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UNITED STATES v. SMITH

June 4, 1957

UNITED STATES of America
v.
Clarke L. SMITH, individually and trading as C. L. Smith Aerial Surveys



The opinion of the court was delivered by: DUSEN

This matter comes before the court on motions for summary judgment by both plaintiff and defendant.

The United States Army Map Services, an agency of the plaintiff, invited sealed bids to be received on or before May 28, 1947, for an aerial photography contract. Defendant Clarke L. Smith, individually and trading as C. L. Smith Aerial Surveys (hereinafter called 'Smith'), submitted the low bid and was verbally notified on May 29 that he had been awarded the contract by which, for $ 99,596.18, Smith agreed to take and deliver certain aerial photography to the plaintiff by December 31, 1948. By letter of June 10, 1947, the contracting officer confirmed the verbal notification. *fn1"

 The latter proved successful and defendant completed the photographing of one block of the work which was acceptable to plaintiff, but the owner of the B-17 defaulted in his lease with defendant and sold the plane to foreign interests. Defendant was unable to obtain the use of another B-17, or such other plane as defendant believed could adequately perform the required work, and defendant did not again attempt to use the P-38s. *fn3" On October 30, 1948, and on December 29, 1948, Smith wrote to the contracting officer, informing him of the present status of the work on the contract and concluding that the job could not be completed by December 31, 1948, the end of the specified contract time.

 Thereafter, on March 25, 1949, the contracting officer, by letter, terminated the contract. *fn4"

 Bids were invited on the remaining five blocks on April 14, 1949, and contracts were entered into by plaintiff with the Fairchild Aerial Surveys, Inc. on May 11, 1949, and Mark Hurd Mapping Company on May 19, 1949. In these latter contracts, as distinguished from the earlier contract with Smith, the Government did not waive performance bonds.

 Such latter companies successfully performed the required aerial photographic work and, by letter of December 15, 1950, the contracting officer notified defendant that the contractors who were awarded the uncompleted work by readvertisement had completed their contracts and received payments thereunder, and 'in accordance with the terms of Condition 13 of the subject contract, you are responsible for excess costs and damages incurred in the completion of these contracts,' namely, $ 102,456.77.

 By letters of March 8, 1955, and April 24, 1956, demands for payment of a debt of about $ 103,000 were made of defendant.

 On July 3, 1956, the plaintiff filed suit in this court.

 Defendant's answer, in effect, sets forth defenses that:

 (1) The contract was experimental in nature and defendant was prevented from completing the contract within the required time due to unforeseeable causes beyond his control and without any fault or negligence on his part.

 (2) Defendant was refused requested extensions of time by which he could have completed the contract in the same time it took under the latter contracts awarded to others.

 (3) By requiring performance bonds on the later contracts, some potential bidders were eliminated and much higher bids were submitted than if the contract had been readvertised under the same terms as the contract sued on, ...


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