CASES DECIDED IN THE UNITED STATES COURT OF CLAIMS December 1, 1950, to March 31, 1951, 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. MCWILLIAMS DREDGING COMPANY, A CORPORATION v. THE UNITED STATES [No. 48894. Decided June 5, 1950]* On the Proofs Government contract; lease of dredge; determination of “pay time”.— Where the plaintiff entered into a contract with the United States, through the War Department, to lease the plaintiff's dredge, the George A. McWilliams, with all necessary operating personnel and attendant plant to do dredging on the Mississippi River, payment for the use of the dredge to be at specified rates per hour; it is held that plaintiff is entitled to recover pay for a period of 101⁄2 hours on October 19, 1945, which period was spent in laying some 1,200 feet of shore pipeline in preparation for dredging in a new location. United States 70 (1) Same; time spent in moving from one location to another.-Under the provisions of the specifications defining "pay time," where it is provided that the actual time of moving from one job to another, and from one location to another on the same job at the direction of the contracting officer shall be considered as pay time; it is held that the time spent in laying pipeline at the new location after shutting down the preceding operation is pay time. United States 70 (1) Same; control of job by the contracting officer under the contract.The provision in the specifications stating that the entire plant *Defendant's motion for extension of time within which to file motion for new trial allowed June 21, 1950, but motion not filed. 118 C. Cls. Reporter's Statement of the Case should be under the control of the contracting officer, or his representative, with regard to the hours of work, location of work, work to be done, etc., cannot be interpreted to mean that the contracting officer could, contrary to the terms of the contract, require the contractor to detach auxiliary equipment or a part of the crew to do nonpay work when to do so would create a danger that the pay work of dredging might be interrupted. United States 73 (12) Same; decision of contracting officer, affirmed on appeal, not final in instant case.-Plaintiff's claim, which is the basis of the instant suit, was rejected by the contracting officer, whose decision was affirmed by the Army Board of Contract Appeals, which was authorized to act in his stead by the Secretary of War. The decision hinged principally upon the language in the specifications of the contract. It is held that in the instant case such decision is not final. United States 73 (14) Same; interpretation of disputes articles of standard contracts.-The questions of the interpretations of contracts are not "questions of fact" within the meaning of that expression as it is written into the disputes articles of standard Government contracts. United States 73 (12) Same; authority of Army Board of Contract Appeals.-The Army Board of Contract Appeals in interpreting the contract in the instant case did not purport to be acting under the disputes article of the contract. The memorandum of the Secretary of War, under which the Board acted, gave the Board authority, not only to determine the facts under the appeals provision of the contract, but also to consider and administratively pass on appeals not specifically or impliedly authorized by the contract where the ruling appealed from is not made final and conclusive by the terms of the contract. See also Appeal of Robert E. McKee, BCA No. 1617; Appeal of S. K. Jones Construction Company, BCA No. 1619. United States 73 (14) The Reporter's statement of the case: Mr. F. Hamilton Seeley for the plaintiff. Mr. Eugene O'Dunne, Jr., was on the brief. Mr. Gaines V. Palmes, with whom was Mr. Assistant Attorney General H. G. Morison, for the defendant. Mr. Herbert E. Gyles, Trial Commissioner. 1 Findings of Fact The court made special findings of fact as follows: 1. Plaintiff is now, and at all times material herein was, a corporation organized and existing under the laws of the State of Illinois, with its principal place of business at New Orleans, Louisiana. 2. Plaintiff is a well-established dredging company and is experienced in such contract work for Federal and State public agencies. 3. On June 11, 1945, plaintiff entered into a lease-contract with the United States, (No. W16-047-eng-766) through the War Department, represented by the District Engineer, U. S. Engineer Office, New Orleans, Louisiana. The contract covered the rental of the dredge G. A. McWilliams, 34 inch suction pump and 28 inch discharge, complete in all respects, including all necessary plant, for a period of six months, with an option to extend the contract period for an additional six months. The rental rate to be paid at the locations here pertinent was $94.50 per hour, subject to certain adjustments which are not here material. 4. Article 8 of the contract provided: Except as otherwise specifically provided in this contract, all disputes concerning questions of fact which may arise under this contract, and which are not disposed of by mutual agreement, shall be decided by the Contracting Officer, who shall reduce his decision to writing and mail a copy thereof to the Contractor at his address shown herein. Within thirty days * * * the contractor may appeal in writing to the Secretary of War, whose decision or that of his designated representative or representatives thereon shall be final and conclusive upon the parties hereto. The Secretary of War may, in his discretion, designate an individual or individuals, other than the Contracting Officer or a board as his duly authorized representative to determine appeals under this contract. The following are pertinent provisions of the specifications: SC-3. (a) Payments: Pay time shall begin when the dredge and attendant plant are in tow from the point of delivery to site of first dredging assignment. Such movement of dredge and attendant plant will be as soon Findings of Fact 118 C. Cls. as satisfactory towing arrangements can be made after date of acceptance of plant by Contracting Officer. (b) The following will be considered effective time and will be paid for semimonthly at the contract price per hour applicable to locality and type of work being performed, except as provided in subparagraph 2 below. 2. Actual time in transit from point of delivery to first position for work; actual time of moving from one job to another and from one location to another on the same job at the direction of the Contracting Officer, such time to be computed from time of shutting down by order of the Contracting Officer preparatory to move to time when dredge and pipe line are in position for dredging at new location; except when through the negligence of the Contractor part of the necessary equipment needed at the new location is not available as in the case of broken or disabled pontoons, lack of self-propelled plant to set up the pipe lines, etc. Rate of payment during moves will be that rate applicable to locality for normal dredging operations which do not require the use of a submerged discharge pipe line unit. During the moves the Contractor will be required at all times to maintain the average operating strength on each watch and be prepared to commence the operations of preparing the dredge and pipe lines for pumping immediately on arriving at new location. (d) Payment will not be made for: 1. Lay time on completion of a project or lay time after arrival at location of a new project when such time is incurred at the direction of the Contractor's representative, or when through negligence of the Contractor the necessary equipment is not available or in operating condition at the new project; or for time during suspension of operations, as provided in paragraph SC-8 (a), subject to the provisions of paragraph SC-3 (b) 5. 2. Time lost due to shutdowns for the repair or the replacement of worn out or unserviceable equipment and time lost due to pulling a line together when the joints open up, replacing damaged shore pipe or pontoons, except when shore pipe is damaged by caving bank or pontoons are damaged by drift. Discharge line will be considered in condition when pumping is commenced. |