#### EMPIRE ENGINEERING COMPANY, INC. v. THE UNITED STATES

[No. D-94.

Decided October 20, 1924]

*On the Proofs*

*Jurisdiction; reimbursement of contracting officer.*— Tlie reimbursement by plaintiff to the contracting officer of the disallowance made by the Comptroller General, with express reservation to sue in the Court of Claims, does not deprive the court of jurisdiction of the suit.

(See also *Penn Bridge Co.*v. *United States, ante,*p. 892)

*The Reporter's*statement of the case:

*Mr. Marvin Farrington*for the plaintiff. *King <& King*and *Kellogg & Rose*were on the brief.

*Messrs. O. R. McGuire*and *Arthur Oobb,*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 Empire Engineering Company, Incorporated, having its principal office in New York City, New York, entered into ■ a written contract dated February 11, 1920, with the United States, acting by Lieut. Col. E. M. Markham, Corps *905of Engineers, United States Army, pursuant to the terms of which plaintiff undertook to perform certain dredging and rock excavation in Livingstone Channel, Detroit River, Mich., in consideration of a monetary consideration based on certain unit prices. A true copy of said contract, together with the material parts of the specifications forming a part, thereof, is attached to plaintiff’s petition, herein marked *“*Exhibit A” and by reference made a part of these findings.

II. The contractor received on March 12, 1920, notification of approval of this contract by the Chief of Engineers and the time for completion of the work, calculated in the manner provided by paragraph 15 of the specifications, was determined and agreed upon as August 16, 1921. The work was not completed until June 7, 1922.

III. The contracting officer, with the prior sanction of the Chief of Engineers, under the provisions of Article V of the contract, waived the time limit and permitted the contractor to finish the work within a reasonable period. The contractor, under date of September 12, 1921, citing Article Y of the contract, submitted the following statement covering delays:

Delay in execution of contract_ 00 clays

Delay pursuant to unusual ice conditions- 13 days

Delay pursuant to coal shortage_ 65 days

Delay caused by labor troubles- 24 days

Total_102 days

requesting thajt it be credited with the time so lost.

IV.The contracting officer, acting under the provisions of said Article V of the contract, found and determined that 13 days had been lost by the contractor through unusual ice conditions, 65 days had been lost on account of inability to obtain fuel, and 24 days had been lost on account of a strike, and that, the total time so lost, 102 days, was the result of unforseeable causes of delay arising through no fault of the contractor, which actually prevented the contractor from completing the work within the period required by the contract. Such finding and determination of the contracting-officer was approved by the Chief of Engineers, and the total *906number of clays allowed as aforesaid after the date fixed for the completion of the contract, August 16, 1921, extended the time of completion to April 23, 1922. No expenses of inspection and superintendence were made against the contractor up to April 23, 1922, but such charges were made thereafter until the completion of the contract work, and payment was made on this basis by the district engineer as disbursing officer.

V. When the accounts of the district engineer were examined by the Comptroller General his action in not making any charge for inspection and superintendence for 13 days on account of ice conditions, and 24 days on account of strike was not disputed, but the Comptroller General held that the waiver of such charge on account of fuel shortage was not within the authority of the contracting officer and the Chief of Engineers. Accordingly the sum chargeable on this account for expenses of superintendence and inspection for 65 days was charged against such officer in the sum of $953.03. Despite repeated protests by said district engineer, Avith the approval of the Chief of Engineers, against such decision, the Comptroller General insisted thereon.

VI. Thereupon plaintiff was requested by said district engineer to refund to him the amount so paid. In order to avoid embarrassment by said officer by reason of said payment or possible deduction from moneys thereafter to become due to plaintiff from the United States or a possible suit against claimant by the United States, plaintiff paid said sum of $953.03 to said district engineer officer with a statement that such amount was paid without waiver by plaintiff of its right, to recover the same by suit in the Court of Claims or elsewhere.

MEMORANDUM BY THE COURT

The finding of the contracting officer that the delays were the result of unforeseeable causes arising through no fault of the contractor >vas within his powers under the contract, and bad faith upon the part of that officer does not appear. See *Penn, Bridge Co.*v. *United*States, No. D-93, this day decided, ante, p. 892.

*907The reimbursement of the contracting officer by the plaintiff to the amount of the disallowance in the settlement of his accounts, with express reservation of the right to sue therefor in this court, does not preclude recovery.

Judgment for plaintiff in the sum of $953.03.