A-30043, FEBRUARY 3, 1930, 9 COMP. GEN. 336

A-30043: Feb 3, 1930

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THE NEXT SUCCEEDING WORKING DAY IS CONSIDERED TO BE THE DUE DATE PROVIDED FINAL DELIVERY IS MADE ON THAT DATE. FINAL DELIVERY IS NOT MADE UNTIL A SUBSEQUENT DATE. ARE TO BE COUNTED IN COMPUTING LIQUIDATED DAMAGES. THAT IS. WHETHER UNDER SUCH CONTRACTS THERE ARE TO BE EXCLUDED FROM THE COMPUTATION THE MONDAYS FOLLOWING THE SUNDAYS AND THE NEXT SECULAR DAYS FOLLOWING HOLIDAYS ON WHICH THE FINAL DATES OF DELIVERY HAPPEN TO FALL. REGARDLESS OF WHETHER DELIVERIES ARE ACCOMPLISHED ON THOSE DAYS OR ON DATES SUBSEQUENT THERETO. A CASE INVOLVING A QUESTION SIMILAR TO THE ONE NOW FOR CONSIDERATION WAS CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY AND IN DECISION TO THE SECRETARY OF THE NAVY DATED JULY 21.

A-30043, FEBRUARY 3, 1930, 9 COMP. GEN. 336

CONTRACTS - LIQUIDATED DAMAGES - SUNDAYS AND HOLIDAYS WHERE THE FINAL DATE FOR MAKING DELIVERY UNDER A CONTRACT PROVIDING FOR THE DEDUCTION OF LIQUIDATED DAMAGES FOR DELAY IN COMPLETING THE CONTRACT WORK FALLS ON SUNDAY OR A LEGAL HOLIDAY, THE NEXT SUCCEEDING WORKING DAY IS CONSIDERED TO BE THE DUE DATE PROVIDED FINAL DELIVERY IS MADE ON THAT DATE. IF, HOWEVER, FINAL DELIVERY IS NOT MADE UNTIL A SUBSEQUENT DATE, THE SUNDAY OR HOLIDAY ON WHICH THE FINAL DATE OF DELIVERY FALLS, AND SUCCEEDING SUNDAYS AND HOLIDAYS, ARE TO BE COUNTED IN COMPUTING LIQUIDATED DAMAGES, UNLESS SPECIFICALLY EXCEPTED BY THE TERMS OF THE CONTRACT. COMP. DEC. 49, MODIFIED.

DECISION BY COMPTROLLER GENERAL MCCARL, FEBRUARY 3, 1930:

THERE HAS ARISEN, IN CONNECTION WITH THE AUDIT OF ACCOUNTS, THE QUESTION AS TO THE PROPER METHOD TO BE FOLLOWED IN COMPUTING LIQUIDATED DAMAGES WHEN FINAL DATES FOR MAKING DELIVERIES, UNDER CONTRACTS PROVIDING FOR THE DEDUCTION OF LIQUIDATED DAMAGES FOR DELAYED DELIVERIES, ON SUNDAYS OR HOLIDAYS; THAT IS, WHETHER UNDER SUCH CONTRACTS THERE ARE TO BE EXCLUDED FROM THE COMPUTATION THE MONDAYS FOLLOWING THE SUNDAYS AND THE NEXT SECULAR DAYS FOLLOWING HOLIDAYS ON WHICH THE FINAL DATES OF DELIVERY HAPPEN TO FALL, REGARDLESS OF WHETHER DELIVERIES ARE ACCOMPLISHED ON THOSE DAYS OR ON DATES SUBSEQUENT THERETO.

A CASE INVOLVING A QUESTION SIMILAR TO THE ONE NOW FOR CONSIDERATION WAS CONSIDERED BY A FORMER COMPTROLLER OF THE TREASURY AND IN DECISION TO THE SECRETARY OF THE NAVY DATED JULY 21, 1917, 24 COMP. DEC. 49, IT WAS HELD, QUOTING SYLLABUS, THAT:

WHEN THE LAST DAY WITHIN WHICH AN AGREEMENT MAY BE PERFORMED FALLS ON SUNDAY OR A HOLIDAY, THE NEXT SUCCEEDING WORKING DAY IS CONSIDERED TO BE THE DUE DATE.

THE CONTRACT IN THAT CASE PROVIDED FOR THE MAKING OF DELIVERY WITHIN 30 DAYS FROM OCTOBER 6, 1916, DATE OF CONTRACT, THE FINAL DATE FOR DELIVERY EXPIRING ON SUNDAY, NOVEMBER 5, 1916, BUT THE ARTICLES CONTRACTED FOR WERE NOT DELIVERED UNTIL JANUARY 9, 1917. PROVISION WAS MADE IN THE CONTRACT FOR THE DEDUCTION OF LIQUIDATED DAMAGES AT THE RATE OF ONE-TWENTIETH OF 1 PERCENT OF THE CONTRACT PRICE FOR EACH DAY'S DELAY, "SUNDAYS AND HOLIDAYS EXCEPTED, UNTIL SATISFACTORY DELIVERY OR PERFORMANCE SHALL HAVE BEEN MADE.'

THE GENERAL RULE TO THE EFFECT THAT IN COMPUTING THE TIME MENTIONED IN A CONTRACT FOR THE DOING OF AN ACT, INTERVENING SUNDAYS, UNLESS SPECIFICALLY EXCEPTED, ARE TO BE COUNTED, EXCEPT THAT WHEN THE LAST DAY FOR PERFORMANCE FALLS ON SUNDAY OR A HOLIDAY AND PERFORMANCE IS ON THE NEXT SUCCEDING SECULAR DAY SAID SUNDAY OR HOLIDAY IS NOT TO BE TAKEN INTO CONSIDERATION, APPEARS TO BE SUPPORTED BY THE WEIGHT OF AUTHORITY. SEE ARMSTRONG V. MCGOUGH, 29 A.L.R. 236, AND ANNOTATIONS THERETO; FOOTNOTES TO CONWAY V. SMITH MERCANTILE COMPANY, 49 L.R.A. 205, AND CASES THEREIN CITED; STREET V. UNITED STATES, 133 U.S. 299; PRESSED STEEL CAR CO. V. EASTERN RY. CO., 121 FED.REP. 609. HOWEVER, IN NONE OF THE CASES THERE CITED WAS IT HELD THAT THE DAY FOLLOWING THE SUNDAY OR HOLIDAY IS TO BE EXCLUDED IN THE COMPUTATION OF LIQUIDATED DAMAGES WHEN DELIVERIES FALLING DUE ON A SUNDAY OR A HOLIDAY ARE NOT MADE UNTIL AFTER THE EXPIRATION OF THE DUE DATES, INCLUDING THE MONDAY OR SECULAR DAY FOLLOWING THE SUNDAY AND HOLIDAY.

THE RULE REFERRED TO IN THE ABOVE-NOTED DECISIONS IS FOR APPLICATION IN CASES WHERE THE DATE FOR FINAL DELIVERY OR PERFORMANCE, UNDER CONTRACTS PROVIDING FOR THE DEDUCTION OF LIQUIDATED DAMAGES FOR DELAYS IN PERFORMANCE, HAPPENS TO FALL ON A SUNDAY OR A HOLIDAY, BUT ITS APPLICATION BY THE COMPTROLLER OF THE TREASURY IN THE ABOVE-MENTIONED CASE WOULD APPEAR TO BE TOO BROAD AND NOT WARRANTED BY JUDICIAL PRECEDENTS. FINAL DATE FOR DELIVERY OR COMPLETION OF PERFORMANCE FIXED IN A CONTRACT IS NOT TO BE CONSIDERED AS THE DATE OF DELIVERY WHERE THE CONTRACTOR HAS THE RIGHT UNDER SUCH CONTRACT TO MAKE DELIVERY OR COMPLETE PERFORMANCE AT ANY TIME PRIOR TO THE FINAL DATE FIXED IN THE CONTRACT.

WHERE UNDER A CONTRACT THIRTY CALENDAR DAYS ARE ALLOWED FOR COMPLETION WITH PROVISION FOR THE DEDUCTION OF LIQUIDATED DAMAGES FOR EACH DAY OF DELAY IN COMPLETION THEREAFTER AND THERE IS A DELAY OF TWENTY DAYS IN COMPLETION THERE WOULD BE NO EQUITY, JUSTIFICATION, OR SOUND REASON FOR EXCLUDING ONE SUNDAY OR HOLIDAY MERELY BECAUSE THE DATE FOR FINAL COMPLETION HAPPENED TO FALL ON A SUNDAY OR HOLIDAY, WHEN ALL OTHER SUNDAYS OR HOLIDAYS WITHIN THE DELAY PERIOD ARE REQUIRED TO BE COUNTED.

HEREAFTER THE RULE ANNOUNCED IN 24 COMP. DEC. 49 WILL BE FOLLOWED ONLY IN CASES IN WHICH THE DATE FIXED IN THE CONTRACT FOR FINAL COMPLETION FALLS ON A SUNDAY OR HOLIDAY AND FINAL COMPLETION IS ACTUALLY EFFECTED ON THE NEXT SUCCEEDING SECULAR DAY, OR IN CASES IN WHICH THE CONTRACT PROVIDES FOR THE COUNTING OF SECULAR OR WORKING DAYS ONLY.