition to temporary dust partition No. 4, plaintiff would have done the floor work in three sections — area 1 east and west and area 8. Plaintiff was prevented by defendant from doing the work in this manner. It was required to rip out the old floor (step by step) with the postmaster moving the existing equipment — desks, office equipment, etc. — from one space to another, so as to put in that section of the floor, which incorporated two moves (tearing the old floor out and removing the old concrete, and pouring the new floor and finishing it to accurate grade so that it could be covered with a half-inch asphalt tile floor). Plaintiff, to do the whole workroom floor, was forced to move the equipment in the same area to take six steps as opposed to the originally planned two. This resulted in inefficiency in doing with the same laborers and finishers everything that could be done , easily in five working days — or at most six working days — in a period of over two weeks. Increased cost resulted due to the fact that the finishers were paid by the day and plaintiff had to retain the laborers, so that this portion of the job cost twice as much as could ever have been estimated.

19. The ceiling work entailed the tearing out of the bases of the skylights from the roof and installation of new structural steel in the screenline which was supported from the roof members. It was planned, with the use of temporary dust partition No. 3, to use a patent scaffold, the erection of which is a very easy and rapid job, requiring about an hour’s time. Since plaintiff was not permitted to erect this temporary dust partition, as called for by the contract drawings, plaintiff was required to, and did, install a load-bearing structural scaffold which was in every way a small intermediate gallery or floor, able to support floor loads. This made it necessary to erect steel in the working space of 6 feet between the scaffold floor and the ceiling. The ceiling height without the scaffold was 14 feet. The scaffolding was double-planked, 2 x 10 spruce planking over reinforced structural wood girders, with a plywood floor, with vycheen dust protection on the inside. The entire work in area 7 and area 8 (had plaintiff operated as planned with temporary dust partitions and patent scaffolding) would have required 14 working days; instead it took two months (or about 8 to 9 weeks).

20. The contract called for the construction of a new vault. The drawings contained the proviso that the existing vault was to remain intact until completion of the new vault. The specifications provided that the door for the existing vault was to be utilized in the new vault. It was determined that the only way the old vault could remain intact until the new vault was completed, would be by securing an additional vault door and the defendant undertook to locate such a vault door. Delay was encountered in securing such a door. The plaintiff was ready to begin work on the vault on or about March 22, 1965. On that day, Mr. Jones (the architect’s field representative) was told by Mr. O’Connell that the latter was obtaining another vault door and frame for installation in the new vault. By March 24, 1965, the structural supports for the vault walls had been installed and Jones noted in his field inspection reports that “[t]he brick work can proceed as soon as the new vault door and frame arrive and [are] erected.” By March 29, the new vault door had not arrived as expected and brick work for the vault including “the entire wall along the new workroom masonry wall” was being delayed. The story of delays to the work as it related to the vault door is accurately described in the field inspection reports of Mr. Jones (project architect). Excerpts from such reports read as follows :

*****
3-22-65: The opening into the air conditioning equipment room could not be cut until the new vault has been completed. Mr. O’Connell had informed me that he was in the process of obtaining another vault door and frame to be installed at the site in place of the relocated one requested.
3-21¡.-65: Tbe structural supports for the vault walls had been shipped to the site and corrected to the field conditions. The brick work can proceed as soon as the new vault door and frame arrive and erected, [sic].
* * * * *
3-29-65: 2. The vault door promised by the Post Office had not arrived and the brick work for the vault was being delayed. This would include the entire wall along the new workroom masonry wall.
& & $ $ ‡
3-31-65: 6. The brick wall on the first floor enclosing the vault and the corridor facing the Work Room was being installed by the masons. The vault door had not been obtained. Called Mr. O’Connell and was satisfied with his report of shipping a left-handed, vault door in Gettysburg, Pa. and expect it to arrive on the site by early next week.
‡ $ ‡ H? $
4--2-6S: 4. The vault door had not arrived at the site and the brick layers were moving very slowly in this area.
* * * * *
J/.-5-6S: 4. The masons were laying up the masonry wall around the vault and between the workroom and the corridor to the Postmaster’s Office.
»}• «f» H»
l¡.-7-65: 5. The masons were erecting the brick partitions on the first floor and would be completed within a few days. The vault door has slowed up the operation in laying bricks and block in this area.
# * * Hi *
4-9-65: 3. The vault door had been delivered and was being placed in the opening so the masons could brick it in and complete the vault. .
* * * #
4-12-65: 2. The masons were completing the walls around the vault and along the corridor between the Work Room. With the vault door installed and bricked up the next step would be forming the vault for the concrete slab roof.
* * * * *
4 — 14-65: 1. The forms were being removed from the ceiling slab in the vault. The door needed to be processed for security reasons and then the floor of the vault would be poured. Can’t wait until opening in the existing vault is cut so that duct work can be laid in the air-conditioning equipment room.
* * * * *
4-19-65: 2. The wall along the west side of the workroom can be finished as soon as the space above the new vault is completed. The ducts along the walls should be enclosed with 4" masonry walls and should do this now. [sic].
* * * * *
4-21-65: 2. The concrete pads under the pumps and motors in the air-condition[ing] equipment rooms had been, poured and the motors mounted. The pads under the air-condition [ing] units themselves had not been poured and the problem was space allotment for the ducts above the units. The ducts had not been installed due to the opening in the vault floor above. This could not be done until the new vault was made secure. Impossible to make contact with Mr. Curotola and Mr. Fein from G.S.A. to discuss this height condition.
‡ ‡ ‡ $
6. New vault door was installed and waiting for the security man to make the necessary connections so that the vault would be secure and ready for operations. This had delayed the contractor.
* * * . * *
4-23-65: 4. The new vault door was ready to be adjusted and have the new combination installed. This has delayed the construction.
4-29-65: 3. The vault door was still waiting for the security door man to come and place on the combination. To this date, the time extension on the construction can be considered due to the vault door security.
*****
Jb¡-80-66: 1. The vault door had a portion of the combination installed. The interior had been painted and a temporary light installed. The vault is not secured so the opemng m the old vault floor had not been cut.
*****
5-6-66: 2. The hole in the vault floor had been cut and the debris should have been cleaned up. The air conditioner units had not been covered up. The question of the installation on the supply ducts were [sic] presented to the plumbing contractor.
5-J-65: l. The opening in the vault floor had been cut and I made contact with Mr. Harrison from McCormick, Taylor to inspect the opening. This delayed the installation of duct work in the Air Condition [ing] Equipment Boom.
2. The walls of the existing vault was [sic] being demolished and a duct screen had been installed in the Post Master’s office to prevent dust from entering his office.
*****
5-10-65: 1. The existing concrete walls around the vault was [sic] being demolished. The steel rods were in excellent condition and would have to be burned to be removed. The existing vault frame was intact and must be removed carefully. This is Post Office property and must be saved.
*****
5-12-65: 2. The demolishing within the existing vault was still in process. The old vault door and frame had been removed and placed on the mail loading platform for storage. This is the property of the Post Office. The opening for the door between the Postmaster’s Office and the new passage was being cut in the existing concrete wall. Demolishing of the existingwomen’s toilet used by personnel was being done. The only fixture left was the water closet.
*****

21. Had the vault door been on hand, the job of constructing the new walls and the demolition involved would have been accomplished within 20 to 22 working days rather than the 2 to 2y2 months which the construction of the vault and the related items required. For the particular job of changing the structural steel and installing the door, 4 to 5 weeks were required. This could have been accomplished in half that time had the door and frame been on hand when needed.

22. By decision of June 29, 1965, the contracting officer found the following:

* * * * *
On March 22, 1965, your firm planned to start masonry layout for the new vault, however, you were advised by the Architect that the Post Office Security Group would not permit removal of the door on the existing vault for use on the new vault for security reasons. In view of tbe fact that work was delayed awaiting delivery of a salvaged vault door furnished by the Government to be used in lieu of the existing door, performance time is hereby extended (24) twenty-four calendar days. The contract completion date is therefore changed from June 15, 1965 to July 9, 1965.
if: if: %

23. On February ID, 1966, plaintiff filed a claim with the contracting officer alleging inter alia that it had been delayed because of the inaccurate boundary survey, because of the late delivery of the vault door, and because defendant had interfered with the revised sequence of operations. On February 23,1966, the contracting officer responded that, in the absence of a suspension of work clause, he had no authority to consider the asserted delay claims.

24. The parties are not agreed as to whether or not the bid price which resulted in the contract price was a realistic one. The defendant takes the position that the plaintiff underbid the work while the plaintiff urges that its bid was provident. The evidence of record supports the plaintiff’s position. The abstract of bids (see finding 2) shows a spread of barely $14,000 between the plaintiff’s bad and that of the next low bidder and a difference of slightly more than $20,000 between plaintiff’s bid and that of the third low bidder. An exhibit in evidence shows that in December 1961, the defendant’s estimate of construction costs and contingencies (excluding profit) was $189,200+$11,400 or $200,600. Further, the government’s privately retained architect submitted a very detailed estimate to the defendant, totaling $197,665.23, which included 15 percent overhead and 10 percent profit.

On August 12,1964, the acting chief, Estimates Branch of the GSA Begional Office, New York, transmitted a “final cost estimate” on the extension and modernization of the Post Office at Mount Holly, New Jersey, to the Post Office Department in Washington, sending a copy to the chief of the Design Branch of the GSA Begional Office. The total for the. work was $248,800. All of the above comparisons are quite sufficient to show that the plaintiff’s bid was not improvidently low. It is concluded that the plaintiff did not underbid the work contracted for and that its bid was provident.

25. The whole record supports a finding that the plaintiff efficiently prosecuted the work under the contract in suit. This finding is reinforced by the reports of the architect’s field inspector (Jones) and his supervisor (Cranmer).

26. Plaintiff showed a net loss of $91,728 in the performance of the work on the contract in suit.

27. Plaintiff claims damages consisting of two items — loss of productivity of labor and overhead.

28. Because of the disruption to the work sequence, attributable to the defendant (as indicated in the findings) plaintiff expended for direct labor in demolition, excavation, concrete and reinforcement, structural steel and masonry, the sum of $68,104, whereas it had estimated a totai of $31,014 for this labor. This difference is $37,090 and is fairly chargeable to the defendant, since its expenditure was caused by such disruption to the work.

29. Because of the disruption to the work sequence, caused by the defendant (as indicated in the findings) an additional 62 days was required to complete the work, beyond the time contemplated by the parties.

30. Plaintiff’s direct costs on the instant contract amounted to $297,706 and direct costs for other work in the period August 1, 1964 to August 31, 1965, were $463,830. Accordingly, the percentage relation between direct costs of the contract in suit to total direct costs is 39.10 percent.

31. Plaintiff’s overhead expenses for the period August 1, 1964, to August 31, 1965, were $289,252. Overhead allocable to the contract is $113,098 (39.10 percent of $289,252) of which $30,039 was of the type of expense incurred- on a calendar day basis and $83,059 was of the type of expense maintained on the plaintiff’s general ledger on a working day basis, or (as the plaintiff calls it) related to production.

32. On the basis that the 62-day overrun on the contract was caused by the disruption to the work, attributable to the defendant, the plaintiff incurred additional overhead because of delay, computed as follows:

Per day Days Amount
80/350X$30,039= $6,866.01 $85,825 62 $5,321.15
68/240X $83,059=$23,533.11 $346,079 50 $17,303.95
Total $22,625.10

33. As a direct result of the disruption to the plaintiff’s work as shown by the findings, the plaintiff suffered damages in the sum of $37,090 for loss of productivity and $22,625.10 overhead expense — a total of $59,715.10.

Conclusion of Law

Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiff is entitled to recover, and it is therefore adjudged and ordered that plaintiff recover of and from the United States the sum of $59,715.10. 
      
      Plaintiff’s motion for leave to file an untimely exception to one of tlie trial commissioner’s findings is denied.
     
      
      Tills computation is that presented by defendant at fn. 4, page 9, of its brief filed May 19,1969.
     
      
       After arrangements had been made for the contractor to work its forces as well as those of several subcontractors on February 22, none were permitted to work because no post office personnel were present. The building was closed and all the workmen Who had reported to work were sent home.
     