A-15112, JULY 28, 1926, 6 COMP. GEN. 83

A-15112: Jul 28, 1926

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NOTWITHSTANDING THE TEST WILL BE DELAYED FOR SOME MONTHS DUE TO THE FAILURE OF THE CONTRACTOR TO MAKE DELIVERY IN ACCORDANCE WITH THE CONTRACT BEFORE THE BOILER PLANT WAS SHUT DOWN FOR THE USUAL SUMMER OVERHAULING. 1926: I HAVE YOUR LETTER OF JULY 2. SHIPMENT OF THESE PUMPS WAS TO BE MADE IN 40 DAYS FROM THE DATE OF THE ORDER. SO THAT THEY MIGHT BE RECEIVED AND TESTED BEFORE THE BOILER PLANT WAS SHUT DOWN AT THE END OF THE HEATING SEASON. ACCEPTANCE OF THE PUMPS WAS TO BE BASED UPON THIS TEST (SEE PAR. 6 OF THE SPECIFICATIONS). PAYMENT WAS TO BE MADE UPON THE SATISFACTORY COMPLETION OF THE ACCEPTANCE TEST (PAR. 7. THE CONTRACTOR WAS UNABLE TO SHIP THE PUMPS WITHIN THE AGREED TIME. THEY WERE NOT RECEIVED IN WASHINGTON UNTIL JUNE 7.

A-15112, JULY 28, 1926, 6 COMP. GEN. 83

CONTRACTS - PARTIAL PAYMENTS WHERE A CONTRACT FOR THE DELIVERY OF CERTAIN BOILER PUMPS TO THE GOVERNMENT WITHIN A STIPULATED PERIOD PROVIDED THAT ACCEPTANCE THEREOF WOULD BE BASED UPON A TEST CARRIED OUT AFTER THE PUMPS HAD BEEN INSTALLED AND UNDER ACTUAL WORKING CONDITIONS AND THAT PAYMENT WOULD BE MADE ONLY UPON SATISFACTORY COMPLETION OF THE ACCEPTANCE TEST, A PARTIAL PAYMENT MAY NOT BE MADE TO THE CONTRACTOR BEFORE THE COMPLETION OF SUCH TEST, NOTWITHSTANDING THE TEST WILL BE DELAYED FOR SOME MONTHS DUE TO THE FAILURE OF THE CONTRACTOR TO MAKE DELIVERY IN ACCORDANCE WITH THE CONTRACT BEFORE THE BOILER PLANT WAS SHUT DOWN FOR THE USUAL SUMMER OVERHAULING.

COMPTROLLER GENERAL MCCARL TO THE DIRECTOR OF PUBLIC BUILDINGS AND PUBLIC PARKS OF THE NATIONAL CAPITAL, JULY 28, 1926:

I HAVE YOUR LETTER OF JULY 2, 1926, AS FOLLOWS:

THIS OFFICE UNDER DATE OF MARCH 27, 1926, ORDERED FROM THE DAYTON DOWD COMPANY, QUINCY, ILLINOIS, TWO CENTRIFUGAL TURBINE-DRIVEN BOILER FEED PUMPS, FOR USE IN THE BOILER PLANT AT 19TH AND B STREETS, N.W., WASHINGTON, D.C., IN ACCORDANCE WITH THE SPECIFICATIONS ATTACHED HERETO, FOR $3,098. SHIPMENT OF THESE PUMPS WAS TO BE MADE IN 40 DAYS FROM THE DATE OF THE ORDER, SO THAT THEY MIGHT BE RECEIVED AND TESTED BEFORE THE BOILER PLANT WAS SHUT DOWN AT THE END OF THE HEATING SEASON. ACCEPTANCE OF THE PUMPS WAS TO BE BASED UPON THIS TEST (SEE PAR. 6 OF THE SPECIFICATIONS), AND PAYMENT WAS TO BE MADE UPON THE SATISFACTORY COMPLETION OF THE ACCEPTANCE TEST (PAR. 7, SPECIFICATIONS).

DUE TO THE SPECIAL NATURE OF THE JOB, THE CONTRACTOR WAS UNABLE TO SHIP THE PUMPS WITHIN THE AGREED TIME, AND THEY WERE NOT RECEIVED IN WASHINGTON UNTIL JUNE 7, 1926. AS THE BOILER PLANT WAS SHUT DOWN ON MAY 30, 1926, FOR THE USUAL SUMMER OVERHAUL, IT WILL NOT BE POSSIBLE, WITHOUT UNDUE EXPENSE, TO MAKE THE ACCEPTANCE TEST UNTIL THE BEGINNING OF THE NEXT HEATING SEASON, OR ABOUT SEPTEMBER 15, 1926.

IN VIEW OF THESE CIRCUMSTANCES, WHICH WERE NOT FORESEEN WHEN THE ORDER WAS PLACED, AND OF THE FACT THAT COMPLETE DELIVERY OF THE PUMPS HAS BEEN EFFECTED, THE CONTRACTOR HAS REQUESTED THAT A PARTIAL PAYMENT OF $2,000 ON THE ORDER BE MADE NOW, THE REMAINDER TO BE PAID UPON COMPLETION OF THE ACCEPTANCE TEST. A DECISION IS REQUESTED AS TO WHETHER ADVANCE PAYMENT OF $2,000 WOULD BE AUTHORIZED. IT IS BELIEVED THAT THE AMOUNT PROPOSED TO BE RETAINED, $1,098, WOULD BE AMPLE TO COVER THE COST OF ANY CHANGES IN THE INSTALLATION THAT THE ACCEPTANCE TEST MAY SHOW TO BE NECESSARY. THE CONTRACT PROVIDES THAT THE ACCEPTANCE OF THE UNITS IS TO BE BASED UPON A TEST AFTER THE INSTALLATION OF THE PUMPS UNDER ACTUAL WORKING CONDITIONS AND THAT PAYMENT THEREFOR WAS TO BE MADE ONLY UPON SATISFACTORY COMPLETION OF THE ACCEPTANCE TEST. IN OTHER WORDS, THE ACCEPTANCE TEST, BY EXPRESS AGREEMENT OF THE PARTIES, IS MADE A CONDITION PRECEDENT TO THE PAYMENT FOR THE PUMPS. IT ALSO APPEARS THAT THE DELAY OF ABOUT 30 DAYS IN DELIVERY, WHICH NECESSITATED A DELAY OF OVER THREE MONTHS IN THE ACCEPTANCE TEST, WAS NOT DUE TO ANY CAUSE FOR WHICH THE GOVERNMENT WAS RESPONSIBLE. OTHER WORDS, THE SITUATION IS ONE OF THE CONTRACTOR'S OWN MAKING AND IT MUST BEAR THE CONSEQUENCES OF ITS FAILURE TO EFFECT DELIVERY WITHIN THE TIME AGREED UPON. THE FACTS IN THIS CASE CLEARLY DISTINGUISH IT FROM THE CASE UNDER CONSIDERATION IN 15 COMP. DEC. 74.