Act. Moreover, there is a public interest in the smooth completion of these Government projects which is promoted by reducing the possibility that delay will frustrate the governmental objective due to disputes between the prime and its subs.
Moreover, the Miller Act, like the mechanic's lien for which it substitutes, is premised on "the equity in favor of those whose actual expenditure of work or utilization of material has enhanced the value of the property in question," Arthur N. Olive Co. v. United States ex rel. Marino, 297 F.2d 70, 72 (1st Cir. 1961). "The essential principle upon which the mechanic's lien rests is that of unjust enrichment," In re Taylorcraft Aviation Corp., 168 F.2d 808, 811 (6th Cir. 1948), overruled on other grounds, In re Kurtz Roofing Co., 335 F.2d 311 (6th Cir. 1964), aff'd sub nom. United States v. Speers, 382 U.S. 266, 86 S. Ct. 411, 15 L. Ed. 2d 314 (1965). Applying equitable considerations, the Court finds that the expense of such beneficial and productive efforts be measured as of the time the work was actually performed. This accords with decisions under the Miller Act involving restitution or quantum meruit, in which it has been held that "the standard for measuring the reasonable value of the services rendered is the amount for which such services could have been purchased from one in the plaintiff's position at the time and place the services were rendered." United States for Use of Building Rentals Corp. v. Western Casualty and Surety Co., 498 F.2d 335, 338 (9th Cir. 1974) (emphasis added), quoting United States for Use of Coastal Steel Erectors, Inc. v. Algernon Blair, Inc., 479 F.2d 638, 641 (4th Cir. 1973).
In the Court's view, the proper test under the Miller Act is whether the claim for relief is based on actual expenditures for labor or materials utilized in the performance of the subcontract. See United States for Use and Benefit of Moran Towing Corp. v. Hartford Accident & Indemnity Co., 204 F. Supp. 353, 356 (D.R.I.1962). Use plaintiff's cause of action is not defeated by such technical exercises as analyzing whether the claim arose within or without the contract or by determining if the added costs were indispensible to satisfactory contractual performance.
Defendant Aetna relies primarily on Arthur N. Olive Co. v. United States ex rel. Marino, supra, 297 F.2d 70; L. P. Friestedt Co. v. U. S. Fireproofing Co., 125 F.2d 1010 (10th Cir. 1942); and United States to Use of Watsabaugh & Co. v. Seaboard Surety Co., 26 F. Supp. 681 (D.Mont.1938), aff'd on other issue, 106 F.2d 355 (9th Cir. 1939).
However, these cases are of no avail to defendant. Unlike the instant litigation, they dealt with attempts by subcontractors to recover from Miller Act sureties "unrealized gain or profit for breach" of contract, Arthur N. Olive Co., supra, 297 F.2d at 72. Here, use plaintiff performed and completed its contractual obligation, and no claim is made for lost profits; rather, compensation is sought only for actual out-of-pocket expenses.
For the foregoing reasons, the Court holds that under the Miller Act a subcontractor may recover from the prime contractor's surety for delay costs for labor or materials furnished and used in the prosecution of the contracted work, where the subcontractor did not cause or contribute to the delay. Accordingly, defendant Aetna's motion for partial summary judgment is denied.