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
|
