work as it could safely do without formal approval. If this had been done (it was not done) the plaintiff would have been able to start its manufacturing not earlier than the first week of August.Obviously, even under this procedure, which was certainly the most expeditious which could have been adopted, there would be an extremely short time left for performance. It might have been enough, although that is very doubtful.
However, that was not the procedure adopted. The general plans submitted by the plaintiff with its bid were dummies, merely sufficient to show good faith and general arrangement, designedly insufficient to be of any use as working drawings, the idea being to prevent competitors from benefitting from their designs.
What was actually done was described by one of the witnesses as follows: "* * * there were two ways of submission of plans in equipment of this type; they could submit their entire plans for the entire equipment at once, or within a certain period, or they could submit the plans in waves, disjoined plans in waves as the American Engineering Company did. They submitted their plans in five or seven waves, and submitting plans in waves of that nature both delays them in their manufacture because even though we approve the first wave, if the later wave comes in, the later plans come in, and what we have approved on the first wave is incompatible with what they present later, we have the right to demand a homogeneous unit, a good unit all the way through."
Now it is perfectly plain that, when the plaintiff elected to submit its plans in waves, it was practically putting it out of its power to comply with the provision for date of delivery. Also, as the same witness said, the contractor "is also very seriously interfering with our work. Where we have all the plans at once, we can criticize them and look at them at once. If they come in waves, we very often have to recreate them to meet what has been accepted and approved in the past, in the light of late manufacture."
I do not find that the government protested against the method of sending in plans which the plaintiff adopted, but, on the other hand, it certainly did not invite it, and it made no statement at any time to indicate that it would extend the completion date or waive the liquidated damage provision. It merely accepted the plans as they came in and approved them in due course. In many cases it delayed more than a month in giving its approval, but such delay, it was understood, was to be credited to the plaintiff. It also made changes and had demands which often required redesigning and resubmission. Referring to these changes made by the government and the delay involved, the plaintiff's principal witness said, "That is a point; some of these changes were reasonable, and I think most of the changes were reasonable; I don't know, what they told me may not have been important; I wouldn't say they were not reasonable changes. * * * I wouldn't say any one department held the plans longer than necessary. It was a question of getting the plans through. We had to send the plans to three offices of the Navy Department before they were returned. I wouldn't say any one office held the plans an unusual time before acting on the plans."
The plaintiff's answer to all this is that in view of the novel design of the equipment to be furnished and the absence of sufficient data in its hands at the time it was awarded the contract it was impossible for it to proceed otherwise. This may be true, but, if so, it is remarkable that on June 6, nearly a month before the award, in transmitting its bid it took occasion to say, "If we are the successful bidder, we are prepared to make delivery in accordance with schedule requirements, provided we receive a contract for this equipment not later than July first, 1932" -- certainly an intimation that its ability or preparedness to deliver on time was something for the government to consider specially in awarding the contract.
If the plaintiff, with full knowledge of the difficulties before it, took a contract which it was almost impossible to perform under any method of procedure and then adopted a method which made it quite impossible, it would be fruitless to attempt to apportion the responsibility for the total delay, day by day, between the parties. Unquestionably, the government was to blame for some of it. An example is its misinterpretation of its own specifications in connection with the location of the rotating mechanism within the confines of the platform. This caused a delay of approximately 19 days. But the plaintiff's original working drawings for this part of the equipment were not sent in until July 28, so that, even if they had been approved without any revision (assuming that the government took the full month which the contract allowed it) the plaintiff would not have been able to start manufacturing until two days before the time for delivery to the east coast ships -- unless, of course, it chose to go ahead at its own risk upon the information received at the conference on August 3. Thus, regardless of any delay upon the government's part, the plaintiff, at the outset, had put it beyond its power to comply with the delivery date.
This is typical of what prevailed throughout the performance of this contract. The best case that can be made out for the plaintiff is to say that if it had been ready with all its plans at the time the contract was awarded and had submitted them promptly for approval, there is a bare possibility that, but for delays on the government's part, delivery would have been made on time. On the other hand, by proceeding as it did, the plaintiff never had the slightest chance to perform, even had the government acted with the utmost promptness within its rights on all occasions.
Speculation upon the moral or equitable aspects of this controversy, which involves purely legal rights, leads nowhere. It may be that the government, having shown no actual money loss, is ungenerous in standing upon the strict letter of its contract. On the other hand, the plaintiff, realizing the improbability of its being able to perform on time and having the liquidated damage clause in view, may have added enough to its bid to bring it out whole. In any event, neither at law nor in equity can the Court grant relief from the consequences of a contract improvidently entered into.
I find as a fact that the plaintiff's failure to make delivery as called for by the contract was primarily due to its adoption of a method of performance which made compliance impossible, and, in a broader sense, to its having knowingly entered into a contract which, from its inadequate acquaintance with the subject matter, could hardly have been performed otherwise.
As a matter of law, I conclude that this case is not within the rule of United States v. United Engineering etc., Company, supra; that it is ruled by Robinson v. United States, supra; and that the decision of the Secretary of the Navy is binding upon the plaintiff.
The petition may be dismissed.
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