#### WARREN, MOORE *&*CO. v. THE UNITED *ST*ATES.

[No. 42-A.

Decided November 13, 1922.]

*On the proofs.*

*Contract; liquidated damages; jurisdiction.*— Where a contract provides for liquidated damages in the event of delay in the comijletion of the contract, and any extension of the contract is left to the decision of a designated tribunal, whose action is made conclusive upon the parties, the courts have no jurisdiction to review its decision.

*The Reporter's*statement of the case:

*Messrs. Peaslee dé Compton*for the plaintiff.

*Mr. Alexander H.*McCormick, with whom was *Mr. Assistant Attorney General Robert H.*Lovett, for the defendant.

The following are the facts of the case as found by the court:

I. The plaintiff is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal office and place of business in the Colonial *577Trust Company Building, Philadelphia, Pennsylvania, and is and was at the time of the occurrence of the matters mentioned herein engaged in business as a general contractor.

II. On or about June 25, 1917, the United States caused to be published and sent to certain general contractors, including the plaintiff, an advertisement for sealed proposals for the construction of four buildings for a machine shop, foundry and forge shop, heat treatment plant, and lavatory and locker room at the United States Naval Projectile Plant at Charleston, W. Va., in accordance with Specifications 2454 and accompanying drawings.

III. On receipt of this notice representatives of the plaintiff called at the Bureau of Yards and Docks, Washington, D. C., and were shown copies of Specifications No. 2454, which included a schedule of estimated unit quantities of the various materials to be incorporated into the buildings. Said Specifications No. 2454, under the term of “general provisions,” stated that the “ general provisions accompanying specifications for contracts for public works, Bureau of Yards and Docks, March 20, 1917,” would form a part of the specification and of any contract based thereon, and that copies of these “ general provisions ” could be had on application to the Chief of Bureau of Yards and Docks. On the said specifications and drawings and on this schedule of estimated unit quantities the plaintiff prepared and filed its bid with the Bureau of Yards and Docks.

IV. On July 17, 1917, the plaintiff received a telegram from the Bureau of Yards and Docks notifying it that its bid had been accepted. Thereafter a representative of the plaintiff called at the office of the Bureau of Yards and Docks and signed a contract for the construction and completion at the Naval Projectile Plant, Charlestown, W. Va., of the said four buildings in accordance with the provisions of Specifications No. 2454, as amended by Addenda Nos. 1 and 2 thereto. A copy of the said contract and of Specifications No. 2454 and of Addenda Nos. 1 and 2, except as stated hereafter, is attached to the petition herein marked “ Exhibit A,” and is made a part of these findings by reference. Included in the “general provisions,” which formed *578a part of the contract between the parties, are certain provisions, stated in Finding Y.

V. The *“*general provisions ” accompanying specifications for contracts for public works, Bureau of Yards and Docks, March 20, 1917, formed a part of this contract and provide:

“ 12. *Extension of time.*— For causes of the character hereafter enumerated extensions of time for the completion of the work may be allowed. Should the contractor at any time consider that he is entitled to an extension of time for any cause, he must submit in writing to the officer in charge an application for such extension, stating therein the cause or causes of the alleged delay. The officer in charge will refer the same at once, with full report and recommendation to the Navy Department, Bureau of Yards and Docks, for consideration and for such action as the circumstances may warrant. The failure or neglect of the contractor to submit, as above provided, his claim for extension of time within 30 days after the happening of the cause or causes upon which his claim is predicated, shall be deemed and construed as a waiver of all claims and right to an extension of time for the completion of the work on account of the alleged delay, and the contractor agrees to accept the finding and action of the Navy Department, Bureau of Yards and Docks, in the premises as conclusive and binding.”

“ 14. *Unavoidable delays.*— Unavoidable delays are such as result from causes which are beyond the control of the contractor, such as acts of Providence, fortuitous events, inevitable accidents, abnormal conditions of weather or tides, or strikes of such scope and character as to interfere materially with the progress of the work. *Delays ea/used by acts of the Goverrwnent will be regarded as wnamoidable delays.*Delays in securing delivery of materials, or by rejection of materials on inspection, or by changes in market conditions, or by necessary time taken in submitting, checking, and correcting drawings or inspecting material, or by similar causes, will not be regarded as unavoidable. Should any delay in the progress of the work seem likely to occur at any time, the contractor shall notify the officer in charge in writing of the anticipated or actual delay in order that a suitable record of the same may be made.”

“ 17. *Changes.*— The Government reserves the ¡right to make such changes in the contract, plans, and specifications as may be deemed necessary or advisable, and the contractor agrees to proceed with such changes as directed in writing by the Chief of the Bureau of Yards and Docks. *579The cost of said changes shall be estimated by the officer in charge, and, if less than $500, shall be ascertained by him. If the cost of said changes is $500 or more, as estimated by the officer in charge, the same shall be ascertained by a board of not less than three officers or other representatives of the Government. The cost of the changes as ascertained above, when approved by the Chief of the Bureau of Yards and Docks, shall be added to or deducted from the contract price, and the contractor agrees and consents that the contract price thus increased or decreased shall be accepted in full satisfaction for all work done under the contract: Provided, That the increased cost shall be the estimated actual cost to the contractor at the time of such estimate and that the decreased cost shall be the actual or market value at the time the contract was made, both plus a profit at 10 per cent.”

YI. The contract provided that the work should be completed within 235 calendar days from the date a copy of the contract was delivered to the contractor. A copy of it was delivered to the plaintiff on August 13, 1917, and the date of completion of the contract was fixed as of April 5, 1918.

VII. The plaintiff commenced work under the said contract in the last week of July, 1917, and proceeded with the work called for in the plans and specifications. Certain delays were encountered in the completion of the contract. The date of final completion of the contract was August 3, 1918, making a delay of 120 days.

VIII. After the work had been completed, and pending final settlement therefor, the plaintiff applied to the Bureau of Yards and Docks for an extension of the time for completion of the work and presented its claim upon that question. These claims for extension were duly considered by the Bureau of Yards and Docks, and its finding and decision were that plaintiff was entitled to an extension of part of the period claimed by it. In accordance with this finding and decision the plaintiff was charged with liquidated damages for two days’ delay in the completion of the machine shop at the stipulated sum of $200 per day, and for 52 days’ delay in each of the three buildings of the foundry and forge and of heat treatment and of lavatory and locker at the respective sums of $320.00, $50.00, and $20.00 per day, as stipulated, making a total sum of $20,-*580680.00 charged agairisfc plaintiff as liquidated damages, and this amount was deducted from the amount otherwise found due to the plaintiff.

From this decision and action of the Bureau of Yards and Docks plaintiff prosecuted an ápp.eal to the Secretary of the Navy, who, after investigation, approved the action of the Bureau of Yards and Docks in fixing the said sum as the amount of liquidated damages with which the plaintiff should be charged. Of this action of the Secretary the plaintiff' was duly advised.

IX. The total amount of plaintiff’s bid was $579,651.48. Additional work was done, which increased the value of the unit work to $640,917.12. The work under item 33 of the specifications (miscellaneous work) amounted to $96,083.14.

X. The plaintiff furnished and supplied to the United States in connection with this contract certain Practicool Fountains of the reasonable value of $691.92 and certain floor hardener of the reasonable value of $146.64 and duly presented its claim therefor and made due demand upon the United States for the payment thereof, but no part of said sums has been paid.

memorandum by the court.

The contract provided for liquidated damages in the event of delay in the completion of the work, and whether the contractor should be allowed extensions of the contract period was left to the decision of a designated tribunal, whose action is made conclusive upon the parties. It is also controlling upon the court. See *Gleason case,*175 U. S. 588, *Patricia Corr & Sons case,*55 C. Cls., 7, 23, and cases there cited.

The plaintiff is entitled to recover for the items stated in Finding X the sum of $838.56, and the petition as to other items is dismissed.