A-27316, MAY 28, 1929, 8 COMP. GEN. 623

A-27316: May 28, 1929

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

CONTRACTS - DELAYS - EXTENSIONS OF TIME THERE IS NO AUTHORITY UNDER THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT FOR ADMINISTRATIVE OFFICERS TO GRANT EXTENSIONS OF TIME BECAUSE OF DELAYS IN COMPLETION OF THE WORK. ANY ADJUSTMENT OF TIME FOR PERFORMANCE REQUIRED ON ACCOUNT OF EXTRA WORK OR CHANGED CONDITIONS IS NOT FOR SETTLEMENT AS AN EXTENSION OF TIME. REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED. THE CONTRACT IS ON STANDARD FORM NO. 23. IT IS STATED IN THE DECISION REFERRED TO THAT: ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT IS QUOTED IN 6 COMP. 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.

A-27316, MAY 28, 1929, 8 COMP. GEN. 623

CONTRACTS - DELAYS - EXTENSIONS OF TIME THERE IS NO AUTHORITY UNDER THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT FOR ADMINISTRATIVE OFFICERS TO GRANT EXTENSIONS OF TIME BECAUSE OF DELAYS IN COMPLETION OF THE WORK. ANY ADJUSTMENT OF TIME FOR PERFORMANCE REQUIRED ON ACCOUNT OF EXTRA WORK OR CHANGED CONDITIONS IS NOT FOR SETTLEMENT AS AN EXTENSION OF TIME.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF LABOR, MAY 28, 1929:

THERE HAS BEEN RECEIVED YOUR LETTER OF MAY 18, 1929, WITH INCLOSURES, REQUESTING DECISION AS TO WHETHER YOU ARE AUTHORIZED, UNDER CONTRACT LI- 2144, DATED NOVEMBER 30, 1928, BETWEEN THE UNITED STATES, REPRESENTED BY THE COMMISSIONER OF IMMIGRATION, AND THE PITTSBURGH-DES MOINES STEEL CO., TO GRANT AN EXTENSION OF 30 DAYS WITHIN WHICH TO COMPLETE THE WORK FOR THE INSTALLATION OF TWO 250,000 GALLON STEEL WATER TANKS ON STEEL TOWERS, TOGETHER WITH CONCRETE FOUNDATIONS, ETC., IN THE POWER-HOUSE YARD , ISLAND NO. 1, NEW YORK HARBOR, N.Y. THE INCLOSURES REFER TO 8 COMP. GEN. 13, 15, AND EXPRESS DOUBT WHETHER AN EXTENSION OF TIME MAY BE GRANTED BY ADMINISTRATIVE OFFICERS IN WHICH TO PERFORM A CONTRACT.

THE CONTRACT IS ON STANDARD FORM NO. 23, STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, AND IT IS STATED IN THE DECISION REFERRED TO THAT:

ARTICLE 9 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT IS QUOTED IN 6 COMP. GEN. 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.

IT HAS BEEN SUGGESTED IN THE INCLOSURES ACCOMPANYING YOUR SUBMISSION THAT THE STATED RULE IS NOT APPLICABLE FOR THE REASON THAT DURING THE COURSE OF CONSTRUCTION THE CONTRACTOR ENCOUNTERED LATENT CONDITIONS AT THE SITE MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, AND THAT THE DELAY CAME WITHIN ARTICLE 4 OF THE CONTRACT AND WAS TO BE ADJUSTED AS STATED IN ARTICLE 3 THEREOF. ARTICLE 3 OF THE CONTRACT PROVIDES THAT IN EVENT ANY CHANGES MADE BY WRITTEN ORDERS, PROPERLY APPROVED,"CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE, AN EQUITABLE ADJUSTMENT SHALL BE MADE AND THE CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY," WHILE ARTICLE 4 OF THE CONTRACT PROVIDES:

SHOULD THE CONTRACTOR ENCOUNTER, OR THE GOVERNMENT DISCOVER, DURING THE PROGRESS OF THE WORK, SUBSURFACE AND (OR) LATENT CONDITIONS AT THE SITE MATERIALLY DIFFERING FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, THE ATTENTION OF THE CONTRACTING OFFICER SHALL BE CALLED IMMEDIATELY TO SUCH CONDITIONS BEFORE THEY ARE DISTURBED. THE CONTRACTING OFFICER SHALL THEREUPON PROMPTLY INVESTIGATE THE CONDITIONS, AND IF HE FINDS THAT THEY MATERIALLY DIFFER FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS, HE SHALL AT ONCE, WITH THE WRITTEN APPROVAL OF THE HEAD OF THE DEPARTMENT OR HIS REPRESENTATIVE, MAKE SUCH CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS AS HE MAY FIND NECESSARY, AND ANY INCREASE OR DECREASE OF COST AND (OR) DIFFERENCE IN TIME RESULTING FROM SUCH CHANGES SHALL BE ADJUSTED AS PROVIDED IN ARTICLE 3 OF THIS CONTRACT.

AN EXAMINATION OF THE CONTRACT ON FILE IN THIS OFFICE DISCLOSES THAT THERE HAS BEEN FILED THEREWITH NO WRITTEN ADJUSTMENT IN ACCORDANCE WITH ARTICLES 3 OR 4 OF THE CONTRACT. WHILE IT IS PROPER, WHEN CHANGES ARE MADE IN A CONTRACT OR CHANGED CONDITIONS, NECESSITATING ADDITIONAL EXPENDITURES, ARE ENCOUNTERED, OR EXTRA WORK IS REQUIRED, TO ISSUE ORDERS ACCORDINGLY AND FIX THE ADDITIONAL TIME NECESSARY THEREFOR, THERE IS NO AUTHORITY IN THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT FOR "EXTENSIONS" OF TIME TO BE GRANTED.

AS HERETOFORE HAS BEEN POINTED OUT IN DECISIONS OF THIS OFFICE, AN EXTENSION OF TIME UNDER THE OLD FORMS OF CONTRACTS WHICH WERE SUPERSEDED BY THE STANDARD FORM WAS ORIGINALLY FOR THE PURPOSE OF PREVENTING THE CONTRACT FROM COMING TO A CONCLUSION WITHOUT THE WORK BEING PERFORMED, OR WITH THE CONTRACTOR IN DEFAULT. THIS PRACTICE DEGENERATED INTO ONE OF ATTEMPTING TO ADJUST LIABILITY FOR LIQUIDATED DAMAGES THROUGH A SO-CALLED EXTENSION OF TIME, BUT THE PROCEDURE HAS BEEN ENTIRELY SUPERSEDED BY THE STANDARD FORMS OF CONTRACTS. IF THE CONTRACTOR BECOMES IN DEFAULT UNDER SUCH STANDARD FORMS, THE ADMINISTRATIVE OFFICERS HAVE THE OPTION OF PERMITTING THE CONTRACTOR TO CONTINUE PERFORMANCE OR OF CANCELING THE CONTRACT. IN EVENT THE CONTRACT IS NOT CANCELED, THE QUESTION OF WHETHER THE CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES IS ONE FOR THE DETERMINATION OF EITHER THE ACCOUNTING OFFICERS OF THE UNITED STATES OR THE COURTS, AND IS NOT FOR ADJUSTMENT THROUGH A SO-CALLED EXTENSION OF TIME.

ANSWERING YOUR QUESTION SPECIFICALLY, YOU ARE ADVISED THERE IS NO AUTHORITY TO GRANT THE CONTRACTOR AN EXTENSION OF TIME FOR PERFORMANCE OF THE CONTRACT OF NOVEMBER 30, 1928.