of wages in the locality, paid the said rates of wages, with certain increases, and likewise made an increase to bricklayers when so ordered by the Secretary of Labor, who after a hearing, held that all other wages being paid were in accordance with the prevailing rates, and where in the final settlement the Comp- troller General made a deduction upon a report that prevailing wages had not been paid, it is held that such deduction was arbitrary and without warrant in law. Hood & Gross, 258.
XVIII. Under the Act of August 30, 1935 (49 Stat. 1012), where there was failure to pay the rate of wages required
by the contract, the remedy was termination of the contract by the Government.
XIX. Where each and all of the several counts and claims made in plaintiffs' petition are based upon the action of the contracting officer, and it is nowhere alleged in the petition that the plaintiffs, in accordance with the provisions of the contract, filed any written protest against the instructions or decisions of the contracting officer, or made any written appeal therefrom to the head of the department concerned, or did anything in the way of complying with the provisions of the con- tract with reference to the decisions of the contracting officer, it is held that as the plaintiffs did not exhaust their remedies under the contract when decisions were rendered against them suit cannot now be maintained. Silas Mason, 266.
XX. It is universally held that if the contracting officer's decision is so palpably erroneous, arbitrary or negligent as to imply want of good faith, it may be impeached and set aside. Id.
XXI. Where the contract provides that the contracting officer's decisions in all disagreements arising out of the con- tract shall be final, the contractor, it is held, is not thereby deprived of his legal rights and remedies. Id. XXII. Where it is only generally alleged in the petition, and not specifically, that the contracting officer, upon a multitude of occasions, willfully, arbitrarily, and coer- cively neglected to perform his duties; interfered with, delayed and prevented plaintiffs' performance of work as required in the contract; refused payment for per- formance of work not required by the contract; and failed to make payment to plaintiffs in accordance with the provisions of the contract, it is held that such general allegations cannot be considered. Id. XXIII. The word "willful" has different meanings. Id.
XXIV. The powers and duties of the contracting officer, where the contract provides that the contracting officer shall decide all disputed questions arising under the contract, are not those of an arbitrator; an arbitrator's proceed- ings and duties are judicial, or at least semijudicial in their nature, while the duties of the contracting officer are purely ministerial and involve no judicial functions. Id.
XXV. Where contractor, whose bid had been accepted, sought permission to begin work prior to the approval of the contract and prior to the receipt of the notice to proceed, and permission to begin work in these cir- cumstances was given "at its own risk," it is held there can be no recovery for additional expense in- curred by reason of suspension of the work on a "Stop Order" on all new work, before the approval of the contract. Earle & Sons, 308.
XXVI. The words "at its own risk" are to be construed in
their usual and ordinary meaning, which would be that if plaintiff sustained any damage by reason of commencing work before any contract was made, it alone was responsible for such damage. Id.
XXVII. Under a Special Jurisdictional Act conferring jurisdic- tion upon the Court of Claims "to hear judgment" and "to adjudicate * basis of the losses and/or damages suffered due to car shortage and/or other war conditions" the claim of plaintiffs "growing out of losses and/or damages" suffered under purchase orders for furnishing hay to the United States Army during the World War, it is held that the Jurisdictional Act cannot be con- strued as authorizing the entry of a judgment for any losses or damages sustained by plaintiffs by reason of any conditions that existed prior to and at the time plaintiffs made their offer and entered into the contracts with the Government. Randall, 325. XXVIII. It is held to be clear upon the record that any loss or expense which plaintiffs may have incurred in excess of prices at which plaintiffs agreed to sell hay to the Government was due not to any car shortage or any war conditions arising subsequent to the date of plaintiffs' offer but to the failure of plaintiffs to acquire title to the hay necessary to fill the Govern- ment's contracts or to secure a binding option therefor at a price equal to or less than the price at which plaintiffs agreed to sell the hay to the Government. Id.
XXIX. Where contractor, engaged under contract with the Government in constructing the Valewood and Fitler levees on the Mississippi River, by reason of inadequate equipment and unsuitable methods of operation, was unable to complete the work within the time limit pre- scribed by the contract, and a portion of the work was taken over and let to another contractor; it is held, on the preponderance of the proof, that the slides occurring in the Fitler loop, removed and re- placed by the second contractor, were not due to the condition of material placed by the plaintiff, arising out of plaintiff's operations. Orleans Dredging Co., 360. XXX. Where the weight of the embankment upon a weak foundation caused a subsidence of the Fitler loop, be- tween stations 8100 and 8111, it is held that there is no proof that, without the digging by the plaintiff in the borrow pit below the depth provided for in the contract specifications, as modified, there would have been no subsidence; the margin of safety is not proved. Id.
XXXI. Where plaintiff signed contract containing a provision that the contract must be approved by the Chief of Engineers, U. S. Army, it is held that plaintiff waived any right it may have had to a standard form of con- tract, signed only by the contracting officer, and ac- cordingly plaintiff can not complain of any delay caused by length of time required to secure the signa- ture of the Chief of Engineers. Id.
XXXII. Where plaintiff contends that it was harrassed and an- noyed in the progress of its work due to conflicting orders issued by the contracting officer, it is held that all of these orders were reasonable and provided for in the contract. Id.
XXXIII. The failure of the plaintiff to make reasonable progress, so as to complete the work within the contract period, it is held, was due to its failure to have sufficient equipment with which to perform the work. Id. XXXIV. It is held that the evidence does not disclose any unrea- sonable acts on the part of the contracting officer which amounted to capriciousness or arbitrariness, either in the orders given for the borrow pits or in the manner in which the material was being placed in the levees. Id.
XXXV. Where a portion of the work was relet to another con- tractor, after the plaintiff had failed to make satis- factory progress, it is held that there is no material difference between the two contracts which would show the agreement with the second contractor was not the same as that with the first contractor. Id.
XXXVI. Where liquidated damages were charged against the plaintiff under Article 9 of the contract for failure to complete the work in time, it is held that such failure was entirely due to insufficient equipment, delay in getting dredges to the site of the work, and the method used in performing the work that caused slides, for all of which plaintiff was responsible. Id. XXXVII. Where refusal of the contracting officer to permit partial payments caused plaintiff to borrow large sums of money, it is held that such refusal was within the discretion of the contracting officer, and the plaintiff is not entitled to recover for interest paid; the claim is in form for damages but in substance it is for interest. Id.
XXXVIII. Where under a contract for the delivery of hay to Army post, plaintiffs were required to make delivery of the number of tons of hay called for within a reasonable time, or as needed by the Government, not to exceed 15 tons a day, it is held that six months was a reason- able time for compliance with the contract and letters from the defendant to plaintiffs, asking for delivery, are sufficient to show that defendant needed the hay, and accordingly plaintiffs were in default. Mueller- Huber Grain Co., 401.
XXXIX. Where contract for delivery of hay to Army post called for delivery of a certain number of tons during March, beginning March 15, at a rate not exceeding 15 tons a day, and delivery schedule provided that the balance should be delivered at the same rate during April and May, effective April 1 and May 1, but contract was not executed by the Government until March 27, it is held that plaintiffs were not in default when the contracting officer of the Government so declared on April 4, and such action by the contracting officer operated to breach the contract. Id.
XL. The contract did not become effective until it was exe- cuted by the defendant on March 27 and that date operated also to extend the contract time for perform- ance by the number of days between March 18, when the contract was forwarded to plaintiffs and March 27, when it was executed by the defendant. Id.
XLI. Where hay delivered by the plaintiffs to Army post under contract complied with the provisions of the contract and with Department of Agriculture specifica- tions but was rejected by the Army hay inspector and upon analysis was found to comply with the specifica- tions, it is held that such rejection was improper and unauthorized, and was a breach of the contract on the part of the defendant. Id.
XLII. Where contractor, in response to an invitation by the Bureau of Yards and Docks, Navy Department, sub- mitted a bid for furnishing certain materials and performing certain work at the Mare Island Navy Yard, and where after said bid was submitted but before said bid was accepted, contractor discovered that it had made an erroneous calculation, based on a misunderstanding of a subcontractor's proposal and price; and contractor thereupon requested that it be permitted to withdraw said bid because of said error, and such permission was refused by the defendant, and thereafter the contractor refused either to enter into a contract or to furnish the material and perform the work covered by the bid, it is held that the action of the Comptroller General in withholding from plain- tiff out of moneys due plaintiff under another, sub- sequent contract the difference between contractor's bid on the Mare Island project and the next lowest bid was illegal. Alta Electric, 466.
XLIII. Plaintiff, it is held, had the right to withdraw its bid and having had this right could not be penalized because of its refusual to sign the contract or to perform the work or to furnish the material con- templated by the bid. Id.
XLIV. Where plaintiff entered into a contract with the Gov- ernment to "furnish all labor and materials, and to perform all work required for construction of founda- tions, etc.," for the Department of Justice Building, Washington, and where it developed that in the draw- ings and specifications there was an erroneous calcula- tion as to the length of the piles to be driven, on which erroneous calculation plaintiff made its bid, and in the resulting disagreement as to settlement, the matter was referred to the Comptroller General with a recom- mendation for equitable adjustment and with a finding of fact by the contracting officer in which the contract- ing officer held the conditions were radically different from those on which the plans were drawn and the specifications made and on which the plaintiff had based its bid, and the Comptroller General ruled that section 193 of the specifications governed, and in the settlement the Government deducted from the contract price the sum of $161,266.25, in accordance with the ruling of the Comptroller General, it is held that the contractor was entitled to have the contracting officer construe the contract and arrive at a determination
« SebelumnyaLanjutkan » |