Findings of Fact 123 C. Cls. Examination of Site, Drawings, Etc.-Each bidder shall visit the site of the proposed work and fully acquaint himself with conditions relating to construction and labor so that he may fully understand the facilities, difficulties and restrictions attending the execution of the work under the contract. Bidders shall thoroughly examine and be familiar with the Drawings and Specifications. The failure or omission of any bidder to receive or examine any form, instrument, addendum or other document or to visit the site and acquaint himself with conditions there existing shall in nowise relieve any bidder from any obligation with respect to his bid or to the contract. The submission of a bid shall be taken as prima facie evidence of compliance with this section. ARTICLE 9. Delays-Damages.-If the contractor refuses or fails to prosecute the work, or any separable part thereof, with such diligence as will insure its completion within the time specified in article 1, or any extension thereof, or fails to complete said work within such time, the Government may, by written notice to the contractor, terminate his right to proceed * Provided, That the right of the contractor to proceed shall not be terminated or the contractor charged with liquidated damages because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government, acts of another contractor in the performance of a contract with the Government, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusu ally severe weather or delays of subcontractors due to such causes, if the contractor shall within 10 days from the beginning of any such delay (unless the contracting officer, with the approval of the head of the department or his duly authorized representative, shall grant a further period of time prior to the date of final settlement of the contract) notify the contracting officer in writing of the causes of the delay, who shall ascertain the facts and extent of the delay and extend the time for completing the work when in his judgment the findings of fact justify such an extension, and his findings of fact thereon shall be final and conclusive on the parties hereto, subject only to appeal, within 30 days, by the contractor to the head of the department concerned or his duly authorized representative, whose decision on 101 Findings of Fact such appeal as to the facts of delay and the extension of time for completing the work shall be final and conclusive on the parties hereto. ARTICLE 15. Disputes.-Except as otherwise specifically provided in this contract, all disputes concerning questions of fact arising under this contract shall be decided by the contracting officer subject to written appeal by the contractor within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto. In the meantime the contractor shall diligently proceed with the work as directed. ARTICLE 17. Rate of wages. (a) The contractor or his subcontractor shall pay all mechanics and laborers employed directly upon the site of the work, unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account, the full amounts accrued at time of payment, computed at wage rates not less than those stated in the specifications, * ARTICLE 21. Definitions. (a) The term "head of the department" as used herein shall mean the head or any assistant head of the executive department or independent establishment involved, and the term "his duly authorized representative" shall mean any person authorized to act for him other than the contracting officer. (b) The term "contracting officer" as used herein shall include his duly appointed successor or his authorized representative. 7. Prior to submitting its bid for the whole work, plaintiff had received bids from proposed subcontractors for doing certain portions of the work. A total of not less than $721,363 of the work was subcontracted to those who had submitted their bids as follows: Findings of Fact 123 C. Cls. After plaintiff had been advised of the desire of the defendant to have part of the work completed within 90 days, and after plaintiff had submitted the additional bid for so completing such part, contracts were executed on February 24, 1943, by plaintiff and the various subcontractors, all of which contracts provided as follows as to the time of performance: "90 days from date for 340 Units and 160 days from date for all work." On February 17, 1943, plaintiff contracted for general grading of the project at a unit price of 40 cents per cubic yard, the contract specifying that all such work was to be completed within 35 days. The subcontractors, at the time of submitting their bids, had not been advised of the proposed change in the time limits of plaintiff's contract, and no increase in their subcontract prices was given for such earlier completion. 8. Before submitting its bid, plaintiff made inquiry of an official of the bricklayers' union in Salt Lake City as to the availability of bricklayers for the work at $1.50 per hour, the rate set forth in the specifications, and was told that while the $1.50 per hour was the official union scale, no assurance could be given that the project could be properly manned at that rate. On certain other work then proceeding in that locality, bricklayers were receiving $1.625 per hour, and the demand for bricklayers greatly exceeded the available supply. The Building and Construction Trades Council of Salt Lake City, on January 27, 1943, had protested to the Secretary of Labor and to other interested parties the wage rates set forth in the invitation to bid on this project, and on January 28, 1943, it had requested the National Housing Agency to adopt higher wage rates, which it claimed were actually being paid, so as to avoid labor controversies. The council was advised by the Department of Labor that the rates set forth were in accord with recognized rates and that changes could be made only in accord with Executive Order 9250. 9. Commencing in February 1943, plaintiff requested the bricklayers' union to supply bricklayers for this project, but at that time and at later times bricklayers in the requested numbers were not supplied by the union officials. It was 101 Findings of Fact the prevailing custom for laborers working on projects removed from urban centers to be paid travel or subsistence allowances, or both, in addition to the hourly rates, based on the hours of actual work. The first plumbers to work on this job were employed by the subcontractor, who was prepared to and did pay subsistence to the plumbers at the rate of $2.50 per day. When this became known to plaintiff's project manager, the subcontractor was directed to stop such payments, as it was thought by plaintiff that this practice would subject plaintiff to penalties. This was in March, and the plumbers then left the work and did not return in any great numbers until early in May 1943. Around the first of May the plumbing work was behind the other work, and the plumbing subcontractor, plaintiff's project manager, and a conciliator of the United States Employment Service, met in the office of the Plumbers and Steamfitters Union in Salt Lake City, at which time the plumbing subcontractor stated that he had expected to pay the $2.50 per day subsistence allowance in accordance with the usual practice in that area, and that he was prepared to pay it. The United States Employment Service conciliator said that the payment was proper and the subcontractor said he would pay it, and the plumbers returned to the work. Within 30 days the plumbing work was brought up to the other work and thereafter the plumbing work never delayed the other work. The subsistence pay was thereafter paid by the subcontractor as a separate item, and the amount thereof did not appear on the payrolls. On March 1, 1943, the War Manpower Commission issued an employment stabilization plan for the Utah industrial area. The objective of the plan was to reduce the migration and transfer of essential workers which was then seriously impairing the war effort. Under the plan employers were prohibited from advertising for labor, and they could hire employees only in accord with the plan and from authorized hiring agencies. On March 18, 1943, plaintiff, having by that time had such poor success in securing the necessary labor, requested the Federal Public Housing Authority to suspend the work until such time as adequate manpower could be furnished. Plaintiff was advised by Findings of Fact 123 C. Cls. the Federal Public Housing Authority that it was aware of the difficulties because of the wage rate differences and that all possible efforts were being made to adjust the rates and also to secure labor to man the project pending the outcome of the efforts to adjust the wage rates. 10. Pursuant to Executive Order No. 9250, General Order 13-A of the National War Labor Board, and Administrative Order No. 101 of the Secretary of Labor, and supplements thereto, desired wage adjustments had to be formally presented to and approved by the Wage Adjustment Board for the Building Construction Industry. The Salt Lake City Building and Construction Trades Council's attempts prior to the execution of the instant contract to secure a higher authorized rate for the Utah area were without success. On or about March 26, 1943, a formal application was made to the Wage Adjustment Board for an increased wage for several trades. The matter was taken under advisement by the Wage Adjustment Board, and on April 23, 1943, a decision was announced whereby upward adjustments were made in some instances and denied in others. The bricklayers' wages were increased from $1.50 per hour to $1.58 per hour. The decision stated that the increased rate would apply as follows: The adjusted rates are authorized to apply on all Federal War Construction Projects throughout the State of Utah. It is specifically provided that this decision, in adjusting the rates of bricklayers and stone masons to $1.58 per hour on these projects, be not construed so as to result in a reduction of the rates for bricklayers and stone masons on projects on which a higher rate is currently being paid for men employed in these classifications, and where such a higher rate has been paid since prior to October 3, 1942. Plaintiff was advised by the Federal Public Housing Authority, by letter of May 5, 1943, that payment of wages at the increased rates was authorized. The schedule of increased rates was incorporated into the contract by Proceed Item No. 15, Proceed Order No. 2, dated July 5, 1943, which provided for reimbursement of the increased wages paid |