A-16595, JANUARY 25, 1927, 6 COMP. GEN. 492

A-16595: Jan 25, 1927

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THE SAME CONSTITUTES A FAILURE OF PERFORMANCE OF CONTRACT FOR WHICH THERE IS NO LEGAL OBLIGATION ON THE PART OF THE GOVERNMENT TO MAKE PAYMENT. WHEREIN WAS DISALLOWED ITS CLAIM FOR $1. THE UNITED STATES WILL FURNISH. BOAT YARD WILL BE AVAILABLE TO THE CONTRACTOR TO MAKE * * * PAR. 4. THE CONTRACTOR MUST GUARANTEE AN OVERFLOWING WELL WHICH WILL FURNISH NOT LESS THAN 30 GALLONS OF WATER PER MINUTE SUITABLE FOR DRINKING PURPOSES AND FOR USE IN BOILERS. IMMEDIATELY UPON COMPLETION OF THE WELL AND BEFORE PAYMENT IS MADE TO THE CONTRACTOR. A SAMPLE OF THE WATER WILL BE TAKEN FOR THE PURPOSE OF ANALYSIS TO DETERMINE IF IT MEETS THE ABOVE REQUIREMENTS. THAT THE FLOW OBTAINED WAS ONLY 8.5 GALLONS OF WATER PER MINUTE INSTEAD OF 30 GALLONS PER MINUTE AS REQUIRED UNDER THE CONTRACT.

A-16595, JANUARY 25, 1927, 6 COMP. GEN. 492

CONTRACTS - PERFORMANCE - WELL DRILLING WHERE A CONTRACTOR AGREED TO DRILL A WELL ON A GOVERNMENT RESERVATION NOT TO EXCEED 1,200 FEET IN DEPTH, AT A STIPULATED PRICE PER FOOT, WITH A GUARANTEE OF A FLOW OF NOT LESS THAN 30 GALLONS OF WATER PER MINUTE SUITABLE FOR DRINKING AND BOILER PURPOSES, AND HE VOLUNTARILY STOPPED DRILLING AFTER HE HAD REACHED THE DEPTH OF 918 FEET, THE FLOW OF WATER THEN BEING 8.5 GALLONS PER MINUTE AND SUITABLE FOR BOILER PURPOSES ONLY, THE SAME CONSTITUTES A FAILURE OF PERFORMANCE OF CONTRACT FOR WHICH THERE IS NO LEGAL OBLIGATION ON THE PART OF THE GOVERNMENT TO MAKE PAYMENT.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 25, 1927:

THE ACME DRILLING CO. REQUESTED NOVEMBER 26, 1926, REVIEW OF SETTLEMENT NO. 0155780, DATED NOVEMBER 10, 1926, WHEREIN WAS DISALLOWED ITS CLAIM FOR $1,315.72 FOR DRILLING AN ARTESIAN WELL ON THE UNITED STATES RESERVATION, PASCAGOULA, MISS., UNDER PROPOSAL DATED DECEMBER 30, 1925, AS FOLLOWS:

PAR. 1. DRILL A WELL NOT TO EXCEED 1,200 FEET DEEP ON THE U.S. RESERVATION, PASCAGOULA, MISS. * * *

PAR. 2. THE UNITED STATES WILL FURNISH, WITHOUT COST TO THE CONTRACTORS,

PAR. 3. THE SHOP FACILITIES AT THE U.S. BOAT YARD WILL BE AVAILABLE TO THE CONTRACTOR TO MAKE * * *

PAR. 4. THE CONTRACTOR MUST GUARANTEE AN OVERFLOWING WELL WHICH WILL FURNISH NOT LESS THAN 30 GALLONS OF WATER PER MINUTE SUITABLE FOR DRINKING PURPOSES AND FOR USE IN BOILERS, AND FURNISH AT HIS OWN EXPENSE THE CASING, WELL PIPE, STRAINER, AND ALL OTHER MATERIALS, LABOR, TOOLS AND EQUIPMENT, EXCEPT AS STATED IN PARAGRAPH 2, TO COMPLETE THE WELL IN ACCORDANCE WITH THE BEST MODERN PRACTICE AND SUBJECT TO INSPECTION AND APPROVAL BY A REPRESENTATIVE OF THE UNITED STATES.

PAR. 5. IMMEDIATELY UPON COMPLETION OF THE WELL AND BEFORE PAYMENT IS MADE TO THE CONTRACTOR, A SAMPLE OF THE WATER WILL BE TAKEN FOR THE PURPOSE OF ANALYSIS TO DETERMINE IF IT MEETS THE ABOVE REQUIREMENTS.

PRICE BID PER FOOT, AS FOLLOWS: $2.25.

WORK TO BE COMPLETED WITHIN 90 DAYS AFTER RECEIPT OF ORDER.

THE RECORDS SHOW THAT INSTEAD OF DRILLING A WELL TO A DEPTH OF 1,200 FEET THE COMPANY DRILLED TO A DEPTH OF 918 FEET WHEN IT VOLUNTARILY STOPPED; THAT THE FLOW OBTAINED WAS ONLY 8.5 GALLONS OF WATER PER MINUTE INSTEAD OF 30 GALLONS PER MINUTE AS REQUIRED UNDER THE CONTRACT; AND THAT INSTEAD OF WATER SUITABLE FOR DRINKING AND BOILER PURPOSES, THE WATER OBTAINED (ACCORDING TO A TEST BY THE BUREAU OF CHEMISTRY) IS ONLY SUITABLE FOR BOILER PURPOSES. HAD THE WELL MET THE REQUIREMENTS AS SET FORTH IN THE CONTRACT, THE CLAIMANT WOULD BE ENTITLED TO $2.25 PER FOOT FOR THE 918 FEET DRILLED OR $2,065.50. AS THE WELL DID NOT MEET THE REQUIREMENTS AS SET FORTH IN THE SPECIFICATIONS, CLAIMANT PROPOSED TO THE OFFICER IN CHARGE TO ACCEPT THE SUM OF $1,315.72 IN FULL SETTLEMENT FOR THE WORK DONE; AND WHILE THE OFFICER RECOMMENDS PAYMENT OF THIS SUM, UPON THE THEORY THAT BY MEANS OF COMPRESSED AIR, AVAILABLE AT THE UNITED STATES BOAT YARD, THE FLOW OF THE WELL MIGHT BE INCREASED TO MORE GALLONS OF WATER PER MINUTE THAN THE QUANTITY STIPULATED UNDER THE TERMS OF THE CONTRACT, HE DOES NOT SHOW THAT THE WATER WOULD BE SUITABLE FOR DRINKING PURPOSES. THIS SAME OFFICER FURTHER STATES THAT "THE WELL IN QUESTION HAS NOT BEEN ACCEPTED AND NO WATER FROM THE WELL HAS BEEN USED BY THE GOVERNMENT.'

FROM THE FOREGOING IT IS CLEAR THAT THE CONTRACTOR FAILED TO DO WHAT IT UNDERTOOK AND GUARANTEED TO DO, IN THAT THE WELL WHICH IT DRILLED WILL NOT PRODUCE EITHER THE QUALITY OR QUANTITY OF WATER STIPULATED FOR IN THE CONTRACT. CONSEQUENTLY, THERE IS NO LEGAL OBLIGATION ON THE GOVERNMENT TO MAKE ANY PAYMENT FOR THE UNSATISFACTORY WELL DRILLED.