B-143960, JUL. 25, 1961

B-143960, JUL. 25, 1961

TO HUMPHREY, TIEDERMAN AND HILGENDORF:

WE HAVE YOUR LETTER OF JUNE 30, 1961, REQUESTING RECONSIDERATION ON BEHALF OF INTERSTATE GENERAL CONTRACTORS, INC., OF A CLAIM IN THE AMOUNT OF $10,021.97 DENIED BY OUR SETTLEMENT OF AUGUST 31, 1960, AND OUR DECISION OF DECEMBER 13, 1960.

THE CLAIMANT, INTERSTATE GENERAL CONTRACTORS, INC., WAS AWARDED CONTRACT NO. FA1-100 ON JANUARY 6, 1959, BY THE FEDERAL AVIATION AGENCY FOR THE CONSTRUCTION OF AN INSTRUMENT LANDING SYSTEM AT THE NATIONAL AVIATION FACILITIES EXPERIMENTAL CENTER, ATLANTIC CITY, NEW JERSEY. THE COMPLETION OF THE WORK IS ALLEGED TO HAVE BEEN DELAYED BECAUSE OF DELAYS BY THE GOVERNMENT IN FURNISHING CERTAIN MATERIALS AND EQUIPMENT IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CLAIM ARISES OUT OF ALLEGED COSTS INCURRED AS A RESULT OF THE GOVERNMENT'S DELAY.

UPON COMPLETION OF THE CONTRACT A CLAIM BECAUSE OF THE SAID DELAYS WAS DENIED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE TERMS OF THE CONTRACT LIMITED ADJUSTMENTS ON ACCOUNT OF DELAYS CAUSED BY THE GOVERNMENT TO TIME EXTENSIONS FOR COMPLETION. THIS POSITION WAS SUSTAINED ON APPEAL BY THE ACTING ADMINISTRATOR OF THE FEDERAL AVIATION AGENCY IN A DECISION OF FEBRUARY 5, 1960.

THE CLAIM WAS SUBMITTED HERE AND AS INDICATED ABOVE HAS BEEN TWICE CONSIDERED AND DENIED. IN B-143968, DECEMBER 13, 1960 (40 COMP. GEN. 361), IN CONCURRING WITH THE POSITION TAKEN BY THE CONTRACTING OFFICER AND THE ACTING ADMINISTRATOR WE HELD THAT UNDER CLAUSE 32 (B) OF THE ADDITIONAL GENERAL PROVISIONS THE CONTRACTOR'S REMEDY FOR GOVERNMENT CAUSED DELAYS WAS LIMITED TO EXTENSIONS IN THE TIME OF PERFORMANCE, WHICH EXTENSION WAS GRANTED BY THE CONTRACTING OFFICER. IN OUR DECISION WE CITED IN SUPPORT OF OUR POSITION WELLS BROTHERS CO. V. UNITED STATES, 254 U.S. 83; WOOD V. UNITED STATES, 258 U.S. 120; AND SEVERAL LOWER COURT AND STATE COURT OPINIONS.

IN YOUR LETTER OF JUNE 30, 1961, YOU DISTINGUISH THE COURT OPINIONS CITED ON THE BASIS OF THE FACTS. YOU POINT OUT FURTHER THAT THE CONTRACTOR, PURSUANT TO THE TERMS OF THE CONTRACT, REQUESTED AN ORDER TO SUSPEND WORK SO THAT THE MEN AND EQUIPMENT COULD BE UTILIZED ON OTHER JOBS. YOU STATE THAT THE CONTRACTING OFFICER REFUSED TO ISSUE SUCH ORDER, THUS CAUSING THE LOSS WHICH THE CLAIM REPRESENTS.

THE CONTRACT CONTAINS AS CLAUSE 39 (D) OF THE ADDITIONAL GENERAL PROVISIONS THE FOLLOWING CLAUSE RELATING TO THE ORDERING OF SUSPENSION OF WORK:

"/D) SUSPENSION OF WORK: THE GOVERNMENT SPECIFICALLY RESERVES THE RIGHT TO SUSPEND THE WORK WHOLLY OR IN PART BY WRITTEN OR TELEGRAPHIC STOP ORDER FOR SUCH PERIOD AS IS NECESSARY FOR THE PROTECTION OF THE GOVERNMENT'S INTEREST. SUCH STOP ORDERS SHALL REMAIN IN EFFECT UNTIL RELEASED IN WRITING OR BY TELEGRAM. THE GOVERNMENT SHALL NOT ASSUME ANY LIABILITY FOR DAMAGES OR LOSS OF ANTICIPATED PROFITS FROM SUCH STOPPAGE OF WORK. THE RIGHT OF THE CONTRACTOR TO AN EXTENSION OF TIME BECAUSE OF THE STOP ORDER SHALL BE DETERMINED IN ACCORDANCE WITH ARTICLE 5 OF STANDARD FORM 23A OF THE CONTRACT, ENTITLED "TERMINATION FOR DEFAULT - DAMAGES FOR DELAY - TIME EXTENSIONS" .'

IT WILL BE NOTED THAT UNDER THE CLAUSE THE GOVERNMENT HAS THE RIGHT RATHER THAN THE DUTY TO ISSUE STOP ORDERS AND THAT EVEN IF ISSUED THE TERMS OF THE CLAUSE EXPRESSLY PROVIDE THAT THE GOVERNMENT SHALL NOT ASSUME ANY LIABILITY FOR DAMAGES BECAUSE OF THE WORK STOPPAGE.

IN YOUR LETTER YOU NOTE FURTHER THAT THE FEDERAL AVIATION AGENCY HAS IN LATER CONTRACTS MODIFIED THE TERMS OF 32 (B) TO AUTHORIZE A PRICE ADJUSTMENT IN CASES SUCH AS THIS WHERE THE PERFORMANCE BY THE CONTRACTOR IS DELAYED BY ACTS OF THE GOVERNMENT'S AGENTS. YOU STATE THAT CONSIDERATION SHOULD BE GIVEN TO THE FACT THAT THE AGENCY EVIDENTLY REGARDS THE CONTRACT PROVISION APPLICABLE TO THIS CASE AS TOO HARSH AND SUCH FACT SHOULD BE CONSIDERED IN DISPOSING OF THE CLAIM. CLAIMS PRESENTED TO OUR OFFICE MUST BE DECIDED SOLELY ON A LEGAL BASIS. WE ARE WITHOUT AUTHORITY TO DECIDE CLAIMS BY OR AGAINST THE UNITED STATES ON THE BASIS OF EQUITABLE OR MORAL CONSIDERATIONS. B-144275, NOVEMBER 3, 1960; B -133613, FEBRUARY 3, 1959; AND B-125863, SEPTEMBER 5, 1958. THE FACT THAT FAA FOUND IT NECESSARY TO CHANGE THE PROVISIONS OF THE CONTRACT IN ORDER TO PERMIT PAYMENT IN THIS KIND OF SITUATION SUPPORTS THE POSITION THAT NO PAYMENT IS PERMISSIBLE UNDER THE LANGUAGE OF THE INSTANT CONTRACT.

NO BASIS HAS BEEN PRESENTED WHICH WOULD JUSTIFY PAYMENT OF THE CLAIM UNDER A PROVISION OF THE CONTRACT. AS WE STATED IN OUR DECISION OF DECEMBER 13, 1960, PAYMENT CAN BE JUSTIFIED ONLY ON THE BASIS THAT THE GOVERNMENT IN FAILING TO PROVIDE THE MATERIAL AND EQUIPMENT ON SCHEDULE BREACHED THE CONTRACT, SUBJECTING ITSELF TO CLAIMS FOR DAMAGES. WE WERE ADVISED BY LETTER RECEIVED AUGUST 24, 1960, FROM THE FEDERAL AVIATION AGENCY THAT THERE HAS BEEN NO AGREEMENT AS TO THE AMOUNT OF ADDITIONAL EXPENSE INCURRED BY YOU BECAUSE OF THE GOVERNMENT'S TARDINESS IN PERFORMANCE. THUS THE CLAIM IS AN UNLIQUIDATED ONE FOR DAMAGES ARISING OUT OF A BREACH OF CONTRACT. OUR OFFICE HAS FIRMLY ESTABLISHED THE POSITION THAT CLAIMS OF THIS TYPE WILL NOT BE CONSIDERED BY US BECAUSE OF OUR LACK OF FACILITIES FOR TAKING TESTIMONY, CROSS-EXAMINING WITNESSES, AND WEIGHING CONFLICTING EVIDENCE NECESSARY IN DECIDING SUCH CLAIMS. SEE 21 COMP. DEC. 134. SEE ALSO B-91378; JULY 19, 1960; B-129403, MARCH 21, 1958. THEREFORE, IN OUR VIEW, THE DENIAL OF THE CLAIM MUST BE SUSTAINED BY US AND THE CLAIMANT LEFT TO SUCH REMEDY AS HE MAY HAVE IN THE COURTS.