VI. If an owner invites bids for an illegal installation, the bidder is not privileged to submit a bid, and,
if it is accepted, claim that he has a contract for a much cheaper lawful installation. Id.
VII. Where defendant, without advertising for bids, as required by law, contracted with plaintiff for the manufacture and delivery of airplanes of a certain type developed at its own expense by plaintiff; and where plaintiff did manufacture and deliver such airplanes in accordance with said contract; and was paid therefor, except, however, for a deduction withheld by the Comptroller General purporting to reduce the price of said airplanes to the audited direct costs of labor and materials plus 10-percent profit; it is held that the cost of said airplanes, properly computed, should include a proportionate part of the cost of developing such model of airplane, and the plaintiff accord- ingly is entitled to recover. Douglas Aircraft, 140. VIII. Where plaintiff in developing a new type of airplane did not set up on its books development costs, and where the need for ascertaining and recording such development costs arose from the failure of defendant to advertise for bids, as required by law, before awarding to plaintiff certain contracts for the particular type of airplane in question; it is held that plaintiff's claim should not be dis- missed because of indefiniteness of proof unless the proof is really so indefinite as to make an intelligent judgment impossible. Id. IX. In computing development costs, where no record of such costs was kept, changes in conditions, including fluctuations in the cost of labor and material during the period of development, may be taken in account. Id.
X. Under a contract entered into by the plaintiff to furnish all labor and material and perform all work required for the construction of a movable- span highway bridge over the branch channel of the Chesapeake & Delaware Canal at Delaware City, Del.; it is held that the plaintiff is not entitled to recover for excess costs and damage alleged to have resulted from misrepresentations as to character of material to be encountered in the performance of the work called for by the contract nor for alleged extra work nor for liquidated dam- 449973-42-CC-vol. 95-51
ages alleged to have been erroneously withheld by the defendant for delay in completion of the work. Triest & Earle, Inc., 209.
XI. Where it is shown by the evidence that the conditions encountered by the plaintiff in excavating for the east pier were not different from what might reasonably have been expected from an examina- tion of the specifications and drawings; and where it is shown that the information recorded by the defendant and made available to bidders fairly represented the nature of the material to be ex- cavated and the conditions to be encountered; it is held that the increased cost incurred by the plaintiff by reason of the difficulties encountered was due to plaintiff's failure to interpret properly the data furnished by the defendant and not from any misrepresentation by the defendant nor defendant's failure to furnish plaintiff with all the information had by defendant. Id.
XII. Where in the construction of the west pier additional work was required by the contracting officer and plaintiff was granted extra time therefor and was paid the agreed compensation therefor; it is held that the proof does not sustain plaintiff's claim that plaintiff should have been paid more. XIII. It is shown by the evidence that the decision of the contracting officer holding plaintiff responsible for 80 days' delay was correct and liquidated damages were accordingly properly deducted therefor in accordance with the terms of the con- tract.
XIV. Where the plaintiff entered into a written contract with the defendant for performing a certain amount of earth work on the construction of a Mississippi River levee, according to specifica- tions; and where after the work provided for in the contract had been nearly completed the con- tracting officer for defendant issued an order for additional work and stated in the order that "pay- ment for additional yardage made necessary would be made at the contract price per yard;" and where the contract provided that if any changes were made in the contract an equitable adjustment should be made, which provision of the contract was disregarded by the contracting officer; it is held-
1. That the defendant made no adjustment of plaintiff's claim and thereby breached the con- tract.
2. That the determination of what is an equitable adjustment is one of law and the contracting officer, authorized by the contract to pass only on questions of fact, had no authority to pass on said question of law.
3. That the decision of the contracting officer in his order that "payment for additional yardage will be made at contract price per cubic yard" was that the contract price applied to the additional work and that this was not in any sense a decision upon a fact but it was in effect a conclusion of law.
4. That the defendant, having breached the con- tract by the refusal of the contracting officer to make any adjustment, the plaintiff could bring suit without taking any appeal, as the contract provisions for appeal applied only to the decisions of the contracting officer on questions of fact; there was no adjustment from which to take an appeal. Callahan Walker Construction Corp., 314.
XV. An implied contract arose to pay the plaintiff the reasonable value of the extra work performed. Id. XVI. The agreement, as to the extra work, between the plaintiff and its subcontractor had no bearing upon the contract between the plaintiff and the de- fendant.
XVII. Where extra work is ordered by the proper officer of the Government, such extra work being necessary, and where it is accepted and used by the Govern- ment the Court of Claims has held that there is an implied contract to pay the contractor the reason- able value thereof unless there is a provision in the contract directly forbidding payment in the cir- cumstances of the case. United States v. Spearin, 51 C. Cls. 155, affirmed 248 U. S. 132, 139 cited. Id.
XVIII. The question whether an equitable adjustment is made is for the court to decide. Id.
XIX. Where it was provided in the contract on which the instant suit is brought that "no charge for any extra work or material will be allowed unless the same has been ordered in writing by the con- tracting officer and the price stated in such order";
and where it is shown by the evidence adduced that not only the work in question was not ordered by the contracting officer but also plaintiff was informed that if done it would not be paid for; it is held that the plaintiff is not entitled to recover. Hardwick, Admtrz., 336.
XX. Where plaintiff, in response to invitation of de- fendant, submitted a bid for furnishing coal; and where on sheet No. 1 of schedules attached to said invitation to bidders plaintiff entered a bid price of $3.75 per ton, and on sheet No. 10 of said schedules a bid price of $2.75 per ton was entered by error of plaintiff's attorney; and where both sheets were signed by plaintiff before submission; and where on said bid the contract for said coal was awarded to plaintiff as the lowest bidder; and where after delivery plaintiff was paid at the rate of $2.75 per ton; it is held that plaintiff is entitled to recover at the rate of $3.50 per ton, which was the price named in the lowest bid submitted. Shepard, 407.
XXI. Where in a contract with plaintiff, drawn by the defendant, for the rental of one hydraulic dredge and equipment, it was provided that rental at a price stipulated "per hour" would be paid; and where in said contract it was likewise provided that such rental "per hour" would be paid while the dredge was not pumping due to breakdowns within stated limitations; it is held that plaintiff is entitled to recover on the basis of rental "per hour" and not "per pumping hour." Merritt Dredging Co., 421.
XXII. A contract drawn by the defendant is to be strictly construed against it. Id.
XXIII. Where plaintiff, a contractor, entered into a contract with the Government for the construction of a Federal penitentiary near Lewisburg, Pa.; and where the preparation of plans and specifications was hastily done; and where after the contract was made blueprints were supplied to plaintiff with additions and corrections made by blue pencil and no revised blueprint containing all the inser- tions was ever given to plaintiff; it is held that there is no proof that the condition of the plans caused misunderstanding, confusion, or delay and plaintiff is accordingly not entitled to recover. Great Lakes Construction Co., 479.
XXIV. Where during the progress of the work on the Federal penitentiary being constructed near Lewisburg, Pa., the Government made frequent changes in the plans, in addition to insertions and correc- tions on the blueprints and where the contract expressly permitted the Government to make such changes with proper compensation to the contractor, and where in connection with each such change a supplemental contract was entered into by the parties; it is held that the said supple- mental agreement left no further unliquidated claim by which the plaintiff can recover for over- head, profit, or delay. Id.
XXV. Where a plaintiff has been legally wronged, indef- initeness of proof as to the exact amount of damages will not prevent a recovery (Mansfield & Sons Co. v. United States, 94 C. Cls. 397) but there must be tangible evidence of substantial damage. Id.
XXVI. Where plaintiff, a contractor, entered into a con- tract with the Government for the erection and completion of one set of five special skeleton steel radio masts with concrete foundations; and where before submitting its bid plaintiff inspected the site; and where plaintiff agreed to a change of site with no increase or decrease in price; and where in excavating for foundations water was struck, necessitating additional expense; it is held that plaintiff is not entitled to recover. Cassidy & Gallagher, Inc., 504.
XXVII. The Government made no representations as to conditions at the site other than as disclosed by the proposal conditions, the specifications, and other contract provisions; there was no conceal- ment, no withholding of information, and conse- quently no reliance. Id.
XXVIII. The plaintiff's method of meeting the conditions encountered was inefficient and not in accord with good engineering practice. Id.
XXIX. Where, in response to advertisement by the Procure- ment Division of the Treasury for bids for the furnishing of a rock-crushing plant on an hourly basis and in the alternative on a cubic-yard basis, plaintiff, a contractor, submitted bids, which were accepted; and where upon inquiry plaintiff was referred for information as to the work and con- ditions under which it was to be performed to a
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