#### ERIC LANGE AND A. H. BERGSTROM, COPARTNERS, TRADING AS LANGE & BERGSTROM, v. THE UNITED STATES

[No. C-931.

Decided February 15, 1926]

*On the Proofs*

*Contracts; delays' by Government.*— Where delays are caused by the Government, due to changes made in its plans, and the right to make such changes is reserved to the Government in the contract, the method of ascertaining the cost of the changes being agreed upon, and the contractor is granted an extension of time, the contractor can not recover damages for such delays.

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

*Mr. George R. Shields*for the plaintiffs. *Mr. Bynum*E, *Hinton*and *King <& King*were on the brief.

*Mr. Ralph 0. Williamson,*with whom was *Mr. Assistant Attorney General Herman J. Galloway,*for the defendant.

The court made special findings of fact, as follows:

I. On June 29, 1918, and during all the times herein involved, plaintiffs Eric Lange and A. H. Bergstrom were copartners trading under the firm name and style of Lange & Bergstrom.

II. On June 29, 1918, plaintiffs entered into two formal contracts with the United States designated and numbered 2909 and BOM, respectively. In both of said contracts the United States was represented by C. W. Parker, Chief of the Bureau of Yards and Docks, acting under the direction of the Secretary of the Navy. By contract 2909 contractors agreed and obligated themselves to construct and complete at the naval air station, San Diego, Calif., a commandant’s house, quarters for bachelor officers, quarters for student officers, and barracks for 400 men, in accordance with specifications, drawings, etc., appended thereto and forming a part thereof, for the sum of $283,295 plus or minus certain allowances or deductions on account of estimated quantities. The work was to be completed in 180 calendar days from the date a copy of the contract was delivered to contractors. The contract was delivered July 30, 1918, and the work should have been completed January 26, 1919.

By contract No. 3044 plaintiffs agreed to construct at the naval air station at San Diego, Calif., two seaplane hangars, one carpenter shop, one machine shop, and one storehouse, complete, for the sum of $378,810 plus or minus certain allowances or deductions on account of estimated quantities, the work to be completed within 200 calendar days from the date a copy of the contract was delivered to the contractors. The contract was delivered August 8, 1918, and the work should have been completed February 24, 1919.

On completion of the work the contract price named in both contracts was received without objection or reservation of any rights.

*684True copies of each of said contracts are filed with plaintiffs’ petition herein and are made a part of this finding by reference.

III. Immediately upon receipt of notice of awards in each case, and before delivery to them of signed copies of the formal contracts, plaintiffs began the work of grading and excavating for foundations in accordance with contract plans and were prepared to go on with the work of performance and complete the same within the time specified in the contracts.

IY. On July 21, 1918, before either of the contracts had been delivered, the public-works officer decided tentatively to change the lines and locations of various buildings to be erected pending approval by the Bureau of Yards and Docks of such change and requested that the work be delayed until advice from Washington could be received. On August 16, 1918, the public-works officer sent contractors the following letter:

“ GeNtlemeN : The public-works officer is to-day in receipt of telegram from Bureau of Yards and Docks revising plot plan, North Island, Calif. You are directed to stop all work on contract 2909. It is understood that you will decrease your overhead to the minimum so that suspension will cost the Government the least amount possible.”

On the same day the same letter was sent contractors with respect to contract 3044.

On August 22, 1918, contractors were advised in writing that all the buildings covered by both contracts, with the exception of the commanding officers’ quarters, were being staked, and that contractors “ can begin work on Friday. August 23.” The contractors replied as follows: “Answering your letter of Aug. 22nd in which you request us to proceed with the work on contracts Nos. 2909 and 3044, we shall order materials at once and will start to work on Monday morning, Aug. 26, on those buildings now being staked out.” Upon receipt of this notice to proceed the contractors immediately ordered materials and assembled their force and began the work of construction on August 26, *6851918. No objection was made at the time by the contractors to the order to stop work nor to the notice to resume.

V. On account of the changes in location some of the excavation first done was useless and new excavation had to be made to conform to the new lines. Under contract 2909 the work was suspended for a period of 27 days. Under contract 3044 the work was suspended for a period of 19 days. During the periods of suspension contractors had no other contract work, and not knowing how long the work was to be suspended, it was necessary for them to keep a part of their organization intact, and they were obliged to retain parts >of their forces of laborers in idleness pending a resumption of the work.

VI. On September 12, 1918, contractors applied for an extension of time in which to complete performance under contract 2909, and an extension of 27 days was granted by the public-works officer and approved by the bureau. 'A similar application was made under contract No. 3044 and an extension of 19 days’ time was granted.

VII. By reason of the enforced suspensions plaintiffs incurred expenses aggregating the sum of $1,350 under contract 2909 that they would not have otherwise incurred. Under contract 3044 they incurred an aggregate expense of $2,166.61, which would not have been incurred but for such suspensions. Contractors have not been reimbursed for any part of the expenses so incurred.

VIII. Contractors kept an itemized account of the excess cost of the work resulting from suspensions, and at the time notified the public-works officer that such suspensions were causing excess costs.

On August 29, 1918, and on September 12, 1918, contractors filed a claim for reimbursement of the expenses incurred by them by reason of the suspensions, separate statements being presented under each of the contracts.

IX. On March 25, 1919, boards were appointed to ascertain and determine the amount of the expenses incurred by contractors under each of the contracts by reason of the suspensions. Under contract 2909 the board consisted of Lieut. A. Praeger (C. E. C.), U. S. N., senior member; Lieut. L. N. *686Moeller (C. E. C.), U. S. N.; Lieut. C. W. Coryell (C. E. C.), TJ. S. N., recorder.

Under contract 3044 the board consisted of Lieut. A. Praeger (C. E. C.), U. S. N., senior member; Lieut. L. N. Moeller (O E. O.), U. S. N., machinist; and C. C. Simpson, U. S. N. E. F., recorder.

The purpose of the boards was to determine the change in contract price by reason of the fact that the contractors were not able to start work on the contracts at the time of the delivery of the contracts.

The boards investigated the detailed claims prepared by the contractors and by the officer in charge under each of the contracts, and on March 25, 1919, the board appointed under contract 2909 submitted its report and recommended that said contract 2909 be increased $1,350. On April 25, 1919, the board appointed under contract 3044 submitted its report and recommended that said contract be increased in the sum of $204.67 for work performed by the contractors which was later lost to the Government by reason of the change in plot plan. The board also recommended that the contractors be allowed $2,166.61 for expenses incurred on account of being idle through no fault of their own, the total amount recommended being $2,371.28. The sum of $204.67, representing pay for extra work performed, was paid to plaintiffs before the filing of this suit.

These reports were in each case approved by the public-works officer, but they were not approved by the Bureau of Yards and Docks, for the reason that the amounts recommended, except, the sum of $204.67 for extra work, partook of the nature of unliquidated damages.

The boards appointed to ascertain the increased costs of the work due to the suspension and change of the plot plan were in position to observe, check, and know at first hand the cost of the work as done by the contractors as compared with the estimated cost of the work as originally planned.

The court decided that plaintiffs were not entitled to recover.

*687Campbell, *Chief Justice,*

delivered the opinion of the court:

In this case the plaintiffs sue to recover certain items of cost alleged to have been occasioned by the temporary suspension of the work contracted to be done, the suspension being caused by the Government’s action. There were two contracts involving buildings at San Diego, Calif., the work complete under them calling for expenditures in excess of a half million dollars. The contracts were performed and the entire consideration provided in them has been paid. The amount now claimed is approximately $3,600. The alleged suspensions were caused by some changes made in the plans. For the periods of delay the plaintiffs were accorded additional time, and no liquidated damages were assessed against them. In each of the contracts the Government reserved the right to make changes in “ the contract, plans and specifications,” and a method of ascertaining the cost incident thereto is agreed upon. Extensions of time are provided for. The contracts have provisions identical with the contract referred to in the *Crook*case, 59 C. Cls.. 593; 270 U. S. 4. It is unnecessary to repeat here what is said in the case of the' same plaintiffs in this court, *ante,*p. 666, decided this day, but which is applicable in the instant case. The construction given the terms of the contracts by the Supreme Court are controlling. The petition should be dismissed. And it is so ordered.

Graham, *Judge;*Hat, *Judge;*DowNey, *Judge;*and Booth, *Judge,*concur.