FLANNERY, District Judge.
Use plaintiff Otis, a subcontractor involved in the construction of the Hirshorn Museum and Sculpture Garden in Washington, D.C., is suing the project's prime contractor, Piracci, for breach of contract and Piracci's surety, Aetna, for increased expenses resulting from delays in the completion of the project. The cause of action against Aetna is based on the Miller Act, 40 U.S.C. §§ 270a-270d. Now before the Court are cross-motions for partial summary judgment on the question of the surety's liability under the Miller Act for increased costs of performance resulting from delay. There being no material facts in issue, it is the opinion of the court that plaintiff is entitled to partial summary judgment.
The contract entered into by Otis and Piracci obligated Otis to perform its duties during a specific time period, provided that Piracci had adequately prepared the work site. Piracci was unable to prepare the site according to schedule due to a dispute with the General Services Administration. Administrative proceedings subsequently established that GSA was at fault, and, for purposes of these motions, it is agreed that Otis in no way contributed to the delay.
Otis alleges that during the period of delay, which extended over 19 months, costs for labor and material increased and material already purchased was placed in storage. Thus, although Otis has received the full contract price, it feels entitled to additional compensation for the costs resulting from the delay. The total recovery sought is $14,330.91. This sum includes increased costs for labor and material, storage charges, indirect administrative costs
and a reasonable profit.
Since Otis claims this amount in addition to the full contract price, it also seeks to preserve the profit, if any, it would have made on the job, but for the delay.
The principal legal issue presented by these motions is whether a surety under the Miller Act remains liable for the out of pocket expenses of a subcontractor who received payment of the original contract price, but who incurred additional expenses resulting from delays caused by a third party. The identical issue was recently decided by Judge Gerhard Gesell in United States for the Use of Mariana v. PiracciConst. Corp., 405 F. Supp. 904 (D.D.C. Order of September 12, 1975) (Civ. No. 75-342). Mariana involved another subcontractor on the Hirshorn project, whose legal position was precisely the same as that of the use plaintiff in the instant case. Judge Gesell held Aetna, the surety, liable for increased expenses incurred by Mariana because of the delay in the project's completion.
Holding a Miller Act surety liable for all of a subcontractor's out of pocket expenses appears sound. The result is consistent with the language of the Act, which provides, "Every person who has furnished labor or material in the prosecution of the work provided for in [a contract covered by this Act], in respect of which a payment bond is furnished . . . and who has not been paid in full therefor . . . shall have the right to sue on such bond for the amount . . . ." 40 U.S.C. § 270b (1970). Further, such recovery promotes the underlying purpose of the Act, which is to substitute a surety for the mechanic's lien available to protect subcontractors in non-government construction projects. See F. D. Rich Co. v. United States for Use of Industrial Lumber Co., Inc., 417 U.S. 116, 121-22, 94 S. Ct. 2157, 40 L. Ed. 2d 703 (1974). There is also a strong public interest in the prompt completion of public construction projects.
The key to recovery under the Miller Act is not the theory upon which liability is predicated, but the actual investment by a subcontractor of time and materials in a federal project. See United States for the Use and Benefit of Moran Towing Corp. v. Hartford Accident & Indemnity Co., 204 F. Supp. 353, 356 (D.R.I. 1962). As stated by the court in Mariana,
[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. . . . 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 indispensable to satisfactory contractual performance.