UNITED STATES v. HOWARD P. FOLEY CO., INC.
No. 50.
Argued October 25,1946.
Decided November 25, 1946.
A. Devitt Vanech argued the cause for the United States. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett, Stanley M. Silverberg, Paul A. Sweeney, Abraham J. Harris and M. M. Heuser.
Alexander M. Heron argued the cause for respondent. With him on the brief was William L. Owen.
Mr. Justice Black
delivered the opinion of the Court.
The Court of Claims rendered a judgment for the respondent and against the Government for an asserted breach of a construction contract. 105 Ct. Cl. 161, 63 F. Supp. 209. We granted the Government’s petition for certiorari which alleged that the Court of Claims’ decision was in direct conflict with Crook Co. v. United States, 270 U. S. 4, and United States v. Rice, 317 U. S. 61. We hold that the Government’s contention is correct.
The respondent, an electrical contractor, agreed for a fixed fee to supply the materials for and install a field lighting system at the National Airport, Gravelly Point, Virginia, then under construction. The agreement was embodied in a standard form Government contract. Respondent promised to complete the job within 120 days after notice to proceed. In fact the job was not finished until 277 days after notice was given. The delay came about in this way. The site of the airport was being built up from under water by a fast but then unique method of hydraulic dredging. As portions of the earth base for the runways and taxiways settled, they were to be paved and the shoulders “rough-graded.” As segments of this work were finished, respondent was to move in, wire them, and install the lighting fixtures. The dredging took longer than Government engineers had anticipated, because some of the dredged soil, proving to be too unstable for runways and taxiways, had to be replaced. This in turn delayed completion of the runway sections; and, until each was finished, the lighting equipment for each segment could not be installed. The 157 days delay resulted from the consequently long and irregular intervals between the times when these segments were made available to respondent to do its job. But for these delays, respondent apparently could have finished its work in 120 days.
The Court of Claims considered that the Government breached its contract by failing to make the runways available in time for respondent to do its work within 120 days. The judgment against the Government was for certain overhead and administrative expenses which respondent incurred during the consequent period of delay.
In no single word, clause, or sentence in the contract does the Government expressly covenant to make the runways available to respondent at any particular time. Cf. United States v. Blair, 321 U. S. 730, 733-734. It is suggested that the obligation of respondent to complete the job in 120 days can be inverted into a promise by the Government not to cause performance to be delayed beyond that time by its negligence. But even if this provision standing alone could be stretched to mean that the Government obligated itself to exercise the highest degree of diligence and the utmost good faith in efforts to make the runways promptly available, the facts of this case would show no breach of such an undertaking. For the Court of Claims found that the Government’s representatives did this work “with great, if not unusual, diligence,” and that “no fault is or can be attributed to them.” Consequently, the Government cannot be held liable unless the contract can be interpreted to imply an unqualified warranty to make the runways promptly available.
We can find no such warranty if we are to be consistent with our Crook and Rice decisions, supra. The pertinent provisions in the instant contract are, in every respect here material, substantially the same as those which were held in the former cases to impose no obligation on the Government to pay damages for delay. Here, as in the former cases, there are several contract provisions which showed that the parties not only anticipated that the Government might not finish its work as originally planned, but also provided in advance to protect the contractor from the consequences of such governmental delay, should it occur. The contract reserved a governmental right to make changes in the work which might cause interruption and delay, required respondent to coordinate his work with the other work being done on the site, and clearly contemplated that he would take up his work on the runway sections as they were intermittently completed and paved. Article 9 of the contract, entitled “Delays — Damages,” set out a procedure to govern both parties in case of respondent’s delay in completion, whether such delay was caused by respondent, the Government, or other causes. If delay were caused by respondent, the Government could terminate the contract, take over the work, and hold respondent and its sureties liable. Or, in the alternative, the Government could collect liquidated damages. If, on the other hand, delay were due to “acts of the Government” or other specified events, including “unforeseeable causes,” procedure was outlined for extending the time in which respondent was required to complete its contract, and relieving him from the penalties of contract termination or liquidated damages.
In the Crook and Rice cases we held that the Government could not be held liable for delay in making its work available to contractors unless the terms of the contract imposed such liability. Those contracts, practically identical with the one here, were held to impose none. See also United States v. Blair, supra. The distinction which the Court of Claims found between this and the prior cases is not in point. It seems to be this: In the Crook and Rice cases the Government had a prime and a subcontractor: the Government reserved a right to make changes by which the prime contractor must thereafter be governed; the Government exercised this right; these changes made it impossible for the prime contractor and ultimately the subcontractor to do their work in time; since the Government had reserved the right against the prime contractor to make these changes, and the subcontractor knew this, the Government was not contractually responsible for the delay. Therefore it is suggested that the subcontractor in the Rice and Crook cases could know in advance that the performance time was “provisional,” whereas here the contractor had reason to believe that it was certain. But in this case there is ample indication, both in the extrinsic facts and in the contract terms, that changes and delays were anticipated and remedies therefor provided. The contractor here only lacked the one additional indication that changes were anticipated which he could have read from the prime contract had there been a prime contract and if a prime contract had been available for him to read. If this be a distinction, it is a distinction with no significant difference. This contract, like the others, shows that changes and delays were anticipated and provided for. The question on which all these cases turn is: Did the Government obligate itself to pay damages to a contractor solely because of delay in making the work available? We hold again that it did not for the reasons elaborated in the Crook and Rice decisions.
Reversed.
The damages awarded were for the wages respondent paid supervisory employees who stood by during the delay intervals, and for certain expenses of respondent incurred on account of these employees for unemployment and similar taxes.
attorney general of the United States, or his office specified state board or department of education city, town, township, village, or borough government or governmental unit state commission, board, committee, or authority county government or county governmental unit, except school district court or judicial district state department or agency governmental employee or job applicant female governmental employee or job applicant minority governmental employee or job applicant minority female governmental employee or job applicant not listed among agencies in the first Administrative Action variable retired or former governmental employee U.S. House of Representatives interstate compact judge state legislature, house, or committee local governmental unit other than a county, city, town, township, village, or borough governmental official, or an official of an agency established under an interstate compact state or U.S. supreme court local school district or board of education U.S. Senate U.S. senator foreign nation or instrumentality state or local governmental taxpayer, or executor of the estate of state college or university United States State person accused, indicted, or suspected of crime advertising business or agency agent, fiduciary, trustee, or executor airplane manufacturer, or manufacturer of parts of airplanes airline distributor, importer, or exporter of alcoholic beverages alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked American Medical Association National Railroad Passenger Corp. amusement establishment, or recreational facility arrested person, or pretrial detainee attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association author, copyright holder bank, savings and loan, credit union, investment company bankrupt person or business, or business in reorganization establishment serving liquor by the glass, or package liquor store water transportation, stevedore bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines brewery, distillery broker, stock exchange, investment or securities firm construction industry bus or motorized passenger transportation vehicle business, corporation buyer, purchaser cable TV car dealer person convicted of crime tangible property, other than real estate, including contraband chemical company child, children, including adopted or illegitimate religious organization, institution, or person private club or facility coal company or coal mine operator computer business or manufacturer, hardware or software consumer, consumer organization creditor, including institution appearing as such; e.g., a finance company person allegedly criminally insane or mentally incompetent to stand trial defendant debtor real estate developer disabled person or disability benefit claimant distributor person subject to selective service, including conscientious objector drug manufacturer druggist, pharmacist, pharmacy employee, or job applicant, including beneficiaries of employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan electric equipment manufacturer electric or hydroelectric power utility, power cooperative, or gas and electric company eleemosynary institution or person environmental organization employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer. farmer, farm worker, or farm organization father female employee or job applicant female movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of fisherman or fishing company food, meat packing, or processing company, stockyard foreign (non-American) nongovernmental entity franchiser franchisee lesbian, gay, bisexual, transexual person or organization person who guarantees another's obligations handicapped individual, or organization of devoted to health organization or person, nursing home, medical clinic or laboratory, chiropractor heir, or beneficiary, or person so claiming to be hospital, medical center husband, or ex-husband involuntarily committed mental patient Indian, including Indian tribe or nation insurance company, or surety inventor, patent assigner, trademark owner or holder investor injured person or legal entity, nonphysically and non-employment related juvenile government contractor holder of a license or permit, or applicant therefor magazine male medical or Medicaid claimant medical supply or manufacturing co. racial or ethnic minority employee or job applicant minority female employee or job applicant manufacturer management, executive officer, or director, of business entity military personnel, or dependent of, including reservist mining company or miner, excluding coal, oil, or pipeline company mother auto manufacturer newspaper, newsletter, journal of opinion, news service radio and television network, except cable tv nonprofit organization or business nonresident nuclear power plant or facility owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels shareholders to whom a tender offer is made tender offer oil company, or natural gas producer elderly person, or organization dedicated to the elderly out of state noncriminal defendant political action committee parent or parents parking lot or service patient of a health professional telephone, telecommunications, or telegraph company physician, MD or DO, dentist, or medical society public interest organization physically injured person, including wrongful death, who is not an employee pipe line company package, luggage, container political candidate, activist, committee, party, party member, organization, or elected official indigent, needy, welfare recipient indigent defendant private person prisoner, inmate of penal institution professional organization, business, or person probationer, or parolee protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer public utility publisher, publishing company radio station racial or ethnic minority person or organization protesting racial or ethnic segregation or discrimination racial or ethnic minority student or applicant for admission to an educational institution realtor journalist, columnist, member of the news media resident restaurant, food vendor retarded person, or mental incompetent retired or former employee railroad private school, college, or university seller or vendor shipper, including importer and exporter shopping center, mall spouse, or former spouse stockholder, shareholder, or bondholder retail business or outlet student, or applicant for admission to an educational institution taxpayer or executor of taxpayer's estate, federal only tenant or lessee theater, studio forest products, lumber, or logging company person traveling or wishing to travel abroad, or overseas travel agent trucking company, or motor carrier television station union member unemployed person or unemployment compensation applicant or claimant union, labor organization, or official of veteran voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL) wholesale trade wife, or ex-wife witness, or person under subpoena network slave slave-owner bank of the united states timber company u.s. job applicants or employees Army and Air Force Exchange Service Atomic Energy Commission Secretary or administrative unit or personnel of the U.S. Air Force Department or Secretary of Agriculture Alien Property Custodian Secretary or administrative unit or personnel of the U.S. Army Board of Immigration Appeals Bureau of Indian Affairs Bonneville Power Administration Benefits Review Board Civil Aeronautics Board Bureau of the Census Central Intelligence Agency Commodity Futures Trading Commission Department or Secretary of Commerce Comptroller of Currency Consumer Product Safety Commission Civil Rights Commission Civil Service Commission, U.S. Customs Service or Commissioner of Customs Defense Base Closure and REalignment Commission Drug Enforcement Agency Department or Secretary of Defense (and Department or Secretary of War) Department or Secretary of Energy Department or Secretary of the Interior Department of Justice or Attorney General Department or Secretary of State Department or Secretary of Transportation Department or Secretary of Education U.S. Employees' Compensation Commission, or Commissioner Equal Employment Opportunity Commission Environmental Protection Agency or Administrator Federal Aviation Agency or Administration Federal Bureau of Investigation or Director Federal Bureau of Prisons Farm Credit Administration Federal Communications Commission (including a predecessor, Federal Radio Commission) Federal Credit Union Administration Food and Drug Administration Federal Deposit Insurance Corporation Federal Energy Administration Federal Election Commission Federal Energy Regulatory Commission Federal Housing Administration Federal Home Loan Bank Board Federal Labor Relations Authority Federal Maritime Board Federal Maritime Commission Farmers Home Administration Federal Parole Board Federal Power Commission Federal Railroad Administration Federal Reserve Board of Governors Federal Reserve System Federal Savings and Loan Insurance Corporation Federal Trade Commission Federal Works Administration, or Administrator General Accounting Office Comptroller General General Services Administration Department or Secretary of Health, Education and Welfare Department or Secretary of Health and Human Services Department or Secretary of Housing and Urban Development Interstate Commerce Commission Indian Claims Commission Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement Internal Revenue Service, Collector, Commissioner, or District Director of Information Security Oversight Office Department or Secretary of Labor Loyalty Review Board Legal Services Corporation Merit Systems Protection Board Multistate Tax Commission National Aeronautics and Space Administration Secretary or administrative unit of the U.S. Navy National Credit Union Administration National Endowment for the Arts National Enforcement Commission National Highway Traffic Safety Administration National Labor Relations Board, or regional office or officer National Mediation Board National Railroad Adjustment Board Nuclear Regulatory Commission National Security Agency Office of Economic Opportunity Office of Management and Budget Office of Price Administration, or Price Administrator Office of Personnel Management Occupational Safety and Health Administration Occupational Safety and Health Review Commission Office of Workers' Compensation Programs Patent Office, or Commissioner of, or Board of Appeals of Pay Board (established under the Economic Stabilization Act of 1970) Pension Benefit Guaranty Corporation U.S. Public Health Service Postal Rate Commission Provider Reimbursement Review Board Renegotiation Board Railroad Adjustment Board Railroad Retirement Board Subversive Activities Control Board Small Business Administration Securities and Exchange Commission Social Security Administration or Commissioner Selective Service System Department or Secretary of the Treasury Tennessee Valley Authority United States Forest Service United States Parole Commission Postal Service and Post Office, or Postmaster General, or Postmaster United States Sentencing Commission Veterans' Administration War Production Board Wage Stabilization Board General Land Office of Commissioners Transportation Security Administration Surface Transportation Board U.S. Shipping Board Emergency Fleet Corp. Reconstruction Finance Corp. Department or Secretary of Homeland Security Unidentifiable International Entity