A-23639, JULY 13, 1928, 8 COMP. GEN. 13

A-23639: Jul 13, 1928

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STANDARD GOVERNMENT CONSTRUCTION CONTRACT - LIQUIDATED DAMAGES - EXTENSION OF TIME THERE IS NO AUTHORITY UNDER ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT FOR ADMINISTRATIVE OFFICERS TO EXTEND THE TIME OF A CONTRACTOR FOR PERFORMANCE. THE QUESTION WHETHER A CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES WHERE PERMITTED TO CONTINUE PERFORMANCE AFTER DEFAULT IS ONE OF LAW FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE. THE CONTRACT IN QUESTION IS FOR FURNISHING ONE COMPLETE INSTRUMENT CAPABLE OF PRODUCING TOPOGRAPHIC MAPS FROM AERIAL PHOTOGRAPHS AND COMBINING IN ONE APPARATUS THE VISUAL MEASURING AND DRAFTING SYSTEMS NECESSARY IN PRODUCING THE MAPS. IT IS REPORTED THAT SUBSEQUENT TO THE EXECUTION OF THE CONTRACT THERE HAD BEEN DEVELOPMENTS OF A HIGHLY TECHNICAL CHARACTER RELATING TO THE OPTICAL SETTING OF LENSE AND THE ARRANGEMENT OF PLATE HOLDERS.

A-23639, JULY 13, 1928, 8 COMP. GEN. 13

STANDARD GOVERNMENT CONSTRUCTION CONTRACT - LIQUIDATED DAMAGES - EXTENSION OF TIME THERE IS NO AUTHORITY UNDER ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT FOR ADMINISTRATIVE OFFICERS TO EXTEND THE TIME OF A CONTRACTOR FOR PERFORMANCE, THE ADMINISTRATIVE DUTY BEING LIMITED TO EITHER CANCELING THE CONTRACT BECAUSE OF DEFAULT OF THE CONTRACTOR, OR PERMITTING THE CONTRACTOR TO PERFORM AND STATING THE FACTS OF DELAY. THE QUESTION WHETHER A CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES WHERE PERMITTED TO CONTINUE PERFORMANCE AFTER DEFAULT IS ONE OF LAW FOR DETERMINATION BY THE GENERAL ACCOUNTING OFFICE.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE INTERIOR, JULY 13, 1928:

THERE HAS BEEN RECEIVED YOUR INDORSEMENT OF JULY 10, 1928, FORWARDING THE REQUEST OF THE FAIRCHILD AERIAL CAMERA CORPORATION FOR AN EXTENSION OF TIME UNDER ITS STANDARD GOVERNMENT CONSTRUCTION CONTRACT NO. I SEC.-19, DATED APRIL 6, 1928, AND REQUESTING DECISION WHETHER "UNDER THE CIRCUMSTANCES CITED, THE DEPARTMENT CAN EXTEND THE TIME DESIRED.'

THE CONTRACT IN QUESTION IS FOR FURNISHING ONE COMPLETE INSTRUMENT CAPABLE OF PRODUCING TOPOGRAPHIC MAPS FROM AERIAL PHOTOGRAPHS AND COMBINING IN ONE APPARATUS THE VISUAL MEASURING AND DRAFTING SYSTEMS NECESSARY IN PRODUCING THE MAPS, TOGETHER WITH 1 PAIR OF PLATE HOLDERS, 1 AERIAL MAPPING CAMERA, 10 PLATE MAGAZINES, AND 1 MAGAZINE FOR FILMS.

IT IS REPORTED THAT SUBSEQUENT TO THE EXECUTION OF THE CONTRACT THERE HAD BEEN DEVELOPMENTS OF A HIGHLY TECHNICAL CHARACTER RELATING TO THE OPTICAL SETTING OF LENSE AND THE ARRANGEMENT OF PLATE HOLDERS, WHICH DEVELOPMENTS HAD BEEN OBTAINED FROM VARIOUS SOURCES IN THIS COUNTRY AS WELL AS ABROAD, THROUGH PRACTICAL USES OF THE APPARATUS KNOWN AS AEROCARTOGRAPH, AND THAT WHILE THE ORIGINAL PLATE HOLDERS WOULD SATISFACTORILY PERFORM THEIR FUNCTIONS THEY COULD BE IMPROVED AND REFLECT A SAVING IN TIME, WITH A GREATER DEGREE OF ACCURACY IN PRODUCING MAPS BY IMPROVEMENTS MADE THEREIN THROUGH THE UTILIZATION OF THE LATEST AVAILABLE INFORMATION. APPARENTLY THE FAIRCHILD AERIAL CAMERA CORPORATION MADE ARRANGEMENT WITH THE AEROTOPOGRAPH CO., OF DRESDEN, GERMANY, TO MANUFACTURE PLATE HOLDERS, AND THAT COMPANY HAD REQUESTED THREE MONTHS' ADDITIONAL TIME AFTER JULY 1, 1928, DATE FIXED FOR COMPLETION OF THE CONTRACT, WITHIN WHICH TO COMPLETE DELIVERY OF THE PLATE HOLDERS. THE CONTRACTOR HAS AGREED TO INCORPORATE IMPROVEMENTS IN THE PLATE HOLDERS WITHOUT ADDITIONAL EXPENSE TO THE GOVERNMENT, AND THE PROCURING AGENCY HAS EXPRESSED ITS DESIRE TO PERMIT THE IMPROVEMENTS TO BE MADE.

ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT IS QUOTED IN 6 COMP. 650 AND NEED NOT BE QUOTED HEREIN. IN SUBSTANCE SAID ARTICLE PROVIDES FOR THE CANCELLATION OF A CONTRACT IN EVENT OF DEFAULT OF A CONTRACTOR OR FOR PERMITTING THE CONTRACTOR TO CONTINUE UNTIL PERFORMANCE HAS BEEN COMPLETED, WITH A CHARGE FOR LIQUIDATED DAMAGES ON ACCOUNT OF ALL DELAYS NOT DUE TO CERTAIN SPECIFIED CAUSES. AS STATED IN 6 COMP. GEN. 650 AND 7 ID. 534, THERE IS NO AUTHORITY IN ADMINISTRATIVE OFFICERS UNDER ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT TO GRANT EXTENSIONS OF TIME WITHIN WHICH TO COMPLETE DELIVERY. THE ADMINISTRATIVE AUTHORITY IS LIMITED TO EITHER CANCELING THE CONTRACT FOR DEFAULT IN DELIVERY OR PERMITTING THE CONTRACTOR TO CONTINUE UNTIL PERFORMANCE HAS BEEN COMPLETED AND REPORTING THE FACTS OF THE DELAY TO THIS OFFICE FOR CONSIDERATION AS TO WHETHER LIQUIDATED DAMAGES SHOULD OR SHOULD NOT BE CHARGED UNDER THE CONTRACT.

ARTICLE 16 (D) OF THE CONTRACT IN THIS CASE PROVIDES THAT:

UPON COMPLETION AND ACCEPTANCE OF ALL WORK REQUIRED HEREUNDER, THE AMOUNT DUE THE CONTRACTOR UNDER THIS CONTRACT WILL BE PAID UPON THE PRESENTATION OF A PROPERLY EXECUTED AND DULY CERTIFIED VOUCHER THEREFOR, AFTER THE CONTRACTOR SHALL HAVE FURNISHED THE GOVERNMENT WITH A RELEASE, IF REQUIRED, OF ALL CLAIMS AGAINST THE GOVERNMENT ARISING UNDER AND BY VIRTUE OF THIS CONTRACT, OTHER THAN SUCH CLAIMS, IF ANY, AS MAY BE SPECIFICALLY EXCEPTED BY THE CONTRACTOR FROM THE OPERATION OF THE RELEASE IN STATED AMOUNTS TO BE SET FORTH THEREIN; PAYABLE FROM APPROPRIATION FOR TOPOGRAPHIC SURVEYS, 1929.

WHEN THE CONTRACT HAS BEEN COMPLETED, THE VOUCHER FOR THE CONTRACT PRICE WITH REPORT OF ALL THE FACTS IN THE MATTER OF THE DELAY, WITH ADMINISTRATIVE RECOMMENDATION AS TO WHETHER OR NOT LIQUIDATED DAMAGES SHOULD BE CHARGED FOR ALL OR ANY PART OF THE DELAY, SHOULD BE SUBMITTED TO THIS OFFICE FOR SETTLEMENT. IF THE CONTRACTOR SHOULD SO REQUEST, IT MAY BE PAID THE CONTRACT PRICE LESS LIQUIDATED DAMAGES FOR ANY DELAY IN DELIVERY, AND A SEPARATE VOUCHER FOR THE AMOUNT WITHHELD AS LIQUIDATED DAMAGES, ACCOMPANIED BY ADMINISTRATIVE REPORT AND RECOMMENDATION, MAY BE SUBMITTED TO THIS OFFICE FOR SETTLEMENT.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THAT YOU ARE NOT AUTHORIZED TO GRANT ANY EXTENSIONS OF TIME UNDER ARTICLE 9 OF STANDARD GOVERNMENT CONSTRUCTION CONTRACT, AND THIS WITHOUT REFERENCE TO THE QUESTION WHETHER OR NOT THE FACTS OF DELAY ARE SUCH AS TO PRECLUDE CHARGING THE CONTRACTOR WITH LIQUIDATED DAMAGES. IN OTHER WORDS, THE PROCEDURE HERETOFORE OF ADMINISTRATIVE OFFICERS GRANTING EXTENSIONS OF TIME FOR DELAY IN COMPLETION IS OBSOLETE UNDER THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT. THERE HAS BEEN SUBSTITUTED THEREFOR THE ADMINISTRATIVE FUNCTION OF REPORTING ON THE FACTS OF DELAY WHERE THE CONTRACTOR HAS BEEN PERMITTED TO CONTINUE UNTIL PERFORMANCE HAS BEEN COMPLETED.