A-26486, APRIL 10, 1929, 8 COMP. GEN. 536

A-26486: Apr 10, 1929

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IS A CONDITION PRECEDENT TO THE CONSIDERATION OF A CLAIM FOR THE REMISSION OF DAMAGES UNLESS IT APPEARS IN A PARTICULAR CASE. IT IS INCUMBENT ON CONTRACTORS. ON WHICH THE BID WAS SUBMITTED. PROVISION WAS MADE IN THE CONTRACT FOR THE DEDUCTION OF LIQUIDATED DAMAGES AT THE RATE OF $10 PER CALENDAR DAY FOR EACH DAY'S DELAY IN COMPLETING THE CONTRACT WORK BEYOND THE TIME AGREED UPON NOT DUE TO. THE FINAL DATE OF COMPLETION BUT AS THE WORK WAS NOT FINALLY COMPLETED AND ACCEPTED UNTIL SEPTEMBER 8. THERE WAS DEDUCTED FROM FINAL PAYMENT THE SUM OF $210 AS LIQUIDATED DAMAGES AT THE RATE SPECIFIED IN THE CONTRACT FOR 21 CALENDAR DAYS' DELAY. THE REASONS ADVANCED BY THE CONTRACTOR AS TO WHY LIQUIDATED DAMAGES SHOULD NOT HAVE BEEN WITHHELD UNDER THE CONTRACT.

A-26486, APRIL 10, 1929, 8 COMP. GEN. 536

CONTRACTS - LIQUIDATED DAMAGES - NOTIFICATION TO CONTRACTING OFFICER OF DELAYS THE REQUIREMENT IN GOVERNMENT CONTRACTS PROVIDING FOR THE DEDUCTION OF LIQUIDATED DAMAGES FOR DELAY IN COMPLETING THE CONTRACT WORK AND REQUIRING CONTRACTORS WITHIN 10 DAYS FROM THE BEGINNING OF ANY DELAYS TO NOTIFY CONTRACTING OFFICERS IN WRITING OF THE CAUSES OF DELAY, IS A CONDITION PRECEDENT TO THE CONSIDERATION OF A CLAIM FOR THE REMISSION OF DAMAGES UNLESS IT APPEARS IN A PARTICULAR CASE, THAT THE CONTRACTING OFFICER HAD ACTUAL NOTICE OF THE DELAY AND THE CAUSE THEREOF, AND THAT THE GIVING OF NOTICE IN WRITING WOULD SERVE NO USEFUL PURPOSE. IT IS INCUMBENT ON CONTRACTORS, IN ORDER TO PROTECT THEIR INTERESTS UNDER SUCH CONTRACT PROVISIONS, TO GIVE THE REQUIRED NOTICE WITHIN 10 DAYS FROM THE HAPPENING OF EVENTS CALCULATED TO DELAY THE CONTRACT WORK SO THAT INVESTIGATIONS THEREOF MAY BE PROMPTLY MADE AND REPORTED BY CONTRACTING OFFICERS.

DECISION BY COMPTROLLER GENERAL MCCARL, APRIL 10, 1929:

THE ATLAS FENCE CO. REQUESTED MARCH 5, 1929, REVIEW OF SETTLEMENT NO. 0246620, DATED FEBRUARY 19, 1929, DISALLOWING ITS CLAIM FOR THE SUM OF $210 DEDUCTED AS LIQUIDATED DAMAGES FOR 21 DAYS' DELAY IN COMPLETING CONTRACT VBC-277, DATED MAY 16, 1928, COVERING THE CONSTRUCTION OF A WROUGHT IRON AND WIRE FENCE FOR THE UNITED STATES VETERANS' HOSPITAL AT RUTLAND HEIGHTS, MASS.

THE CONTRACTOR AGREED TO COMMENCE THE CONTRACT WORK WITHIN 5 CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED AND TO COMPLETE SAME WITHIN 75 CALENDAR DAYS FROM THAT DATE, THE TERM "THAT DATE" BEING DEFINED IN THE STANDARD GOVERNMENT FORM OF BID, ON WHICH THE BID WAS SUBMITTED, AS REFERRING TO THE DATE OF RECEIPT OF OFFICIAL NOTICE. PROVISION WAS MADE IN THE CONTRACT FOR THE DEDUCTION OF LIQUIDATED DAMAGES AT THE RATE OF $10 PER CALENDAR DAY FOR EACH DAY'S DELAY IN COMPLETING THE CONTRACT WORK BEYOND THE TIME AGREED UPON NOT DUE TO---

* * * UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER OR DELAYS OF SUBCONTRACTORS DUE TO SUCH CAUSES: PROVIDED FURTHER, THAT THE CONTRACTOR SHALL WITHIN TEN DAYS FROM THE BEGINNING OF ANY SUCH DELAY NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSES OF DELAY, WHO SHALL ASCERTAIN THE FACTS AND AND THE EXTENT OF THE DELAY, AND HIS FINDINGS OF FACTS THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO, SUBJECT ONLY TO APPEAL, WITHIN THIRTY DAYS, BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT CONCERNED, WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO.

THE CONTRACTOR RECEIVED OFFICIAL NOTICE TO PROCEED WITH THE CONTRACT WORK ON JUNE 4, 1928, THUS MAKING AUGUST 18, 1928, THE FINAL DATE OF COMPLETION BUT AS THE WORK WAS NOT FINALLY COMPLETED AND ACCEPTED UNTIL SEPTEMBER 8, 1928, THERE WAS DEDUCTED FROM FINAL PAYMENT THE SUM OF $210 AS LIQUIDATED DAMAGES AT THE RATE SPECIFIED IN THE CONTRACT FOR 21 CALENDAR DAYS' DELAY.

THE REASONS ADVANCED BY THE CONTRACTOR AS TO WHY LIQUIDATED DAMAGES SHOULD NOT HAVE BEEN WITHHELD UNDER THE CONTRACT, ARE THAT THERE WERE NINE RAINY DAYS PRIOR TO THE EXPIRATION OF THE TIME LIMIT FIXED FOR PERFORMING THE CONTRACT WORK, ON WHICH IT WAS IMPOSSIBLE TO WORK, AND DATA COLLECTED BY THE DEPARTMENT OF AGRICULTURE ARE FILED IN SUPPORT OF THAT CONTENTION; THAT DELAY WAS CAUSED BY HAVING TO RESET THE FENCE ON THE EAST SIDE AS SAME HAD BEEN ERECTED ON WRONG INSTRUCTIONS RECEIVED BY THE CONTRACTOR'S FOREMAN FROM THE SUPERINTENDENT OF CONSTRUCTION AT THE SITE, THE FOREMAN BEING ADVISED TO CONSIDER THE OLD FENCE AS THE LINE FOR THE NEW ONE; AND THAT, IN ADDITION, DELAYS WERE CAUSED BY HAVING TO DIG A TRENCH AND DO A GREATER AMOUNT OF GRADING AND EXCAVATING THAN WAS ORIGINALLY CONTEMPLATED.

IN REPORTING UPON THE DELAYS CLAIMED BY THE CONTRACTOR THE SUPERINTENDENT OF CONSTRUCTION STATED THAT HE DID NOT ARRIVE AT THE HOSPITAL UNTIL JULY 9, 1928, BUT THAT THE RAINY DAYS INDICATED FOR JULY AND AUGUST ARE CORRECT; THAT RELATIVE TO TAKING UP AND REPLACING CERTAIN FENCE POSTS ON THE SOUTHEAST SIDE, THE CONTRACTOR WAS ADVISED THAT THE FENCE IN PLACE COULD NOT BE USED AS A GUIDE BUT THAT MONUMENTS ONLY, WHICH WOULD BE FOUND AT EVERY POINT OF CHANGE OF DIRECTION, COULD BE USED AND AS THE CONTRACTOR'S REPRESENTATIVE COULD NOT LOCATE THE MONUMENT WHERE POSTS WERE LATER REMOVED, HE BELIEVED IT DID NOT EXIST AT THAT POINT AND INSTALLED POSTS APPROXIMATELY FROM 0 TO 12 FEET-0 IN ON PROPERTY LINE AND WHEN THE SAME WAS NOTED, THE CONTRACTOR WAS ADVISED THE MONUMENT EXISTED AND WAS SHOWN ITS APPROXIMATE LOCATION AS INDICATED ON THE PLANS; THAT THE MONUMENT WAS LATER LOCATED AND THE FENCE INSTALLED AS REQUIRED; AND THAT THE DIGGING OF THE TRENCH WAS A MINOR MATTER AND WAS REQUIRED BY THE CONTRACT AND IN NO WAY DELAYED THE COMPLETION OF THE CONTRACT WITHIN THE TIME LIMIT. ALSO, THAT THE CHAIN LINK WIRE DID NOT ARRIVE UNTIL AUGUST 16, 1928 (2 DAYS BEFORE THE CONTRACT TIME WAS TO EXPIRE); THAT THE STRETCHING OF WIRE DID NOT BEGIN UNTIL AUGUST 22, 1928; THAT ON SEPTEMBER 6, 1928, CHAIN LINK AND BARBED WIRE WAS BEING INSTALLED; THAT THE QUESTION OF DELIVERY OF MATERIALS WAS TAKEN UP WITH THE CONTRACTOR'S REPRESENTATIVE FROM TIME TO TIME; THAT HE WAS URGED TO CONTACT WITH HIS HOME OFFICE TO EXPEDITE DELIVERY OF THE WIRE IN ORDER TO INSURE EARLY COMPLETION OF THE CONTRACT; AND THAT DELAY IN COMPLETION OF THE CONTRACT WAS DUE TO DELAY IN THE ARRIVAL OF MATERIALS AND THE INSUFFICIENT FORCE AT VARIOUS TIMES.

THE CLAIM WAS DISALLOWED ON THE GROUND THAT THE CONTRACTOR DID NOT REPORT THE CAUSES OF DELAY IN WRITING WITHIN 10 DAYS FROM THE BEGINNING OF SUCH CAUSES AS REQUIRED BY CONTRACT. WHILE THAT REQUIREMENT OF THE CONTRACT APPEARS NOT TO HAVE BEEN COMPLIED WITH BY THE CONTRACTOR, THE REPORTED FACTS OF DELAY APPEAR TO BE SUCH THAT THE CONTRACTOR WOULD NOT BE ENTITLED TO FAVORABLE CONSIDERATION ON HIS CLAIM EVEN THOUGH THE CONTRACTING OFFICER HAD BEEN ADVISED IN WRITING OF THE CLAIMED CAUSES OF DELAY WITHIN 10 DAYS FROM THE OCCURRENCE OF SAID DELAYS. IT MAY BE STATED, HOWEVER, IN THIS CONNECTION THAT THE CONTRACT REQUIREMENT THAT THE CONTRACTOR SHALL WITHIN 10 DAYS FROM THE BEGINNING OF ANY DELAY NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSE OF DELAY, IS A CONDITION PRECEDENT TO THE CONSIDERATION OF ANY CLAIM FOR REMISSION OF DAMAGES BY REASON OF DELAYS OCCURRING DURING THE TIME FIXED FOR COMPLETION, UNLESS IT APPEARS IN A PARTICULAR CASE THAT THE CONTRACTING OFFICER HAD ACTUAL KNOWLEDGE OF THE DELAYS AND THE CAUSES THEREOF, AND THAT THE GIVING OF NOTICE IN WRITING WOULD SERVE NO USEFUL PURPOSE. IT IS, THEREFORE, INCUMBENT ON CONTRACTORS IN ORDER TO PROTECT THEIR INTERESTS UNDER SUCH CONTRACT PROVISIONS TO NOTIFY CONTRACTING OFFICERS IN WRITING OF DELAYS AND THEIR CAUSES, WITHIN 10 DAYS FROM THE HAPPENING OF EVENTS CALCULATED TO DELAY THE CONTRACT WORK, IN ORDER THAT INVESTIGATIONS THEREOF MAY BE PROMPTLY MADE AND REPORTED UPON BY CONTRACTING OFFICERS.

THE DELAYS OCCASIONED BY RAINY DAYS WERE NOT SUCH AS TO AUTHORIZE THE WAIVING OF LIQUIDATED DAMAGES FOR THE REASON THAT UNDER ARTICLE 9 OF THE CONTRACT THE NATURE OF THE WEATHER DELAYING THE CONTRACT WORK MUST HAVE BEEN SUCH AS COULD NOT HAVE BEEN ANTICIPATED OR EXPECTED AT THE TIME AND IN THE VICINITY WHERE THE WORK WAS BEING PERFORMED. DELAY CAUSED BY ORDINARY RAINY DAYS CAN NOT BE RECOGNIZED AS DELAYS DUE TO UNUSUALLY SEVERE WEATHER WITHIN THE MEANING OF THAT CONTRACT PROVISION.

FROM THE REPORT OF THE SUPERINTENDENT OF CONSTRUCTION THERE APPEARS TO BE NO BASIS FOR THE REMISSION OF LIQUIDATED DAMAGES ON ACCOUNT OF DELAYS CLAIMED TO HAVE BEEN DUE TO THE REMOVING AND RESETTING OF A PORTION OF THE FENCE AS SUCH DELAYS AS WERE THUS CAUSED APPEAR NOT TO HAVE CONTRIBUTED TO ANY APPRECIABLE EXTENT TO DELAYS IN THE COMPLETION OF THE CONTRACT WORK, AND TO BE CHARGEABLE TO THE CONTRACTOR. ACCORDING TO THE SUPERINTENDENT'S REPORT THE REAL CAUSE OF THE DELAY IN COMPLETING THE WORK WITHIN THE TIME LIMIT WAS THE LATE ARRIVAL AT THE SITE OF THE WORK OF THE CHAIN LINK FENCING MATERIAL, RATHER THAN ANY OF THE CLAUSES SPECIFIED BY THE CONTRACTOR. THE CLAIMED DELAYS IN COMPLETING THE CONTRACT NOT HAVING BEEN CHARGEABLE TO THE GOVERNMENT AND NOT HAVING BEEN DUE TO ANY OF THE CAUSES FOR WHICH THE CONTRACT AUTHORIZES REMISSION OF DAMAGES, NO RELIEF MAY BE GRANTED BY REASON OF SUCH DELAY.

ACCORDINGLY, UPON REVIEW THE SETTLEMENT DISALLOWING THE CLAIM MUST BE, AND IS, SUSTAINED.