Where a contract for government work provides that, in case of
discrepancies between the specifications and the contract, the
matter shall be referred to the secretary of the department making
the contract, and the contractor agrees to abide by his decision in
the premises, the construction given by the secretary and his
decision is final and conclusive.
Where a contract for government work provides that in every
instance changes must be made by a prescribed method and approved
by the secretary, the contractor cannot recover for extras not
ordered in the manner prescribed, and this rule holds even in a
hard case where, as in this instance, the work was extra, and of
Where the contractor fails to notify the secretary of the cause
of delay on the part of the government in the manner prescribed by
the contract, and thus enable the Secretary to remove the cause of
delay, the contractor cannot recover for the delay caused.
43 Ct.Clms. 266 reversed in part.
The facts, which involve the construction of a contract for
government work, are stated in the opinion.
MR. JUSTICE LAMAR delivered the opinion of the Court.
In October, 1888, P. H. McLaughlin & Company contracted to
build the Naval Observatory in Washington
Page 226 U. S. 546
for $307,811. After most of the work had been done, the contract
was forfeited for failure to make satisfactory progress. 37 Ct.Cl.
150. The government advertised for bids to complete the work. After
examining the contract and documents, Plumley agreed to complete
the building in accordance with the McLaughlin contract, and "duly
authorized changes" by June 1st, 1892, for the sum of $25,840.
Having finished the work, he sued the government for damages by
delay and for extra work amounting to $12,813. The court rendered
judgment in his favor for $502 insurance paid during the period he
was delayed in finishing the work. All of the other items were
disallowed. Both parties appealed.
1. The largest item is a claim for extra compensation for
installing a ventilator system, which McLaughlin agreed to do for a
given sum. The proposed change and this offer were submitted by the
architect to the Bureau of Equipment with the statement that, if
approved, McLaughlin would enter into a formal written contract to
do the work for the prices named. The plans and bid were approved.
McLaughlin was directed to proceed, and did some work thereon.
Later his contract was forfeited. Plumley (and his partner, Davis,
a former member of McLaughlin & Company) knew these facts at
the time the bid was made to complete the work, but, when required
to build the ventilating system, Plumley insisted that it was not
within McLaughlin's original contract, and not a "duly authorized
change" because no written contract had been signed by both
parties, as required by the terms of the contract. This contention
was rejected by the architect, and, on appeal, by the Secretary of
the Navy. The Court of Claims at first sustained this position,
but, on a rehearing, held that Plumley was estopped from claiming
that the change had not been duly authorized, and, under his
contract to complete the work, was bound to finish
Page 226 U. S. 547
what McLaughlin had begun. Beyond this, the contract provided
that, if there was any discrepancy between plans and
specifications, or between the contract of McLaughlin and the
contract of Plumley, the matter should be referred to the
Secretary, Plumley agreeing "to abide by his decision in the
premises." The Secretary decided against him, and, under the
circumstances, his construction is binding on the contractor.
2. This same provision prevents a recovery for the drain pipe
included in the original contract. For some reason, not stated, it
appears that McLaughlin was requested to make a bid for laying
drain pipe. It was accepted and then countermanded. Plumley was
likewise requested to make a bid, which was accepted and then
countermanded. When required to lay the pipe, he demanded extra
compensation, but his appeal was overruled by the Secretary,
possibly for the reason suggested in argument -- that asking a bid
did not relieve Plumley from the obligation to furnish labor and
material actually included in the contract. What facts were
submitted to the Secretary is not in this record, but his ruling is
conclusive in view of Plumley's agreement to abide by his
3. The other items for extra work were properly disallowed. The
contract provided that charges increasing or diminishing the cost
must be agreed on in writing by the contractor and the architect,
with a statement of the price of the substituted material and work.
Additional precautions were required if the cost exceeded $500. In
every instance, it was necessary that the change should be approved
by the Secretary. There was a total failure to comply with these
provisions, and though it may be a hard case, since the court found
that the work was in fact extra and of considerable value, yet
Plumley cannot recover for that which, though extra, was not
ordered by the officer and in the manner required by the
Page 226 U. S. 548
Rev.Stat. § 3744; Hawkins v. United States,
96 U. S. 689
Ripley v. United States, 223 U. S. 695
United States v. McMullen, 222 U.
4. The government appeals from so much of the judgment as gave
Plumley a judgment for damages caused by delay. The court found
that Plumley was delayed by the failure to have the architect on
hand promptly for decision pertaining to the work, while it also
found that the Secretary extended the time for the reason that
Plumley's failure to finish was on account of circumstances beyond
the contractor's control. But Plumley, at the time of the
occurrence of the delay, did not notify the Secretary of the facts,
nor of the extent to which the work would be delayed. The contract
required that such notice should be given to the Secretary when the
delay occurred, evidently for the purpose of informing the
department, and enabling it at the time, to remove the cause of the
delay. It operated to prevent claims for damage, and for failure to
comply with this requirement of the contract. (United States v.
Gleason, 175 U. S. 588
plaintiff is not entitled to recover. The judgment in that respect
must be reversed, and is otherwise affirmed.