A-42614, AUGUST 11, 1932, 12 COMP. GEN. 227

A-42614: Aug 11, 1932

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THE CONTRACTOR IS NOT ENTITLED TO ANY PAYMENT. AS REIMBURSEMENT OF ALLEGED INCREASED COSTS INCURRED WHILE THE WORK WAS SUSPENDED PENDING DETERMINATION OF THE CHANGES TO BE MADE. THERE IS NO LEGAL AUTHORITY TO REIMBURSE THE CONTRACTOR FOR ANY EXPENDITURES OR LOSSES IN CONNECTION WITH THE CONTRACT WORK. EXCEPTING FOR SUCH DELAYS AS MAY BE DUE TO CAUSES WHICH ARE EXCUSABLE UNDER THE PROVISIONS OF ARTICLE 9 OF THE CONTRACT. ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN DAYS FROM THE DATE THE CHANGE IS ORDERED. NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

A-42614, AUGUST 11, 1932, 12 COMP. GEN. 227

CONTRACTS - EXTRA WORK - DELAYS - DAMAGES WHERE A CONTRACT FOR GOVERNMENT WORK RESERVES THE RIGHT TO SUSPEND THE WORK AND PROVIDES FOR CHANGES THEREIN AND AN ADJUSTMENT OF PRICE TO COVER THE INCREASE OR DECREASE RESULTING FROM SUCH CHANGES, THE CONTRACTOR IS NOT ENTITLED TO ANY PAYMENT, IN ADDITION TO THE AMOUNT AGREED UPON FOR THE REQUIRED CHANGES, AS REIMBURSEMENT OF ALLEGED INCREASED COSTS INCURRED WHILE THE WORK WAS SUSPENDED PENDING DETERMINATION OF THE CHANGES TO BE MADE. WHERE THE CONTRACT OBLIGATED THE CONTRACTOR TO OBTAIN REQUIRED PERMITS IN CONNECTION WITH COMPLETING PERFORMANCE OF THE CONTRACT WORK, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, AND UPON HIS FAILURE TO OBTAIN A PERMIT FROM A RAILROAD COMPANY TO PLACE A SEWER MAIN UNDER ITS TRACKS, THE GOVERNMENT SUBSEQUENTLY BY NEGOTIATIONS OBTAINED SUCH PERMIT, THERE IS NO LEGAL AUTHORITY TO REIMBURSE THE CONTRACTOR FOR ANY EXPENDITURES OR LOSSES IN CONNECTION WITH THE CONTRACT WORK, AS FOR EITHER EXTRA WORK OR DAMAGES, RESULTING FROM DELAYS IN OBTAINING SUCH PERMIT.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 11, 1932:

THERE HAS BEEN PRESENTED TO THIS OFFICE FOR CONSIDERATION AND SETTLEMENT THE CLAIM OF EBENHOLTZ AND CO. (INC.) FOR THE SUM OF $4,909.51 AS BALANCE ALLEGED TO BE DUE UNDER ITS UNITED STATES VETERANS' BUREAU CONTRACT NO. VBC-675, DATED APRIL 30, 1930, IN ADDITION TO PAYMENTS HERETOFORE RECEIVED, FOR THE CONSTRUCTION OF CERTAIN UTILITY BUILDINGS AND RADIAL BRICK CHIMNEY AT THE UNITED STATES VETERANS' HOSPITAL, NORTH CHICAGO, ILL.

THE CLAIM CONSISTS OF THE FOLLOWING ITEMS: ITEM 1. EXTRA WORK--- PUMPING WATER IN BOILER HOUSE---------- $586.56 ITEM 2. EXTRA WORK- - PUMPING NECESSARY TO PROTECT STEAMLINE

INSTALLATION-------------------------------------- 698.88 ITEM 3. EXTRA WORK--- WET EARTH EXCAVATIONS------------------ 1,687.50 ITEM 4. INSURANCE ON LABOR---------------------------------- 99.60

3,072.54 ITEM 4-A. OVERHEAD, 10 PERCENT------------------------------- 307.25

3,379.79 ITEM 4 B. PROFIT, 10 PERCENT--------------------------------- 337.98

3,717.77 ITEM 5. SUBSOIL DRAIN IN BUILDING NO. 32------ -------------- 116.75 ITEM 6. OVERHEAD EXPENSES, NOVEMBER 15 TO DECEMBER 24, 1930-- 1,074.99

TOTAL AMOUNT OF CLAIM------------------------------------- 4,909.51

UNDER THE TERMS AND THE CONDITIONS OF THE CONTRACT AND THE SPECIFICATIONS MADE A PART THEREOF, THE CONTRACTOR AGREED, FOR AND IN CONSIDERATION OF PAYMENT OF THE STIPULATED SUM OF $255,090, TO FURNISH ALL LABOR AND MATERIALS AND TO PERFORM ALL WORK REQUIRED FOR CONSTRUCTING NORTH CHICAGO, ILL., ONE LAUNDRY BUILDING NO. 30, ONE GARAGE BUILDING NO. 31, ONE STOREHOUSE BUILDING NO. 32, AND BOILER HOUSE AND BUNKER BUILDING NO. 33, ONE INCINERATOR BUILDING NO. 34, AND ALL ROADS, GRADING, AND DRAINAGE IN CONNECTION THEREWITH, TOGETHER WITH ALL PLUMBING, HEATING,BOILER PLANT AND INCINERATOR EQUIPMENT, ELECTRICAL WORK, OUTSIDE SEWER, WATER, STEAM AND ELECTRICAL DISTRIBUTION SYSTEMS, AND ONE RADIAL BRICK CHIMNEY, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, AND DRAWINGS THEREFOR; AND ALL OF SAID WORK WOULD BE COMPLETED WITHIN 180 CALENDAR DAYS AFTER RECEIPT OF THE GOVERNMENT'S NOTICE TO PROCEED THEREWITH. THE CONTRACT PROVIDED THAT IN CASE OF FAILURE ON THE PART OF THE CONTRACTOR TO COMPLETE PERFORMANCE OF THE WORK WITHIN THE CONTRACT PERIOD, THE CONTRACTOR SHOULD PAY AS LIQUIDATED DAMAGES THE SUM OF $55 FOR EACH CALENDAR DAY OF DELAY, EXCEPTING FOR SUCH DELAYS AS MAY BE DUE TO CAUSES WHICH ARE EXCUSABLE UNDER THE PROVISIONS OF ARTICLE 9 OF THE CONTRACT.

THE CONTRACT PROVIDED:

ARTICLE 3. CHANGES.--- THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY. NO CHANGE INVOLVING AN ESTIMATED INCREASE OR DECREASE OF MORE THAN FIVE HUNDRED DOLLARS SHALL BE ORDERED UNLESS APPROVED IN WRITING BY THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE. ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN DAYS FROM THE DATE THE CHANGE IS ORDERED, UNLESS THE THE CONTRACTING OFFICER SHALL FOR PROPER CAUSE EXTEND SUCH TIME, AND IF THE PARTIES CAN NOT AGREE UPON THE ADJUSTMENT THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE 15 HEREOF. BUT NOTHING PROVIDED IN THIS ARTICLE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK SO CHANGED.

ARTICLE 5. EXTRAS.--- EXCEPT AS OTHERWISE HEREIN PROVIDED, NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

ARTICLE 10. PERMITS AND CARE OF WORK.--- THE CONTRACTOR SHALL, WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, OBTAIN ALL REQUIRED LICENSES AND PERMITS AND BE RESPONSIBLE FOR ALL DAMAGES TO PERSONS OR PROPERTY THAT OCCUR AS A RESULT OF HIS FAULT OR NEGLIGENCE IN CONNECTION WITH THE PROSECUTION OF THE WORK, AND SHALL BE RESPONSIBLE FOR THE PROPER CARE AND PROTECTION OF ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE.

ARTICLE 15. DISPUTES.--- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN THIRTY DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO SUCH QUESTIONS OF FACT. IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED.

CERTAIN CHANGES WERE MADE IN THE WORK AS IT PROGRESSED BY WHICH THE CONTRACTOR'S COMPENSATION WAS INCREASED $1,860.78 BY SEVEN CHANGE ORDERS A, B, C, D, F, G, AND H, AND DECREASED $156.28 BY FIVE CHANGE ORDERS E, I, J, K, AND L, THUS INCREASING THE CONTRACTOR'S COMPENSATION UNDER THE CONTRACT TO $256,794.50 INSTEAD OF THE AMOUNT STATED IN THE CONTRACT.

IT APPEARS THAT THE CONTRACTOR RECEIVED THE GOVERNMENT'S NOTICE TO PROCEED WITH THE WORK ON MAY 19, 1930. UNDER THE CONTRACT TERMS THE COMPLETION DATE THUS BECAME NOVEMBER 15, 1930. ALL OF THE WORK WAS NOT COMPLETED, HOWEVER, UNTIL DECEMBER 23, 1930, A DELAY OF 38 CALENDAR DAYS BEYOND THE DATE FIXED BY THE CONTRACT. THE CONTRACTING OFFICER HAS FOUND THAT THE PERFORMANCE OF THE CONTRACT WORK WAS DELAYED FOR A PERIOD OF 40 CALENDAR DAYS ON ACCOUNT OF THE CHANGES IN THE PLANS AND SPECIFICATION FOR THE BOILER-HOUSE BUILDING, SHOWN ON CHANGE ORDER H, AND IN OBTAINING PERMISSION FROM THE ELGIN, JOLIET AND EASTERN RAILWAY CO. FOR THE LAYING OF A SEWER MAIN UNDER ITS TRACKS. AS THESE DELAYS IN PERFORMANCE OF THE CONTRACT WORK APPEAR TO HAVE BEEN BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF CONTRACTOR, SAME ARE EXCUSABLE UNDER THE TERMS OF THE CONTRACT AND NO LIQUIDATED DAMAGES ACCRUED OR WERE CHARGED ON ACCOUNT THEREOF.

THE RECORD SHOWS THAT THE CONTRACTOR HAS BEEN PAID THE FULL CONTRACT PRICE OF $256,794.50 FOR COMPLETING PERFORMANCE OF THE CONTRACT. THE CONTRACTOR CONTENDS, HOWEVER, THAT IT IS ENTITLED TO AN ADDITIONAL $4,909.51 AS FOR EXTRA WORK, ETC., RESULTING FROM THE DELAYS IN PERFORMANCE CAUSED BY THE ACTS OF THE GOVERNMENT, AS FOLLOWS: THAT, AS A RESULT OF THE DISCONTINUANCE OF WORK FOR 45 DAYS ON BOILER-HOUSE BUILDING NO. 33 IN ORDER TO MAKE CERTAIN CHANGES THEREIN, IT WAS REQUIRED TO PERFORM ADDITIONAL PUMPING DURING THE DELAY PERIOD WITH RESULTANT EXPENDITURES AMOUNTING TO $586.56 (PLUS 10 PERCENT OVERHEAD EXPENSES AND 10 PERCENT PROFIT), CONSISTING OF LABOR EXPENSE (1 LABORER, 47 DAYS AT $7.80) $366.60, GASOLINE FOR PUMP (376 GALLONS AT $0.21) $78.96, AND USE OF PUMP (47 DAYS AT $3) $141; THAT, AS A RESULT OF THE DELAY OF THE GOVERNMENT IN ENTERING INTO A CONTRACT WITH THE ELGIN, JOLIET AND EASTERN RAILWAY CO. FOR PERMISSION TO PLACE A SEWER MAIN UNDER ITS RAILROAD TRACKS, ADDITIONAL PUMPING WAS REQUIRED FROM JULY 15 TO SEPTEMBER 30, 1930, WITH RESULTANT EXPENDITURES AMOUNTING TO $698.88 (PLUS 10 PERCENT OVERHEAD EXPENSES AND 10 PERCENT PROFIT), CONSISTING OF LABOR EXPENSE (1 LABORER, 56 DAYS AT $7.80) $436.80, GASOLINE FOR PUMP (448 GALLONS AT $0.21) $94.08, AND USE OF PUMP (56 DAYS AT $3) $168, IN ORDER TO PROTECT THE PIPE COVERING ON THE INSTALLED STEAM PIPE LINES AT THE U BEND PIT NO. 2 AND AT THE MANHOLES NO. 1 AND NO. 6; THAT, AS A FURTHER RESULT OF THE GOVERNMENT'S SAID ACTS IN DELAYING THE CONTRACT WORK, THE OUTFALL SEWER COULD NOT BE PROMPTLY COMPLETED WHICH NECESSITATED COMPLETION OF 675 CUBIC YARDS OF WET TRENCH AND FOOTING EXCAVATION, INSTEAD OF DRY AS WAS ANTICIPATED, WITH RESULTANT INCREASED COST OF $2.50 PER CUBIC YARD, AMOUNTING TO $1,687.50; THAT, AS A FURTHER RESULT OF THE GOVERNMENT'S SAID ACTS IN DELAYING THE CONTRACT WORK, AN EXPENDITURE OF $99.60 WAS MADE FOR INSURANCE ON LABOR DURING SAID DELAY PERIODS; THAT, AS A FURTHER RESULT OF THE GOVERNMENT'S SAID ACTS IN DELAYING THE CONTRACT WORK, THE OVERHEAD EXPENSE OF 10 PERCENT ON THE EXTRA WORK AMOUNTED TO $307.25 AND THE PROFIT OF 10 PERCENT ON THE EXTRA WORK AMOUNT TO $337.98; AND THAT, AS A FURTHER RESULT OF THE GOVERNMENT'S SAID ACTS IN DELAYING THE CONTRACT WORK, AN EXPENDITURE OF $1,074.99 WAS MADE DURING THE DELAY PERIODS, IN EXCESS OF THE CONTRACT REQUIREMENTS, CONSISTING OF THE FOLLOWING ITEMS: SALARY OF GENERAL SUPERINTENDENT (5 1/2 WEEKS AT $90) $495; SALARY OF MECHANICAL SUPERINTENDENT (5 1/2 WEEKS AT $85) $467.50; TELEPHONE EXCHANGE SERVICE, $10.49; AND GASOLINE AND OIL MAINTENANCE ON AUTOMOBILE, $102. THE CONTRACTOR CLAIMS TO BE ENTITLED ALSO TO AN ADDITIONAL $116.75, AS FOR EXTRA WORK NOT INCLUDED IN THE CONTRACT REQUIREMENTS, CONSISTING OF THE CONSTRUCTION OF A SUBSOIL DRAIN IN BUILDING NO. 32 SO AS TO KEEP THE FLOOR DRY IN ORDER THAT THE CONCRETE FLOOR COULD BE LAID AND WATERPROOFED.

THE REPORTS OF THE ADMINISTRATIVE OFFICERS SHOW THAT THE WORK ON THE BOILER-HOUSE BUILDING NO. 33 WAS DISCONTINUED BY THE GOVERNMENT DURING THE PERIOD FROM JULY 16 TO SEPTEMBER 2, 1930, PENDING DECISION BY THE ADMINISTRATIVE OFFICE RELATIVE TO CERTAIN CHANGES TO BE MADE THEREIN, AS SHOWN BY CHANGE ORDER H, SUBSEQUENTLY ISSUED ON OCTOBER 23, 1930, CONSISTING OF THE REARRANGEMENT OF THE PUMP ROOM IN THE BOILER HOUSE IN ORDER TO ACCOMMODATE CERTAIN ADDITIONAL MACHINERY PROCURED THEREFOR, AND THAT DURING SAID DELAY PERIOD OF 47 CALENDAR DAYS THE CONTRACTOR WAS REQUIRED TO PUMP OFF THE WATER FROM THE PUMP ROOM IN ORDER TO CONTINUE WITH THE OTHER CONTRACT WORK IN THAT AREA; THAT THE ELGIN, JOLIET AND EASTERN RAILWAY CO. REFUSED THE CONTRACTOR PERMISSION TO PLACE THE GOVERNMENT'S 16-INCH SEWER PIPE ACROSS ITS RIGHT OF WAY UNDER ITS RAILROAD TRACKS UNTIL PROPER AGREEMENT THEREFOR WAS CONSUMMATED WITH THE GOVERNMENT; THAT SUCH AGREEMENT WAS NOT FINALLY EXECUTED UNTIL SEPTEMBER 9, 1930, AND COPY THEREOF WAS RECEIVED SEPTEMBER 16, 1930, BY THE CONTRACTING OFFICER AT WASHINGTON, D.C., AND SUBSEQUENTLY FORWARDED TO THE SUPERINTENDENT OF CONSTRUCTION, CHICAGO, ILL., WHO WAS IN CHARGE OF THE WORK; THAT ALL THE MAIN SEWER LINES INCLUDED IN THE CONTRACT WORK WERE COMPLETED BY AUGUST 5, 1930, EXCEPTING THE 16-INCH SEWER TO BE PLACED UNDER THE RAILROAD TRACKS OF SAID RAILWAY COMPANY, WHICH WAS COMPLETED BY AUGUST 5, 1930; THAT ON AUGUST 7, 1930, THE CONTRACTOR COMMENCED THE REQUIRED PIPE-COVERING WORK IN THE STEAM TRENCHES AND BY AUGUST 19, 1930, HAD COMPLETED SAME WITH THE EXCEPTION OF THE TRENCH BETWEEN THE BOILER HOUSE AND THE GARAGE; THAT FOR A PERIOD OF 50 CALENDAR DAYS, BEGINNING AUGUST 7, 1930, THE CONTRACTOR WAS REQUIRED TO PUMP OFF THE WATER COLLECTED AT THE U BEND PIT NO. 2 AND AT MANHOLES NO. 1 AND NO. 6 SO AS TO PROTECT THE INSTALLED STEAM-PIPE COVERINGS, WHICH WORK WOULD NOT HAVE BEEN REQUIRED BUT FOR THE DELAY IN COMPLETING THE SEWER ACROSS THE RAILROAD PROPERTY; THAT, UNTIL THE SEWER MAIN WAS IN OPERATION, THE CONTRACTOR PUMPED SAID WATER UPON THE GROUND FOR SURFACE DRAINAGE AND SAME SATURATED THE SURROUNDING AREA TO SUCH AN EXTENT THAT CONTRACTOR ENCOUNTERED EXCAVATION DIFFICULTIES ON ACCOUNT OF WET EXCAVATION WORK WHICH IT WOULD NOT HAVE EXPERIENCED OTHERWISE; AND THAT, DUE TO THE DELAYS IN COMPLETING PERFORMANCE OF THE CONTRACT WORK, THE CONTRACTOR INCURRED CERTAIN OVERHEAD EXPENSES WHICH IT WOULD NOT HAVE INCURRED HAD THE WORK BEEN COMPLETED WITHIN THE CONTRACT PERIOD.

GENERALLY, WHERE A PERSON BY HIS CONTRACT, CHARGES HIMSELF WITH AN OBLIGATION POSSIBLE TO BE PERFORMED, HE MUST PERFORM IT UNLESS ITS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE ACT OF GOD, BY THE LAW, OR BY THE OTHER PARTY. UNFORESEEN DIFFICULTIES OR UNAVOIDABLE EVENTS, HOWEVER GREAT, WILL NOT EXCUSE PERFORMANCE, UNLESS PROVIDED FOR IN THE CONTRACT. WHERE THE PARTIES HAVE MADE NO PROVISION FOR A DISPENSATION, THE TERMS OF THE CONTRACT MUST PREVAIL. IN THIS CONNECTION, SEE UNITED STATES V. GLEASON, 74 U.S. 588, 603; CARNEGIE STEEL CO. V. UNITED STATES, 240 U.S. 156, 64; COLUMBUS RAILWAY POWER AND LIGHT CO. V. CITY OF COLUMBUS, 249 U.S. 399, 412; AND 13 CORPUS JURIS, 635. IT IS A WELL RECOGNIZED RULE OF LAW THAT WHERE THE CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. UNITED STATES, 172 U.S. 379; AND 13 CORPUS JURIS, 584. IN THE INSTANT MATTER, WHILE THE CLAIM IS STATED TO BE ON ACCOUNT OF ALLEGED EXTRA WORK NOT INCLUDED IN THE CONTRACT REQUIREMENTS (BUT FOR WHICH, HOWEVER, NO WRITTEN ORDER OF THE CONTRACTING OFFICER WAS ISSUED), IT IS CLEAR THAT WHAT IS ACTUALLY SOUGHT IS COMPENSATION IN THE NATURE OF DAMAGES BECAUSE THE GOVERNMENT SUSPENDED WORK ON THE BOILER HOUSE AND DID NOT SECURE A PERMIT FROM THE RAILROAD COMPANY BY THE TIME THE CONTRACTOR WAS READY TO CONNECT UP THE SEWER. HOWEVER, THESE ACTS OR DELAYS ON THE PART OF THE GOVERNMENT IN NO WAY CONSTITUTED BREACHES OF THE CONTRACT. NOT ONLY DOES THE GENERAL CONTEXT OF THE CONTRACT AND SPECIFICATIONS, INCLUDING THE PROVISION THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES FOR DELAYS DUE TO THE GOVERNMENT, CONTEMPLATE THE POSSIBILITY OF SUCH DELAYS WITHOUT ADDITIONAL COMPENSATION TO THE CONTRACTOR BUT PARAGRAPH 8 (G), PAGE 1 G-2, OF THE SPECIFICATIONS, BY REFERENCE MADE A PART OF THE CONTRACT, EXPRESSLY AND SPECIFICALLY RESERVES THE RIGHT TO THE GOVERNMENT TO "SUSPEND ANY PORTION OF THE CONTRACT WORK WHENEVER THE DIRECTOR DEEMS IT NECESSARY FOR THE PURPOSES OR ADVANTAGE OF THE WORK.' CLEARLY, THEN, THE SUSPENSION OF THE WORK ON THE BOILER HOUSE TO MAKE NECESSARY REVISIONS IN THE PLANS WAS WITHIN THE CONTRACT RIGHTS OF THE GOVERNMENT AND CAN NOT BE VIEWED AS A BREACH OF THE CONTRACT, AND AS THE CONTRACTOR HAD EXPRESSLY OBLIGATED ITSELF AND PERMITS FOR THE WORK, IT CAN NOT CAST UPON THE GOVERNMENT THE BURDEN OF ANY ADDITIONAL COSTS OF THE WORK DUE TO ITS OWN FAILURE TO SECURE PERMISSION FROM THE RAILROAD COMPANY FOR THE SEWER, DURING THE TIME THE GOVERNMENT WAS NEGOTIATING FOR SUCH PERMISSION ON THE CONTRACTOR'S BEHALF. AND EVEN IF THE CONTRACT HAD IMPOSED UPON THE GOVERNMENT THE DUTY AND RESPONSIBILITY OF SECURING THE PERMIT FROM THE RAILROAD COMPANY, WHICH DOES NOT APPEAR, IT WOULD HAVE BEEN ENTITLED TO A REASONABLE TIME THEREFOR WITHOUT BECOMING LIABLE FOR ADDITIONAL COSTS IN THE NATURE OF DAMAGES AS FOR A BREACH OF THE CONTRACT, AND CLEARLY IN THIS CASE WHERE THE GOVERNMENT UNDERTOOK TO OBTAIN SAME, THE GOVERNMENT WAS ENTITLED TO A REASONABLE TIME THEREFOR. FURTHERMORE, PARAGRAPH 11, PAGE 1 G-3, OF THE CONTRACT SPECIFICATIONS EXPRESSLY PROVIDES THAT NO CLAIM "FOR ADDITIONAL COMPENSATION WILL BE ENTERTAINED BY THE GOVERNMENT EXCEPT AS PROVIDED FOR IN THE CONTRACT," AND AS CLAIMS OF THIS CHARACTER ARE NOT PROVIDED FOR IN THE CONTRACT AND DO NOT COME WITHIN THE PROVISIONS OF ARTICLE 3 OR 5 OF THE CONTRACT, SUPRA, IT IS CLEAR THAT SUCH CLAIMS MAY NOT BE ALLOWED. THIS CONNECTION, SEE H. E. CROOK COMPANY, INC. V. UNITED STATES, 271 U.S. 4; MERCHANTS' LOAN AND TRUSTCO. CASE, 40 CT.CLS. 117; WELLS BROS. CO. CASE 254 U.S. 83; CHAS F. WOOD, ET AL, CASE, 258 U.S. 120; LANGE AND VERGSTROM CASES, 61 CT.CLS. 666, ID. 682; CONVERSE AND COMPANY CASE, 61 CT.CLS. 672; G. AND H. HEATING CO. CASE, 63 CT.CLS. 164; CARROLL ELECTRIC COMPANY CASES, 68 CT.CLS. 500; 69 ID. 435; 11 COMP. GEN. 27.

WITH REFERENCE TO ITEM 5 OF THE CLAIM FOR $116.75 AS FOR EXTRA WORK NOT INCLUDED IN THE CONTRACT, THE EVIDENCE SHOWS THAT THE CONTRACTOR OF HIS OWN INITIATIVE INSTALLED A SUBDRAIN AND TRAP IN THE STOREHOUSE IN ORDER TO KEEP THE TRANSFORMER ROOM FLOOR DRY SO AS TO PERMIT REQUIRED WATERPROOFING UNDER THE CONTRACT AND THAT ON DECEMBER 10, 1930, THE CONTRACTOR PRESENTED ITS ITEMIZED CLAIM FOR SAID SUBDRAIN WORK IN THE SUM OF $116.75. IT IS REPORTED THAT THE GOVERNMENT OFFICIALS IN CHARGE OF THE WORK DID NOT REQUIRE OR AUTHORIZE SUCH SUBDRAIN, BUT SAME APPEARS TO HAVE BEEN VOLUNTARILY INSTALLED BY THE CONTRACTOR, PRESUMABLY FOR ITS OWN CONVENIENCE AND BENEFIT IN CARRYING ON THE CONTRACT WORK. FURTHERMORE, ARTICLE 5 OF THE CONTRACT EXPRESSLY PROVIDES THAT NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER. IN VIEW OF THE FACTS AND CIRCUMSTANCES AND THE TERMS OF THE CONTRACT, AS ABOVE SHOWN, THERE IS NO LEGAL AUTHORITY FOR PAYMENT IN ADDITION TO THE CONTRACT PRICE OF ANY AMOUNT FOR THIS ALLEGED EXTRA WORK. SEE PLUMLEY V. UNITED STATES, 226 U.S. 545.

ACCORDINGLY, AS NO PART OF THE $4,909.51 CLAIMED IS ESTABLISHED AS A SUBSISTING LEGAL OBLIGATION OF THE GOVERNMENT, THE ENTIRE CLAIM MUST BE AND IS DISALLOWED.