CONGRESS OF THE UNITED States, In re: H. R. 1902, Whike Construction Co. House of Representatives, Washington, D. C. DEAR COLLEAGUE: Complying with your request in our recent conversation. I am pleased to bring you up to date on the above matter. You will recall in my letter of March 2 I outlined the suit which had been brought against this company by the Spohn Heating & Ventilating Co. This resulted in a verdict against the Whike Construction Co. in the amount of $2,381.33, with interest at 6 percent from December 19, 1943. The interest on this judgment amounted to over $600, and the attached letter will give you some idea of the situation that faces this company as a result of the Government's failure to pay the overtime and incidental expenses which were incurred as a result of the area being placed in a 48-hour workweek under the authority of Executive Order 9301. This was a test case and since it has been decided against the contractor it has stirred up all the subcontractors and they are now faced with their claims. The subcontractors' claims are as follows: Norge Paint & Asbestos Co., $1,517.16; Garaux Bros., $743.09; Ewing Landscape Co.. $330.74; Walters Electric. $267.33: Stafford Co., $261.53. The Whike Construction Co., the principal contractor, lost as a result of this order $8,969.55. All of these claimants are claiming interest at 6 percent from December 19, 1943. It seems unbelievable to me that any Government agency intended that any contractor should lose money doing work for the Government. This company objected to signing the contract until it was assured that it would be protected in the event that the War Manpower Commissioner exercised the authority granted him in said Executive order and placed the area in a 48-hour workweek. The contract was based on a 40-hour workweek, and the evidence that I presented to your committee almost a year ago disclosed that this bid was over $35,000 lower than the next bidder. Before the contract was signed an officer in the FPHA in Cleveland had typewritten the following language on page 3 of the bid of this project, which is in your files: "This bid is based on 40-hour week. If it becomes necessary to work more than 40 hours, by Executive order, we are to be reimbursed for the extra cost of such overtime, plus taxes and insurance." This matter is getting desperate and I will appreciate your giving it immediate attention. Sincerely yours, HENDERSON H. CARSON, M. C. BRIEF IN BEHALF OF GEORGE H. WHIKE CONSTRUCTION CO. ON JACKSON PARK Contract dated February 26, 1943. Subsequent proceed order changing items in bidding documents March 18, 1943. Under the conditions of the contract the contractors will not be held liable for delays because of strikes and unusual and severe weather or unforseseeable causes beyond the control and without the fault or negligence of the contractors. The file will disclose that one of the major delays on this project was the inability to secure the required lumber. The contractors had no reason to anticipate any difficulty in procuring lumber as they had just completed a naval ordnance contract which required practically the same number of cars of lumber as needed for project OH-33037 and said lumber was secured on the ordnance contract within 30 days from date of order. Immediately after the receipt of the proceed order the contractors contacted various lumber companies from whom they had previously obtained millions of feet of lumber and found it absolutely impossible to secure the lumber needed for this project. Said contractors were advised by many of the lumber companies that this very distressing lumber market was caused by the Government's taking over the function of wholesale lumbermen and by setting up similar organizations within the Government which placed all business directly with the mills, making no provisions whatsoever for the wholesaler. Upon further investigation said contractors found that an organization known as the Central Procuring Agency had been set up in Washington. Said contractors diligently endeavored to secure assistance through said agency without success. Said contractors then secured the services of George W. Myers, a local lumber broker, and at their own expense started him all over the United States with orders to procure lumber wherever possible. Said broker traveled through the South and Midwest and was able to secure at various points small quantities of lumber. Records disclose that the cost of this lumber was approximately 20 percent higher than estimated in said contractors' bid; in one instance 25,000 feet of lumber was secured at a 15 percent higher cost per thousand and in addition to said increase in price said contractors paid the freight; said contractors purchased locally within a radius of several miles of Canton all available lumber paying a retail price for the same which was 30 to 40 percent higher than the estimated cost in their bid and a considerable amount of the lumber secured was not cut to size and with additional expense said contractors had to perform this work on the project. The file further indicates that the Government project engineer, R. M. Webb, was kept constantly informed of the difficulty encountered in the purchasing of lumber as evidenced by letters of March 24, April 5, May 4 and June 4. It is our contention that the difficulty encountered in procuring the necessary lumber was due to restrictions placed on the lumber market by the United States Government which caused a delay on the project of 80 days. Attached hereto marked "Exhibit A" and made a part hereof is a schedule of workers giving a comparison of the actual number of men employed by all possible efforts on the part of the contractors and the number of workers necessary to complete the project on time. You will note that at no time were the required number of men available up to June 30, 1943. You will also note that on and after August 18 after the 48-hour workweek was made compulsory that the number of men gradually increased. This bid was based on a 40-hour workweek. The contractors were constantly in touch with the War Manpower Commission who repeatedly advised them that there were no other men available and local business agents did everything in their power to secure additional help but were unable to get men into Canton to work 40 hours per week, especially when a higher scale was being maintained in Akron and Cleveland and other cities. Through the able assistance of the business agents some additional help was secured to work only on Saturdays. In compliance with a letter dated May 26, 1943 from Robert M. Webb, project engineer, a schedule of anticipated manpower requirements was furnished. The file indicates that at no time were the contractors able to secure the anticipated requirements and before the 48-hour workweek order became effective on August 9, 1943, contractors were able only to secure approximately 30 percent of the required labor needed. In compliance with a letter from Mr. Webb, the project engineer, dated May 8, 1943, said contractors furnished weekly reports showing the numerous causes of delays, said reports extending from the week of June 2, 1943, to the week ending July 21, 1943. The file discloses many letters to the project engineer regarding the labor situation indicating that the engineer was kept constantly informed of these conditions. The project was held up by a strike of common laborers on March 29, 30, 31, and April 1, which closed down the entire project without any fault on the part of the contractors. Another delay which was beyond the control of the contractors was the unusual and severe weather conditions encountered immediately after the proceed order was received for this project. Attached hereto marked "Exhibit B" and made a part hereof is a monthly weather report summary for March, April, May, and up to June 15, 1943. These reports disclose that through April and May there were 54 days of rain. It is true that all of this rain did not occur during working hours by the site was made so muddy that it was impossible to get but a small amount of material to the project. The file further indicates that the work was delayed by a disagreement between the Housing Authority and the city of Canton regarding the water mains. This disagreement was not settled until May 12, 1943. Ther ewas a further delay while the city of Canton refused a permit for the installation of sewers which was caused by the Housing Authority not having contracted with the city for sewer connections. This dispute was not settled until April 13 which caused delay in installation of gas service and other urgent work. The file further discloses that the proceed order for the construction of the community building was not received until June 26, 1943, necessitating reordering of materials, causing an estimated delay from 60 to 90 days. Further delay on the project was caused by the receipt of various material, especially refrigerators which were shipped to said project ahead of requested schedule, necessitating contractors' making arrangements for storage. The file further indicates that on April 6 the wage schedule for journeymen electricians was still unsettled and the electricians' union refused to permit any electricians to work on said project until an authorization to pay $1.50 per hour was received. This dispute delayed the project approxiately 40 days. The file indicates that the FPHA was constantly informed of the many and various delays and the causes therefor and many requests for an extension of time were submitted for consideration. The file further indicates that there were 41 change orders on this project which unquestionably caused considerable delay. Bid documents disclose that the bid form submitted by The George H. Whike Construction Co. contains the following: "This bid is based on 40-hour week. If it becomes necessary to work more than 40 hours, by Executive order, we are to be reimbursed for the extra cost of such overtime, plus taxes and insurance." It is also admitted that article 22, paragraph V, item 6, page 25 of the contract states: "This contract is subject to Executive Order 9301, establishing a minimum war time workweek of 48 hours, and to the regulations and directives, if any, issued under said Executive order by the War Manpower Commission or by the Chairman thereof." It is the contention of the contractors that this latter paragraph in respect to the 48-hour week has always been in dispute since the inception of the contract. The original bid was made and based on the 40-hour workweek, said bid being for $598,240. The next lowest bid was from Handlock Krill Co. in the amount of $634,000 and the next lowest bid was the Gibbons-Grable Co. in the amount of $640,000. The Whike Construction Co. was $35,760 lower than the next nearest bidder. The correspondence and evidence which can be submitted indicates conclusively that it was definitely understood by said contractors that in the event they were ordered to work more than 40 hours per week they would be reimbursed for the extra cost of such overtime, plus taxes and insurance. I beg to refer you to proceed order G-4 dated March 18, 1943 which has attached thereto change items in bidding documents under the heading of "General materials and specifications." I further beg to refer you to the second paragraph of said restrictions to bidders which contains the same clause under article 22, paragraph 5, item 6, page 25 of the contract. I further beg to refer you to change orders under date of January 4, 1944 and its paragraph B under said order which reads as follows: "Changes as indicated in item 2 under the heading "General materials and specifications and listed as item B in proceed order G-4, is not a part of this change order. The sentence to be omitted is as follows: "This contract is subject to Executive Order 9301, establishing a minimum wartime workweek of 48 hours, and to the regulations and directives, if any, issued under such Executive order by the War Manpower Commission or the Chairman thereof.'" This, in our opinion, eliminates the very section in dispute under the contract. We welcome the opportunity of discussing this matter with you at any time and sincerely hope that you will give our claim your earliest consideration, Respectfully submitted. BURT, CARSON, SHADRACH & MILLER. O CLAIMS OF CERTAIN OFFICERS AND EMPLOYEES OF THE FOREIGN SERVICE MAY 2, 1949.-Committed to the Committee of the Whole House and ordered to be printed. Mr. RICHARDS, from the Committee on Foreign Affairs, submitted the following REPORT To accompany H. R. 4106] The Committee on Foreign Affairs, to whom was referred the bill (H. R. 4106) for the relief of certain officers and employees of the Foreign Service of the United States who, while in the course of their respective duties, suffered losses of personal property by reason of war conditions, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. Purpose of the bill.-The present bill seeks authorization and appropriation of $161,007.18 to reimburse 62 individuals for personalproperty losses incidental to duty abroad as officers and employees of the United States Government and resulting from war conditions beyond their personal control. Origin of the claims.-All of the individuals were identified with activities of the Department of State or of agencies subsequently absorbed into the Department of State. Forty-six of these claims, totaling $114,872.78, were placed before the Congress by the Department of State on May 18, 1948, but no action was taken during the Eightieth Congress because of the pressure of other legislation. To these 46 have been joined 16 new cases, totaling $46,134.40. The claims fall into two general groups: (a) Those resulting from bombings, lootings or confiscation of property by enemy military or civil authorities; (b) those resulting from damage or pilferage while in transit. Review by the Department.-Before being laid before the Congress, the claims involved in this bill were reviewed by a board of the Department of State, consisting of the Assistant Secretary of State for Administration, the Legal Adviser, and the Chief of the Division of Foreign Service Administration. These board members assumed responsibility for the claims as reported to the Secretary of State for transmittal to the Congress; detailed work in the handling of par ticular claims, however, was performed by delegates of the above officers. In the course of review the claims were scaled down from the original figure of $247,371.82. Details on individual cases.-The circumstances of the claims here considered, as given in a memorandum of the review board, and the board's action in each case, are as follows: Claim of Charles Franklin Hawley, Foreign Service officer, unclassified Claimed... Approved... $5, 499. 80 1, 631. 56 3. 863. 24 Claimant was assigned to the American Foreign Service office at Hankow, China. He suffered a loss when his household effects were destroyed in an air raid subsequent to his evacuation from China in June 1942. When he was evacuated under exchange agreement, he was permitted to take with him only articles of personal clothing, silverware, and linens. Reductions on items believed to be excessive in value and eliminations of items considered inappropriate for reimbursement have been made Claimed.. Claim of Clarence J. Spiker, Foreign Service officer, class S Approved---- $19, 215. 67 6, 315. 75 12, 899. 92 On June 4, 1942, when claimant left Hankow, China, his post of assignment, under escort of Japanese officials, he was forced to leave behind his household and personal property. After his departure these were stored at the British consulate general, where they were destroyed by enemy action. Notice of the destruction was given by the Swiss representatives on May 3, 1945. In line with the rules of the claim board, reductions in items with values believed to be excessive have been made, and items inappropriate for reimbursement have been eliminated. Claimed. Claim of Edward E. Rice, Foreign Service officer, class 6 Approved.... $3,070. 20 467. 00 2, 603. 20 In January 1942, when the American consulate at Foochow was closed by claimant because of war, he withdrew to Nanking, later moving to Amoy and on to Chungking. Because of travel conditions and high cost of transportation then existing, and because he did not have a settled abode in which he could have stored or used his effects, it was necessary to store them at Foochow. When Foochow was occupied by the Japanese in October 1944 his property was looted and removed. Reductions in items with values believed to be excessive have been made. Claim of J. Hall Paxton, Foreign Service officer, class 7 $862.55 862.55 Claimed. Approved.... Claimant was assigned to the American Embassy at Nanking, China. He was interned shortly after Pearl Harbor. During his internment his household and personal effects were pillaged by Japanese guards at the Embassy, where his property was stored during the war. Claim of Richard P. Butrick, Foreign Service officer, class 1 Claimed Approved. $1, 269. 30 405. 30 854.00 When Claimant was assigned to the American Embassy at Peiping, China. he was returned to the United States in August 1942, by diplomatic exchange, |