A-12435, JANUARY 19, 1926, 5 COMP. GEN. 496

A-12435: Jan 19, 1926

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" AND THE CONTRACTOR FAILED TO COMPLETE THE WORK WITHIN THE SPECIFIED TIME BUT WAS PERMITTED TO CONTINUE IT UNTIL COMPLETION. HE IS CHARGEABLE WITH THE ACTUAL AMOUNT EXPENDED BY THE UNITED STATES FOR INSPECTION AND SUPERINTENDENCE AND ANY OTHER ITEM OF LOSS OR DAMAGE. IT MAY HAVE SUSTAINED BY REASON OF THE DEFAULT. I HAVE YOUR LETTER OF DECEMBER 5. REQUESTING TO BE ADVISED WHETHER YOUR ARE AUTHORIZED TO PAY A CERTAIN APPROVED VOUCHER COVERING PARTIAL PAYMENT TO THE UNITED DREDGING CO. IN CONNECTION WITH THE REQUEST YOU STATE: * * * THE POINT ON WHICH THIS OFFICE DESIRES INFORMATION IS * * * AS TO WHETHER THE COST OF INSPECTION FROM SEPTEMBER 23 TO NOVEMBER 30. THE PERIOD OF 3 23/30 MONTHS REFERRED TO IS THE TIME THAT ELAPSED BETWEEN APRIL 28.

A-12435, JANUARY 19, 1926, 5 COMP. GEN. 496

CONTRACTS - COST OF INSPECTION AND SUPERINTENDENCE UNDER A CONTRACT PROVIDING THAT IF THE CONTRACTOR FAILED TO COMPLETE THE WORK WITHIN A SPECIFIED TIME, OR IF THE TIME LIMIT SHOULD BE WAIVED BY THE CONTRACTING OFFICER, HE SHOULD BE CHARGED WITH ,ALL EXPENSES FOR INSPECTION AND SUPERINTENDENCE AFTER THE DATE FIXED FOR COMPLETION, ETC., " AND THE CONTRACTOR FAILED TO COMPLETE THE WORK WITHIN THE SPECIFIED TIME BUT WAS PERMITTED TO CONTINUE IT UNTIL COMPLETION, HE IS CHARGEABLE WITH THE ACTUAL AMOUNT EXPENDED BY THE UNITED STATES FOR INSPECTION AND SUPERINTENDENCE AND ANY OTHER ITEM OF LOSS OR DAMAGE, IF ANY, IT MAY HAVE SUSTAINED BY REASON OF THE DEFAULT, AND NOT WITH THE DIFFERENCE BETWEEN THE TOTAL COST OF INSPECTION AND SUPERINTENDENCE AND THE ESTIMATED COST IF THERE HAD BEEN NO DELAY.

COMPTROLLER GENERAL MCCARL TO MAJ. H. A. FINCH, UNITED STATES ARMY, JANUARY 19, 1926:

BY INDORSEMENT OF THE CHIEF OF ENGINEERS, DATED DECEMBER 18, 1925, I HAVE YOUR LETTER OF DECEMBER 5, 1925, REQUESTING TO BE ADVISED WHETHER YOUR ARE AUTHORIZED TO PAY A CERTAIN APPROVED VOUCHER COVERING PARTIAL PAYMENT TO THE UNITED DREDGING CO., FOR WORK DONE IN LOS ANGELES HARBOR DURING NOVEMBER, 1925, UNDER CONTRACT DATED NOVEMBER 16, 1923.

IN CONNECTION WITH THE REQUEST YOU STATE:

* * * THE POINT ON WHICH THIS OFFICE DESIRES INFORMATION IS * * * AS TO WHETHER THE COST OF INSPECTION FROM SEPTEMBER 23 TO NOVEMBER 30, 1925--- I.E., 2 8/30 MONTHS--- FOR TWO INSPECTORS AT $150 EACH PER MONTH (OR $680.00 IN ALL) SHOULD BE DEDUCTED FROM THE PAYMENT NOW DUE THE UNITED DREDGING COMPANY, OR WHETHER THIS CONTRACTOR SHOULD BE ALLOWED A TOTAL OF 16 25/30 MONTHS FREE INSPECTION, THIS PERIOD OF 16 25/30 MONTHS BEING EQUAL TO THE PERIOD BETWEEN APRIL 28, 1924, THE DATE OF BEGINNING WORK, AND SEPTEMBER 22, 1925, THE DATE SET FOR THE COMPLETION THEREOF.

* * * THE TOTAL PERIOD OF FREE INSPECTION AMOUNTING TO 16 25/30 MONTHS, IF AUTHORIZED, WOULD MEAN THAT AN EXTENSION OF TIME OF 3 23/30 MONTHS BEYOND THE DATE ORIGINALLY SET FOR COMPLETING THE CONTRACT WOULD BE GIVEN THE CONTRACTOR IN THIS CASE, THUS EXTENDING THE TIME OF FREE INSPECTION TO JANUARY 15, 1926. THE PERIOD OF 3 23/30 MONTHS REFERRED TO IS THE TIME THAT ELAPSED BETWEEN APRIL 28, 1924, THE DATE ORIGINALLY SET FOR BEGINNING THE WORK, AND AUGUST 20, 1924, THE DATE ON WHICH WORK WAS ACTUALLY BEGUN.

* * * ATTENTION IS INVITED TO THE FACT THAT THE CONTRACTOR, THROUGH CIRCUMSTANCES BEYOND HIS CONTROL, DID NOT BEGIN WORK ON THE PROJECT UNTIL THREE MONTHS AND TWENTY-THREE DAYS AFTER THE DATE ORIGINALLY SET FOR THE COMMENCEMENT OF THE WORK. THE UNITED STATES SUFFERED NO LOSS DUE TO THIS DELAY.

UNDER CONTRACT DATED NOVEMBER 16, 1923, THE UNITED DREDGING CO., AGREED TO DO THE WORK OF DREDGING APPROXIMATELY 841,700 CUBIC YARDS IN THE TRIANGULAR AREA IN LOS ANGELES HARBOR, FOR WHICH THE UNITED STATES AGREED TO PAY AT THE RATE OF $0.4197 PER CUBIC YARD PLACE MEASUREMENT FOR MATERIAL DREDGED. WORK WAS TO BEGIN BY APRIL 28, 1924, AND TO BE PROSECUTED AT AN AVERAGE RATE OF 50,000 CUBIC YARDS PER MONTH.

IT APPEARS THAT IF THE WORK HAD BEGUN ON THE DATE MENTIONED AND HAD BEEN CARRIED ON AT THE AVERAGE RATE STIPULATED, THE PROJECT WOULD HAVE BEEN COMPLETED ABOUT SEPTEMBER 22, 1925. THIS WAS NOT DONE. THE CONTRACTOR BY DREDGING A FEW HUNDRED YARDS, MADE A TECHNICAL BEGINNING OF THE WORK UPON THE DATE SET FOR COMMENCEMENT, BUT, DUE TO OTHER REASONS NOT THE FAULT OF THE UNITED STATES, CONTINUOUS DREDGING DID NOT START UNTIL AUGUST 20, 1924.

IT ALSO APPEARS THAT NOTWITHSTANDING THE DELAY IN COMMENCEMENT AND PROGRESS OF THE WORK THE CONTRACTOR WAS PERMITTED TO CONTINUE THE WORK TO COMPLETION AS AUTHORIZED UNDER THE PROVISIONS OF ARTICLE 5 OF THE CONTRACT AS FOLLOWS:

IF THE CONTRACTOR SHALL FAIL TO DELIVER THE MATERIAL OR TO PROSECUTE THE WORK COVERED BY THIS CONTRACT SO AS TO COMPLETE THE SAME WITHIN THE TIME AGREED UPON, THEN, IN LIEU OF TAKING THE WORK OUT OF THE HANDS OF THE CONTRACTOR AS PROVIDED IN ARTICLE 4 OF THIS AGREEMENT, THE CONTRACTING OFFICER, WITH THE PRIOR SANCTION OF THE CHIEF OF ENGINEERS, MAY WAIVE THE TIME LIMIT AND PERMIT THE CONTRACTOR TO FINISH THE WORK WITHIN A REASONABLE PERIOD, TO BE DETERMINED BY THE CONTRACTING OFFICER. SHOULD THE TIME LIMIT BE THUS WAIVED, ALL EXPENSES FOR INSPECTION AND SUPERINTENDENCE AFTER THE DATE FIXED FOR COMPLETION, INCLUDING ALL NECESSARY TRAVELING EXPENSES CONNECTED THEREWITH, AND ALL OTHER ACTUAL LOSSES AND DAMAGES TO THE UNITED STATES DUE TO THE DELAY BEYOND THE TIME ORIGINALLY SET FOR COMPLETION, SHALL BE DETERMINED BY THE CONTRACTING OFFICER AND DEDUCTED FROM ANY PAYMENTS DUE OR TO BECOME DUE THE CONTRACTOR: PROVIDED, HOWEVER, THAT NO CHARGE FOR INSPECTION AND SUPERINTENDENCE SHALL BE MADE FOR SUCH PERIOD AFTER THE DATE FIXED FOR COMPLETION OF THIS CONTRACT, AS, IN THE JUDGMENT OF THE CONTRACTING OFFICER, APPROVED BY THE CHIEF OF ENGINEERS, SHALL EQUAL THE TIME WHICH SHALL HAVE BEEN LOST THROUGH ANY CAUSE FOR WHICH THE UNITED STATES IS RESPONSIBLE, EITHER IN THE BEGINNING OR PROSECUTION OF THE WORK,OR IN THE PERFORMANCE OF EXTRA WORK ORDERED BY THE CONTRACTING OFFICER, OR ON ACCOUNT OF UNUSUAL FRESHETS, ICE, RAINFALL, OR OTHER ABNORMAL FORCE OR VIOLENCE OF THE ELEMENTS, OR BY STRIKES, EPIDEMICS, LOCAL OR STATE QUARANTINE RESTRICTIONS, OR OTHER UNFORESEEABLE CAUSE OF DELAY ARISING THROUGH NO FAULT OF THE CONTRACTOR, AND WHICH ACTUALLY PREVENTED SUCH CONTRACTOR FROM DELIVERING THE MATERIAL OR COMMENCING OR COMPLETING THE WORK WITHIN THE PERIOD REQUIRED BY THE CONTRACT. * * *

BY SEPTEMBER 30, 1925, THE PROJECT WAS 71 PERCENT COMPLETED. IT IS ESTIMATED THAT THE WORK WILL BE COMPLETED BY MARCH 1, 1926, MORE THAN FIVE MONTHS AFTER THE DATE ORIGINALLY SET FOR COMPLETION. IT IS UNDERSTOOD THAT THE DELAY WAS NOT DUE TO ANY OF THE CAUSES FOR WHICH THE CONTRACT AUTHORIZES EXTENSION OF TIME WITHOUT EXPENSE TO THE CONTRACTOR. THE STATEMENT IS MADE THAT THE ENGINEERING DEPARTMENT EMPLOYED TWO INSPECTORS TO SERVE ON THIS WORK AT $150 PER MONTH; THAT THE MEN WERE NOT EMPLOYED ON APRIL 28, 1924, THE DATE WORK WAS SUPPOSED TO BEGIN, BUT ON SEPTEMBER 1, 1924, 12 DAYS AFTER WORK ACTUALLY BEGAN; AND THAT HAD THE CONTRACTOR STARTED WORK ON TIME THE DEPARTMENT WOULD HAVE BEEN REQUIRED TO HIRE THE INSPECTORS FOUR MONTHS AND THREE DAYS EARLIER THAN WAS ACTUALLY DONE. IS ALSO STATED THAT NEITHER THE GOVERNMENT NOR ANY OTHER AGENCY HAS SUFFERED ANY ACTUAL LOSS DUE TO THE DELAY IN COMPLETION OF THIS WORK.

THE CONTRACT DOES NOT PROVIDE THAT ANY ADDITIONAL COST OF INSPECTION RESULTING FROM THE CONTRACTOR'S DELAY WILL BE CHARGED TO HIM BUT THAT "ALL EXPENSES FOR INSPECTION AND SUPERINTENDENCE AFTER THE DATE FIXED FOR COMPLETION, INCLUDING ALL NECESSARY TRAVELING EXPENSES CONNECTED THEREWITH, AND ALL OTHER ACTUAL LOSSES AND DAMAGES TO THE UNITED STATES DUE TO THE DELAY BEYOND THE TIME ORIGINALLY SET FOR COMPLETION," CONSEQUENTLY, THE EXPENSE OF INSPECTION AND SUPERINTENDENCE DURING THE ORIGINAL CONTRACT PERIOD SHOULD BE BORNE BY THE GOVERNMENT, BUT FROM THE TIME OF THE DATE FIXED FOR COMPLETION AND DURING THE EXTENSION OF TIME GRANTED, THE BURDEN AT ONCE SHIFTED FROM THE GOVERNMENT TO THE CONTRACTOR, AND THE CONTRACTOR IS THENCEFORTH CHARGEABLE WITH THE ENTIRE COST OF SUCH INSPECTION AND SUPERINTENDENCE DURING THE DELAY PERIOD REGARDLESS OF ACTUAL LOSS. 12 COMP. DEC. 11; ID. 15.

IN MAKING FINAL SETTLEMENT WITH THE CONTRACTOR IN THIS CASE THE ENTIRE AMOUNT EXPENDED BY THE GOVERNMENT FOR INSPECTION AND SUPERINTENDENCE DURING THE DELAY OR EXTENSION PERIOD SHOULD BE ASCERTAINED AND DEDUCTED FROM ANY MONEYS OTHERWISE DUE TO THE CONTRACTOR. THE GOVERNMENT SHOULD ALSO BE MADE WHOLE FOR ANY OTHER ITEM OF LOSS OR DAMAGE, IF ANY, WHICH IT MAY HAVE SUSTAINED BY REASON OF THIS CONTRACTOR'S DEFAULT.

PAYMENT ON THE VOUCHER WITHOUT DEDUCTION OF COSTS OF INSPECTION, ETC., IS NOT AUTHORIZED.