A-33030, DECEMBER 10, 1930, 10 COMP. GEN. 252

A-33030: Dec 10, 1930

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CONTRACTS - LIQUIDATED DAMAGES - INTERPRETATION OF DRAWINGS AND SPECIFICATIONS WHERE THERE WAS DELAY IN COMPLETING PERFORMANCE OF A CONTRACT FOR CERTAIN LOCK GATES OPERATING MACHINERY EQUIPMENT FOR A SPECIFIED LOCK AND DAM. IT IS SHOWN THAT THE DELAY WAS DUE TO THE CONTRACTOR'S MISINTERPRETATION OF THE PROVISIONS OF THE CONTRACT. WHICH CAUSE OF DELAY WAS NOT EXCUSABLE UNDER THE PROVISIONS OF THE CONTRACT. THERE IS NO AUTHORITY TO REMIT THE LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT FOR SUCH UNEXCUSED DELAY IN PERFORMANCE OF THE CONTRACT. THE CONTRACTOR IS NOT ENTITLED TO EXTRA PAYMENT FOR WORK OR MATERIALS SHOWN ON THE DRAWINGS AND OMITTED FROM THE SPECIFICATIONS. BY WHICH WAS DISALLOWED ITS CLAIM FOR A BALANCE ALLEGED TO BE DUE UNDER ITS WAR DEPARTMENT CONTRACT NO.

A-33030, DECEMBER 10, 1930, 10 COMP. GEN. 252

CONTRACTS - LIQUIDATED DAMAGES - INTERPRETATION OF DRAWINGS AND SPECIFICATIONS WHERE THERE WAS DELAY IN COMPLETING PERFORMANCE OF A CONTRACT FOR CERTAIN LOCK GATES OPERATING MACHINERY EQUIPMENT FOR A SPECIFIED LOCK AND DAM, AND IT IS SHOWN THAT THE DELAY WAS DUE TO THE CONTRACTOR'S MISINTERPRETATION OF THE PROVISIONS OF THE CONTRACT, WHICH DELAYED THE FURNISHING OF REQUIRED ELECTRIC MOTORS THEREUNDER, AND WHICH CAUSE OF DELAY WAS NOT EXCUSABLE UNDER THE PROVISIONS OF THE CONTRACT, THERE IS NO AUTHORITY TO REMIT THE LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT FOR SUCH UNEXCUSED DELAY IN PERFORMANCE OF THE CONTRACT. UNDER THE PROVISIONS OF ARTICLE 2 OF THE STANDARD FORM OF GOVERNMENT CONSTRUCTION CONTRACT, THE CONTRACTOR IS NOT ENTITLED TO EXTRA PAYMENT FOR WORK OR MATERIALS SHOWN ON THE DRAWINGS AND OMITTED FROM THE SPECIFICATIONS.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 10, 1930:

THE ALDRICH PUMP CO. APPLIED SEPTEMBER 30, 1930, FOR REVIEW OF SETTLEMENT DATED JULY 22, 1930, BY WHICH WAS DISALLOWED ITS CLAIM FOR A BALANCE ALLEGED TO BE DUE UNDER ITS WAR DEPARTMENT CONTRACT NO. W-923 ENG-192, DATED NOVEMBER 26, 1929, FOR FURNISHING CERTAIN LOCK GATES OPERATING MACHINERY FOR THE HASTINGS LOCK AND DAM, MISSISSIPPI RIVER, NEAR HASTINGS, MINN.

CONTRACTOR'S CLAIM CONSISTS OF THE FOLLOWING ITEMS: CHART

(1) REMISSION OF THE LIQUIDATED DAMAGES DEDUCTED FROM THE CONTRACT PRICE ON ACCOUNT OF ALLEGED UNEXCUSED DELAY OF 61 DAYS IN PERFORMANCE OF THE CONTRACT AT $10 PER DAY -------------$610.00

(2) REFUND OF INSPECTOR'S FEES OR CHARGES DEDUCTED FROM THE CONTRACT PRICE FOR INSPECTION CHARGES SUBSEQUENT TO THE CONTRACT COMPLETION DATE -- -------------------------------------$ 25.00

(3) PAYMENT TO COVER COST OF 4 ELECTRIC MOTORS FURNISHED UNDER PROTEST IN CONNECTION WITH PERFORMANCE OF THE CONTRACT, AT $245 EACH - -------------- -------------------------$980.00

TOTAL AMOUNT OF CLAIM -----------------$1,615.00

THE CONTRACTOR APPEARS TO HAVE BEEN PAID THE CONTRACT PRICE FOR PERFORMANCE OF THE CONTRACT, WITH THE EXCEPTION OF THE SUM OF $635, WHICH WAS DEDUCTED THEREFROM TO COVER CERTAIN LIQUIDATED DAMAGES AND INSPECTOR'S FEES, ALLEGED TO BE DUE FROM THE CONTRACTOR ON ACCOUNT OF ITS UNEXCUSED DELAY OF 61 DAYS IN COMPLETING PERFORMANCE OF THE CONTRACT. THE CONTRACTOR CLAIMS THAT IT IS ENTITLED TO AN ADDITIONAL SUM OF $980 IN EXCESS OF THE CONTRACT PRICE, FOR FOUR ELECTRIC MOTORS WHICH WERE REQUIRED TO BE FURNISHED AND WHICH IT FURNISHED UNDER PROTEST IN CONNECTION WITH THE CONTRACT WORK. THE CONTRACTOR STATES THAT THE DELAY IN COMPLETING THE CONTRACT WAS DUE TO THE ADDITIONAL REQUIREMENT OF THE CONTRACTING OFFICER THAT FOUR 15 HORSEPOWER, 230 VOLTS, ELECTRIC MOTORS BE FURNISHED AS A PART OF THE LOCK GATES OPERATING LOCK AND DAM MACHINERY PROVIDED FOR BY SAID CONTRACT; THAT AS SUCH MOTORS WERE NOT MENTIONED IN THE SPECIFICATIONS, THE CONTRACTING OFFICER WAS NOT AUTHORIZED TO REQUIRE THAT SAME BE FURNISHED; AND THAT AS SAID MOTORS WERE FURNISHED UNDER PROTEST, IT IS ENTITLED TO PAYMENT THEREFOR IN THE SUM OF $245 EACH, OR A TOTAL OF $980. CONTRACTOR FURTHER CONTENDS THAT AS THE DELAY IN COMPLETING THE CONTRACT WAS DUE TO THE UNAUTHORIZED REQUIREMENT OF THE CONTRACTING OFFICER RELATIVE TO THE FURNISHING OF SAID MOTORS FOR THE LOCK AND DAM MACHINERY, IT IS ENTITLED TO A REMISSION OF THE $610 LIQUIDATED DAMAGES CHARGED AGAINST IT FOR THE DELAY AND A REFUND OF THE $25 INSPECTOR'S FEES, WHICH SUMS HAVE BEEN DEDUCTED FROM THE CONTRACT PRICE OF SAID WORK.

UNDER THE TERMS AND PROVISIONS OF SAID CONTRACT THE CONTRACTOR AGREED, FOR AND IN CONSIDERATION OF THE PAYMENT OF $15,492, TO FURNISH ALL LABOR AND MATERIALS AND TO PERFORM ALL WORK REQUIRED FOR THE LOCK GATES OPERATING MACHINERY (LOT A) FOR THE HASTINGS LOCK AND DAM, MISSISSIPPI RIVER, NEAR HASTING, MINN., IN STRICT ACCORDANCE WITH THE SPECIFICATIONS DATED OCTOBER 21, 1929, AND THE DRAWINGS DESIGNATED FOR LOT A IN PARAGRAPH 22 OF THE SPECIFICATIONS, SHEETS 1 TO 6, INCLUSIVE, ALL MADE A PART OF THE CONTRACT; AND THAT SUCH WORK WOULD BE COMMENCED WITHIN 10 DAYS AFTER DATE OF THE GOVERNMENT'S NOTICE TO PROCEED AND WOULD BE COMPLETED WITHIN 90 DAYS AFTER DATE OF SAID NOTICE. THE CONTRACT PROVIDED THAT IN CASE OF FAILURE ON THE PART OF THE CONTRACTOR TO COMPLETE THE WORK WITHIN THE TIME THUS DETERMINED AND AGREED UPON FOR ITS COMPLETION, THE CONTRACTOR SHOULD PAY TO THE GOVERNMENT AS LIQUIDATED DAMAGES THE SUM OF $10 FOR EACH CALENDAR DAY OF DELAY NOT DUE TO CERTAIN CAUSES MENTIONED IN THE CONTRACT.

THE RECORD DISCLOSES THAT THE GOVERNMENT'S NOTICE TO THE CONTRACTOR TO PROCEED WITH THE CONTRACT WORK WAS DATED DECEMBER 2, 1929. THUS, UNDER THE TERMS OF THE CONTRACT, PERFORMANCE THEREOF SHOULD HAVE BEEN COMPLETED ON OR BEFORE MARCH 2, 1930. IT APPEARS, HOWEVER, THAT PERFORMANCE OF THE CONTRACT WAS NOT COMPLETED UNTIL MAY 2, 1930, A DELAY OF 61 CALENDAR DAYS BEYOND THE DATE FIXED BY THE PARTIES FOR COMPLETING PERFORMANCE THEREOF.

ON MAY 31, 1930, THE CONTRACTING OFFICER WROTE TO THE CHIEF OF ENGINEERS, UNITED STATES ARMY, RELATIVE TO THE CONTRACTOR'S CLAIM FOR REMISSION OF LIQUIDATED DAMAGES, AS FOLLOWS:

2. THE AMOUNT OF THE CONTRACT WAS $15,492.00 AND THE CONTRACT DATE OF COMPLETION WAS MARCH 2, 1930. THE ACTUAL DATE OF COMPLETION WAS MAY 2, 1930, AND THE ACCRUED LIQUIDATED DAMAGES AMOUNT TO $610.00.

3. THE PRINCIPAL REASON THE CONTRACT WAS NOT COMPLETED WITHIN THE CONTRACT PERIOD WAS THAT THE CONTRACTOR HAD MADE NO PROVISION FOR FURNISHING THE FOUR MOTORS REQUIRED TO OPERATE THE MACHINERY, HAVING ASSUMED THAT THEY WERE NOT INCLUDED IN THE CONTRACT, AND HAVING BID ACCORDINGLY. THE PROTEST AGAINST FURNISHING WAS OVERRULED AND THE MOTORS WERE FURNISHED. COPIES OF CONTRACTOR'S LETTERS OF FEBRUARY 24, 1930, TO THE CHIEF OF ENGINEERS, AND OF APRIL 11, 1930, TO THE DISTRICT ENGINEER, ARE INCLOSED.

4. AT THE TIME OF THE CONTRACTOR'S PROTEST, FEBRUARY 24, 1930, THE WORK (EXCEPT MOTORS) WAS PRACTICALLY COMPLETED. THE SUBSEQUENT DELAY WAS CAUSED BY THE NECESSITY OF OBTAINING MOTORS AND FITTING THEM TO THE MACHINERY.

5. IN MY OPINION THE CONTRACTOR WAS HONEST THOUGH MISTAKEN IN HIS ASSUMPTION OF NONINCLUSION OF THE MOTORS IN THE CONTRACT. I THEREFORE RECOMMEND THAT THE AMOUNT CHARGEABLE AS LIQUIDATED DAMAGES, $610.00, BE REMITTED, AND HAVE SO PREPARED THE VOUCHER.

THE CONTRACT PROVIDED:

ARTICLE 1. STATEMENT OF WORK.--- THE CONTRACTOR SHALL FURNISH ALL LABOR AND MATERIALS AND PERFORM ALL WORK REQUIRED FOR LOCK GATES OPERATING MACHINERY (LOT A) FOR THE HASTINGS LOCK AND DAM, MISSISSIPPI RIVER, NEAR HASTINGS, MINNESOTA, FOR THE CONSIDERATION OF FIFTEEN THOUSAND FOUR HUNDRED NINETY TWO DOLLARS ($15,492.00) IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, AND DRAWINGS, ALL OF WHICH ARE MADE A PART HEREOF AND DESIGNATED AS FOLLOWS:

SPECIFICATIONS DATED OCTOBER 21, 1929 (ATTACHED).

DRAWINGS DESIGNATED FOR LOT A IN PARAGRAPH 22 OF SPECIFICATIONS AND MARKED "MISSISSIPPI RIVER, HASTINGS LOCK AND DAM, LOCK GATE MACHINERY," SHEETS 1 TO 6 INCLUSIVE, FILE MISS. 20/20F1-6 (NOT ATTACHED).

THE WORK SHALL BE COMMENCED WITHIN TEN (10) DAYS AFTER DATE OF NOTICE TO PROCEED AND SHALL BE COMPLETED WITHIN NINETY (90) DAYS AFTER SAID DATE OF NOTICE TO PROCEED.

ARTICLE 2. SPECIFICATIONS AND DRAWINGS.--- THE CONTRACTOR SHALL KEEP ON THE WORK A COPY OF THE DRAWINGS AND SPECIFICATIONS AND SHALL AT ALL TIMES GIVE THE CONTRACTING OFFICER ACCESS THERETO. ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS, OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN. IN ANY CASE OF DISCREPANCY IN THE FIGURES OR DRAWINGS, THE MATTER SHALL BE IMMEDIATELY SUBMITTED TO THE CONTRACTING OFFICER, WITHOUT WHOSE DECISION SAID DISCREPANCY SHALL NOT BE ADJUSTED BY THE CONTRACTOR, SAVE ONLY AT HIS OWN RISK AND EXPENSE. THE CONTRACTING OFFICER SHALL FURNISH FROM TIME TO TIME SUCH DETAIL DRAWINGS AND OTHER INFORMATION HE MAY CONSIDER NECESSARY, UNLESS OTHERWISE PROVIDED. UPON COMPLETION OF THE CONTRACT THE WORK SHALL BE DELIVERED COMPLETE AND UNDAMAGED.

ARTICLE 5. EXTRAS.--- EXCEPT AS OTHERWISE HEREIN PROVIDED, NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

ARTICLE 9. DELAYS--- DAMAGES.--- IF THE CONTRACT REFUSES OR FAILS TO PROSECUTE THE WORK, OR ANY SEPARABLE PART THEREOF, WITH SUCH DILIGENCE AS WILL INSURE ITS COMPLETION WITHIN THE TIME SPECIFIED IN ARTICLE 1, OR ANY EXTENTION THEREOF, OR FAILS TO COMPLETE SAID WORK WITHIN SUCH TIME THE GOVERNMENT MAY, BY WRITTEN NOTICE TO THE CONTRACTOR, TERMINATE HIS RIGHT TO PROCEED WITH THE WORK OR SUCH PART OF THE WORK AS TO WHICH THERE HAS BEEN DELAY. IN SUCH EVENT, THE GOVERNMENT MAY TAKE OVER THE WORK AND PROSECUTE THE SAME TO COMPLETION BY CONTRACT OR OTHERWISE, AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE GOVERNMENT ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY. IF THE CONTRACTOR'SRIGHT TO PROCEED IS SO TERMINATED, THE GOVERNMENT MAY TAKE POSSESSION OF AND UTILIZE IN COMPLETING THE WORK SUCH MATERIALS, APPLIANCES, AND PLANT AS MAY BE ON THE SITE OF THE WORK AND NECESSARY THEREFOR. IF THE GOVERNMENT DOES NOT TERMINATE THE RIGHT OF THE CONTRACTOR TO PROCEED, THE CONTRACTOR SHALL CONTINUE THE WORK, IN WHICH EVENT THE ACTUAL DAMAGES FOR THE DELAY WILL BE IMPOSSIBLE TO DETERMINE AND IN LIEU THEREOF THE CONTRACTOR SHALL PAY TO THE GOVERNMENT AS FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY UNTIL THE WORK IS COMPLETED OR ACCEPTED THE AMOUNT AS SET FORTH IN THE SPECIFICATIONS OR ACCOMPANYING PAPERS AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE FOR THE AMOUNT THEREOF: PROVIDED, THAT THE RIGHT OF THE CONTRACTOR TO TO PROCEED SHALL NOT BE TERMINATED OR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES BECAUSE OF ANY DELAYS IN THE COMPLETION OF THE WORK 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 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.

ARTICLE 15. DISPUTES.--- EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THIS CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN THIRTY DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO SUCH QUESTIONS OF FACT. IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED.

THE SPECIFICATIONS PROVIDED:

8. ERRORS AND OMISSIONS.--- THE CONTRACTOR WILL NOT BE ALLOWED TO TAKE ADVANTAGE OF ANY ERROR OR OMISSION IN THESE SPECIFICATIONS, AS FULL INSTRUCTIONS WILL ALWAYS BE GIVEN SHOULD SUCH ERROR OR OMISSION BE DISCOVERED.

14. COMMENCEMENT, PROSECUTION, AND COMPLETION.--- THE CONTRACTOR WILL BE REQUIRED TO COMMENCE WORK UNDER THE CONTRACT WITHIN TEN (10) CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, TO PROSECUTE THE SAID WORK WITH FAITHFULNESS AND ENERGY AND TO COMPLETE IT WITHIN NINETY (90) CALENDAR DAYS AFTER SAID DATE OF RECEIPT OF NOTICE TO PROCEED. THE CONTRACT WILL PROVIDE FOR LIQUIDATED DAMAGES IN AN AMOUNT OF TEN DOLLARS (10.00) PER DAY PER LOT, FOR ANY PERIOD OF DELAY BEYOND THE TIME AGREED UPON FOR COMPLETION.

22. DRAWINGS.--- THE WORK CONTEMPLATED UNDER THESE SPECIFICATIONS SHALL CONFORM TO THE SHEETS OF GENERAL DRAWINGS MARKED AS FOLLOWS:

LOT A--- MISSISSIPPI RIVER, HASTINGS LOCK AND DAM, GATE MACHINERY, SHEETS 1 TO 6 INCLUSIVE. MISS. 20

20F1-6

ALSO TO SUCH DRAWING RELATING THERETO AS MAY BE EXHIBITED IN THIS OFFICE PRIOR TO THE OPENING OF PROPOSALS, AND TO SUCH OTHER DRAWINGS IN EXPLANATION OF DETAILS OR MINOR MODIFICATIONS AS MAY BE FURNISHED FROM TIME TO TIME DURING THE FABRICATION OF THE MATERIALS. THESE DRAWINGS WILL FORM A PART OF THESE SPECIFICATIONS. PARTS AND DETAILS NOT FULLY SHOWN ON THE DRAWINGS WILL BE DETAILED BY THE CONTRACTOR IN ACCORDANCE WITH THE BEST PRACTICE AND AFTER APPROVAL BY THE CONTRACTING OFFICER THREE COPIES OF EACH DRAWING SHALL BE SUPPLIED HIM BEFORE THE CORRESPONDING PATTERN OR SHOP WORK IS COMMENCED.

EACH OF LOTS A, B, C, AND D INCLUDE THE FURNISHING AND DELIVERY OF ALL PARTS SHOWN OR CALLED FOR ON THE DRAWINGS. * * * * * * *

38. CLAIMS AND PROTESTS.--- IF THE CONTRACTOR CONSIDERS ANY WORK REQUIRED OF HIM TO BE OUTSIDE THE REQUIREMENTS OF THE CONTRACT, OR CONSIDERS ANY RECORD OR RULING OF THE INSPECTORS OR CONTRACTING OFFICER AS UNFAIR, HE SHALL ASK FOR WRITTEN INSTRUCTIONS OR DECISION IMMEDIATELY AND THEN FILE A WRITTEN PROTEST WITH THE CONTRACTING OFFICER AGAINST THE SAME WITHIN 10 DAYS THEREAFTER, OR BE CONSIDERED AS HAVING ACCEPTED THE RECORD OR RULING.

THE DRAWINGS, MADE A PART OF THE CONTRACT BY ARTICLE 1 THEREOF, DESCRIBE IN DETAIL DIMENSIONS AND DIAGRAMS OF THE VARIOUS PARTS OF THE OPERATING MACHINERY EQUIPMENT TO BE FURNISHED, AND ON SHEET 1 OF SUCH DRAWINGS THE MOTOR TO BE FURNISHED IS DESCRIBED AS FOLLOWS: "725 R.P.M., 15 H.P.' ---" 15 H.P. 230 VOLT D.C. INTERMITTENT DUTY, SERIES WOUND MOTOR, TOTALLY ENCLOSED WEATHER PROOF, WESTINGHOUSE OR EQUAL.'

WITH REFERENCE TO THIS MATTER, THE CONTRACTING OFFICER, IN A REPORT TO THE CHIEF OF ENGINEERS, UNITED STATES ARMY, DATED OCTOBER 29, 1930, (2D IND.) STATED:

8. * * * MOTORS ARE STARTED AND OPERATED BY REMOTE CONTROL AND NO ADDITIONAL EQUIPMENT OTHER THAN THAT SHOWN ON DRAWINGS IS NECESSARY. IF A PARAGRAPH ON MOTORS HAD BEEN PLACED IN THE SPECIFICATIONS THE WORDING WOULD HAVE BEEN IDENTICAL WITH THAT SHOWN ON THE DRAWINGS. THE NUMBER OF MOTORS REQUIRED WAS NOT STATED AS THEY WERE NOT DETAILED. A MOTOR IS SHOWN FOR A COMPLETE UNIT AND AS FOUR UNITS ARE REQUIRED THERE WAS NO NECESSITY FOR STATING THE NUMBER OF MOTORS REQUIRED.

9. * * * THIS OFFICE IS OF THE OPINION THAT IF THE CONTRACTOR HAD NOT BEEN MISTAKEN IN HIS ASSUMPTION OF THE NONINCLUSION OF THE MOTORS IN THE CONTRACT AND HAD NOT ASSUMED THAT AFTER-APPROVAL DRAWINGS WERE UNNECESSARY, THERE WOULD HAVE BEEN NO DELAY. THESE ERRORS ON THE CONTRACTOR'S PART WOULD CAUSE DELAY TO ABOUT THE AMOUNT CHARGED FOR LIQUIDATED DRAWINGS. * * *

THE GENERAL RULE OF LAW IS THAT A PERSON IS BOUND BY AN AGREEMENT TO WHICH HE HAS ASSENTED, WHERE THE ASSENT IS UNINFLUENCED BY FRAUD, VIOLENCE, OR THE LIKE, AND HE WILL NOT BE PERMITTED TO SAY THAT HE DID NOT INTEND TO AGREE TO ITS TERMS. SEE 9 CYC. 288, AND CASES THERE CITED.

THE RULE IS WELL SETTLED THAT A PARTY MUST FULFILL HIS CONTRACTUAL OBLIGATION. IN THIS MATTER THE CONTRACTOR IS REQUESTING TO BE PAID AN ADDITIONAL SUM, IN EXCESS OF THE CONTRACT PRICE FOR COMPLETE PERFORMANCE OF THE CONTRACT, DUE TO THE FACT THAT IT WAS REQUIRED TO FURNISH FOUR ELECTRIC MOTORS UNDER THE INVOLVED CONTRACT WHICH IT HAD NOT ANTICIPATED SHOULD BE FURNISHED, AS SAME WERE NOT MENTIONED IN THE SPECIFICATIONS. THE CONTRACTING OFFICER DECIDED THAT THE FOUR ELECTRIC MOTORS WERE INCLUDED AS A PART OF THE LOCK AND DAM EQUIPMENT TO BE FURNISHED UNDER THE CONTRACT. THE CONTRACTOR PROTESTED SUCH DECISION AND APPEALED THEREFROM TO THE CHIEF OF ENGINEERS, UNITED STATES ARMY, BY LETTER OF FEBRUARY 24, 1930, WHO APPEARS SUBSEQUENTLY TO HAVE SUSTAINED THE RULING OF THE CONTRACTING OFFICER.

THE QUESTION OF WHETHER A RECOVERY MAY BE HAD FOR EXTRA WORK OR SERVICES OUTSIDE THE CONTRACT BUT PERFORMED IN CONNECTION THEREWITH IS, OF COURSE, DEPENDENT ON THE PROPER CONSTRUCTION OF THE CONTRACT. IT IS OBVIOUS THAT, IF BY A FAIR INTERPRETATION OF THE TERMS OF THE AGREEMENT, THE SERVICES FOR WHICH EXTRA COMPENSATION IS CLAIMED ARE INCLUDED IN THOSE FOR WHICH THE AGREED COMPENSATION IS STIPULATED, NO FURTHER RECOVERY MAY BE HAD. CORPUS JURIS 585.

IN THE INSTANT MATTER THE DRAWINGS, WHICH ARE A PART OF THE CONTRACT, PLAINLY SHOW THAT THE ELECTRIC MOTOR WAS TO BE INCLUDED IN EACH OF THE FOUR UNITS OF THE LOCK GATES OPERATING MACHINERY EQUIPMENT TO BE FURNISHED UNDER SAID CONTRACT. THE CONTRACTOR, HAVING CHOSEN TO RELY UPON HIS OWN INTERPRETATION, AND HAVING SUBMITTED HIS BID ACCORDINGLY, CANNOT AFTERWARDS BE HEARD TO COMPLAIN IF THE INTERPRETATION PLACED THEREON BY HIM DID NOT ACCORD WITH THE TRUE INTENT AND MEANING OF THE CONTRACT TERMS. IF THE CONTRACT DID NOT EXPRESS THE TRUE AGREEMENT, THE CONTRACTOR SHOULD NOT HAVE SIGNED IT. HAVING SIGNED THE CONTRACT, THE CONTRACTOR BECAME OBLIGATED TO COMPLETE PERFORMANCE THEREOF IN ACCORDANCE WITH ITS PROVISIONS, WHICH OBVIOUSLY INCLUDED FURNISHING THE FOUR ELECTRIC MOTORS AS A PART OF THE LOCK AND DAM EQUIPMENT COVERED BY THE CONTRACT. WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION, AS APPEARS TO BE THE CASE IN THE CONTRACT HERE UNDER CONSIDERATION, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. IN THIS CONNECTION SEE 13 CORPUS JURIS, 584; BRAWLEY V. UNITED STATES, 96, U.S. 168; INTERNATIONAL CONTRACTING CO. V. LAMONT, 155 U.S. 310; AND SIMPSON V. UNITED STATES, 172 U.S. 379. FURTHERMORE, THIS OFFICE HAS HELD THAT UNDER THE PROVISIONS OF ARTICLE 2 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, SUCH AS THE ONE UNDER CONSIDERATION, THE CONTRACTOR IS NOT ENTITLED TO EXTRA PAYMENT FOR WORK OR MATERIALS SHOWN ON THE DRAWINGS AND OMITTED FROM THE SPECIFICATIONS. 7 COMP. GEN. 503.

UNDER ARTICLE 9 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, SUCH AS THE ONE UNDER CONSIDERATION, THE QUESTION WHETHER A CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES DEPENDS UPON THE TERMS OF THE THE CONTRACT AND THE FACTS AS FOUND BY THE CONTRACTING OFFICER. IT IS FOR THE ADMINISTRATIVE OFFICER TO DETERMINE THE FACTS AND THE EXTENT OF DELAY AND FOR THE GENERAL ACCOUNTING OFFICE, OR THE COURTS TO DETERMINE THE QUESTION OF WHETHER UNDER SUCH FACTS AND THE TERMS OF THE CONTRACT LIQUIDATED DAMAGES ARE TO BE REMITTED OR RETAINED.

SEE 6 COMP. GEN. 650; 7 ID. 505, 534; AND 8 ID. 13.

THE CONTRACT MAKES NO PROVISION FOR THE REMISSION OF DAMAGES FOR DELAYS IN PERFORMANCE, EXCEPTING AS STIPULATED IN ARTICLE 9, ABOVE QUOTED, FOR "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.' THE RECORD DOES NOT SHOW THAT ANY OF THE 61 DAYS' DELAY WAS DUE TO THE CAUSES FOR WHICH THE CONTRACT PROVIDES THAT LIQUIDATED DAMAGES ARE NOT CHARGEABLE, NOR TO CAUSES RESULTING FROM AN ACT OF GOD, OR OF THE LAW, OR OF THE UNITED STATES. ON THE CONTRARY, THE EVIDENCE SHOWS THAT ALL THE DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT WAS DUE TO THE CONTRACTORS'S MISINTERPRETATION OF THE PROVISIONS OF THE CONTRACT WHICH CAUSED IT TO DELAY FURNISHING THE REQUIRED ELECTRIC MOTORS THEREUNDER. OBVIOUSLY, SUCH DELAY IS NOT EXCUSABLE UNDER THE TERMS OF THE CONTRACT.

IN VIEW OF THE FACTS AND CIRCUMSTANCES AND THE TERMS OF THE CONTRACT, AS ABOVE SHOWN, THERE IS NO AUTHORITY TO PAY TO THE CONTRACTOR ANY SUM IN EXCESS OF THE CONTRACT PRICE FOR COMPLETING PERFORMANCE OF THE CONTRACT. NEITHER IS THERE ANY AUTHORITY TO REMIT THE LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT ON ACCOUNT OF CONTRACTOR'S DELAY OF 61 DAYS IN THE PERFORMANCE OF SAID CONTRACT. SHOWN, THERE IS NO AUTHORITY TO PAY TO THE CONTRACTOR ANY SUM IN EXCESS OF THE CONTRACT PRICE FOR COMPLETING PERFORMANCE OF THE CONTRACT. NEITHER IS THERE ANY AUTHORITY TO REMIT THE LIQUIDATED DAMAGES ACCRUED TO THE GOVERNMENT ON ACCOUNT OF CONTRACTOR'S DELAY OF 61 DAYS IN THE PERFORMANCE OF SAID CONTRACT.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF JULY 22, 1930, MUST BE AND IS SUSTAINED.