# Transcript of Record — Union Insulting & Construction Co. v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0457%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Transcript of Record - **Published:** January 1, 1926 - **Citation:** 271 U.S. 121 ## Text "SUPREME COURT oF THE UNITED STATES OCTOBER TERM, 1925 No. 263, UNION INSULATING & CONSTRUCTION COMPANY, APPELLANT, vs. THE UNITED STATES APPEAL FROM THE COURT OF CLAIMS FILED JANUARY 30, 1925 (30,840) + 4 if - ® - he oh PE RSE A Ay ot oes) aa edhe pened ianet catonesitirapealie yee nse nen Wii ty sipai an twine nacraldagadingitateneprentinit ty : 2 (30,840) SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 1925 No. 263 UNION INSULATING & CONSTRUCTION COMPANY. APPELLANT, v8. THE UNITED STATES APPEAL FROM THE COURT OF CLAIMS 39 INDEX Original Print Record from Court of Claims.........................-.... 1 WL nhs nna sn nsninansaohecavau cuca: ; 1 Exhibit A—Coutract between Ora Bundy and Union Insulating Company, May 28, 1920........ Serr ere 17 Exhibit B—Bill of material......................... 27 paises iat ctpeencc PEO Eater Es 67 Argument and submission of case....................... 67 NE WI sso cena cheb kaa kde rdede nec ca US Conclusion of law.. SEE FO pee iz RN IN Ws Snioicied d Fas aces god aes 7 MI ioe ho vac ene eee en 76 Proceedings after entry of judgment........ He shoe 8 76 Plaintiff’s application for oe iy a ae the Date 77 Order of court allowing plaintiff's application for appeal... 7 Clerk’s certificate....... aap ea ee te AE OP eee ms 78 Jupp & Detweiter (INc.), PRINTERS Wasuinctox, D. C., Jury 9. 1925 SRM Sad rasan: DTS es ‘fa ia aed Oe MOI Le OLS eed ——— > alles eS Ce aa Rimerw - for ingress and egress to the place of their storage of such materials and the place of ultimate use in construction. It was further provided that the United States should furnish to the contractor, for the purpose of transporting materials and performing the necessary construction work, such tools and equip- ment, including locomotives, flat cars, dump cars, hoisting engines, locomotive cranes, steam shovels, concrete mixers, air compressors, {fol. 3] automobile trucks, clam-shell buckets, ete., that was the , property of the United States and available at said U. 8S. Nitrate Plant No. 2. and in such quantities as in the discretion of the Con- structing Quartermaster was reasonably necessary for such use in construction, and as could be reasonably furnished by the United ' States without material detriment or inconvenience to the United States. The contractor was to assume all responsibility for placing such equipment in first class working condition and the proper care and maintenance of such equipment from the time it was turned i over to it by the Constructing Quartermaster, and the contractor : agreed to return to the Constructing Quartermaster each piece of equipment promptly after said equipment had served its purpose for construction purposes, and in as good condition as when turned over to the contractor, with the exception of reasonable wear and ; tear of construction work during its period of use. fe The contract was drawn on Government regular printed form, and the printed portions of the contract are the usual printed pro- visions, all of which appears by the copy of the contract hereto attached. fate mers Delage: 4. Under the heading “Deseription of Work” in the Specifiea- tions, it was provided that the work should consist of furnishing all Jabor and all materials, except that listed in the schedule of materials furnished by the Government, contained on other pages of the specifications. In general, the work specified under this heading was installation of ash skip hoists; removal of trestle and track: filling and grading; relaying track incidental thereto at the River Power House; raising stone and coke delivery tracks ten feet above their then elevation; constructing a permanent dumping trestle of steel and reinforced concrete, together with the necessary {fol. 4] fill on trestle approaches; temporary timber trestle under that portion of the track between the outside dumping pits; in- creasing the height of the four stone dumping pits, two coke hop- pers and stone bin: constructing new tracks in the coal storage yard, and all necessary grading. It was further provided that all material furnished by the Gov- ernment would be delivered F. O. B. cars, trueks or wagons on reservation, or in storage thereat, and that the contractor should do the necessary hauling to site of work. The specifications further provided that all material obtained from existing work should, if same was, in the opinion of the Con- structing Officer, sound and of suitable character, be used in the proposed work: but such salvaged material, and all other material Of e ait pone @ Ole s ey ileal Ble ts Neia nts sintiraciia eit furnished by the Government should be adapted to the require- ments of the work by the contractor; that the tumber work should generally consist, and the contractor should use, im the new con- struction, timber available from elevated structures, and existing tracks to be removed for tresties—temporary and permanent; rail- way stringers and ties; walks; batter boards and platform—coal trestle; removing and resetting canopies over coke and stone hop- pers, providing missing parts; that all permanent and temporary uesties should be constructed us shown on drawings. 5. The work was completed and last payments made therefor in April, May, June ana July, in the year l2l. Lhe time ot completion or the work was extended from time to time until the actual completion date. ‘Phe clans herem made were presented to the Constructing Quartermaster at Muscle Shoals in April, 1921, prior to the date o1 completion and last payments, and were pend- ing and undetermuned at the time the payments were made, and [fol. 5) said payments were made subject to the claims thus made. 6. The claims herein presented consist of damages for delays caused by the Governmmet im the construction of the work; cost of repaimimg tracks, which the Government agreed, under its con- tract, to furmish for the delivery of materials, extra cost of ce nent due to delays of the Government in providing tor the commence- inent of the work; cost of obtaming coal, which the Government agreed to furnish under its contract; cost of using old materials in construcung trestle work and other timber work, which was not suitable for the construction of the trestle work, according to plans; and charges made against the contractor for materials that went into construction, which the Government later claimed should be returned; and other small items. ‘The facts with reference to each clauu, and the amount of same are set forth as follows: ‘ A Claim for Damages Resulting From Defective Condition of Tracks and Right-of-way on Government Reservation at Muscle Shoals, for the Transportation of Materials From the Place of Storage to the Place of Ultimate Use in Construction, $5,059.65 The contract, above mentioned, provided that the Government should at all times furnish the necessary right-of-way for ingress and egress to the place of then storage of raw materials and the place of ultimate use in construction upon the Government reserva- tion. The right-of-way furnished was railroad tracks thru_ the Government reservation from the storage yards to the place where the materials were to be used. These tracks were used by other contractors than the petitioner. The Government failed to keep {fol.6] the tracks in proper condition for the transportation of materials, necessitating the expenditure, by your petitioner, of a large amount of money in taking care of derailments, making re- pairs to the right-of-way and to equipment used for such transpor- 4 tation. The railroad ties were rotted at various places, necessitatin the replacing of old ties with new ties, the rails were loose anc spread, requiring straightening of track, re-spiking rails and doing various other things to keep the said track im proper repair. De- railments occurred requiring an immense amount of labor to place the cars back on the tracks and damage resulted to equipment, re- ulring repairing to be done. At times during the progress of the work the track crew, varying from twelve to fifteen men, was employed by the contractor making necessury repairs to track, ete, The contractor's daily work shects show occasions when cranes, locomotives and cars were derailed, and from these work sheets there appears the time spent by the crews in doing the work, above mentioned. The sum of $1,603.49 was expended by the contractor for labor in connection with derailments. 8705.50 was expended for labor in repairing railway tracks. 8700.66 was peniel by the contractor for labor in making repairs to equipment. which was damaged by reason of the improper tracks. Total, $3,059.65, [fol. 7 | B Claim on account of extra labor expended in construction of wood trestle, arising by virtue of change im plans, requiring 1 1-foot bents, instead of 12-foot bents, as shown by drawings, in order to permit the use of old materials which could not be made adaptable to the plans accompanying the contract, S535600 Drawing No. 109, made a part of the contract, shows a temporary wooden trestle of S6 bents. or 12 feet from center to center for each bent. After the contract was made the Government changed its plans for said temporary wood trestle, requiring the bents to be 11 feet, center te center, instead of 12 feet, thus making necessary the con- struction of 20 additional bents for said trestle. There was a large amount of new lumber on said reservation at the time the said con- tract was made, and the bidders were asked to plan on using this new lumber, whieh was the only material that could be made adaptable for the construction of said wood trestle with 12 foot bents, center to center, as the said drawing provided. The old material in other trestles, or on hand, could net be made adaptable or used for the con- struction of the wood trestle according te plan No. L109, above men- tioned, consisting of 12 foot bents. as stated. and the contractor, in making his bid, estimated the construction upon the basis of the use of the new lumber available therefor, In order to use old material, which was not theretofore contemplated to be used, the Government changed the plans, as aforesaid, for the construction of the wood trestle and required the contractor to build the said trestle with 11 foot bents, center to center, and to use, in such construction, old ma- teriols, In addition, the Government required 6 bents to be con- structed in the temporary wooed trestle which was made necessary [fol. 8] by virtue of the change of the plan in reference to the bridge seats and north eress-wall on the first pit west of the Limekiln Build- ing and the east bridge seat and north cross-wall on the south portion ee ee ee - ii a - - of the second pit west of the Limekiln Building. These 6 bents were substituted for bridge seats or concrete wall omitted. The total amount of lumber was 34,012 lumber feet, used in addition to the lumber feet required to be used according to said drawing, No. 109. The cost of handling this additional lumber, according to the con- tractor’s cost sheets, was $55.00 per thousand, or $1,870.66. There was 169,764 lumber feet of old lumber used in place of the new lum- ber, which it was originally contemplated should be used and was intended to be used at the time the contract was made. The extra cost of handling this old lumber and working the same into the 5 = 3 % 4 4 d é 10 tached or pertaining hereto, and which, so far as they are applica- ble, form a part of this contract—as follows: 1. That the contractor shall furnish the materials and services for the construction work specified below, at the place or places [fol 1S] indicated therefor, commencing on or before the 10th day of June, 1920, carrying the work forward with reasonable dispatch and completing the same? on or before 10th day of December, 1920, all in the manner and at the rates or prices (unit prices or total sum, or both, and in accordance with Article 6 hereof), as follows: AI] labor, ash skip hoists, cement, 20’ x S0# | Beams and necessary connections required to construct and finish com- plete all work as listed under clause “B" of “Description of Work” all in accordance with the specifications dated April 14, 1920, and the drawings numbered LO1-107 inelusive and 109-117) inclusive accompanying same. The U.S. of America to furnish at it present location on the reservation at U.S. Nitrate Plant No. 2, all other construction materials, the Contraetor to perform all necessary labor required in transporting such materials to the proper place for use in construction, the U.S. of America at all times to furnish the necessary right of way for ingress and egress to the place of present storage of such materials and the place of ultimate use in construction, The United States Government further agrees to furnish to the Contractor for the purpose of transporting materials and perform- ing the necessary construction work, such tools and equipment in- eluding locomotives, flat cars, dump cars, hoisting engines, loco- motive cranes, steam shovels, concrete mixers, air compressors, auto- mobile trucks, clam-shell buckets, ete., as are now the property of the United States Government and available at U. S. Nitrate Plant No. 2. and in such quantities as in the discretion of the Constructing Quartermaster, inav be reasonably necessary for such use in construction and further may be reasonably furnished by the United States Government without material detriment. or inconvenience to the United States Government. [fol 19] The Contractor to accept such equipment as is and to assume all responsibility for placing such equipment in first. class working condition and the proper care and maintenance of such equipment from the time it is turned over to him by the Con- structing Quartermaster, Further that the Contractor shall return to the Construe-ing Quartermaster, each piece of equipment promptly after said equip- ment shall have served its purpose to the Contractor for eonstrue- tion purposes, and in as good condition as when turned over to the Contractor with the exception. of reasonable wear and tear of con- struction work during its period of use. It is further agreed hy and between the U.S. Government and the Contractor that such machine shop facilities as are available at the plant will be furnished the Contractor by the U. S. Govern- ment for repairing and maintaining all Government owned equip- ment. PR HSIEH OES I SHARC RO Sn 11 On completion of the entire contract, all such equipment above mentioned, as has not previously been returned shall be at that time returned to the Constructing Quartermaster by the Contrae- tor and a certificate of clearance showing that all equipment has heen properly returned, shall be secured by the Contractor from the ‘onstructing Quartermaster, before final payment shall be received hy the Contractor. It is further understood and azreed by and between the U. &. Government and the Contractor, that such facilities for office room. as may he required for the administrative forces of the Contractor. shall be furnished by the U.S. Government free of charge: also that such quarters and housing facilities for the Contractors’ forces as are available within the diseretion of the Commanding Ofticer at U.S. Nitrate Plant No. 2. may be turned to the Contractor and [fol. 20] his forees on such terms and according to such rules and regulations as the Commanding Officer of the post may dictate. Ht is further understood by and between the United States of g 7 ¥ ‘ % Ma 4 E ¢ of é ry ; 3 é & + f& t America and the Contractor that both ash bunkers to be installed ; under this contract shall be of a evlindrical type. 2. That no laborer or mechanic emploved by the contractor or Fa any subeontractor on the work herein specified shall be required = or permitted to work thereon mere than eight hours in anv one ; calendar day except in. ease of extraordinary emergency. (Act of August 1. 1892. as amended by Act of Mareh 3. 19123.) 3. That no laborer or mechanie doing any part of the work ; contemplated by this contraet., in the employ of the contractor. or any subcontractor contracting for any part of said work contem- P plated, shall be required or permitted to work more than eight & hours in any one calendar day Upon such work: and it is hereby be stipulated that for each violation of this provision a penalty of a five dollars ($5.00) shall be imposed for each laborer or mechanic i for every calendar day in which he shall be required or permitted ss fo labor for more than eight hours upon said work: and the amount of the penalties imposed according to this stipulation shall be with- held for the use and benefit of the United States from any moneys due or to become due under this contract, whether the violation a of the provision is by the contractor or by any subcontractor: S Provided. That no penalties shall he imposed for any violation of 2 this provision due to any extraordinary events or conditions of mann. 4 facture, or to any emergency caused by fire. famine. or flood. hy 5 danger to life or property, or by other extraordinary event or eond)- ~ tion on account of which the President. shall subsequently declare : the violation to have been exeusable: And provided further, That t fol. 21] the President, by Executive Order may waive the provi- 5 sions and stipulations of this article of the contract during time of war, ora time when war is imminent, On all questions arising under this article the finding of the contracting officer, when an- proved by the Quartermaster General of the Army, shall be final, subject to an appeal to the Secretary of War within six months 4 EY 2g Re SPRL GIP STI I BG ERIN SF Me A a CAE ARES FLED LEO LIE ATO 12 thereafter, and to the right of the contractor within six months after decision by the Secretary of War to file a claim in the Court of Claims, as authorized by the Act of June 19, 1912. 4. That in the performance of this contract the said contractor shall not, directly or indirectly, employ any person undergoing sentence of imprisonment at hard labor which may have been im- posed by a court of any State, Territory, or municipality having criminal jurisdiction, nor permit such employment by any person furnishing laber or materials to such contractor in fulfillment of this contract. 5. That the contractor shall hold and save the United States, and all officers and agents thereof, harmless from and against all demands of any nature or kind for or on account of the use and continued use of any patented article, combination, or process which may apply to or affect the material delivered or work done under this contract. 6. That for and in consideration of the faithful performance of the stipulations of this contract the contractor shall be paid. at the office of the contracting officer, or by a disbursing officer designated to make the payments, the prices stipulated in this contract (Article 1) for the materials furnished and serviees performed: the total amount set forth in Article 1 hereof to be subjeet. however, to such increase or decrease as may be found necessary under the stipula- tions of this agreement for the omission or aglition of work at unit [fol. 22] prices, and less the amount of penalties, if any. under Artiele 3, or of any other proper charges. Payments shall be made at such times and in such amounts as the officer in charge of the work may elect, based upon estimates to be made by bim of com- pleted work. Upon the timt fifty per cent of completed work twenty per cent of the amount of each account shall be retained until the final completion and acceptance by the Government of all the work under this contract: Provided. That on completion and acceptance of each separate |uilding. vessel or distinet public work hereunder for which the cost is stated separately, payment therefor may be made in full, ineluding the retained percentages thereon, if so completed within the time stipulated. . 7. That is is expressly agreed and understood that this contract shall be noneffeetive until an appropriation adequate to its fulfill- ment is granted by Congress and ts available. exeept in so far as is necessary to provide for the necessities of the service as authorized by Section 3752 of the Revised Statutes of the United States. How- ever, in order to provide for the necessities of the service as author- ized by Section 3752 of the Revised Statutes of the United States, it is agreed that the services specified herein, so far as authorized by said section, shall be furnished and performed at the times and in the manner required under this contract, and payments therefor fll SPR AORN AIEAS RONENAS IL IA HEY EON RAT VET DOOR E NR Mal ORE Ho OTD REIN ELEN OD “ARMOR REAIS 13 shall be made as soon as is practicable after funds are appropriated and are available. 8. That in case of the failure of said contractor to comply with the stipulations of this contract according to the true intent and meaning thereof (including the requirement for progress of per- formance to the satisfaction of the officer in charge, or higher authority), then the contracting oflicer, or his successor, shall have the right to complete the work in such manner as he shall deem best | fol. 23] for the interests of the public service, either by day’s labor and open market purchase of the necessary materials, or by contract, or beth, and to use for that purpose the contractor's materials and appliances on the reservation or at the place where the work is being performed, and any excess of cost resulting from such failure, inelud- ing any charges on account of delay, shall be charged to the con- tractor. In event, however, of the granting of additional time for performance, the cost of inspection and other expenses and damages (including any loss or damage to the work under construction by fire or other causes) to the United States from and after the date originally fixed for completion until the work shall have been satis- factorily accomplished, except in so far as the same may arise from delays for which the United States is responsible, as determined in each of these particulars by the oflicer in charge. or higher au- thority, shall be charged to the contractor and may be deducted from any money due or to become due said contractor from the United States: Provided, That where additional time has been granted the United States shall also have the right to cause the remaining part of the contract, or any portion thereof, to be taken from the contractor Whenever, in the opinion of the officer in charge. reasonable and satisfactory progress is not being made, and to secure completion at the expense of the contractor, including charges as abeve on ae- count of delay. % That there shall be no transfer of this contract or of any in- terest therein hy the contractor to any other party. and in case of the violation of this provision the United States, reserving all rights of action for any breach of this contract by the contractor. may refuse to carry out this contract with either the transferer or -he transferee. [fol. 24] 10. That no Member of or Delegate to Congress, or Resi- dent Commissioner, nor any person belonging te or employed in the military service of the United States, is, or shall be. admitted to any share or part of this contract, or to any benefit which may arise herefrom, but, under the provisions of Section 116. of the Act of Congress approved March 4, 1909 (35 Stat. L.. 1109). this stipula- tion, so far as it relates to Members of or Delegates to Congress, Resident Commissioners, shall not extend. or tend, to any contract made with an eeneral benefit. or he construed to ex- Incorporated company for its Reds ‘ ABMS RODE SONIA BA AA REE ORE WALTERS IIE LENA IME BASELINE TENE A NAS 14 In witness whereof, the parties aforesaid have hereunto placed their hands the date first hereinbefore written. Witnesses: FE. BE. Amory, Capt. Q. M. C. as to Ora Bundy, Major, Quartermaster Corps, U.S. Army. S.C. Craw- ford, as to Union Insulating Company, by Joseph F. 5 Flaherty. Mae (Executed in triplicate. ) q The following certificate by the contracting officer will be made where the contractor is a corporation, in cases where the filing of evi- dence referred to may properly be waived: I hereby certify that I have satisfied myself of the authority of the person signing the contractor's name to this agreement to bind 7 it in the matter, and L have waived the filing of evidence of such 7 authority, as permitted so to do by the Army Regulations. Z Ora Bundy, Major, Quartermaster Corps, U.S. Army. : [fol. 25] The following affidavit is required only on the copy of the contract for the Returns Office: I do solemnly swear (affirm) that the foregoing is an exact copy of a contract made by me personally with the contractor named above; that [made the same fairly without any benefit or advantage to myself, or allowing any such benefit or advantage corruptly to the said contractor, or any other person; and that the papers accom- panying include all those relating to the said contract, as required : by the statute in such case made and provided. Ore Bundy, Major, Quartermaster Corps, U.S. Army. Subscribed and sworn to (affirmed) before me this — day of ——, 19—, —— ——_. [fol. 26] The following certificate is required only on the mumber for the Auditor for the War Department: I certify that the award of the foregoing contract was made to the lowest responsible bidder for the best and most suitable articles or services, on proposals received in response to the advertisement hereto attached, whieh was published in newspapers and posted in public places for 13 days prior to the opening, and was sent to principal dealers and contractors at Muscle Shoals, Ala., and vicinity. Ora Bundy, Maj. Quartermaster Corps, U.S. Army. (Strike out any portion of this form of certificate that would not he in accordance with the facts. If award was not made to the lowest bidder a full explanation will be submitted. ) This is a true copy. Jos. Kramer, Ist Lieut. Q. M. C. | fol. 27] Exuisit B ro Peririon L-A Construction Division of the Army Schedule of Material to be Fur- nished by the Government for Improvements at River Power- house and Raw Materials Section of the Nitrate Plant #2 at Muscle Shoals, Alabama The materials listed below are available for use, and must be used in the construction work covered by these specifications. The materials will be delivered by the Government to the Contractor at their present location on the reservation, and the Contractor will be held responsible for the proper care and use thereof after such delivery : List of Materials to be Furniished by the Government: Structural Steel Reveatodaewhs —_ ht RS Ea DEN Csinnsceaneve 20’ long Dierebei Wax as at | RS ere oe ei ae 45’ long | fol. 28] Material for Sewers 150 lin. ft.—GO conerete pipe. Concrete Material 3.000 tons sand. Track Material 6,000 lin, ft.—S0” rail. 1,000 cross ties. 700 tons slag. 130 pes. 8” x 8” x 6.0", 3,000" B. M.S” x 8”——random lengths. 2-A Lumber 1” x 8”—-6" to 30’ long 8S. 1.8. 1. E. 25,000’ B. M. SO pes. 3 x 6 x 18’ 100 pos. 4” x 6% x 14’ 700 pes. 2% x 6% x 18" 100 pes. 3” x 12” x 20-0” HOO pes. 3” x 10% x 14’ 150 pes. 8” x 12” x 18’ 300 pes. 6” x 8” x 20° 200 pes. 6” x 10” x 14’ aah ition oe eerie ‘ AR LIRA ALLLE, AGES SOR ACE 68: mec Damdaeraninianee ié [ fol. 29] Construction Division of the Army Specifications for Improvements at River Power-house and Raw Materials Section of the Nitrate Plant #2 at Muscle Shoals, Ala. Auth :—171—Const.—1. Funds: “Armament of Fortifications’ “C’’—No year.” Description of Work (a) Shall consist of furnishing all labor and all material (except that listed in Schedule of Materials furnished by the Government, pages 1-\ and 2-\). required to construct and finish complete the werk shown on Drawings 6561-101 to 107, 109 to 116, and as de- scribed in these specifications, pages 1 to 25 inclusive. (b) The work in general will be as follows: (1) Installing an ash skip hoist complete, including the concrete dumping pits, concrete drainage pipe and head wall. (2) Removing trestle and track. (3) Filling and grading. (4) Relaying railway track incidental thereto at the River Power House. (9) Raising the existing stone and coke delivery tracks ten feet above their present elevation. |fol. 30] (6) Constructing a permanent dumping trestle of steel and reinforced concrete, together with the necessary fill on trestle approaches, (7) A temporary timber trestle under that portion of track be- tween the outside dumping pits. (S) Increasing the height of the existing four stone dumping pits, two coke hoppers and stone bin to conform to new track eleva- ton. (9) Constructing batter boards and platform at the present tim- her coal trestle. (10) Constructing new tracks in the coal storage vard and all necessary grading, ete., incidental thereto at the Raw Materials Section. (e) The Contractor shall submit an alternate bid for a fill in manner described in specifications for the temporary wood trestle shown on Drawing No. 6561-109. (d) All material furnished by the Government will be delivered P.O. B. cars, trucks or wagons on Reservation or in storage thereat. Contractor shall do necessary hauling to site of work. (e) The attention of the proposed bidders is called to the follow- ing work to be advertised for bids as soon as drawings and specifica- tions therefor are completed : ; Sewers, Additional Filter Bed and Roads. LEM it Mw: 17 Special Notes (aa) The Contractor shall furnish the Commanding Officer within fifteen days of the date of award of contract, a detailed sched- ule of material to be furnished by the Government. (bb) All material obtained from existing work may, if same is in the opinion of the Constructing Officer, sound and of suitable [fol. 81] character, be used in’ proposed work: but such salvaged material and all other material furnished by the Government shall be adapted to the requirements of the work hy the Contractor. (ce) The Contractor may. at his own option, use any or all of the following Government owned equipment: Two standard gauge locomotives, one locomotive crane, one Buevrus T0-ton steam shovel, four concrete mixers and one hundred steel-frame wheelbarrows for proposed work, but he shall personally examine condition of such equipment and shall make necessary repairs thereto, and provide all fuel and men to operate same. Sueh equipment as is used by the Contractor shall at completion of the work be returned by him to the Government in as good condition as reasonable care and usage thereof will permit. (dd) Equivalents:—Where any particular brand or manufac- tured article is specified, it is to be regarded as a standard. An- other brand or make equally as good in the opinion of the Construet- ing Officer will be accepted, (ee) The Contractor shall lay out all work and shall verify all dimensions by actual measurements of the work in place, and will be held responsible for all discrepancies arising from failure to do So. General Conditions 1. Character of Work: The work is to be executed in the best and most workmanlike manner according to the drawings and specifications, under the direction and to the entire satisfaction of the United States Officer in Charge, and in conformity with his instructions. [fol. 82] 2. Superintendence by Contractor: The Contractor shall give his personal superintendence to the work, or have a competent foreman, or superintendent, satisfactory to the Oflicer in Charge, on the job at all times during the progress of the work, with authority to act for him. 4. Interpretation of Contract: Unless otherwise specifically set forth the contractor shall furnish all materials, labor, ete.. necessary to fully complete the work ae- cording to the true intent and meaning of the drawings and specifi- cations, of which intent and meaning the Officer in Charge shall be the interpreter. Except when otherwise indicated no local terms 3—263 ae We Si hina sentra aia a bre AAET TO pe a. Pe ge eee | ee 3 ey TPE BE AEE Y aS ak BO St Sate ay as 18 or classifications will be considered in the interpretation of the con- tract or the specifications forming a part thereof. 4. Building Sites and Grades: The locations and grades of buildings will -be indicated by the Officer in Charge, and the sites, whieh should be examined by intend- ing bidders, shall be cleared by the contractor for the reception of structures. All building operations must be confined to the limits designated by the Officer in Charge. 5. Use of Roadways: For their hauling contractors must use only the established road- ways and sueh temporary roadways as may be laid out for the pur- pose by the Officer in Charge or his agent. When it is necessary to cross curbing, bridges must be constructed in a secure manner. [fol. 33) 6. Drawings and Specifications: (a) Complete Work Required : It is intended that the drawings and specitieations shall include everything requisite and necessary to the proper and entire finishing of the building, notwithstanding every item necessarily involved in the work is not particularly mentioned: all work when finished is to be delivered up in a perfeet and undamaged state. (b) Diserepancies: Where no figures or memoranda are given, the drawings shall be accurately followed according to scale. In any case of diserepancy in the figures or drawings, the matter shall be immediately submitted to the Officer in Charge, without whose decision said diserepancy shall not be adjusted by the contractor save only at his own risk; and in the settlement of any complications arising from such adjust- ment the contractor shall bear all extra expense involved. In cases of difference between drawings and specifieations the requirements of the specifications shall govern. Where detail drawings are fur- nished they will govern in as far as regards methods of construction not described or made clear by the specifications. All drawings on a scale of three-quarters of an inch to one foot, or larger, will be con- sidered detail drawings. (c) Details: Additional detail drawings will be furnished, if required, of such portions of the work as the Officer in Charge may desire to explain more fully. (d) Drawings and Specifications Cooperative : The drawings and the specifications shall be considered as co- operative and work and material called for by one and not mentioned 19 [fol. 34] in the other is to be done or furnished in as faithful and thorough a manner as though fully treated of by both. (e) Ownership of Drawings: All drawings, specifications, and memoranda relating to the work are the property of the United Stites, and are te he carefully used and returned to the Officer in Charge at completion, or cessation from any cause of the work. 7. Materials: (a) Quality of Materials: Except it Le otherwise specified, all materials are to be of the best quality of their respective kinds. Where two or more varicties of materials are specified for any purpose, it shall be optional with the contractor whieh is used, but in any one building the sate material must be used throughout for that particular purpose. In all cases where an article is mentioned in the specifications in connection with the words “best quality.” “approved quality.” or “equal to.” the Officer in Charge shall decide what is the best quality and most suitable articles to use. (b) Samples: When required by the Officer in Charge the contractor will furnish him in advance with samples of the material he proposes to use on the building. and samples so furnished must, after having been ap- proved, be adhered to. Samples of cement, lime, plaster, and similar materials will be taken from material delivered on the ground for use, and such material must be delivered at least ten days before it ix required for use. The contractor will be held responsible for all [fol 35] delays caused by rejection by the Officer in Charge of materials of any kind which is found untit for use or docs not eon- form to samples furnished. (ec) Preference for American Material: Labor to be “Pr oagyneaaes in the United States. In contracts for material for public imprevements in the United States preference shall be given to American material, and all labor thereof shall be performed within the jurisdiction of the United States. S. Patents: The contractor shall hold and save the United States, and all officers and agents thereof, harmless from and against all demands of any nature or kind for or on account of the use, and continued use of any patented article, combination, or process which may apply to or effect the material delivered or work done under the contract. 20 9. Laying out Work: The contractor must lay out bis work, and will be responsible for measurements; he must exercise proper caution and care to verify the figures before laying out the work, and will be responsible for any errors therein that otherwise might have been avoided. He shall promptly inform the Officer in Charge of any errors or dis- crepancies Be may discover in the drawings and specifications, in order that the proper corrections may be made and understood. 10. Access to Work; Incompetent Workmen: The Officer in Charge is to have access to the work at all times, which is to be entirely under his control. He tnay require the contractor to dismiss such workmen as he deems to be incompetent or careless. [fol. 36] 11. Protection of Material and Work: The contractor shall, before leaving off work, and at all times, carefully and properly protect all materials of every description delivered, both before and after being used on the job, and all work performed by him, and any special protection from weather deemed necessary by the Officer in Charge shall be provided without addi- tional cost to the United States. Partial payments under the con- tract will not relieve the contractor of responsibility. 12. Liability for Damages: The contractor will be held responsible for all damages to the buildings under construction whether from fire, high winds, or other causes, during performance and until final completion and acceptance, even though partial payments may have been made under the contract. He shall he held answerable for all damages that may oecur te persons, animals, or vehicles from want of proper lighting, watching, boarding or inclosing, and for any accident arising from defective scaffolding or apparatus, or any negligence on the part of himself or his employees. 13. Heating Building: The contractor shall provide stoves and fuel for heating build- ings in cold or wet weather while his werk is going forward until it is dry. 14. Water: The contractor will be furnished water in sueh quantity as is actually required for his work. Connection to the post water sys- tem will be made under the direction of the Officer in Charge, but at the contractor's expense. Such connections, pipe, fixtures, and [fol. 37] fittings will he maintained by the contractor so as not to waste the water and any failure to stop immediately any leak- age or other waste, after notification will, in the diseretion of the a Be officer in Charge cause the water to be metered at the eontractor’s expense and thereafter all water used by him will be charged to him at its cost to the Government. 21 15. Systematic Work: The work must be carried on systematically, and it is to be so managed at all times by the contractor as to secure rapid progress, } and avoid annoyance and inconvenience. 16. Cleaning away rubbish; work must not be defaced: The Contractor is to clean away, whenever direeted by the Off- cer in Charge, the dirt and rubbish resulting from his operations, and reniove all rubbish at completion of the building: neither he or his employees must deface or damage the tutktmg, and the whole is to be delivered over clean and in perfect condition. 17. Assistance : The contractor shall render assistance to the other mechanics on the work in every way in whieh his special work can be of serv- ice, and such assistance must be given promptly and thoroughly, without additional charge. He and his employees must work in harmony with other contractors on the grounds and in such order and places as may be required by the Officer in Charge. LS. Eight-hour Laws: (a) The act of Congress approved August 1, 1892, as amended by the act of March 3, 1913, restrict the time to working of me- chanics and laborers employed by any contractor or sub-contractor |fol. 88] upen public works to eight hours in any one calendar day, exeept in case of extraordinary emergency, and provides for | fines or imprisonment for violation thereof, (b) The act of June 19, 1912. makes the same restriction as to hours of labor and provides that the contractor shall he charged a penalty of $5 for each mechanic or laborer for every calendar day in which he is required or permitted to work more than eight hours, the amount to be withheld ander the contract for the benefit of the United States. For further details, and as to exceptions and right of appeal, see said act and blank form for contraet. (Q. M. C. Form No, 109.) It has been made the duty of officers and agents of the Government in charge of the work to report any violations of these laws coming under their observation with view of dedue- tion of penalties under the contract and for such action as the De- partment of Justice may deem advisable to take. 1%. Conviet Labor Not to be Employed: In the performance of the work herein specified the contractor shall not, directly or indirectly, employ any person undergoing sentence of imprisonment at hard labor which may have been im- ) a” peat ‘ opRe es Aa OR Na OLEATE LE LE SILLA TEBE LT BOTTI 22 posed by a court of any State, Territory, or municipality, having criminal jurisdiction, nor permit such employment by any per- son furnishing him labor, or materials in fulfillment of the agree- ment. 20. Smoking: Smoking will not be permitted in the building. The contractor shal] provide the workmen with spittoons, which must be kept filled with clean sand. [fol. 89] 21. Sanitation: The contractor shall provide and maintain necessary sanitary conveniences for the use of those employed on or about the work, properly, secluded from public observation in such manner and at such points as shall be approved by the Officer in Charge, and their use shall be strictly enforced. The collections in same shall be removed or destroyed when and where, in the opinion of the Officer in Charge, it is advisable. The contractor shall provide sufficient drinking water for all of his employees, but only from such sources as are approved by the Officer in Charge. The con- tractors must obey and enforce all sanitary and health require- ments of the post surgeon. 22. Extras: No charge for any extra work will be allowed unless the same has been ordered in writing by the Officer in Charge, the price stated in the order, and accepted by the contractor. 23. Inspection and Acceptance, or Rejection, of Work: The contractor must understand that the materials delivered and labor furnished by him, at any and all times during the prog- ress of the work, and prior to final acceptance of and payment for the same, shall be subject to the inspection of the Officer in Charge or other authorized agent of the Government, with the full right to accept or reject any part thereof; and that he must at his own expense, within a reasonable time, remedy any defective or un- satisfactory materials or work, and that in event of his failure to do so, after notice, the Officer in Charge shall have the full right to have the same done, and to deduct the cost thereof from any money due the contractor. All condemned materials must be at once removed from the reservation. | fol. 40] Masons’ Material The following standard requirements for material shall apply to all work of contract, except as distinctly otherwise specified. be not less than 3 inches for 7/S-inch rivets, 2'5 inches for 34- 30 inch rivets, 2 inches for °g-inch rivets, and 14-inch for 12-inch rivets. The maximum pitch in the line of the stress for members composed of plates and shapes will be 6 inches for 7,-inch rivets, 6 inches for *4-ineh rivets, 4!) inehes for *%,-ineh rivets and 4 inches for 's-inch rivets. (u) For angles in built sections with two gauge lines, with rivets staggered, the maximum pitch in each line shall be twice as great as given above. Where two or more plates are in contact, rivets not more than 12 inches apart in either direction shall be used to hold the plates together. {fol. 52] (v) The minimum distance from the center of any rivet hole to a sheared edge shall be 14. inches for *,-inch rivets, 114 inches for *4-ineh rivets, 1'¢ inehes for %,-ineh rivets, and 1 inch for 's-inech rivets; and to a rolled edge, 114, 1's, Ll and 7, inches respectively. (w) The maximum distance from any edge shall be eight times the thickness of the plate. (x) The pitch of rivets at the ends of built compression mem- hers shall not exceed four diameters of the rivets for a length equal to two times the maximum width of the member. (vy) The open sides of compression members shall be provided with lattice bars, having tie plates at each end and at intermediate points where the lattice is interrupted. The tie plates shall be as hear to ends as practicable. In main members carrying caleulated ‘ stresses, the end tie plates shall have a length not less than the dis- ‘ tance between the lines of rivets connecting them to the flanges, and intermediate ones not less than half this distanee. Their thick- inch nominal diameter galvanized wrought iron pipe with standard connections, posts rails and flanged base as shown. | fol. 58] Painting of Lron & Steel Work 46. Painting: (a) All structural steel and iron work shall be given the num- ber of shop and field coats of paint, as hereinafter specified. (b) The materials specified for use in paint shall be pure, un- adulterated and of the best quality of the respective kinds men- tioned. The pigments must in all cases be finely ground, and in prepared paints shall be ground with the oil. (c) If prepared paints are used, they shall be delivered at the 5—265 Sraisetis e Che aaa mies a ae i I Naas MMR ce IE sc 34 work in the original packages, or containers, and shall be used with- out adulteration or addition of other material. (d) The vehicle for all paint shall be raw or boiled pure linseed oil, or an approved combination of the two. Linseed oil shall be well aged and settled. (e) Mixing Paint—Paint shall be mixed in the following pro- pertions, dryers being added to the linseed oi] only in sufficient quantities to cause paint to dry with 24 hours’ time in dry warm air. Only pure linseed oil of the quality above specified shall be used and shall be thoroughly mixed with finely ground pigment. No adulterants of any kind shall be used and all paint shall be sub- ject to test and approval by the Constructing Officer. No benzine, turpentine, ete., shall be used as driers or for thinning paint, lin- seed oil being used exclusively. (f) For the following kinds of paint to each gallon of linseed oil shall be added the quantity of pigment specified : Red lead paint—20 pounds of Red Lead (lead tetroxide). Iron oxide paint—8 pounds of Iron Oxide (iron oxide). {fol.59} (g) Methed ef Applying Paint—All painting for steel and iron work shall be done in an approved and first class maiiner by mechanics skilled in this class of work. The paint shall be thoroughly worked into all cracks and corners and well brushed out over all surfaces. (h) All painting shall be done on dry surface and no paint shall be applied during exceptionally damp weather or when the temperature is below freezing point. 47. Shop Painting: (a) Before leaving mill or shop, all steel and iron work shall be thoroughly cleaned of mill seale, dirt and rust, by use of steel scrapers, wire brushes or sand blast where necessary, and cleaned of oil or grease with benzine. (b) All steel or iron work, except cast iron work, and metal for reinforcement of concrete, after being so cleaned, shall be given one coat of Red Lead Paint. (c) Surface coming in contact after assembling shall receive one heavy coat of red paint and parts shall be assembled while paint is still wet. Interior surfaces of box or similar sections, inaccessible after assembling or erection, shall receive two coats of red lead paint. All bolts used in the erection of the steel, which are to remain per- manently in the structure shall be dipped in red lead paint before being placed in position. (d) All pins and bored pin holes and other planed or threaded surfaces shall be coated with white lead and tallow before leaving the shop, particular care shall be taken to keep these surfaces free from rust, and from injury due to abrasion or other causes. 48. Field Painting: (a) After erection, or at any time before, when required, all steel and iron work shall be cleaned of mud, dirt, grease or other 35 [fol. 60] foreign matter, and all abrasions or defeets in shop coat shall be seraped or thoroughly cleaned and repainted with same kind of paint as used for shop coat. (b) Cast iron shall be delivered at the site unpainted and after being inspected and approved shall be thoroughly cleaned and painted one coat of red lead paint. (ce) Nothing herein contained shall be construed to requiring the painting of metal used for the reinforcement of conerete. (d) In addition to shop coats, all steel and iron work shall be given two field coats of white lead or zine paint of colors directed. These field coats shall be composed as follows: To each gallon of linseed oil shall be added the following pigment : White lead paint—22 pounds white lead (Dutch process). Zine white paint—19 pounds Zinc white (Zine oxide). Timber Work 49. Extent of Work: Work shall consist generally of the following and the Contractor shall use in the new construction timber available from elevated structures and existing tracks to be removed: (a) Trestles—temporary and permanent. (b) Railway stringers and ties. (c) Walks. Gd) Batter boards and platform — Coal Trestle, (e) Removing and resetting canopies over Coke and Stone Hop- pers, providing missing parts. [fol. 61] 50. Trestles: (a) Construct all permanent and temporary trestles as shown on drawings. and shall provide mud sills wherever, in the opinion of the Constructing Officer, the nature of the ground so requires them. (hy) Contractor shall furnish and apply all bolts and drift pins re- quired, doing all necessary boring and all painting with white lead required, (¢) Timber of each trestle bent, mud sills, sills, posts, caps and braces and all stringers shall be properly marked for assembling and identification. ‘1. Stringers and Ties: Furnish of required sizes or re-saw from existing timber fur- nished for the purpose, sound stringers and ties for new railway work. Frame and bore as required and securely bolt up as directed. 52. Coal Trestle Platform, ete.: Construct the platform and batter boards to track of Coal Trestle as shown on drawing No. 6561-108: using boards from old siding of trestles. Platform shall be of 1. 1. yellow pine planking spiked to 6 x 6 inch sills embedded in cinder fill. Ee Qa Se a ae ay Se a — — Agar es q SFIS PVE Bae LE GO ONT ht PRT PAL NSP GALI PERE I EGRESS 4 : ; i . 4 : t area rr 36 53. Walks and Wood Guard Rail: Construct plank walks and guard-rails of yellow pine timber along dumping trestle (Sheet No. 112), and where shown. Walk shall be substantially constructed and be well spiked. Hand rails shall be hand smoothed. 54. Canopies, etc. : Raise existing canopies of Coke Hopper and build flooring on joists over future hopper. Contractor shall furnish all missing parts necessary to complete the installation and put same in_ per- fect working order. [ fol. 62] Ash Skip Hoist at River Power-house 55. Seope of Work: The work covered by these specifications consists in furnishing all labor and material necessary to install an ash skip joist. com- plete as shown on drawing 6561-104 and as hereinafter deseribed. 56. Ash Bunker and Gates: Bunker shall have a capacity of 6,000 cubic feet. It shall Le reet- angular in shape and constructed of 14 inch steel plate. The bottom shall be pyramidal in shape and the sides on an angie of 45 degrees. Outlet shall be equipped with a east iron ash gate of the Under- cut Duplex type. having a 2! inch square body and operated from the ground by means of a wrought iron lever, bolted to one of the gate jaws, complete with necessary pulleys and wire rope pull with handle. The top bunker shall be constructed of No. 12 steel plate, sides to be on an angle of 45 degrees with a horizontal top. There shall be two openings. cach one covered by a hinged lid of No. 10 steel plate and of a size suitable to receive ashes from 40 eubie foot luicket. The hinged lids shall be constructed so that they will be opened automatically by the skip buckets when they ascend and close when they decend. Covers shall be fitted with angle stiffeners. ‘The supporting structure shall consist of four columns of sufficient size for the purpose intended. They shall be braced in all direc- tions and designed according to the American Bridge Specifications. Bunker shall be protected on the inside (side and bottom) by a 2-inch lining of cement plaster, same to be composed of 1 cubic | fol. 63] foot cement, 14 cubie feot hydrated lime, 3 cubie feet sand and 1% pound hair. This shall be laid on reinforcement made of 1 inch mesh No. 18 gauge galvanized steel wire netting 48 inches wide. The reinforcement will be securely fastened to the bunker steel by means of bolts spaced every 2 feet in all directions. — Suit- able steel footwalk and hand rail shall be installed around top of bunker. Steel ladder shall be provided to reach the top. ss aia - LICL IPE ST AN SEE ALOE AO IID CS AO ERIE he oa 57. Paint: All steel shall be given one coat of brown oxide and one coat of black graphite. 58. Skip Buckets: Two skip buckets shall be furnished. They will be rectangular in section and constructed of 3/16-inch steel plate and angles properly stiffened. They shall be mounted on square journaled shafts and each one fitted with four case iron, machined, single flanged guide wheels, same to be fitted with grease cups. The hoisting bale shall be constructed of heavy flats or channel irons properly stiffened and attached to the side or bottom of the bucket. The upper ends shall be connected by a cross beam to which the hoisting rope is fastened, The capacity of each bucket shall be 40 cubic feet. 59. Loading Hopper: Two loading hoppers shall be furnished. They shall be con- structed of 14-inch steel plate stiffened with angles and each one shall have a capacity of 120 cubie feet. Attached to each loading hopper shall be a chute made of !-inch steel plate. At the end of | fol. 64] this erute shall be a counter-weighted undercut gate which will be automatically opened and closed when the skip bucket de- scends and ascends. 60. Rope and Fittings: The hoisting rope shall be the best crucible steel wire rope with hamp core and of proper diameter to accommodate the working load with ample factor of safety. This will also apply to the counter- weight rope. All necessary thimbles and rope clamps of approved type. for securing rope to apparatus, shall be furnished. All sheaves and blocks shall he of the best close grained grey iron properly turned, bronze bushed and fitted with compression grease cups. The pitch diameter of same shall be at least 30 times the diameter of the rope used. 61. Counterweight and Guides: Two cast iron sectional counterweights shall be furnished, one for each skip bucket. They shall travel on guides consisting of angles and rigidly braced to the bunker structure by means of yokes. The weight of the counterweight shall be so proportioned that the duty of the hoisting motor will be approximately constant, whether hoist- ing a full bucket or lowering an empty one. A hand rail shall be in- stalled around the counterweight guides, at the ground level. Safety appliances of approved design shall be installed at the top and bottom of counterweights to stop the machines in case the counterweights travel past their designed stopping places. aFe an Srtdimton ES nan eon SS haben: Bas ANSON HE AEE INGE AIRES Ne SE eet Fl RNC BA SPIRO TS MS OM nas) ay Hai © NAPE CPG, BEADS NEA NS ANNES NAD ERR, 38 62. Skip Guides: Skip guides shall consist of a pair of steel channels for each bucket, | fol. 65| same to be securely laced together to hold them true to gauge and braced from the bunker columns by a steel bent. Above the bunker they shall support the head sheaves or blocks. At the top of skip guides a switch shall be provided to break the electric circuit if bucket travels beyond its designed stopping point, or in lieu of this a traveling cam operated in conjunction with the main drive will be acceptable. 63. Hoist House: One hoist house shall be furnished. [It shall be of structural steel frame with No. 22 U.S. S. gauge corrugated steel sides and roof. It shall be of a size sufficient to house two hoisting machines. Ample windows and doors shall be provided. Floor shall be of cement built by others. 64. Hoist and Motor: Two hoisting machines shall be furnished; they shall be installed in the hoist house together with all necessary control panels and switches. Motors shall be wound for 440 volts, 3 phase, 60 eycle and of sufficient size for the use intended. Each one shall be capable of handling ashes of approximately 15 tons per hour on a 100 foot lift. Motor may be directly connected to the hoisting drum by a steel worm and bronze rim wheel, same to run in oil, or any other suitable design approved by the Constructing Officer. All bearings shall be bronze bushed and fitted with compression grease cups. The entire operation of the machine shall be automatic, from the time the bucket starts to ascend until the ashes in the loading hopper have been exhausted and delivered to the bunker, and bucket has returned to the loading position at which point the power shall be automatically cut off. Operation shall be started by means of a push-button switch. | fol. 66] 65. Drawing: Manufacturers will submit with their proposals working drawings showing size of pit necessary to accommodate loading hoppers, loca- tion and size of foundation bolts and all other information necessary for the complete installation of the system. 66. Test: At the completion of the work and before acceptance, the entire apparatus shall be subjected to an 8-hour operating test, during which period the equipment shall be operated continuously at full capacity. Machine shall operate to the satisfaction of the Constructing Officer and without undue heating of any part of motor or hoist. The Con- tractor shall furnish all labor necessary to conduct test. Current for the operation of the motor will be furnished by the Government. . i ema Se tees Pena “es “ Sa oe ie dinal iat RENTERS WA GUNES CREO NERC IND 3o G7. Conerete Work: Specifications for pits, foundation and all other concrete work are covered in Par. 28 of the Specification. 68. Ejector: A brass steam ejector with all necessary valves and fittings shall Le installed in the ash skip bucket pit at the River Power House. _ It shall have a capacity of not less than 500 gallons of water per hour against a 35 foot lift and 24 inch suction operating with steam at not less than 60 pounds pressure. A strainer shall be installed in the sue- tion connection of the ejector and located 11% inches from the bottom of sump. R. C. Marshall, Jr., Brig. Gen. U. 8. A., Chief of Construction Division. Washington, D. C., April 14, 1920. | fol. 67 | Il. History or PROCEEDINGS On June 16, 1922, the defendant filed a motion to make the peti- tion more definite and certain. On June 26, 1922, the court filed an order overruling defendant’s motion to make the petition more definite, and gave the defendant thirty (30) days in which to plead as it may be advised. On July 15, 1922, the defendant filed a special demurrer. On October 16, 1922, the demurrer was submitted without argu- ment. On October 30, 1922, the court entered the following order: - Order This cause having been submitted upon the defendant’s demurrer to certain claims presented in the petition, the Court, being of the opinion that the questions presented by demurrer can be better de- termined when the facts are developed, does overrule the demurrer, with leave to the defendant to present the questions when the case comes on to be heard upon the merits. III. ARGUMENT AND SUBMISSION CEERI SLE MEGS © ORRIN D SPIRES RE ME IP ITN NE ONL LRT NASIR ER Ne AR ANN N PT On March 4, 1924, this case was argued and submitted on merits by Mr. Edmund 1D. Adcock, for the plaintiff, and by Mr. George H. Foster, for the defendant. ee RPS oy 2 “ a % o Se ey Sine rt ee Seay a ee PLR GIN AS CER, Pet LENS SAME . Since D8 > 40 |fol. 68] IV. Findings of Fact, Conclusion of Law, and Opinion of the Court by Hay, J.—Entered April 28, 1924 This case having been heard by the Court of Claims, the court, upon the evidence, makes the following > FinbINGs OF Fact I The plaintiff is a corporation organized and existing under the laws of the State of Illinois having, its principal place of business in the city of Chicago, State of Hlinois. On May 28, 1920, under the name of Union Insulating Company, which name was afterwards changed to Union Insulating & Construetion Company, the plaintiff entered into a contract with the United States whereby the plaintiff agreed to do certain construction work at nitrate plant No. 2 at Musele Shoals, Alabama. A copy of said contract, marked “Ex- hibit A.” is attached to the petition and is made a part hereof by reference. Il The contract provided that the United States would furnish at the nitrate plant all construction materials except those to be fur- nished by the plaintiff, which were specified in the contract, the plain- tiff undertaking to perform all necessary labor required in trans- porting such materials to the proper place for use in construction, and the United States agreed at all times to furnish the necessary right of way for ingress and egress to the place of storage of such material and the place of ultimate use in construction. The right of way furnished by the United States consisted of rail- road tracks running from the site of the work to the storage yards. These tracks were used by others, and were not in good condition when the plaintiff submitted its bid, nor were they in any worse condition when it began work under the contract. The United States did not keep the traets in good condition during the period of the performance of the contract, but turned them over to the plaintiff for its use together with the necessary rolling stock. The plaintiff expended the sum of $705.50 for labor in repairing railroad [ fol. 69] tracks, and $700.66 for making repairs to equipment dam- aged by reason of the defective tracks: it also expended the further sum of $1,655.49 for labor in connection with derailments. Ill Drawing No. 109 made a part of the contract provided for a wooden railroad trestle to be built with eighty-six bents, eaeh bent to be twelve feet from center to center. After the contract was made the defendant changed its plans for said trestle, requiring the bents to be eleven feet from center to center instead of twelve feet. BND ey Se HE eatae ies FOL TEL WLS ISS TANI AS TEAS os DOE) 41 making necessary the construction also of twenty additional bents. There was on hand at the said plant at the time the bids were in- vited new lumber sufficient and which could have been made adapt- able for the construction of the said trestle with bents twelve feet from center to center. The defendant upon changing the plan for the building of the trestle, required the plaintiff to use old lumber, and to salvage the same form a trestle which the contract required the plaintiff to remove, and which was at or near the jocation of the new trestle. The change of place made it necessary to handle additional lumber amounting to 54.012 more lumber feet than would have been required under the plan specified in the contract. The cost of handling this additional lumber was $1,870.66, One hun- dred sixty-nine thousand seven hundied and sixty-four feet of old lumber were actually used in this construction. The extra cost of handling old lumber instead of new lumber and working the same into the wooden trestle was the sum of $5,092.92. The plaintiff claims twenty per cent of the aforesaid two sums to cover liability insurance, overhead, and profit, making a total of $8,356.30 which is claimed by the plaintiff to be the extra cost of constructing the said trestle which it was obliged to incur to meet the changes in the plan. The contract provides that: ‘No charge for any extra work will be allowed unless the same has been ordered in writing by the oflicer in charge, the price stated in the order, and accepted by the contractor.” The work on the trestle was not or- dered in writing by the oflicer in charge, and hence no price was stated nor accepted by the contractor. The contract also provided: “That all material obtained from existing work may, if same is in the opinion of the constructing officer sound and of suitable char- acter, be used in proposed work; but such salvaged material and all other material furnished by the Government shall be adapted to the requirements of the work by the contractor.” The lumber used in building the said trestle was adapted to the requirements of the work, and was at or near the site of the trestle, while the new lumber was stored more than a mile away. IV The plaintiff made its bid for the work on May 5, 1920, and the contract was entered into on May 28, 1920. At the time the plaintiff submitted its bid it had a quotation for Portland cement required in the construction work at $2.80 per barrel, making the total cost of cement as of May 5, 1920, according to the number of barrels [fol. TO] required, $10,950.80. By the time the contract was exe- cuted the quotation on cement, $2.80 per barrel, was withdrawn and the plaintiff had to pay $3.93 per barrel for cement, or $15,370.23 for the amount of cement used in the work, a difference of $4,419.48. The price of cement was changing at the time the bid was made, und quotations were subject to change at any time, and this the plaintiff knew when it made its bid. 6—263 Sich BRIER OLA GS GARG LAS IOSD ELIE MENSA IE CA PVA DE peo ss aa 6 prea Pasa a See EY A Mi Nort PTS ROMER TOES RES ek ri ty 7 2 V The contract provided that the plaintiff should furnish all labor, ash skip hoists, cement, 20 by 80 inch I beams and necessary con- nections required to construct and finish complete all work as listed under Class B of “Description of work”; the United States to furnish at its present location on the reservation at United States nitrate plant No. 2, all other construction materials. A list of ma- terials to be furnished by the Government was contained in a schedule which was made a part of the contract. Said schedule is attached to the petition, marked “Exhibit B,” and is made a_ part hereof by reference. Said schedule further provided that the con- tractor should furnish all labor and all material except that listed to be furnished by the Government. Coal was not one of the ma- terials listed to be furnished by the Government. There was at ni- trate plant No. 2 and on the Government reservations a large amount of coal sufficient for the construction work. The plaintiff used some of this Government coal, but was prevented by the officer in command of the reservation from using it as soon as he was acquainted with the fact that the plaintiff was using it. The plaintiff was required to replace the coal which it had used. The plaintiff used 820.401 tons of coal in and about the construction work in the performance of its contract, which coal cost the plaintiff the sum of $7,807.60. The contract provided that the plaintiff could use any or all of certain equipment in its construction work, said equipment consist- ing of locomotives, steam shovel, concrete mixers, and so forth, but it was expressly provided that the plaintiff should provide all fuel and men to operate the same. The plaintiff used this equipment. The plaintiff claimed the right to use Government coal, but the officer in charge decided against this claim. Vi It was provided in the contract that the plaintiff should be fur- nished with materials to aid in the work. Some of these materials were to go in the work, while others were loaned for use and were to be returned to the United States. The materials to go into the construction were issued to plaintiff on “property transfer,” and those to be returned were issued on a “property loan.” At the conclusion of the work it was found that certain materials issued on “property loan” were not returned and from a payment made on June 7, 1921, the Government withheld $1,617.40 to cover the property not returned or accounted for. A list of this material was submitted to the plaintiff. This list was carefully checked by [fol. 71] the Government: the plaintiff insisted that it had returned all materials, or that they had been used up in the work. Subse- quently this list was revised by the Government and a check was sent to the plaintiff for $123.72, making the amount withheld $1,493.68. 43 Vil The contract provided that the work should be commenced on June 10, 1920. By June 10 the plaintiff had its executive and office force at the plant. The plaintiff was able to begin work on June 15. The delay resulted from the inability to get material issued to the plaintiff. The actual amount expended for salary and services to the persons kept waiting was the sum of $360. No complaint and no protest was made by the plaintiff at the time, and no claim was filed by it until March 14, 1921. Vill In making a certain filling which was necessary to be made and because of the elevation it was ascertained that a portion of the railroad track leading to the raw material storage yard would be covered, In order to prevent this it was necessary to make a change in the plans, and while estimates were being made for this change the work at this place was stopped from August 19, 1920, to Sep- tember 7, 1920. The estimate was made by the plaintiff for the track change. A supplemental contract dated September 7, 1920, was entered into by the plaintiff with the defendant to cover the extra work made necessary by the change, and the plaintiff was paid the sum of $2,515.54 under the terms of the supplemental contract. At that time the plaintiff made no claim for delay, but on Mareh 14, 1921, made a claim for five days’ delay, and placed the damages incurred by it by reason of said delay at $1,550, the said aimount being made up of superintendents’, engineers’, timekeepers’, stenog- raphers’, accountants’, clerks’, and foremen’s salaries at $3100 per day. Work went on on other portions of the work during these five days, and work was done during the time by the persons whose salaries are estimated from above. IX Drawing IIL, attached to the contract, indicated that cighty cubic vards of concrete were required for each of the two coke hoppers. In order to construct the hoppers as planned an additional amount for the two hoppers was required, equaling 56.6 cubie yards. There- fore the plaintiff was directed by the constructing quartermaster to cease work on the hoppers until an estimate of eost could be made and approved for this additional yardage of concrete. The work on the hoppers was stopped on October 12, 1920; the estimate for the additional yardage was approved on November 11, 120. After the estimate was approved the work on the hoppers proceeded. Work proceeded on other parts of the work during this time, and November 11, 1920, a supplemental contract was entered into by the {fol. 72] plaintiff with the defendant providing for payment for this extra work on the hoppers, and the sum of $1,180 was paid the plaintiff under the terms of that contract. No claim for delay was made by the plaintiff at that time, but on March 14, 1921, plaintiff is made claim for five days’ delay in completion of the work due to the fact that it had to change to other work than the work on the hop- pers. It claims that the damages incurred hy it amounted to $1,550, made up of salaries as set out in Finding VIII. X 44 The contract required plaintiff to make an earth fill for the rail- road tracks at the river power house west of the ravine on said reservation United States nitrate plant No. 2, and the amount of work was described on the plan and in the specifications. In order to make this fill for the tracks it was necessary to use a large quantity of material in addition to that shown on the plan and in the specili- cations. The constructing quartermaster of the defendant required the contractor to prepare a plat and protile plan showing the tracks and earth supporting same in its original condition, and also a pro- file showing the track at its new elevation, with the proper eross- sections, calculated to determine the amount of yardage necessary. This drawing was prepared and submitted to the constructing quar- termaster, and said officer determined to adopt the plan prepared by plaintiff and the plaintiff? was directed by the constructing quarter: master to prepare an estimate showing the additional money required to make the fill and also showing the yardage necessary in excess of that described in the original plans and specifications. Work on this fill was suspended from October 28, 1920, to November 26, 1920. A change in the arrangement of the work was necessary, but there was no loss of time on the work. On November 26, 1920, a supple- mental contract was entered into by the plaintiff with the defendant for the extra work on this fill, and under the terms of that contract the plaintiff was paid the sum of $4,590.24 for said work. No claim for delay or for efficiency loss was at that time made by the plaintiff, but on March 14, 1921, plaintiff made claim for efficieney loss, which it placed at the sum of $1,795, based upon the salaries as set out in Findings VIII at $310 per day. XI Extensions of time were agreed upon in writing between the par- ties; and the plaintiff has been paid the entire amount stipulated in the contract except the sum of $1,493.68 retained as value of ma- terial not accounted for and set ont in Finding VI. At the time of the final payment to the plaintiff the plaintiff had on file in the War Department the claims which are the subject of this suit. The final payment was made with the understanding that the plaintiff did not surrender its rights to bring suit for the claims aforesaid. CONCLUSION oF LAW 4 = 2 a, } cd | % : : Upon the foregoing findings of fact the court decides as a con- clusion of law that the plaintiff is not entitled to recover, and that irene... alii : Settremeeenen 45 the petition be, and the same is hereby dismissed. Judgment is ren- {fol. 73] dered against the plaintiff for the cost of printing the ree- ord in this cause, the amount thereof to be entered by clerk and collected by him according to law. OPINION Hay, Judge, delivered the opinion of the Court: This is a suit brought by the plaintiff against the United States to recover the gross sum of $30,597.73. This sum is made up of nine separate claims growing out of a contract entered into by the plain- tiff with the United States providing for certain construction work at nitrate plant No. 2, Muscle Shoals, Alabama. The plaintiff performed the work undertaken by it, and was paid the amount stipulated in the contract. During the progress of the work certain changes were made in the work, and controversies arose between the plaintiff and the officer in charge of the work. At the termination of the work the claims set out in the findings were filed in the War Department and were pending at the time of final payment. As these claims are separate and distinet from each other it will be best to take up each claim separately. The first claim is for the sum $3,059.65, based upon the alleged failure of the United States to maintain the right of way which the defendant was to provide for ingress and egress to the place of storage of the materials to be used on the work to be the place of ultimate use in construetion. The contraet provided: “The U.S. of America to furnish at its present location on the reservation at U.S. Nitrate Plant No. 2, all other construction materials, the contractor to perform all necessary labor required in_ transporting such mate- rials to the proper place for use in construction, the U.S. of America at all times to furnish the necessary right of way for ingress or egress to the place of present storage of such materials and the place of ultimate use in construction.” The right of way which the United States furnished to the plain- tiff consisted of railroad tracks running from the side of the work to the storage yards. During the progress of the work the plaintiff, in order to keep the tracks in proper condition for the transportation of materials, was obliged to expend the sum of $705.50 for labor in repairing railroad tracks and $700.66 for making repairs to equip- ment damaged by reason of the defective tracks; and it also ex- pended the further sum of $1,653.49 for labor in connection with de- railments. When the plaintiff submitted its bids its representative was on the site of the work and saw what the condition of the right of wav was. ; There is nothing in the contract which obligated the Government to maintain the tracks. It is not denied that the right of way was furnished. An agreement to furnish a right of way does not earry with it the obligation to maintain it: and there was no breach of contraet on the part of the Government, and consequently the plain- tiff can not recover on this claim. 46 The second claim is for alleged extra work in the construction of wood trestle due to change in size and number of bents, and the di- rection to use old and salvaged lumber. This claim amounts to $8,356.30, and is avowedly a claim for extra work. The facts are fully set forth in Finding III. As to extra work the contract pro- | fol. 74] vides as follows: “No charge for any extra work will be al- lowed unless the same has been ordered in writing by the officer in charge, the price tated in the order, and aecepted by the contractor.” This extra work, if it was extra work, was not ordered in writing by the officer in charge. In order to recover for extra work the terms of the contract must be complied with. The next claim is for extra cost of coment. This claim is based upon the idea that beeause the price of cement went up between the time of submitting the bid and the time of signing of the contract, the United States is responsible and must make good to the plaintifi the rise in price. The contract was signed by the plaintiff twenty- three days after the bid was submitted. The plaintiff made ne com- plaint as to the delay, and moreover the plaintiff knew when it sub- mitted its bid that the price of cement was fluctuating. With full knowledge of this fact the plaintiff can not be heard to complain of of the cost of cement. The mere statement of this claim refutes its validity. The next claim is that the Government did not furnish the coal which the plaintiff had te use during the performance of the work. The plaintiff claims that coal was a part of the material whieh the Government agreed to furnish. There is a schedule attached to the contract and made a part of it which recites the materials whieh the United States was to furnish; coal is not one of the materials there recited. Moreover the coal was used to operate the locomotives and other equipment furnished the plaintiff by the Government, and it is expressly provided in the contract that the plaintiff should “provide all fuel and men to operate” them. The plaintiff made this claim to the officer in charge who decided against it. The eon- tract provides as follows: “Unless otherwise specifieally set forth the contractor shall fur- nish all materials, labor, ete.. necessary to fully complete the work according to the true intent and meaning of the drawings and speci- fications, of which intent and meaning the officer in charge shall be the interpreter. Except when otherwise indicated no local terms or clavsifieations will be considered in the interpretation of the contract or the specifications forming a part thereof.” The plaintiff must abide by the decision of the officer in charge. The next claim is for materials which the Government alleges were not returned as provided for in the contract, and for which in the final settlement the plaintiff was charged the sum of $1,493.68. The plaintiff claims -hat the materials were returned. A list of this material was submitted to the plaintiff. which has been carefully checked by the Government. It does not appear from the evidence that these materials were returned, and under the terms of the ’ Se ae — a 47 contract the Government had the right to withhold from the plaintiff the value of these materials. The next claim is for delay in arranging for plaintiff’s starting work. The plaintiff was to commence work on June 10, 1920, it started work on June 13, 1920. The delay was not unreasonable nor does it satisfactorily appear that the delay was wholly caused by the Government. The plaintiff made no protest nor com rlaint at the time and did not file its claim until Mareh 14, 1921. We do not think it is entitled to recover. (fol. 75] The next claim is for delay due to a change in Jans for a fill. The facts as to this delay are set out in Finding VIII. A sup- plemental contract was entered into by the plaintiff with the United States to cover the extra work made necessary by the change in plans, and the plaintiff was paid the sum of $2,515.54 under the terms of that contract. At the time of the making of this contract the plaintiff made no claim for delay and no protest was made by it at that time. The general work went on, no idleness resulted, and it does not appear that the plaintiff was damaged by reason of the change in the plan. The next two claims are for alleged delays in recaleulating the amounts of conerete for coke hoppers and in connection with the change of plans for making earth fill for railroad tracks at river power house. In both of these cases the plaintiff entered into supple- mental contracts with the United States and was paid in full for its work under the terms of those contracts. No claim was made by the plaintiff on account of delay when these contracts were signed by it, nor at any time until March 14, 1921. No idleness of em- plovees resulted nor was the plaintiff damaged. The petition must be dismissed. It is so ordered. Downey, Judge; Booth, Judge. and Campbell, Chief Justice. coneur. | fol. 76) V. JupGMENtT At a Court of Claims held in the city of Washington on the Twenty-eighth day of April, A. D. 1924, judgment was ordered to be entered as follows: The Court, upon due consideration of the premises, find in favor of the defendant, and do order and adjudge that the plaintiff, as aforesaid, is not entitled to recover and shall not have and recover any sum in this action of and from the United States; and that the petition herein be and the same hereby is dismissed :-And it is fur- ther ordered and adjudged that the United States shall have and recover of and from the plaintiff, as aforesaid, the sum of One hun- dred and fourteen dollars and eleven cents ($114.11), the cost of printing the record in this court, to be collected by the clerk, as pro- vided by law. By the Court. 48 VI. Proceepincs AFTER THE ENTRY OF JUDGMENT On June 25, 1924, the plaintiff filed a motion for a new trial. On October 20, 1924, the court entered the following order: It is ordered by the court this 20th day of October, 1924, that the plaintiff's motion for new trial be and the same is overruled. |fol. 77] VIL. Peririon ror Apreat—Filed January 5, 1925 The plaintiff, the Union Insulating & Construction Co., a corpora- tion, does hereby make application for appeal to the Supreme Court of the United States from judgment of the Court of Claims, and prays that an order may be entered herein allowing the appeal of the plain- tiff to the Supreme Court of the United States. Union Insulating & Construction Co., a Corporation, Plain- tiff, by Edmund D. Adcock, George I. Haight, Its At- torneys. VILL. Orper ALLowInG APPEAL It is ordered by the court this 12th day of January, 1925, that the plaintiff's appiication for appeal be and the same is allowed. | fol. 78} Ix Court or Claims | Title omitted ] CLERK’s CERTIFICATE I, F. C. Kleinschmidt, Assistant Clerk Court of Claims, certify that the foregoing are true transcripts of the pleadings in the above- entitled cause; of the argument and submission of case; of the find- ings of fact, conclusion of law and opinion of the court by Hay J.; of the judgment of the court: of the proceedings had after the entry of judgment; of the plaintiff's application for an appeal; of the order of the court allowing plaintiffs application for appeal. In testimony whereof T have hereunto set my hand and affixed the seal of said Court at Washington City January 13, 1925. F.C. Kleinsehmidt, Assistant Clerk Court of Claims. (Seal of Court of Claims. ) Endorsed on cover: File No. 30,840. Court of Claims. Term No. 263. Union Insulating & Construction Company, Appellant vs. The United States. Filed January 30, 1925. File No. 30,840 (6966) seit lleean eh ois SM ll --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386006_0457%3A1. Public record. Not legal advice.