A-18154, MAY 25, 1927, 6 COMP. GEN 763

A-18154: May 25, 1927

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THE CONTRACTOR IS NOT ENTITLED TO AN EXTENSION OF THE CONTRACT TIME ON ACCOUNT OF DELAYS CAUSED BY THE GOVERNMENT BEYOND THE PERIOD THE CONTRACTING OFFICER FOUND THAT THE CONTRACTOR WAS SO DELAYED. UNDER A CONTRACT REQUIRING BIDDERS TO EXAMINE THE SITE OF PROPOSED BUILDINGS BEFORE SUBMITTING THEIR BIDS AND IN THE ABSENCE OF A SPECIFIC PROVISION THEREIN BY WHICH THE GOVERNMENT UNDERTOOK TO GUARANTEE THE CHARACTER OF THE SOIL ON WHICH THE BUILDINGS WERE TO BE ERECTED. THE FACT THAT NOTATIONS AS TO THE LOCATION OF NEAR-BY GRAVEL PITS AND AS TO THE MANNER IN WHICH PORTIONS OF THE WORK WERE TO BE PERFORMED WERE MADE ON THE DRAWINGS. THERE WAS ALLOWED. WAS DISALLOWED. THE CONSIDERATION OF THE CONTRACT WAS INCREASED IN THE NET AMOUNT OF $743.10 BY THE ADDITION.

A-18154, MAY 25, 1927, 6 COMP. GEN 763

CONTRACTS - LIQUIDATED DAMAGES - FINDINGS OF FACTS OF DELAY BY CONTRACTING OFFICER - GUARANTEES UNDER A CONTRACT STIPULATING THAT THE DECISION OF THE CONTRACTING OFFICER ON QUESTIONS OF FACT WOULD BE BINDING AND CONCLUSIVE ON THE PARTIES, THE CONTRACTOR IS NOT ENTITLED TO AN EXTENSION OF THE CONTRACT TIME ON ACCOUNT OF DELAYS CAUSED BY THE GOVERNMENT BEYOND THE PERIOD THE CONTRACTING OFFICER FOUND THAT THE CONTRACTOR WAS SO DELAYED. UNDER A CONTRACT REQUIRING BIDDERS TO EXAMINE THE SITE OF PROPOSED BUILDINGS BEFORE SUBMITTING THEIR BIDS AND IN THE ABSENCE OF A SPECIFIC PROVISION THEREIN BY WHICH THE GOVERNMENT UNDERTOOK TO GUARANTEE THE CHARACTER OF THE SOIL ON WHICH THE BUILDINGS WERE TO BE ERECTED, THE FACT THAT NOTATIONS AS TO THE LOCATION OF NEAR-BY GRAVEL PITS AND AS TO THE MANNER IN WHICH PORTIONS OF THE WORK WERE TO BE PERFORMED WERE MADE ON THE DRAWINGS, DOES NOT CONSTITUTE A GUARANTEE OR A MISREPRESENTATION OF ACTUAL CONDITIONS SUCH AS TO WARRANT EXTENDING THE CONTRACT TIME FOR DELAYS INCURRED ON ACCOUNT OF THE SOIL FORMATION NOT BEING FOUND AS EXPECTED BY THE CONTRACTOR. WHERE CONTRACT PROVISIONS REQUIRE THE FILING OF CLAIMS FOR DELAYS WITHIN A GIVEN TIME AFTER THE DELAY COMPLAINED OF OCCURRED, THE FAILURE OF THE CONTRACTOR TO FILE CLAIMS FOR DELAYS WITHIN THE TIME SPECIFIED PRECLUDES THE CONSIDERATION OF A CLAIM THEREFOR FILED SUBSEQUENT TO THE EXPIRATION OF THE STIPULATED PERIOD.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 25, 1927:

THE GEORGE A. FULLER CO. APPLIED MARCH 31, 1927, FOR REVIEW OF SETTLEMENT NO. 0128534-VB, DATED AUGUST 10, 1926, WHEREIN OF THE AMOUNT CLAIMED AS THE BALANCE DUE UNDER CONTRACT OF NOVEMBER 28, 1922, AND SUPPLEMENTS THERETO DATED DECEMBER 10, 1923, AND DECEMBER 26, 1924, FOR CONSTRUCTING THE UNITED STATES VETERANS' HOSPITAL AT CHILLICOTHE, OHIO, THERE WAS ALLOWED, IN FINAL PAYMENT UNDER SAID CONTRACT, THE SUM OF $1,754.84 AND THE BALANCE OF THE AMOUNT CLAIMED, OR $42,396.36, COVERING LIQUIDATED DAMAGES FOR DELAYS IN COMPLETION OF THE CONTRACT WORK BEYOND THE DATE AS FIXED BY THE CONTRACT AND AUTHORIZED EXTENSIONS THEREUNDER, WAS DISALLOWED.

UNDER THE CONTRACT OF NOVEMBER 28, 1922, THE CONTRACTOR AGREED TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIAL NECESSARY TO COMPLETE ALL BUILDINGS COMPRISING THE UNITED STATES VETERANS' HOSPITAL AT CHILLICOTHE, OHIO, IN ACCORDANCE WITH SPECIFICATIONS PREPARED BY THE QUARTERMASTER GENERAL OF THE ARMY, DATED OCTOBER 12, 1922, ADDENDA THERETO DATED OCTOBER 28, 1922, AND PLANS MENTIONED THEREIN, ALL ATTACHED TO AND MADE A PART OF THE CONTRACT, FOR THE SUM OF $1,947,000, THE WORK TO BE COMPLETED IN ALL ITS PARTS ON OR BEFORE DECEMBER 15, 1923.

BY SUPPLEMENTAL AGREEMENT OF DECEMBER 10, 1923, THE CONSIDERATION OF THE CONTRACT WAS INCREASED IN THE NET AMOUNT OF $743.10 BY THE ADDITION, SUBSTITUTION, AND ELIMINATION OF CERTAIN ITEMS AND BY SUPPLEMENTAL AGREEMENT OF DECEMBER 26, 1924, THE CONSIDERATION WAS DECREASED IN THE NET AMOUNT OF $577.97 BY THE FURTHER ADDITION, SUBSTITUTION, AND ELIMINATION OF CERTAIN OTHER ITEMS OF THE CONTRACT WORK, MAKING A NET INCREASE IN THE TOTAL CONTRACT PRICE OF $165.13.

PARAGRAPH 6 OF THE CONTRACT PROVIDED---

* * * THAT A DEDUCTION SHALL BE MADE HEREUNDER IF THE CONTRACTOR SHALL BE IN UNEXCUSED DEFAULT IN THE COMPLETION OF THE WORK IN STRICT ACCORDANCE WITH THE DATE SET FORTH ABOVE FOR SUCH COMPLETION. SUCH DEDUCTION AS A LIQUIDATION OF ACTUAL DAMAGES, AND NOT AS A PENALTY SHALL BE AT THE RATE OF THREE HUNDRED DOLLARS ($300.00) FOR EACH CALENDAR DAY ON WHICH THERE IS DELAY BEYOND THE DATE FIXED FOR COMPLETION. IF ANY UNIT OF THE WORK HEREIN CONTRACTED FOR IS ACCEPTED IN ADVANCE OF THE WHOLE, THE AMOUNT OF LIQUIDATED DAMAGES THEN OPERATIVE WILL BE REDUCED IN PROPORTION TO THE TOTAL VALUE OF THE WORK CONTRACTED FOR AND THAT REMAINING UNACCEPTED.

AND IN PARAGRAPH 5 IT WAS STIPULATED THAT INTERRUPTION OF WORK DUE TO EXTRAORDINARY ACTS OF GOD OR DIRECT ACTS OF THE UNITED STATES GOVERNMENT SHOULD BE CONSIDERED UNAVOIDABLE AND BEYOND THE CONTROL OF THE CONTRACTOR AND NOT SUBJECT TO PAYMENT OF DAMAGES, BUT THAT DELAYS IN THE EXECUTION OR COMPLETION OF THE WORK DUE TO NON-DELIVERY OR REJECTION OF MATERIALS, EMBARGOES, CHANGES IN MARKET CONDITIONS, FAILURE TO OBTAIN PROPER LABOR, OR LACK OF EXERCISE OF REASONABLE FORESIGHT ON THE PART OF THE CONTRACTOR, WERE NOT TO BE CONSIDERED UNAVOIDABLE AND CAUSES FOR EXTENSIONS OF TIME OF COMPLETION, AND THAT- -

* * * IN NO EVENT WILL AN EXTENSION OF TIME BE GRANTED UNLESS A PRELIMINARY CLAIM FOR SAME, INCLUDING STATEMENT OF CAUSE OR CAUSES UPON WHICH THE CLAIM IS PREDICATED, SHALL HAVE BEEN FILED BY THE CONTRACTOR WITH THE CONSTRUCTING QUARTERMASTER WITHIN TEN (10) DAYS AFTER THE OCCURRENCE OF SUCH CAUSE OR CAUSES. IF EXTENSION OF TIME IS FOUND NECESSARY, THE CONTRACTOR MUST FILE WITH THE CONSTRUCTING QUARTERMASTER IN CHARGE OF THE WORK FORMAL WRITTEN CLAIM FOR SAME AT LEAST 30 DAYS PRIOR TO EXPIRATION CONTRACT, OR IMMEDIATELY IF THE DELAY OCCURS WITHIN THE 30 DAYS OF THE DATE OF COMPLETION, CITING THE CAUSES OF DELAY AS INDICATED ABOVE. FAILURE TO DO SO WILL PRECLUDE SUCH CLAIM FROM BEING CONSIDERED.

THE BUILDINGS IN QUESTION WERE TO BE CONSTRUCTED UNDER THE SUPERVISION OF THE CONSTRUCTION DIVISION OF THE QUARTERMASTER CORPS OF THE ARMY AND THE ADJUSTMENT OF CLAIMS AND DISPUTES UPON MATTERS OF FACT WAS PROVIDED FOR BY PARAGRAPH 13 OF THE CONTRACT AS FOLLOWS:

* * * THAT EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ANY CLAIMS, DOUBTS, OR DISPUTES UPON MATTERS OF FACT CONCERNING OR ARISING OUT OF THIS CONTRACT OR AS TO ITS PERFORMANCE OR NONPERFORMANCE SHALL BE REFERRED TO THE QUARTERMASTER GENERAL OF THE ARMY FOR DETERMINATION, AND HIS DECISION SHALL BE BINDING AND CONCLUSIVE AS TO ANY QUESTION, MATTER, OR THING SO SUBMITTED, BUT SHALL NOT DECIDE ANY QUESTION OF LEGAL RIGHTS OR LIABILITY; AND NO SUIT, ACTION, OR CLAIM SHALL BE SUSTAINABLE IN ANY COURT OF LAW OR EQUITY AGAINST EITHER PARTY HERETO UNTIL AFTER THE REFERENCE AND DECISION ABOVE PROVIDED FOR. THE DECISION UPON ANY REFERENCE SHALL BE CARRIED OUT BY THE PARTIES HERETO AS WITHIN THE CONTEMPLATION OF THIS CONTRACT.

ALL WORK CALLED FOR BY THE CONTRACT WAS DUE FOR COMPLETION ON OR BEFORE DECEMBER 15, 1923, BUT SAID WORK WAS NOT FINALLY COMPLETED IN ALL ITS PARTS UNTIL JULY 19, 1924, WHEN THE GRADING WORK WAS COMPLETED, ALTHOUGH IT APPEARS THAT BUILDINGS NOS. 1, 7, 9, TO 22, STEAM TUNNEL, TRANSMISSION LINE, WATER AND SEWER SYSTEMS, RAILROAD SPUR, AND ROADS AND WALKS WERE COMPLETED AND ACCEPTED ON JUNE 1, 1924, AND BUILDINGS NOS. 2 TO 8 WERE COMPLETED AND ACCEPTED ON JUNE 19, 1924. ON ACCOUNT OF DELAY CHARGEABLE TO THE GOVERNMENT THE QUARTERMASTER GENERAL OF THE ARMY AUTHORIZED AN EXTENSION IN THE CONTRACT TIME OF 35 DAYS, OR UNTIL JANUARY 19, 1924, AND LIQUIDATED DAMAGES (CALCULATED FROM SAID DATE TO DATE OF FINAL COMPLETION OF ALL WORK) COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 6 OF THE CONTRACT AND IN THE AMOUNT CLAIMED, WERE DEDUCTED.

THE CONTRACTOR CONTENDS THAT IT IS ENTITLED TO AN EXTENSION OF THE CONTRACT TIME FOR A TOTAL OF 141 DAYS' DELAY DUE PARTY TO THE FACT, AS ALLEGED, THAT THE CONTRACT PLANS WERE MISLEADING AND MISREPRESENTATIVE IN THAT ITS REPRESENTATIVES WERE LED TO BELIEVE THAT THE SOIL ON WHICH THE BUILDINGS WERE TO BE ERECTED WAS OF SAND AND GRAVEL FORMATION AND SELF- DRAINING BUT WAS FOUND TO BE OF GUMBO CLAY AND IMPERVIOUS TO WATER CAUSING DELAY IN EXCAVATING, IN THE INSTALLATION OF FINISHED WORK, AND IN TRANSPORTATION AROUND THE BUILDINGS UNDER CONSTRUCTION, AND PARTLY TO CONSTRUCTION DELAYS CAUSED BY STOP AND CHANGE ORDERS AND OTHER DELAYS ON THE PART OF THE GOVERNMENT, IT BEING CONTENDED IN THIS CONNECTION THAT THE STOPPING ON NOVEMBER 27, 1922, OF APPROXIMATELY ONE-HALF OF THE CONTRACT WORK FOR AN ELAPSED PERIOD OF 33 DAYS DEMORALIZED THE GENERAL PROGRESS OF THE JOB AND THAT THE ACTION OF THE GOVERNMENT ANNULLED AND VITIATED THE LIQUIDATION DAMAGE CLAUSE OF THE CONTRACT, AND FURTHER THAT THE EXTENSION OF 35 DAYS ALLOWED WAS NOT CALCULATED ON A PROPER BASIS SINCE THERE IS NOTHING IN THE CONTRACT THAT JUSTIFIES THE METHOD OF CALCULATION THAT WAS FOLLOWED IN DETERMINING SAID PERIOD.

THE BASIS FOR THE FIRST CONTENTION IS THAT THE CONTRACT DRAWINGS FURNISHED BY THE GOVERNMENT AND UPON WHICH THE CONTRACTOR'S ESTIMATE WAS MADE, INDICATED GRAVEL PITS LYING EAST, WITHIN 400 FEET OF THE MAIN BUILDING GROUP, AND CALLED FOR MANHOLES OF THE PIPE TUNNEL TO BE DRAINED BY MEANS OF DRY WELLS WHICH CLEARLY INDICATED THAT THE SOIL ON WHICH THE BUILDINGS WERE TO BE LOCATED WAS A SAND AND GRAVEL SELF DRAINING FORMATION. ALSO THAT NONE OF THE BASEMENTS OF THE BUILDINGS, AS PROVIDED FOR UNDER THE DRAWINGS AND SPECIFICATIONS, WERE TO BE WATERPROOFED, A CLEAR INDICATION THAT THE SOIL WOULD BE FOUND TO BE SELF-DRAINING, AND THAT THE TYPE OF ROADS CALLED FOR BY THE DRAWINGS AND SPECIFICATIONS WERE IMMINENTLY SATISFACTORY IN GRAVEL OR SANDY SOIL BUT IMPOSSIBLE OF INSTALLATION IN CLAY SIMILAR TO THAT FOUND AT THE LOCATION OF THE BUILDINGS.

THE MATTER OF THE RESPONSIBILITY FOR AND EFFECT OF THE ALLEGED MISLEADING OR MISREPRESENTATIVE NOTATIONS ON THE DRAWINGS AND SPECIFICATIONS AS TO SOIL CONDITIONS AT THE SITE OF THE BUILDINGS IS ONE WHICH THE QUARTERMASTER GENERAL OF THE ARMY UNDER PARAGRAPH 13 OF THE CONTRACT WAS NOT AUTHORIZED TO FINALLY DETERMINE SINCE IT PERTAINS TO THE LEGAL RIGHTS OR LIABILITIES OF THE PARTIES TO THE CONTRACT WITHIN THE MEANING OF THAT PROVISION AND IS FOR DETERMINATION UNDER OTHER PROVISIONS OF THE CONTRACT. NEITHER THE CONTRACT PROPER NOR THE SPECIFICATIONS MAKE ANY MENTION OF THE CHARACTER OF THE SOIL AT THE BUILDING SITE NOR ARE THERE ANY PROVISIONS THEREOF UNDER WHICH IT COULD BE HELD THAT THE GOVERNMENT UNDERTOOK TO GUARANTEE THE SOIL FORMATION WHERE THE BUILDINGS WERE TO BE ERECTED. THE INFORMATION ON THE DRAWINGS RESPECTING THE LOCATION OF NEAR- BY GRAVEL PITS WAS FOR THE PURPOSE, AS STATED BY THE CONSTRUCTING QUARTERMASTER, OF GIVING THE CONTRACTOR THE BENEFIT OF SUCH INFORMATION AS TO SOIL CONDITIONS AS PREVIOUS OPERATIONS NEAR THE SITE HAD DEVELOPED, BUT THERE IS NO BASIS FOR THE CONCLUSION THAT BY REASON OF THE MERE MENTION ON THE DRAWINGS OF THE EXISTENCE OF GRAVEL PITS IN THE IMMEDIATE LOCALE OF THE BUILDINGS, OR OF THE CHARACTER OF WORK TO BE PERFORMED AS INDICATED ON THE DRAWINGS, THERE WAS AN INTENTION TO GUARANTEE THAT SOIL CONDITIONS WOULD BE FOUND TO BE OF THE CHARACTER ASSUMED BY THE CONTRACTOR, AS NOW CLAIMED. W. D. LOVELL V. UNITED STATES, 61 CT.CLS. 756. FURTHERMORE, IN PARAGRAPH 5 OF THE CIRCULAR OF INFORMATION AND GENERAL INSTRUCTION TO BIDDERS, PROSPECTIVE BIDDERS WERE ADVISED BEFORE SUBMITTING THEIR PROPOSAL FOR THE WORK THAT---

* * * EACH BIDDER SHOULD MAKE A CAREFUL EXAMINATION OF THE DRAWINGS AND SPECIFICATIONS AND FULLY INFORM HIMSELF AS TO THE QUALITY OF MATERIALS AND CHARACTER OF WORKMANSHIP REQUIRED, AND MAKE A CAREFUL EXAMINATION OF THE PLACE WHERE THE MATERIALS ARE TO BE DELIVERED AND THE WORK PERFORMED. SHOULD HIS PROPOSAL BE ACCEPTED HE WILL BE RESPONSIBLE FORANY AND EVERY ERROR THEREIN RESULTING FROM HIS FAILURE TO MAKE SUCH EXAMINATIONS.

IT WAS THUS MADE THE CONTRACTOR'S DUTY TO ASCERTAIN AND DETERMINE TO ITS OWN SATISFACTION THE CHARACTER OF THE SOIL FORMATION WHERE THE BUILDINGS WERE TO BE ERECTED; AND THE FACT THAT AFTER THE CONTRACT WAS EXECUTED AND WORK COMMENCED, THE SOIL WAS FOUND TO BE OF A CHARACTER REQUIRING MORE TIME AND EXPENSE TO EXCAVATE, CAN NOT BE MADE THE BASIS FOR AN EXTENSION OF THE CONTRACT TIME. BESIDES, NO CLAIM FOR AN EXTENSION OF TIME ON ACCOUNT OF DELAYS OCCASIONED BY REASON OF SOIL CONDITIONS WAS MADE WITHIN THE TIME REQUIRED BY PARAGRAPH 5 OF THE CONTRACT AND UNDER THE PLAIN TERMS OF SAID PARAGRAPH, THE CONTRACTOR WOULD AT THIS TIME BE PRECLUDED FROM HAVING ITS CLAIM THEREFOR, FILED LONG AFTER THE ALLEGED DELAYS WERE INCURRED, CONSIDERED, EVEN IF OTHERWISE ENTITLED TO AN EXTENSION OF TIME BY REASON OF SAID DELAYS. 4 COMP. GEN. 135; PLUMLEY V. UNITED STATES, 226 U.S. 545; G. F. PAWLING AND CO. V. UNITED STATES, 60 CT.CLS. 699, AFFIRMED BY THE SUPREME COURT OF THE UNITED STATES, MARCH 7, 1927.

THE CONTENTION THAT DELAYS CAUSED BY THE STOP ORDER OF NOVEMBER 27, 1922, SO DISARRANGED THE PROGRESS OF WORK AS TO VITIATE THE LIQUIDATED DAMAGE CLAUSE OF THE CONTRACT APPEARS TO BE WITHOUT MERIT. THE STOP ORDER COMPLAINED OF WAS ISSUED PRIOR TO THE DATE THE CONTRACT WAS EXECUTED, AND THE CONTRACTOR ADMITS THAT THE ORDER HAD THE EFFECT OF STOPPING ONLY APPROXIMATELY 50 PERCENT OF THE WORK CALLED FOR BY THE CONTRACT. IN THE UNITED ENGINEERING COMPANY CASE, 234 U.S. 236, CITED BY THE CONTRACTOR IN SUPPORT OF ITS CONTENTION, THE CONTROVERSY WITH RESPECT TO THE DESIGNING AND CONSTRUCTION OF THE PUMP WELL THEREIN IN QUESTION HAD THE EFFECT OF CAUSING THE STOPPAGE OF ALL WORK UNDER THE CONTRACT, BUT SUCH WAS NOT THE CASE HERE. IN THE INSTANT MATTER THE STOP ORDER PREVENTED WORK ON PART OF THE BUILDINGS ONLY, LEAVING THE CONTRACTOR FREE TO PERFORM OTHER OF THE CONTRACT WORK. THE FACTS IN THIS CASE ARE SIMILAR TO THOSE CONSIDERED BY THE UNITED STATES SUPREME COURT IN THE ROBINSON CASE, 261 U.S. 486, WHEREIN THE COURT SAID, P. 488:

* * * THE FACT THAT THE GOVERNMENT'S ACTION CAUSED SOME OF THE DELAY, PRESENTS NO LEGAL GROUND FOR DENYING IT COMPENSATION FOR LOSS SUFFERED WHOLLY THROUGH THE FAULT OF THE CONTRACTOR. SINCE THE CONTRACTOR AGREED TO PAY AT A SPECIFIED RATE FOR EACH DAY'S DELAY CAUSED BY THE GOVERNMENT, IT WAS CLEARLY THE INTENTION THAT IT SHOULD PAY FOR SOME DAYS' DELAY AT THAT RATE, EVEN IT IF WERE RELIEVED FROM PAYING FOR OTHER DAYS, BECAUSE OF THE GOVERNMENT'S ACTION. * * *

THE COURT FURTHER SAID THAT THE CASE WAS WHOLLY UNLIKE THE UNITED ENGINEERING COMPANY CASE, HERE RELIED UPON, AND WITH REFERENCE TO WHICH THE COURT STATED THAT THE QUESTION THERE WAS ONE OF CONSTRUCTION AND THAT THE LOWER COURT HAD FOUND AS A FACT THAT BUT FOR THE GOVERNMENT'S ACTION THE WORK WOULD HAVE BEEN COMPLETED WITHIN THE CONTRACT PERIOD, AND ON THAT SHOWING THE LIQUIDATED DAMAGE PROVISION WAS HELD NOT APPLICABLE TO SUCH A CASE.

THE CONTRACTOR'S PROGRAM OF WORK WAS ONLY PARTIALLY INTERFERED WITH BY THE ISSUANCE OF THE STOP ORDER OF NOVEMBER 27, 1922, AND AS OTHER OF THE CONTRACT WORK HAS PROCEEDED WITH, THE DECISION, TO WHICH REFERENCE IS ABOVE MADE CLEARLY AND EFFECTIVELY DISPOSES OF THE CONTENTION NOW MADE THAT THE DELAY CAUSED BY THE GOVERNMENT ANNULLED AND VITIATED THE LIQUIDATED DAMAGE CLAUSE OF THE CONTRACT UNDER WHICH THE WORK WAS BEING PERFORMED. OBJECTION IS ALSO MADE THAT THE TIME THE CONTRACT WAS EXTENDED BY REASON OF DELAYS CAUSED BY THE UNITED STATES WAS CALCULATED ON AN ERRONEOUS BASIS. UNDER THE PROVISIONS OF PARAGRAPH 13 OF THE CONTRACT THE DECISION OF THE QUARTERMASTER GENERAL OF THE ARMY UPON MATTERS OF FACT WAS MADE BINDING AND CONCLUSIVE ON THE PARTIES TO THE CONTRACT AND THE QUARTERMASTER GENERAL HAS DETERMINED UNDER THAT PARAGRAPH THAT AS A MATTER OF FACT, THE CONTRACTOR WAS DELAYED ONLY 35 DAYS BY REASON OF ALL DELAYS CAUSED BY THE GOVERNMENT, BEING FOR 18 DAYS ON ACCOUNT OF THE DELAY FROM NOVEMBER 27, 1922, TO DECEMBER 30, 1922, ON BUILDINGS NOS. 2 TO 8, 10, AND 11, DUE TO THE STOP ORDER OF NOVEMBER 27, 1922; FOR 5 DAYS ON ACCOUNT OF THE DELAY ON BUILDING NO. 1 DUE TO ORDER OF FEBRUARY 5, 1923, STOPPING WORK ON FABRICATION OF STEEL WINDOW SASH; AND FOR 12 DAYS BY REASON OF DELAY IN APPROVING LOCKS FOR CERTAIN BUILDINGS. THE QUESTION AS TO THE CALCULATION OR PROCESS BY WHICH THE QUARTERMASTER GENERAL ARRIVED AT HIS FINDING OF FACT AS TO THE TOTAL NUMBER OF DAYS THE FINAL COMPLETION WAS DELAYED FROM CAUSED FOR WHICH THE GOVERNMENT WAS RESPONSIBLE IS NOT NOW FOR CONSIDERATION.

UPON REVIEW THE SETTLEMENT OF AUGUST 10, 1926, IS AFFIRMED AND CHECK ISSUED IN PAYMENT OF THE AMOUNT ALLOWED BY THAT SETTLEMENT AND TRANSMITTED TO THIS OFFICE WITH REQUEST FOR REVIEW WILL BE RETURNED TO THE CONTRACTOR.