B-150093, DEC. 4, 1963

B-150093, DEC. 4, 1963

TO MCLINN CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1963, SUBMITTING CLAIM AGAINST THE GOVERNMENT FOR $4,081.35 UNDER CONTRACT NO. 14-10 0434-869, DATED MARCH 12, 1962, WITH THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR.

UNDER THE TERMS OF THE CONTRACT, YOU WERE CALLED UPON TO CONSTRUCT A VISITOR CENTER, A RESIDENCE AND A UTILITY BUILDING AT FORT CLATSOP NATIONAL MEMORIAL, ASTORIA, OREGON, AT A TOTAL COST OF $103,281. WORK WAS TO START WITHIN 15 DAYS AFTER THE DATE STIPULATED IN THE NOTICE TO PROCEED, AND TO BE COMPLETED WITHIN 200 DAYS AFTER SUCH STIPULATED DATE. THE CONTRACT DID NOT FIX A SCHEDULE OF WORK; HOWEVER, BY ITS TERMS YOU WERE REQUIRED TO SUBMIT TO THE CONTRACTING OFFICER A SCHEDULE OF YOUR PROPOSED OPERATION AND PROGRESS, SHOWING YOUR ESTIMATED STARTING AND COMPLETION DATES FOR EACH ELEMENT OF THE WORK.

THE CONTRACT INCORPORATED STANDARD FORM 23-A, GENERAL PROVISIONS (CONSTRUCTION CONTRACT), CLAUSES 3 AND 4 OF WHICH PROVIDE, IN PERTINENT PART, AS FOLLOWS:

"3. CHANGES

THE CONTRACTING OFFICER MAY, AT ANY TIME, BY WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND/OR SPECIFICATIONS OF THIS CONTRACT IF WITHIN ITS GENERAL SCOPE. IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE CONTRACTOR'S COST OF, OR TIME REQUIRED FOR, PERFORMANCE OF THE CONTRACT, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT MODIFIED IN WRITING ACCORDINGLY * * *.

"4. CHANGED CONDITIONS

THE CONTRACTOR SHALL PROMPTLY, AND BEFORE SUCH CONDITIONS ARE DISTURBED, NOTIFY THE CONTRACTING OFFICER IN WRITING OF: (A) SUBSURFACE OR LATENT PHYSICAL CONDITIONS AT THE SITE DIFFERING MATERIALLY FROM THOSE INDICATED IN THIS CONTRACT, OR (B) UNKNOWN PHYSICAL CONDITIONS AT THE SITE, OF AN UNUSUAL NATURE, DIFFERING MATERIALLY FROM THOSE ORDINARILY ENCOUNTERED AND GENERALLY RECOGNIZED AS INHERING IN WORK OF THE CHARACTER PROVIDED FOR IN THIS CONTRACT. THE CONTRACTING OFFICER SHALL PROMPTLY INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT SUCH CONDITIONS DO SO MATERIALLY DIFFER AND CAUSE AN INCREASE OR DECREASE IN THE CONTRACTOR'S COST OF, OR THE TIME REQUIRED FOR, PERFORMANCE OF THIS CONTRACT, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT MODIFIED IN WRITING ACCORDINGLY * * *.'

ALSO INCLUDED IN THE CONTRACT WAS THE FOLLOWING PROVISION:

"42. TEMPORARY SUSPENSION OF WORK: THE CONTRACTING OFFICER SHALL HAVE THE RIGHT TO SUSPEND THE WORK, WHOLLY OR IN PART, FOR SUCH PERIOD AS HE MAY DEEM IN THE BEST INTEREST OF THE GOVERNMENT BECAUSE OF CONDITIONS WHICH ARE CONSIDERED UNFAVORABLE TO THE SUITABLE PROSECUTION OF THE WORK, OR FOR FAILURE BY THE CONTRACTOR TO EXECUTE ORDERS OR TO PERFORM ANY PROVISION OF THE CONTRACT.

"BECAUSE OF THE CLIMATIC CONDITIONS EXISTING IN SOME OF THE NATIONAL PARK SERVICE AREAS IN WHICH CONSTRUCTION WORK IS REQUIRED TO BE PERFORMED IT IS THE PRACTICE OF THE NATIONAL PARK SERVICE TO ISSUE TEMPORARY SUSPENSION ORDERS FOR THOSE PERIODS OF TIME WHEN, IN THE OPINION OF THE CONTRACTING OFFICER, CONTINUATION OF THE CONTRACTOR'S ACTIVITIES WOULD NOT PRODUCE BENEFICIAL RESULTS FOR THE GOVERNMENT AND WOULD RESULT IN AN UNDUE HARDSHIP UPON THE CONTRACTOR, AND IN SUCH CASES AN ADJUSTMENT IS MADE IN CONTRACT TIME TO CORRESPOND WITH THE APPROVED PERIOD OF TEMPORARY SUSPENSION, WITHOUT CHANGE IN CONTRACT PRICE AND WITHOUT THE APPLICATION OF LIQUIDATED DAMAGES.

"THE CONTRACTOR SHALL NOT SUSPEND WORK WITHOUT SUCH WRITTEN AUTHORITY AND SHALL IMMEDIATELY RESUME WORK WHEN CONDITIONS ARE FAVORABLE OR WHEN DEFICIENCIES HAVE BEEN CORRECTED TO THE SATISFACTION OF THE CONTRACTING OFFICER.'

THE FILE FURNISHED TO US IN THIS MATTER BY MR. C. E. PERSONS, AUTHORIZED CERTIFYING OFFICER FOR THE DEPARTMENT OF INTERIOR, NATIONAL PARK SERVICE, TO WHOM WE RENDERED A DECISION, B-150093, DATED NOVEMBER 19, 1962, HOLDING THAT A VOUCHER WHICH HAD BEEN PRESENTED TO HIM PROPOSING PAYMENT TO YOU OF THE AMOUNT NOW CLAIMED SHOULD NOT BE CERTIFIED FOR PAYMENT, SHOWED THAT YOU RECEIVED NOTICE TO PROCEED ON APRIL 2, 1962, FIXING THE DATE FOR COMPLETION OF THE WORK AS OCTOBER 16, 1962; AND THAT YOUR PROPOSED PROGRESS SCHEDULE CALLED FOR COMPLETION OF THE FOUNDATIONS FOR THE VISITOR CENTER BY MAY 15, THE RESIDENCE BY JUNE 1, AND THE UTILITY BUILDING BY JUNE 15.

ON APRIL 13, 1962, THE CONTRACTING OFFICER DIRECTED YOU TO SUSPEND ALL WORK ON THE VISITOR CENTER WHILE CONSIDERATION WAS GIVEN TO REVISION OF DRAWINGS AND SPECIFICATIONS TO PROVIDE FOR A BASEMENT FALLOUT SHELTER IN THE BUILDING. ON MAY 17, 1962, YOU WERE DIRECTED TO RESUME OPERATIONS ON THE VISITOR CENTER IN ACCORDANCE WITH THE ORIGINAL SPECIFICATIONS, AND THE TIME SET FOR COMPLETION OF THE WORK UNDER THE CONTRACT WAS EXTENDED FOR 33 DAYS, TO NOVEMBER 18. ANOTHER STOP ORDER WAS ISSUED ON MAY 21, 1962, FOR THE VISITOR CENTER IN ORDER TO ALLOW THE REMOVAL OF UTILITY LINES WHICH HAD BEEN DISCOVERED UNDER THE SITE OF THAT BUILDING. WORK WAS ORDERED RESUMED ON THE VISITOR CENTER ON MAY 29, 1962, AND THE CONTRACT TIME WAS EXTENDED FOR AN ADDITIONAL 7 DAYS.

IT FURTHER APPEARED FROM THE FILE THAT, AS A RESULT OF THE STOP ORDER ON THE VISITOR CENTER, YOU DECIDED, APPARENTLY ON YOUR OWN INITIATIVE, BUT WITH THE AGREEMENT OR ACQUIESCENCE OF THE CONTRACTING OFFICER, TO PROCEED WITH THE RESIDENCE AND UTILITY BUILDINGS, AND COMPLETED THE FOUNDATIONS THEREFOR 33 AND 24 DAYS, RESPECTIVELY, AHEAD OF THE DATES ORIGINALLY SCHEDULED. BY LETTER OF MAY 30, 1962, YOU REQUESTED AN EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE TO COVER ALLEGED INCREASED COSTS RESULTING FROM THE DELAYS OCCASIONED BY THE STOP ORDERS AND FROM WET GROUND CONDITIONS ENCOUNTERED IN DIGGING THE FOUNDATIONS FOR THE RESIDENCE AND UTILITY BUILDINGS. THE CONTRACTING OFFICER ISSUED A CHANGE ORDER ON JULY 17, 1962 (CHANGE ORDER NO. 4), ACCEPTED BY YOU, WHICH STATES IN PERTINENT PART AS FOLLOWS:

"IN ACCORDANCE WITH THE PROVISIONS OF ARTICLES 3 AND 4 OF YOUR CONTRACT NO. 14-10-0434-869, DATED MARCH 12, 1962, YOU ARE HEREBY DIRECTED TO PERFORM THE FOLLOWING EXTRA WORK:

"SCHEDULE A--- VISITOR CENTER

"1. REVERSE THE ORDER OF PROPOSED WORK PERFORMANCE AND COMMENCE CONTRACT WORK ON THE RESIDENCE AND UTILITY BUILDING PENDING DECISION AS TO CONSTRUCTION OF A FALL-OUT SHELTER IN BASEMENT OF VISITOR CENTER BUILDING AND PENDING RELOCATION BY OTHERS OF WATER, POWER AND TELEPHONE LINES WHICH HAVE BEEN UNCOVERED BY YOU IN EXCAVATING FOR THE VISITOR CENTER FOUNDATION FOOTINGS. IT IS RECOGNIZED THAT WET GROUND CONDITIONS WILL REQUIRE USE OF TRACK TYPE EQUIPMENT AND THAT SPECIAL PROVISIONS WILL HAVE TO BE MADE TO PROTECT EXCAVATED AREAS AND TO MOVE MATERIALS TO WORK SITES.

"YOU WILL BE COMPENSATED IN THE AMOUNT OF $4,081.35 FOR THE WORK INVOLVED.'

THE CONTRACTING OFFICER APPROVED A "FINDING OF FACT," DATED AUGUST 1, 1962, WHICH STATES IN REFERENCE TO THE SUBJECT AMOUNT OF $4,081.35, THAT "THIS CLAIM IS A CONSEQUENCE OF A DELAY CAUSED BY THE GOVERNMENT AND BECAUSE OF THE DISCOVERY OF UNDERGROUND UTILITY LINES PREVIOUSLY UNKNOWN.

IN OUR DECISION OF NOVEMBER 19, 1962, WE ADVISED MR. PERSONS, IN SUBSTANCE, THAT SINCE THE FACTS DISCLOSED BY THE FILE (INSOFAR AS THE FIRST STOP ORDER WAS CONCERNED) INDICATED THAT THE CONTRACTING OFFICER HAD DONE NOTHING MORE THAN DIRECT A SUSPENSION OF WORK WHILE CONSIDERATION WAS GIVEN TO WHETHER THE SPECIFICATIONS FOR THE VISITOR CENTER WOULD BE REVISED TO PROVIDE FOR A BASEMENT FALLOUT SHELTER--- WHICH SUSPENSION WOULD NOT CONSTITUTE A "CHANGE" WITHIN THE MEANING OF CLAUSE 3 OF STANDARD FORM 23-A, ABOVE--- THE CONTRACTING OFFICER APPEARED TO HAVE BEEN WITHOUT ANY AUTHORITY TO ALLOW YOUR CLAIM FOR THE INCREASED COSTS STATED TO HAVE RESULTED FROM THE DELAY INVOLVED. MOREOVER, WE HELD IN THE DECISION TO MR. PERSONS THAT, WHILE THE UNCOVERED UTILITY LINES COULD CLEARLY CONSTITUTE A "CHANGED CONDITION" WITHIN THE MEANING OF CLAUSE 4 OF STANDARD FORM 23-A, ABOVE, A CONTRACTOR IS ONLY ENTITLED TO RECOVER THE COST OF PERFORMING THE WORK NECESSARY TO OVERCOME THE CONDITION ITSELF, AND FOR WORK REQUIRED BY CHANGES IN SPECIFICATIONS MADE TO OVERCOME THE CONDITION. DELAY COST AND INCREASED COST OF PERFORMING UNCHANGED WORK ARISING AS A CONSEQUENCE OF THE CONDITION ARE NOT COMPENSABLE UNDER CLAUSE 4. SEE UNITED STATES V. RICE (1942), 317 U.S. 61, 65. THAT CASE INVOLVED A CONTRACT FOR THE INSTALLATION OF PLUMBING, HEATING AND ELECTRICAL EQUIPMENT IN A VETERANS' HOME, AND THE SUPREME COURT WAS CALLED UPON TO DECIDE WHETHER THE RESPONDENT WAS ENTITLED TO RECOVER OVERHEAD EXPENSES AND CERTAIN OTHER EXPENSES INCURRED BY THE CONTRACTOR AS A RESULT OF THE GOVERNMENT'S SUSPENSION OF WORK UNDER THE CONTRACT, RESULTING FROM THE FACT THAT THE SITE OF THE VETERANS' HOME (THE CONSTRUCTION OF WHICH WAS PROVIDED FOR UNDER ANOTHER CONTRACT) HAD TO BE CHANGED--- NECESSITATING OTHER CHANGES IN THE SPECIFICATIONS--- BECAUSE OF THE UNEXPECTED DISCOVERY OF SOIL UNSUITABLE FOR FOUNDATION PURPOSES AT THE ORIGINAL SITE SELECTED FOR THE WORK. ARTICLES 3 AND 4 OF THE CONTRACT WERE SIMILAR IN ALL MATERIAL RESPECTS TO CLAUSES 3 AND 4 OF STANDARD FORM 23-A, INCORPORATED IN THE INSTANT CONTRACT. IN CONCLUDING THAT THE RESPONDENT WAS NOT ENTITLED TO RECOVER THE INCREASED COSTS ACCRUING FROM THE DELAY, THE COURT STATED:

"* * * THE COURT OF CLAIMS, RELYING ON PRINCIPLES ANNOUNCED IN THE CHOUTEAU, WELLS, AND CROOK CASES, SUPRA, HAS UNIFORMLY HELD THAT THE "INCREASE OR DECREASE OF COST" LANGUAGE IN ART. 3, AND IN SIMILAR CLAUSES, IS NOT BROAD ENOUGH TO INCLUDE DAMAGES FOR DELAY; AND "IT WAS NEVER CONTEMPLATED . . . THAT DELAYS INCIDENT TO CHANGES WOULD SUBJECT THE GOVERNMENT TO DAMAGE BEYOND THAT INVOLVED IN THE CHANGES THEMSELVES.' (THE COURT HERE CITES PERTINENT DECISIONS OF THE COURT OF CLAIMS) * * *

"WERE THIS A MATTER OF FIRST IMPRESSION, WE WOULD AGAIN COME TO THE SAME CONCLUSION REGARDING THIS CLAUSE. IT SEEMS WHOLLY REASONABLE THAT "AN INCREASE OR DECREASE IN THE AMOUNT DUE" SHOULD BE MET WITH AN ALTERATION OF PRICE, AND THAT "AN INCREASE OR DECREASE . . . IN THE TIME REQUIRED" SHOULD BE MET WITH ALTERATION OF THE TIME ALLOWED; FOR "INCREASE OR DECREASE OF COST" PLAINLY APPLIES TO THE CHANGES IN COST DUE TO THE STRUCTURAL CHANGES REQUIRED BY THE ALTERED SPECIFICATION AND NOT TO CONSEQUENTIAL DAMAGES WHICH MIGHT FLOW FROM DELAY TAKEN CARE OF IN THE ,DIFFERENCE IN TIME" PROVISION. THE PROVISION AS TO TIME SERVES THE LARGE PURPOSE OF REMOVING FROM PERSONS IN THE POSITION OF RESPONDENT LIABILITY FOR "DELAY" BEYOND THE STIPULATED DATE FOR WHICH THEY MIGHT OTHERWISE HAVE THEIR CONTRACT TERMINATED OR MIGHT BE REQUIRED TO PAY LIQUIDATED DAMAGES WITHOUT FAULT.'

PRIOR TO THE DECISION IN THE RICE CASE, THE COURT OF CLAIMS IN GENERAL CONTRACTING AND CONSTRUCTION COMPANY, INC. V. UNITED STATES (1937), 84 CT.CL. 570, 579, HAD HELD (REFERRING TO THE ABOVE-QUOTED ARTICLE 3), IN PERTINENT PART, AS FOLLOWS:

"ARTICLE 3 OF THE CONTRACT IS A STANDARD FORM USED BY THE GOVERNMENT IN ALL CONSTRUCTION CONTRACTS. ITS PURPOSE IS TO ENABLE THE CONTRACTING OFFICER TO MAKE ANY CHANGE IN DRAWINGS AND SPECIFICATIONS HE MAY FIND NECESSARY OR DESIRABLE AS WORK UNDER THE CONTRACT PROGRESSES. IT HAS REFERENCE, WE THINK, ENTIRELY TO STRUCTURAL CHANGES LIKE THE SUBSTITUTION OF ONE KIND OF MATERIAL FOR ANOTHER, CHANGES IN ARCHITECTURAL DESIGN, THE ADDITION TO OR SUBTRACTION FROM WORK REQUIRED THE SPECIFICATIONS, ETC. * *

IN OUR DECISION TO MR. PERSONS, WE DREW ATTENTION TO THE FACT THAT THE PORTION OF YOUR CLAIM RELATING TO THE STOP ORDER WHICH WAS ISSUED ON MAY 21, 1962, WAS NOT FOR THE COST OF REMOVING THE UTILITY LINES SINCE THAT WORK WAS DONE BY ANOTHER; THAT YOU WERE AFFECTED ONLY BY THE DELAY INVOLVED; AND THAT YOU HAD RECEIVED AN EXTENSION OF TIME FOR THIS DELAY.

ACCORDINGLY, MR. PERSONS WAS ADVISED THAT NO PART OF YOUR CLAIM WAS PROPERLY ALLOWABLE AS AN EQUITABLE ADJUSTMENT UNDER EITHER THE "CHANGES" CLAUSE, OR THE "CHANGED CONDITIONS" CLAUSE, OF THE CONTRACT. WE OBSERVED IN THE DECISION THAT THE RECORD INDICATED THAT YOU UNDERTOOK TO REVISE YOUR PERFORMANCE SCHEDULE WITHOUT PRIOR DIRECTION FROM THE GOVERNMENT AND WITHOUT NOTICE TO THE GOVERNMENT OF YOUR INTENTION TO CLAIM ADDITIONAL COMPENSATION THEREFOR. HOWEVER, WE RECOGNIZED THE POSSIBILITY THAT THE GOVERNMENT MIGHT HAVE ORDERED YOU TO PROCEED WITH THE WORK ON THE RESIDENCE AND UTILITY BUILDINGS IN ACCORDANCE WITH THE REVISED WORK SCHEDULE WHILE THERE WAS A STOP ORDER ON THE VISITOR CENTER. WE STATED THAT IF THIS WERE THE CASE, THE MATTER COULD BE RESUBMITTED FOR FURTHER CONSIDERATION. TO DATE, WE HAVE HEARD NOTHING FURTHER FROM THE CERTIFYING OFFICER OR ANY OTHER REPRESENTATIVE OF THE PARK SERVICE.

IN RESPONSE TO THE REQUEST CONTAINED IN A LETTER FROM HONORABLE THOR C. TOLLEFSON (WHO HAD BEEN FURNISHED A COPY OF OUR DECISION TO MR. PERSONS) ON YOUR BEHALF THAT WE AMPLIFY OUR STATEMENT THAT THE CLAIM COULD BE RECONSIDERED, WE ADVISED IN OUR LETTER OF SEPTEMBER 16, 1963, AS FOLLOWS: "ON THE RECORD SO FAR PRESENTED, IT IS OUR VIEW THAT THE PURPORTED CHANGE ORDER ISSUED BY THE CONTRACTING OFFICER WAS NOT AUTHORIZED BY THE FACTS, AND WAS INCONSISTENT WITH THE DUTY IMPOSED ON HIM BY THE PROVISIONS OF ARTICLE 42 QUOTED ABOVE TO SUSPEND THE WORK IF CONDITIONS WERE SUCH THAT PERFORMANCE WOULD IMPOSE AN UNDUE BURDEN ON THE CONTRACTOR. FOR THIS REASON, WE ADVISED THE CERTIFYING OFFICER, TO WHOM THE VOUCHER COVERING THE EXTRA PAYMENT HAD BEEN PRESENTED AND WHO WAS IN DOUBT AS TO ITS PROPRIETY, THAT THE VOUCHER SHOULD NOT BE CERTIFIED FOR PAYMENT.

"HOWEVER, THE CONTRACTOR MAY FILE A CLAIM IN THIS OFFICE FOR THE EXTRA COMPENSATION TO WHICH HE BELIEVES HE IS ENTITLED, WHICH SHOULD SET FORTH IN DETAIL ALL THE FACTS RELIED UPON IN JUSTIFICATION OF THE CLAIM AND COMPLETE AND ACCURATE COST FIGURES OR OTHER DATA ESTABLISHING THE AMOUNT CLAIMED, AND THE MATTER WILL BE GIVEN FULL CONSIDERATION.'

BY LETTER OF SEPTEMBER 25, 1963, WE RECEIVED FROM SENATOR MAGNUSON A COPY OF YOUR LETTER TO HIM OF SEPTEMBER 19, 1963, IN REGARD TO THE MATTER, TOGETHER WITH ENCLOSURES REFERRED TO THEREIN, WHICH INCLUDED SIGNED COPIES OF TWO LETTERS ADDRESSED TO US BY YOU UNDER DATE OF AUGUST 24, 1963 (THE ORIGINALS OF WHICH OUR RECORDS FAIL TO SHOW WE RECEIVED). THE LETTERS, WHICH WILL BE REFERRED TO HEREAFTER AS THE

"CLAIM LETTER" AND THE "BREAKDOWN OF COST LETTER," RESPECTIVELY, ARE AS FOLLOWS:

CLAIM LETTER

"I WISH YOU WOULD RECONSIDER YOUR DECISION ON THIS MATTER. I HONESTLY BELIEVE THAT I HAVE THIS MONEY COMING TO ME.

"AT THE TIME OF THE SHUT-DOWN OF THE VISITORS CENTER TO CONSIDER A FALL- OUT SHELTER THE CONTRACTING OFFICER, MR. CHAS. PETERSON AND I DISCUSSED IT AND I THINK WE BOTH CONCLUDED THAT THERE SHOULD BE A CLAIM PRESENTED BY THE MCLINN CONSTRUCTION CO. I SUBMITTED THE FACTS AND THE CLAIM WAS PAID BUT IT WAS LATER WITH-HELD FROM MY PROGRESS PAYMENT AND ULTIMATELY WITH- HELD FROM MY FINAL PAYMENT.

"I AM SUBMITTING THE DETAILS OF THE BASIS OF MY COSTS AND HOPE THAT YOU WILL RECONSIDER AND AUTHORIZE PAYMENT OF MY CLAIM.

"AFTER THE VISITORS CENTER WAS SHUT DOWN, STOP ORDER ISSUED, I DISCUSSED THAT IT SAID VISITORS CENTER ONLY WITH THE CONTRACTING OFFICER AND WE AGREED THAT IT WOULD BE ALRIGHT TO PROCEED ON THE OTHER TWO BUILDINGS, AND WE DID WHICH WAS IN REVERSE PROCEDURE OF WHAT WE ORIGINALLY FIGURED.

"I HOPE THAT YOU WILL RECONSIDER YOUR DECISION IN OUR FAVOR.'

BREAKDOWN OF COST LETTER

"IN PREPARING OUR CLAIM TO THE NATIONAL PARK SERVICE IT WAS BROKEN INTO TWO SECTIONS BECAUSE WE FIGURED IT INVOLVED TWO PARAGRAPHS OF THE CONTRACT. IT WAS DOWN INTO A SIMILAR MANNER AS FOLLOWS:

"OVER-HEAD AND RENTAL FOR DELAY ON VISITORS CENTER.

TABLE

"1. EQUIPMENT RENTAL

A. POWER SAWS $60.00 PER MONTH FOR 6 WEEKS 90.00

B. TRUCKS 1 FOR $120.00 PER MONTH FOR 6 WEEKS 180.00

C. WAGES, SUPERVISORY ETC. 1050.00

D. TRAILER AND OTHER EQUIPMENT 120.00

E. PRO-RATED INSURANCE 90.00

F. OVER-HEAD, INTEREST ON WORKING CAPITAL AND

OTHER CHARGES REFERRED TO IN STANDARD FORM

23-A, PARAGRAPH 3, NAMELY CHANGES. 281.55

"2. EXTRA COST FOR WORKING UNDER CHANGED CONDITIONS ON RESIDENCES

AND UTILITIES AND UTILITIES BUILDINGS.

A. EXTRA COST OF LABOR, ARRIVED BY THE AMOUNT

OF WORK COMPLETED, ESTIMATE 1363.00

B. PUMP RENTAL (EXCESS WATER) 95.00

C. EXTRA EXCAVATION 300.00

D. RENTAL OF SPECIAL EXCAVATING EQUIPMENT TRACK

TYPE 160.00

E. EXTRA CONCRETE 101.00

F. OTHER COST 250.80

4081.35

WHICH REFERS TO STANDARD FORM 23-A CHANGED CONDITIONS H"

FROM YOUR STATEMENT IN THE NEXT-TO-LAST PARAGRAPH OF THE CLAIM LETTER IT APPEARS THAT THE CONTRACTING OFFICER DID NOT DIRECT YOU TO PROCEED WITH THE WORK RELATING TO CONSTRUCTION OF THE RESIDENCE AND UTILITY BUILDINGS FOLLOWING THE SUSPENSION OF WORK ON THE VISITOR CENTER, BUT THAT HE SIMPLY AGREED WITH YOU THAT "IT WOULD BE ALRIGHT TO PROCEED ON THE OTHER TWO BUILDINGS" SINCE YOU WERE NOT REQUIRED BY THE TERMS OF THE "STOP ORDER" TO SUSPEND WORK ON OTHER THAN THE VISITOR CENTER. HAD YOU BEEN REQUIRED BY THE CONTRACTING OFFICER TO PROCEED WITH OPERATIONS ON THE RESIDENCE AND UTILITY BUILDINGS AHEAD OF SCHEDULE, YOU WOULD HAVE HAD A POTENTIAL CLAIM AGAINST THE GOVERNMENT FOR ANY INCREASED COSTS WHICH YOU MAY HAVE BEEN PUT TO AS A RESULT THEREOF. HOWEVER, IT SEEMS OBVIOUS FROM YOUR REFERRED-TO STATEMENT THAT YOU WERE NOT REQUIRED TO PROCEED WITH OPERATIONS ON THESE TWO BUILDINGS AHEAD OF SCHEDULE, BUT THAT YOU ELECTED TO DO SO OF YOUR OWN ACCORD. THAT BEING TRUE, THE FACT THAT YOU MAY HAVE HAD TO PERFORM THE EXCAVATION WORK RELATING TO THE TWO BUILDINGS INVOLVED UNDER"WET GROUND CONDITIONS," AS INDICATED, OR AT LEAST SUGGESTED, IN CHANGE ORDER NO. 4 AND IN YOUR BREAKDOWN OF COST LETTER, WOULD NOT CREATE ANY LIABILITY ON THE PART OF THE GOVERNMENT FOR ANY RESULTING INCREASED COSTS TO YOU.

WHILE IN THE PRESENT INSTANCE THAT PART OF THE CLAIM WHICH RELATES TO THE SUSPENSION OF WORK ON THE VISITOR CENTER IS FOR INCREASED COSTS FOR GOVERNMENT-CAUSED DELAY UNRELATED TO A "CHANGE" (INASMUCH AS THE GOVERNMENT DECIDED AGAINST REVISING THE SPECIFICATIONS TO PROVIDE FOR A BASEMENT FALLOUT SHELTER IN THE BUILDING), THE COURT OF CLAIMS HAS HELD, IN EFFECT, THAT AS AN IMPLIED INCIDENT TO THE CONTRACT RIGHT TO MAKE CHANGES THE CONTRACTING OFFICER MAY SUSPEND WORK FOR A REASONABLE TIME, WITHOUT LIABILITY, TO CONSIDER THE SCOPE OF THE PROPOSED CHANGE OR WHETHER TO ISSUE A CHANGE ORDER AT ALL. F. H. MCGRAW AND CO. V. UNITED STATES, 131 CT.CL. 501; 130 F.SUPP. 394; AND SEE MOUNT VERNON CONTRACTING CORPORATION, ET AL. V. UNITED STATES (1957), 139 CT.CL. 688, 153 F.SUPP. 469; V. A. ROSS AND CO. V. UNITED STATES (1953), 126 CT.CL. A PERIOD OF 33 DAYS WHILE THE CONTRACTING AGENCY WAS CONSIDERING WHETHER TO REVISE THE SPECIFICATIONS TO PROVIDE FOR CONSTRUCTION OF A FALLOUT SHELTER IN THE BUILDING WOULD NOT APPEAR ON ITS FACE TO HAVE BEEN AN UNREASONABLE PERIOD OF TIME FOR THE AGENCY TO TAKE IN GIVING CONSIDERATION TO A CHANGE OF THIS NATURE AND MAGNITUDE.

YOU ARE ACCORDINGLY ADVISED THAT WE FIND NO LEGAL BASIS FOR THE ALLOWANCE OF ANY PART OF YOUR CLAIM.