The opinion of the court was delivered by: BARTELS
This is an action under Section 1345 of Title 28 of the United States Code, brought by the Government for $ 4,565.32 plus interest, arising from an alleged breach of contract pursuant to which defendant Hammer Contracting Corporation (Hammer) agreed to perform certain landscaping work for the Veterans Administration Hospital (Hospital) in Brockton, Massachusetts. Certain undisputed facts, as set forth in the Pre-Trial Stipulation, are as follows:
On or about September 8, 1954, the Government entered into a written and binding contract No. V 1006C-21 with Hammer, pursuant to which Hammer was to perform the work in question. Under the terms and conditions of this contract the Government agreed to pay the sum of $ 67,971.08 to Hammer, in consideration for which Hammer agreed to furnish all labor, equipment and materials, and perform certain landscaping consisting of preparation of lawn seed bed, lawn bedding, and other items, and provide additional topsoil and preparation of lawn areas at the Hospital in Brockton, Massachusetts. Pursuant to Article 5, page G-3 of the Specifications attached to the contract, Hammer guaranteed all work under the contract for a period of one year, from the date the work was completed as established by the Government.
Pursuant to 49 Stat. 793, 40 U.S.C.A. § 270a, Hammer furnished a valid performance bond executed by defendant Aetna Insurance Company (Aetna) in the sum of $ 50,978.31, under which Aetna undertook to secure the proper performance of the contract by Hammer, as shown on pages of the contract marked '1-18' and '1-19'.
The Government established October 18, 1954, as the date on which the work under the contract was completed, thus establishing October 18, 1955, as the date through which said work was guaranteed by Hammer, and the Government also fully paid Hammer for its services under the contract.
Pursuant to Article 14, page DS-2 of the Specifications attached to the contract, the Government agreed to maintain the planting area between the completion of the work and the end of the guaranty period.
By letter of April 8, 1955, Hammer was advised by the Government that numerous lawn areas were not satisfactory, and was requested to take the necessary corrective action under the guaranty provision of the contract. On May 25, 1956, Hammer was notified that the Hospital was authorized to proceed with the work and costs would be charged to its account in compliance with Article 5, page G-3 of the contract.
The above are the facts agreed upon by the parties. In addition, the parties adduced at the trial further evidence with respect to the contract, the performance thereunder by Hammer, the maintenance service by the Government, and the corrections of the deficiencies made by the Government.
While the pertinent portions of the contract are referred to in the stipulated facts, a more detailed recital is necessary.
(1) Article 5, page G-3, in addition to requiring Hammer to landscape the grounds around the Hospital, provided that Hammer guaranteed all the work under the contract for a period of one year from the date the work was completed and, further, that whenever work is guaranteed '* * * the contractor whenever notified by the Contracting Officer, must immediately (1) place in satisfactory condition in every particular any of the guaranteed work * * *'. This Article further provided: 'The opinion of the Contracting Officer as to the liability of this contractor under any such guaranty or as to the satisfactory fulfillment or compensation for the nonfulfillment thereof will be final, subject to written appeal by the contractor, within thirty (30) days, to the Administrator, whose decision will be final and conclusive upon the the parties hereto, subject to Public Law 356, 83rd Congress, approved May 11, 1954, 68 Stat. 81.'
(2) Article 14, page DS-2, specifically provided that 'The Government will maintain plantings between completion of the work and the end of the guaranty period.'
(3) Article 5, page G-3, also provided that 'all work under this contract shall be guaranteed for a period of one (1) year from the date the work is completed, as established by the Government.'
After the work was completed and before expiration of the one-year guaranty period, certain portions of the landscaped area covered by the contract failed to grow grass.
The Government claims that since the barren areas appeared during the guaranty period, Hammer was obligated to take corrective action to bring the work into compliance with the contract requirements and, moreover, that the Contracting Officer's opinion to that effect as contained in the letter of April 8, 1955, was final and conclusive under Article 5, since Hammer failed to appeal that decision. It is interesting to note, in passing, that the last contention concerning the finality of the Contracting Officer's opinion was raised for the first time at the trial.
On the other hand, Hammer claims that it fully complied with the provisions of the contract on its part to be performed, and that any area that was or became barren during the guaranteed period resulted from the failure of the Government to maintain the land as required by Article 14 and also to ...