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CASES DECIDED

IN

THE UNITED STATES COURT OF CLAIMS

July 1, 1952, to December 31, 1952, and other cases not heretofore

published. Opinions are not ordinarily published until final judgment is rendered. Cases in which motions have been filed are not published until disposition of such motions.

T. CALVIN OWENS v. THE UNITED STATES

(No. 49452. Decided June 3, 1952. Plaintiff's motion for new trial

overruled October 7, 1952.]

On Plaintiff's and Defendant's Motions For Summary

Judgment

Suit under War Contract Hardship Claims Act; letters relied on not

suficient to show requests for extra-legal relief.—Where plaintiff's claim for extra-legal relief is presented under the provisions of the War Contract Hardship Claims Act (Lucas Act), 60 Stat. 902, as amended, to recover the net loss alleged to have been sustained in the performance of Government contracts between September 16, 1940, and August 14, 1945; and where it is shown that the letters relied upon by the plaintiff as "requests for relief” within the meaning of Section 3 of the Act were not sufficient to apprise the contracting agency that it was being asked to grant extra-legal relief; plaintiff's motion for summary judgment is denied ; defendant's motion for summary

judgment is granted and plaintiff's petition is dismissed. United States On 74 Same; letters relate to delays and shortages for which extensions of

time were granted. The letters dated prior to August 14, 1945, on which plaintiff relies as constituting requests for extra-legal relief, for the most part relate to the various causes of delays and the shortages encountered in the performance of the contracts, for which, in several instances, extensions of time were

granted under the terms and provisions of the contract. United States Or 74 Same; contracting agency not put on notice that it was being asked

for extra-legal relief.-The bulk of the work on the project in

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123 C. Cls. Opinion of the Court question was performed after August 14, 1945, and while it is possible that the substantial losses suffered by the plaintiff in performance of the contract may have had their genesis in the delays and shortages about which plaintiff complained prior to August 14, 1945, the record does not disclose a single request on file with the contracting agency which was sufficient to put that agency on notice that it was being asked to grant extra-legal

relief. United States cm 74 Same; requests not in conformity with Lucas Act provisions.—On the

basis of plaintiff's petition and the documents produced; it is held that the plaintiff did not file prior to August 14, 1945, a written request for the type of relief contemplated by the Lucas Act and that there is therefore no genuine issue as to that ma

terial fact. Federal Civil Procedure Om 2466

Mr. Bernard J. Gallagher for the plaintiff. Mr. J. Roy Thompson, Jr. was on the briefs.

Mr. Louis R. Mehlinger, with whom were Mr. Acting Assistant Attorney General Newell A. Clapp, and Mr. Assistant Attorney General Holmes Baldridge. Mr. Edward L. Metzler and Mr. Francis X. Daly were on the briefs.

The facts sufficiently appear from the opinion of the court. HOWELL, Judge, delivered the opinion of the court:

This claim is presented under the War Contract Hardship Claims Act, known as the Lucas Act, 60 Stat. 902, as amended by 62 Stat. 869, 992, 41 U. S. C. § 106 note, to recover from the United States $109,039.41 as the net loss alleged to have been sustained by plaintiff in the performance of Government contracts between September 16, 1940, and August 14, 1945. The Government moves for summary judgment on the ground that there is no genuine issue as to an essential preliminary requirement under the Lucas Act in that plaintiff did not file a written request for the type of relief contemplated by that Act, with a department of defendant prior to August 14, 1945. Plaintiff has filed a cross-motion for summary judgment on the ground that there is no issue as to any material fact in that plaintiff did file, on or before August 14, 1945, with a department of defendant, written requests for relief from losses within the meaning of

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Opinion of the Court the Lucas Act, and that the losses were incurred without fault or negligence on plaintiff's part.

The facts alleged in the petition and contained in documents submitted by the parties in connection with the present motions, reveal that on February 27, 1945, plaintiff entered into a War Housing Project contract with the National Capital Housing Authority for the construction of 440 dwelling units designated as The Lincoln Heights Dwellings. Notice to proceed was given plaintiff on March 2, 1945, effective March 12, and the work was to be completed within 280 consecutive calendar days, by December 6, 1945. Because of various delays which the Contracting Officer found to be excusable, the contract time was extended 379 calendar days to December 20, 1946. Early in 1947 plaintiff filed two claims with the contracting agency, one claim requesting monetary relief under the contract, and the other requesting relief under the Lucas Act. On May 18, 1919, the head of the contracting department denied plaintiff's contract claim. On July 22, 1949, the contracting department denied plaintiff's claim for losses under the Lucas Act.

It is defendant's position that the letters relied on by plaintiff as "requests for relief” within the meaning of Section 3 of the Lucas Act, were not sufficient to apprise the contracting agency that it was being asked to grant extralegal relief under the First War Powers Act for losses sustained in the performance of its housing contract. Fogarty v. United States, 340 U.S. 8. Section 3 of the Lucas Act provides in part as follows: Claims for losses

shall be limited to losses with respect to which a written request for relief was filed with such department or agency on or before Au

gust 14, 1945, By August 14, 1945, the work under plaintiff's contract was only 35 percent complete and plaintiff had already experienced certain delays and difficulties which were the subject matter of a series of letters to the contracting agency. These letters, dated prior to August 14, 1945, are relied on by plain

1 Contract No. AD (H) 8643, War Housing Project No. D. C. 1-13.

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123 C. Cls. Opinion of the Court tiff as constituting notice to the Government that equitable or extra-legal relief under the First War Powers Act was being requested.

The first group of letters, dated April 28, May 25, June 21, and July 10, 1945, described to the Government plaintiff's difficulty in procuring heating boilers because of the low priority rating assigned to the project. The letter of April 28 advised defendant of the "contemplated delay" in procuring the necessary boilers and of the necessity for a better priority rating. The letter closed with a request for the agency's recommendations with respect to the problem. The letter of May 25, 1945, reviewed the boiler situation and requested an extension of the contract time, "the number of days to be determined upon delivery of the boilers to the project.” The letter of June 21 acknowledged the granting of a better priority for the boilers on the project and stated that even with the better priority, a considerable delay in procuring the boilers would ensue. Plaintiff advised the agency that a more expensive boiler carrying a AA-1 priority might be obtained more quickly and the letter closed with an inquiry as to whether the agency would consider the use of the more expensive boiler. The letter of July 10 forwarded to the agency certain information from plaintiff's supplier relative to the boilers and closed with a statement that ultimately plaintiff would request an extension of time for the delay occasioned by the difficulty of obtaining the boilers under the old low priority rating.

In our opinion none of the above letters were sufficient to place the agency on notice that it was being asked to grant plaintiff extra-legal relief under the First War Powers Act. That the agency was not in fact on such notice is further borne out by its Change Order No. G-26, issued November 27, 1945, extending the contract time 10 days and stating that such extension was granted in response to plaintiff's letters of May 25 and July 10, 1945, relative to the “lack of boilers." The change order also refers to Article 9 (c) of the Contract and Paragraph 2.d of Special Conditions. Plaintiff accepted this change order on December 7, 1945, without any change in the contract price.

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Opinion of the Court

Another group of letters relied on by plaintiff is concerned with delay in commencing plastering work due to inability to secure rock lath for the 2-inch partitions specified in the contract (sometimes referred to as gypsum board or wallboard). Plaintiff's letter of July 4, 1945, was in response to a letter from the contracting agency asking for a report on certain items listed therein as causing delay in the work. With respect to the "wallboard,” plaintiff stated that it had contacted all the known sources but that the product was apparently not available at that time. In another letter dated July 4, 1945, plaintiff advised de lant that several other jobs in the locality of plaintiff's project were tied up because the wallboard was not available and that the U. S. Gypsum Co. was apparently not making any shipments of the board in that locality; that no other manufacturer had been found to supply the material; that by July 9 plaintiff would be ready to go ahead with the plastering but could not do so if the materials had not arrived. The letter closed with the following statement:

We would appreciate any suggestions you might have on this matter, as well as a redesign if you deem it

necessary. In a letter dated July 19, 1945, plaintiff reported more fully on the wallboard situation and stated that the difficulty in securing the material was due to a controversy between the manufacturers of lath of that type and OPA over the cost of shipment of the material. Plaintiff suggested that the agency might wish to redesign the partitions in question so that other materials might be used. Plaintiff pointed out in closing that the delay would ultimately add to the cost later on "due to cold weather conditions." Plaintiff states: "If there is anything you can do to help us, please advise.” On July 21, 1945, plaintiff wrote to the agency stating that it was ready to start plastering but due to the absence of the rock lath specified for the 2-inch partitions, the plastering could not be commenced. After referring to the letter of July 19, plaintiff stated that it would ask for an extension of time was soon as the extent of the delay can be ascertained."

With respect to the above group of four letters, we find nothing to indicate that plaintiff was seeking extra-legal

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