#### NUGENT CONSTRUCTION CORPORATION v. THE UNITED STATES

[No. B-100.

Decided June 16, 1924]

*On the Proofs*

*Contract; delay in surrendering site; decision of hoard.*— -Where the Government delays work on a contract by tailing to surrender the site of the building to be constructed on contract time, and a board of naval officers appointed by the Bureau of Yards and Docks to investigate and report on the damage to plaintiff caused by such delay reports the amount of such damage, and the Government fails to prove that the amount found due is not reasonable, the court will enter judgment for the amount so found.

*848*The Reporter's*statement of the case:

*Mr. G. B. Ellis*for the plaintiff. *Ellis, Harrison,Ferguson d‘ Ellis*and *Mr. Woodson P. Houghton*were on the briefs.

*Mr. George TI. Foster,*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 under the laws of the State of New York and was at the times herein mentioned engaged in the business of general construction and contracting work.

II. On or about the 8th of May, 1919, the Bureau of Yards and Docks, Navy Department of the United States, called for sealed proposals for Building F and alterations to stairway of main building at the United States Naval Hospital Reservation in Brooklyn. The plaintiff filed its proposal with the bureau on, or about the 11th of June, 1919, and being the lowest bidder, the contract was let by the said bureau to plaintiff. A copy of the specifications No. 3892 are attached to the contract herein mentioned, which forms Exhibit A to the petition herein, and said contract and specifications are made a part of these findings by reference.

III. The contract for doing said work was awarded to the plaintiff on June 18, 1919, and of that fact plaintiff was notified by telegram from the Bureau of Yards and Docks. The formal contract for the construction of the contemplated building was sent to the plaintiff on or about June 25 and was duly executed and returned to the bureau. Upon receiving notice of the acceptance of its bid plaintiff proceeded to make preparations for doing the work. It executed the contract, Exhibit A, on June 26, and returned the same to the bureau. It was in actual operation on June 27, having prior to that time staked out the site ready for excavation. The contract as executed by the bureau was returned to the plaintiff on the 17th of July. The plaintiff was informed by the officer in charge of the work that it was emergency *849work on hospital and the plaintiff was desired to proceed pending the execution of the formal contract.

IV. In doing said work it was necessary to performance that there first be razed and removed certain buildings mentioned in paragraph 36 of the specifications. Plaintiff was ready to perform this work, and it made preparations to perform it prior to July 17. On July 17 the plaintiff was notified by the officer in charge that :tlie Bureau of Yards and Docks had decided to modify the contract so that the work of demolishing and removing certain buildings would be done under another contract, and that, plaintiff should suspend work pending this change. Plaintiff objected to any suspension of the work, but the Bureau of Yards and Docks arranged that the contracting firm selected by it, namely, the Factory Supply Company, should do the work of razing buildings and thereby obstructed the work which plaintiff was ready and prepared'to do in connection with the razing of said buildings and otherwise performing its contract. This obstruction caused a serious delay in undertaking or performing the work under said contract and caused plaintiff damage in the necessary postponement of its part of the contract.

The excavation necessary for the work was placed by plaintiff with a subcontractor, who began work on or about July 2, employing from ten to fourteen men daily until about August 2, when the excavation practically ceased until about August 25. This suspension of work'was necessitated by reason of the fact that the Factory Supply Company did not perform its contract.

*V.*On July 29, 1920, a board of officers was appointed to investigate and report upon the damages to the plaintiff resulting from the delay occasioned by the failure of the Government to surrender the site and upon liquidated damages. This board of officers appointed by the Bureau of Yards and Docks went into an elaborate and careful investigation of all the facts and decided that the plaintiff had been damaged by the Government on account of its failure to turn *850over the site of the work promptljT when the contract was delivered to the contractor, and that the damages so occasioned amounted to $18,302.17, and the board recommended the payment of this sum to the plaintiff. The award by the Board was itemized, but the Navy Department did not pay any of the items recommended by the Board, deeming that such an award would be for unliquidated damages, and out of the jurisdiction of the Navy Department.

On or about the 4th of February, 1921, the plaintiff executed a release to the United States upon the payment to it. of the amount conceded by the Government to be due, less the sum of $366.04 deducted bjr consent, and by said release the plaintiff released and discharged the Government of and from all claims and demands whatsoever that the plaintiff had under and by virtue of said contact and modifications thereof, but expressly excepting its claim for additional compensation in the said sum of $18,302.17. The said balance admitted by the Government to be due was duly paid to the plaintiff upon the execution of said release.

In the settlement of said claim the plaintiff was not charged with any liquidated damages, the Board having recommended that liquidated damages should not be assessed.

VI. The damages to plaintiff caused by the Government in contracting for the removal of said buildings by the Factory Supply Company and the consequent delay to the plaintiff occasioned by the Government’s failure to surrender the site to the plaintiff amounted to the sum of $18,302.17.

MEMORANDUM BT THE COTJRT

The plaintiff sued for $90,000, but claims here a umch less sum. The Government does not seriously contest the fact of damage to the plaintiff. The finding of the Board, we think, was correct and plaintiff should be given judgment. See *John Thomson Press & Mfg. Co.*Case, 57 C. Cls. 200; *Newport Contracting & Eng. Co.*Case, 57 C. Cls. 581.

Judgment for jfiaintiff in the sum of $18,302.17.