A-33729, MAY 24, 1932, 11 COMP. GEN. 442

A-33729: May 24, 1932

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CONTRACTS - LIQUIDATED DAMAGES - WEATHER CONDITIONS - CHANGES IN WORK A MERE SHOWING THAT THERE WAS RAIN OR WIND OR SNOW OR FREEZING TEMPERATURE ON CERTAIN DAYS DURING A MONTH WHEN SUCH WEATHER IS TO BE EXPECTED IS NOT SUFFICIENT TO BRING THE WEATHER WITHIN THE TERM "UNUSUALLY SEVERE" AS USED IN ARTICLE 9 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT. REMISSION OF LIQUIDATED DAMAGES DEDUCTED UPON FINAL PAYMENT FOR DELAY IN COMPLETION ALLEGED TO HAVE BEEN CAUSED BY SUCH WEATHER IS NOT AUTHORIZED. A CONTRACTOR IS ENTITLED TO AN EQUITABLE ADJUSTMENT OF THE CONTRACT PURSUANT TO ARTICLE 3 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT. LIQUIDATED DAMAGES DEDUCTED UPON FINAL PAYMENT COVERING PERIOD OF SUCH DELAYS MAY BE REMITTED UPON A SATISFACTORY SHOWING THAT THE CHANGE ORDERS WERE ISSUED AS A BASIS FOR AN ALLOWANCE OF ADDITIONAL TIME.

A-33729, MAY 24, 1932, 11 COMP. GEN. 442

CONTRACTS - LIQUIDATED DAMAGES - WEATHER CONDITIONS - CHANGES IN WORK A MERE SHOWING THAT THERE WAS RAIN OR WIND OR SNOW OR FREEZING TEMPERATURE ON CERTAIN DAYS DURING A MONTH WHEN SUCH WEATHER IS TO BE EXPECTED IS NOT SUFFICIENT TO BRING THE WEATHER WITHIN THE TERM "UNUSUALLY SEVERE" AS USED IN ARTICLE 9 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, AND REMISSION OF LIQUIDATED DAMAGES DEDUCTED UPON FINAL PAYMENT FOR DELAY IN COMPLETION ALLEGED TO HAVE BEEN CAUSED BY SUCH WEATHER IS NOT AUTHORIZED. A CONTRACTOR IS ENTITLED TO AN EQUITABLE ADJUSTMENT OF THE CONTRACT PURSUANT TO ARTICLE 3 OF THE STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, FOR DELAYS ON ACCOUNT OF CHANGES IN THE WORK ORDERED BY THE GOVERNMENT, AND LIQUIDATED DAMAGES DEDUCTED UPON FINAL PAYMENT COVERING PERIOD OF SUCH DELAYS MAY BE REMITTED UPON A SATISFACTORY SHOWING THAT THE CHANGE ORDERS WERE ISSUED AS A BASIS FOR AN ALLOWANCE OF ADDITIONAL TIME.

DECISION BY COMPTROLLER GENERAL MCCARL, MAY 24, 1932:

PAUL SOTHMAN HAS REQUESTED REVIEW OF SETTLEMENT NO. 0235999, DATED AUGUST 15, 1930, DISALLOWING ALL BUT $100 OF HIS CLAIM FOR $1,200 WHICH WAS DEDUCTED AS LIQUIDATED DAMAGES FROM FINAL PAYMENT UNDER CONTRACT CC-744, DATED SEPTEMBER 16, 1929, FOR CONSTRUCTION OF BUILDINGS AT THE CONSTANT FREQUENCY RADIO STATION, GRAND ISLAND, NEBR., ON ACCOUNT OF DELAY IN COMPLETION OF THE CONTRACT, THEN COMPUTED AS 48 DAYS. CLAIMANT HAS FORWARDED CHECK FOR $100 ISSUED UNDER SAID SETTLEMENT, IN CONNECTION WITH HIS REQUEST FOR REVIEW. THE CLAIM HAS BEEN ADMINISTRATIVELY APPROVED BY THE DEPARTMENT OF COMMERCE.

THE CONTRACT PROVIDED FOR COMPLETION OF THE WORK WITHIN 120 CALENDAR DAYS AFTER DATE OF RECEIPT BY THE CONTRACTOR OF NOTICE TO PROCEED. THE CONTRACT, A STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, FURTHER PROVIDED FOR LIQUIDATED DAMAGES OF $25 FOR EACH DAY'S DELAY IN COMPLETION, WITH THE USUAL EXCEPTIONS OF DELAYS DUE TO "UNUSUALLY SEVERE" WEATHER, ETC. AS NOTICE TO PROCEED WAS RECEIVED BY THE CONTRACTOR SEPTEMBER 25, 1929, THE WORK WAS DUE FOR COMPLETION JANUARY 23, 1930. WORK WAS COMPLETED MARCH 8, 1930, A DELAY OF 44 DAYS, INSTEAD OF 48 DAYS, ON THE BASIS OF WHICH THE ORIGINAL PAYMENT WAS MADE.

THE RECORD DISCLOSES THAT ONLY 14 DAYS OF THE DELAY WERE CLAIMED TO BE DUE TO WEATHER. UNDER DATE OF NOVEMBER 5, 1929, CLAIMANT ADDRESSED THE LOCAL REPRESENTATIVE OF THE CONTRACTING OFFICER AS FOLLOWS:

KINDLY CREDIT THE TIME ALLOWANCE ON THE ABOVE PROJECT THRU THE LOSS OF 4 DAYS (OCT. 28TH, 29TH, 30TH, 31ST) THIS BEING DUE TO RAINY WEATHER AND THEREFORE BEING IMPOSSIBLE TO PROCEED WITH THE WORK.

UNDER DATE OF DECEMBER 2, 1929, CLAIMANT ADDRESSED THE LOCAL REPRESENTATIVE OF THE CONTRACTING OFFICER AS FOLLOWS:

IT IS REQUESTED THAT THE COMPLETION DATE OF THE BUILDING OF THE GRAND ISLAND CONSTANT FREQUENCY STATION BE EXTENDED TEN DAYS DUE TO WEATHER CONDITIONS PREVENTING WORK AS FOLLOWS:

NOVEMBER 9. RAIN.

NOVEMBER 11. GALE.

NOVEMBER 12. FREEZING TEMPERATURE.

NOVEMBER 18. GALE.

NOVEMBER 19. FREEZING TEMPERATURE.

NOVEMBER 21. SNOW.

NOVEMBER 22. FREEZING TEMPERATURE.

NOVEMBER 23. FREEZING TEMPERATURE.

NOVEMBER 29. FREEZING TEMPERATURE.

NOVEMBER 30. FREEZING TEMPERATURE.

EACH OF THESE LETTERS IS INDORSED BY THE REPRESENTATIVE OF THE CONTRACTING OFFICER WITH A CERTIFICATE THAT THE WEATHER WAS AS STATED.

THE TERM "UNUSUALLY SEVERE WEATHER" AS USED IN ARTICLE 9 OF THE CONTRACT DOES NOT INCLUDE ANY AND ALL WEATHER WHICH PREVENTS WORK UNDER THE CONTRACT BUT MEANS ONLY WEATHER SURPASSING IN SEVERITY THE WEATHER USUALLY ENCOUNTERED OR REASONABLY TO BE EXPECTED IN THE PARTICULAR LOCALITY AND DURING THE PARTICULAR TIME OF THE YEAR INVOLVED IN THE CONTRACT. EVIDENCE WHATEVER HAS BEEN SUBMITTED THAT THE 14 DAYS' INCLEMENT WEATHER CLAIMED AS CAUSING DELAY IN PERFORMANCE UNDER THE CONTRACT WAS ANY MORE SEVERE THAN WEATHER DURING OCTOBER AND NOVEMBER IN THE LOCALITY OF GRAND ISLAND, NEBR., REASONABLY MAY BE EXPECTED TO BE. A MERE SHOWING THAT THERE WAS RAIN OR WIND OR SNOW OR FREEZING TEMPERATURE ON CERTAIN DAYS DURING A MONTH WHEN SUCH WEATHER IS TO BE EXPECTED IS NOT SUFFICIENT TO BRING THE WEATHER WITHIN THE TERM "UNUSUALLY SEVERE.' IT IS CONTEMPLATED A PRUDENT CONTRACTOR IN AGREEING TO COMMENCE WORK WITHIN A CERTAIN PERIOD AND COMPLETE IT WITHIN A CERTAIN NUMBER OF DAYS THEREAFTER, TAKES INTO CONSIDERATION THE WEATHER CONDITIONS WHICH ORDINARILY PREVAIL DURING SUCH A SEASON OF THE YEAR AND MAKES THE BID ACCORDINGLY. IT WOULD BE MANIFESTLY UNFAIR BOTH TO THE UNITED STATES AND TO THE OTHER BIDDERS TO REMIT LIQUIDATED DAMAGES DEDUCTED UNDER SUCH CONDITIONS WHEN A CONTRACTOR DID NOT COMPLETE THE WORK WITHIN THE REQUIRED PERIOD. IT MUST BE CONCLUDED, THEREFORE, THAT LIQUIDATED DAMAGES IN THE AMOUNT OF $350, COVERING THE 14 DAYS' DELAY CLAIMED TO BE DUE TO WEATHER, MAY NOT BE REMITTED.

THE REMAINING DELAYS (30 DAYS) APPARENTLY ARE CLAIMED TO HAVE BEEN CAUSED BY CHANGES AND ADDITIONS ORDERED BY THE GOVERNMENT.

ARTICLES 3 AND 5 OF THE CONTRACT PROVIDE AS FOLLOWS:

ARTICLE 3 CHANGES.--- THE CONTRACTING OFFICER MAY AT ANY TIME, BY A WRITTEN ORDER, AND WITHOUT NOTICE TO THE SURETIES, MAKE CHANGES IN THE DRAWINGS AND (OR) SPECIFICATIONS OF THIS CONTRACT AND WITHIN THE GENERAL SCOPE THEREOF. IF SUCH CHANGES 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. NO CHANGE INVOLVING AN ESTIMATED INCREASE OR DECREASE OF MORE THAN FIVE HUNDRED DOLLARS SHALL BE ORDERED UNLESS APPROVED IN WRITING BY THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE. ANY CLAIM FOR ADJUSTMENT UNDER THIS ARTICLE MUST BE ASSERTED WITHIN TEN DAYS FROM THE DATE THE CHANGE IS ORDERED, UNLESS THE CONTRACTING OFFICER SHALL FOR PROPER CAUSE EXTEND SUCH TIME, AND IF THE PARTIES CAN NOT AGREE UPON THE ADJUSTMENT THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN ARTICLE 15 HEREOF. BUT NOTHING PROVIDED IN THIS ARTICLE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH THE PROSECUTION OF THE WORK SO CHANGED.

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.

THERE ARE OF RECORD SIX ORDERS OF THE CONTRACTING OFFICER, ISSUED DURING THE CONTRACT PERIOD, AMENDING THE CONTRACT TO PROVIDE FOR CHANGES AND ADDITIONS TO THE CONTRACT AS FOLLOWS:

TABLE

DATE NATURE OF WORK AMOUNT NOV. 18, 1929 FOR ADDITIONAL SASH AND FRAMES - ------------- $148.00 DEC. 12, 1929 FOR TRANSMISSION RACK ---------------- ------- 26.95 JAN. 14, 1930 FOR DIGGING AND BACK FILLING TRENCH --------- 25.00 JAN. 14, 1930 FOR STEAM AND OIL LINES --------------------- 150.00 JAN. 14, 1930 FOR GAS IGNITION SYSTEM FOR OIL BURNER ------ 143.90 FEB. 24, 1930 FOR TWO SCREEN BOOTHS AND SHELVING IN

STORAGE ROOM ---------------------------- 464.00

THE SECRETARY OF COMMERCE HAS NOW TRANSMITTED TO THIS OFFICE A REPORT FROM THE LOCAL REPRESENTATIVE OF THE CONTRACTING OFFICER RELATIVE TO THE ADDITIONAL TIME REQUIRED BY THESE CHANGE ORDERS AND, ALSO, AS TO THE DELAYS CAUSED BY THE GOVERNMENT DURING THE PROGRESS OF THE WORK ON ACCOUNT OF DELAYS IN INSPECTION, ORAL STOP ORDERS PENDING DETERMINATION AS TO CHANGES IN THE WORK, ETC. THIS REPORT TOGETHER WITH THE EVIDENCE AND ADMINISTRATIVE REPORTS PREVIOUSLY SUBMITTED, INCLUDING THE CONTRACTOR'S LETTERS OF JANUARY 11, 1930, CITING THESE DELAYS AND THE ADDITIONAL WORK ORDERED OR CONTEMPLATED FOR WHICH CHANGE ORDERS HAD THEN BEEN ISSUED OR SUBSEQUENTLY WERE ISSUED AS A BASIS FOR AN ALLOWANCE OF ADDITIONAL TIME, AND THE CONTRACTING OFFICER'S LETTER OF JANUARY 28, 1930, PURPORTING TO ALLOW ADDITIONAL TIME, IN SO FAR AS SUCH ALLOWANCE WAS BASED ON CHANGES PURSUANT TO ARTICLE 3 OF THE CONTRACT, SUFFICIENTLY ESTABLISHES THAT THE SAID BALANCE OF 30 DAYS OF THE DELAY WAS ON ACCOUNT OF CHANGES IN THE WORK FOR WHICH THE CONTRACTOR WAS ENTITLED TO AN EQUITABLE ADJUSTMENT OF THE CONTRACT TIME PURSUANT TO ARTICLE 3 OF THE CONTRACT OR WAS DUE TO CAUSES FOR WHICH THE CONTRACTOR IS ENTITLED TO REMISSION OF LIQUIDATED DAMAGES PURSUANT TO ARTICLE 9 OF THE CONTRACT.

ACCORDINGLY, THE AMOUNT OF $750 DEDUCTED FOR LIQUIDATED DAMAGES FOR SUCH 30 DAYS OF DELAY IN COMPLETING THE CONTRACT WILL NOW BE ALLOWED THE CONTRACTOR, FOR WHICH AMOUNT SETTLEMENT WILL ISSUE IN DUE COURSE OF BUSINESS. CLAIMANT'S CHECK FOR $100, THE AMOUNT PREVIOUSLY ALLOWED, WILL BE RETURNED TO HIM.