S.O.G.-S an Ore-Gardner v. Missouri Pacific Railroad Co‪.‬

S.O.G.-San Ore-Gardner (S.O.G.) entered into a contract on November 5, 1968, with the Missouri Pacific Railroad Company (Railroad) for the alteration of the Benzal Bridge over the White River, which is located near Benzal, Arkansas and is owned by the Railroad. The change was necessitated by the Arkansas River Project of the United States Army Corps of Engineers and the United States Coast Guard and included replacing the central pier and swing span with two new piers and a lift span. The contract provided for performance in three stages: Stage I (Substructure) Construction; Stage II (Change-out or Changeover) Construction; and Stage III (Superstructure) Construction. The contract contained, inter alia, a provision for liquidated damages of $600 per day if performance of the contract was not completed within the time period specified. The Railroad had also entered into a separate contract with the government on June 19, 1967, which obligated the United States to reimburse ""all reasonable and legitimate costs"" incurred by the Railroad in arranging and altering the bridge. This suit arises out of alleged damages incurred by both parties from the delay in completion of the project. Difficulties and delays arose throughout the performance of the contract. The term for completion of the contract was originally set at 660 days, but it was later amended to 1122 days, which set the completion date at March 5, 1972. S.O.G. actually completed work on July 18, 1974, and the Railroad claimed approximately one-half million dollars in liquidated damages. S.O.G. filed a complaint against the Railroad, and later filed an amended and substituted complaint seeking damages for increased costs resulting from a funding delay;1 S.O.G. also sought damages for an alleged material breach of the contract by the Railroad in failing to disclose the imposition by the Coast Guard of a seasonal restriction on the changeover phase. In addition, S.O.G. claimed additional damages resulting from a delay allegedly caused by the Railroad's failure to timely apprise the government of S.O.G.'s float-in and erection plans. Finally, S.O.G. made claim for certain monies retained by the Railroad as liquidated damages. The district court held that, although the Railroad and the government were partially at fault in causing many of the delays, S.O.G. was not entitled to any increased costs. The court also held the liquidated damages clause unenforceable as there was no ""realistic consideration given to the elements of damage ... at the time the contract was executed."" San Ore-Gardner v. Missouri Pac. R.R., 496 F. Supp. 1337, 1349 (E.D.Ark.1980). S.O.G. appeals that portion of the judgment denying it damages from the delay caused by the difficulties in obtaining the changeover permit and the delay surrounding the float-in.