Ordnance Engineering Corp. v. United States

68 Ct. Cl. 301, 1929 U.S. Ct. Cl. LEXIS 279, 1929 WL 2454
CourtUnited States Court of Claims
DecidedJune 10, 1929
DocketNo. 34680
StatusPublished
Cited by11 cases

This text of 68 Ct. Cl. 301 (Ordnance Engineering Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ordnance Engineering Corp. v. United States, 68 Ct. Cl. 301, 1929 U.S. Ct. Cl. LEXIS 279, 1929 WL 2454 (cc 1929).

Opinion

Booth, Chief Justice,

delivered the opinion of the court:

The plaintiff, a New Jersey corporation, sues to recover upon a number of items which may be best discussed in their order. The plaintiff in the summer of 1916 consulted with and interested the War Department in its previous experiments with the manufacture of illuminating shells. A demonstration of plaintiff’s 2.18" shell occurred in January, 1917. The War Department complimented plaintiff’s achievements in this instance, and the written report to this effect was forwarded to the Bureau of Ordnance and to the British War Office. The War Department awarded a contract to the plaintiff to manufacture some star shells for a 2.75" trench smooth-bore mortar, and thereafter the plaintiff continued its experimentations with other and additional designs. Plaintiff’s chief engineer was directly responsible [331]*331for its activities in star-shell designing and experimentation, and as will subsequently appear patents were applied for and granted covering the invention. Plaintiff’s success with the War Department encouraged its contact with the Navy Department. On February 5, 1917, it requested the privilege of demonstrating the utility of its star shells to the department. The Navy Department had not accomplished success in obtaining a star shell for long-range guns. The department’s difficulties were peculiar to its own style and caliber of ordnance, and of course the proper officials welcomed the plaintiff’s suggestions. After some correspondence and personal interviews the plaintiff disclosed to the Navy Department its detailed drawings of a 3" star shell, at the same time advising the department of its purpose to manufacture small star shells for unrifled cannon, which would develop the degree of velocity the department desired to obtain. The Navy could not utilize the trench mortar or the star shell developed for the War Department. The Navy was using high-velocity guns and star shells inserted therein had to be so designed as to meet this condition. Following a variety of changes and modifications, brought about by correspondence and interviews, the Navy Department in June, 1917, entered into an experimental contract with the plaintiff, contract #1099, for the manufacture of ten 3", star shells of plaintiff’s design. It is sufficient to say that shells covered by the contract proved unsatisfactory. Thereafter, upon receipt from the British Admiralty of the specifications and drawings of the British 4" star shell, the department became convinced that such a shell was available, and invited proposals from the plaintiff to manufacture 25 such shells for experimental purposes. A contract was awarded the plaintiff for so doing on February 15, 1918, by the terms of which the plaintiff was to make 20 shells of each of two designs submitted by the British Admiralty, and five of its own design, i. e., 45 in all. Under this agreement plaintiff, with modified suggestions of its own, made and subjected to test the shells called for. The test was not satisfactory. Whereupon the plaintiff proceeded to perfect its own design, and as a result of a test the department was satisfied as to [332]*332the plaintiff’s 3" and 4" shells. Plans and drawings were furnished the proper bureau of the department, and in June, 1918, a contract was let, whereby the plaintiff was to manufacture and deliver 20,000 each of its 3" and 4" shells. It is this contract, to which all others are preliminary, known as #39716, subsequently supplemented by contract #39716-A, which gives rise to this litigation.

The manufacture of star, or, as technically known, illuminating shells, was an entirely new adventure in this country. The plaintiff’s enterprise was pioneer in character and to accomplish success the Government agreed to a cost-plus contract which involved, among other items, the erection of a suitable plant upon a site at Baldwin, Nassau County, Long Island, near plaintiff’s aeroplane and machine shops, the site to be provided by the Government. In addition to cost of plant the plaintiff was to be paid an engineering fee for services in connection therewith and also the cost of all experimental work carried on by plaintiff. It is to be noted that the original contract, No. 39716, was concerned alone with 3" and 4" star shells. Plaintiff had not at this time perfected to its satisfaction a 5" star shell. The bureau also desired a 5" shell. Without going into detail as set forth in Finding X, it is enough to say that contract No. 39716 was increased by contract No. 39716-A to include the manufacture of 5" shells. Notwithstanding assurance that contract No. 39716 would be closed as of July 1, 1918, it was not signed by the Government until July 27, 1918. This delay, however, did not militate against the plaintiff’s performance; on the contrary, plaintiff began preparations toward performance at once and proceeded to prepare and forward orders for materials and supplies. The manufacture of a delicate mechanism like a star shell, especially when in a more or less experimental state, compelled the consumption of much time in the fabrication of the essential materials. The plaintiff endeavored to anticipate this source of delay and forwarded to the bureau orders for materials, some prior to the execution of the contract. A contract made in the midde of the year 1918, irrespective of its subject matter or importance, was absolutely certain to encounter the delays incident to the establishment of boards and com[333]*333missions vested with jurisdiction to conserve the national resources. This fact was publicly known. Materials were available only in many instances through the priority .orders of the War Industries Board, and the processes of the bureau through its supplies and accounts division were the usual method of securing approval of purchase orders. Cost-plus contracts exacted strict inspection, and it was to be assumed by the contractor, knowledge of conditions being inescapable, that delays would occur. As a matter of fact, the table of delays set out in Finding XXV indicates what might have been anticipated. Of course, the Government was obligated to facilitate performance to the extent of its ability, but there is nothing in the record to warrant a holding that the interposition of this so-called “ bureaucratic red tape ” put the plaintiff to a decided disadvantage. The plant was in process of construction during this period; quantity production could not proceed until it was completed. A site for the same was to be condemned and a contract let to construct. Originally the estimated cost of the plant was fixed at $67,121.00, afterwards increased to $124,141.00. The numerous changes and additions to the original conception, keeping in mind the engineering fee of $2,000 paid the plaintiff, disclose a premature conception of the necessities of the plaintiff in the original plans for the building. At the time the contract was canceled the plant was substantially complete, but many details remained to be completed before quantity production could be attained. The plaintiff charges the delays in the performance of the contract were attributable to the defendant’s inspectors. An allegation is made, and said to be supported by proof, that the naval inspector and his assistant detailed to inspect performance were incompetent; that they adhered too rigidly in minor matters to established bureau procedure, and constantly refrained from accepting responsibility in the matter of urgent authorizations for materials, etc. It is manifest from the record that intense hostility soon developed between the contractors and the inspector and his assistant.

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Bluebook (online)
68 Ct. Cl. 301, 1929 U.S. Ct. Cl. LEXIS 279, 1929 WL 2454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ordnance-engineering-corp-v-united-states-cc-1929.