A-34775, JANUARY 12, 1931, 10 COMP. GEN. 306

A-34775: Jan 12, 1931

Additional Materials:

Contact:

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

 

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

THE CONTRACTOR IS NOT ENTITLED TO EXCLUDE SATURDAY IN COMPUTING THE 30 WORKING DAYS ON THE GROUND THAT THE LABOR UNIONS IN THE LOCALITY ALLOW ONLY FIVE DAYS' WORK TO THE WEEK. WHEREIN WAS DISALLOWED THE CLAIM OF WILLIAM BOENECKET FOR $135 DEDUCTED AS LIQUIDATED DAMAGES ON ACCOUNT OF DELAY IN COMPLETION OF CONTRACT VBC-665. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THE DEDUCTION OF LIQUIDATED DAMAGES AT THE STIPULATED RATE OF $15 A DAY FOR NINE DAYS' DELAY WAS IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. THE CONTRACT WAS ON STANDARD FORM NO. 23. THAT THE WORK WAS NOT COMPLETED UNTIL JUNE 13. THERE WERE NINE CALENDAR DAYS' DELAY IN COMPLETION OF THE WORK FOR WHICH LIQUIDATED DAMAGES IN THE SUM OF $135 WERE CHARGED TO AND DEDUCTED FROM PAYMENTS TO THE CONTRACTOR.

A-34775, JANUARY 12, 1931, 10 COMP. GEN. 306

CONTRACTS - LIQUIDATED DAMAGES - DELAYS UNDER A CONTRACT PROVIDING THAT WORK SHOULD BE COMPLETED WITHIN 30 "WORKING DAYS" AFTER DATE OF RECEIPT OF NOTICE TO PROCEED AND THAT LIQUIDATED DAMAGES SHOULD BE DEDUCTED FOR EACH CALENDAR DAY'S DELAY IN COMPLETION OF THE WORK, THE CONTRACTOR IS NOT ENTITLED TO EXCLUDE SATURDAY IN COMPUTING THE 30 WORKING DAYS ON THE GROUND THAT THE LABOR UNIONS IN THE LOCALITY ALLOW ONLY FIVE DAYS' WORK TO THE WEEK. SATURDAY MUST BE COUNTED AS A WORKING DAY UNDER SUCH CIRCUMSTANCES.

DECISION BY COMPTROLLER GENERAL MCCARL, JANUARY 12, 1931:

REVIEW HAS BEEN REQUESTED OF SETTLEMENT NO. 0311274, DATED NOVEMBER 6, 1930, WHEREIN WAS DISALLOWED THE CLAIM OF WILLIAM BOENECKET FOR $135 DEDUCTED AS LIQUIDATED DAMAGES ON ACCOUNT OF DELAY IN COMPLETION OF CONTRACT VBC-665, DATED APRIL 5, 1930, FOR MAKING CERTAIN ALTERATIONS IN BUILDING NO. 3 NURSES' HOME AT THE UNITED STATES VETERANS' HOSPITAL, JEFFERSON BARRACKS, MO., FOR THE SUM OF $4,363. THE CLAIM WAS DISALLOWED ON THE GROUND THAT THE DEDUCTION OF LIQUIDATED DAMAGES AT THE STIPULATED RATE OF $15 A DAY FOR NINE DAYS' DELAY WAS IN ACCORDANCE WITH THE TERMS OF THE CONTRACT.

THE CONTRACT WAS ON STANDARD FORM NO. 23, STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, AND PROVIDED THAT THE WORK SHOULD COMMENCE WITHIN TWO CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED AND SHOULD BE COMPLETED WITHIN 30 WORKING DAYS AFTER DATE OF RECEIPT OF SUCH NOTICE TO PROCEED, WITH A STIPULATION FOR THE DEDUCTION OF LIQUIDATED DAMAGES AT THE RATE OF $15 PER DAY FOR EACH AND EVERY CALENDAR DAY OF DELAY NOT DUE TO CERTAIN CAUSES STIPULATED IN ARTICLE 9 OF THE CONTRACT AS FOLLOWS:

* * * DELAYS IN THE COMPLETION OF THE WORK DUE TO UNFORSEEABLE 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. * * *

THE RECORD DISCLOSES THAT THE CONTRACTOR RECEIVED NOTICE TO BEGIN WORK APRIL 29, 1930, AND THAT THE WORK WAS NOT COMPLETED UNTIL JUNE 13, 1930. IF THE 30 WORKING DAYS BE COMPUTED TO INCLUDE SATURDAY AS A WORKING DAY, THE CONTRACT PERIOD FOR COMPLETION OF THE WORK EXPIRED JUNE 4, 1930, AND THERE WERE NINE CALENDAR DAYS' DELAY IN COMPLETION OF THE WORK FOR WHICH LIQUIDATED DAMAGES IN THE SUM OF $135 WERE CHARGED TO AND DEDUCTED FROM PAYMENTS TO THE CONTRACTOR. THE CONTRACTOR HAS CONTENDED THAT THE CONTRACT PERIOD OF 30 WORKING DAYS SHOULD BE COMPUTED ON THE BASIS OF EXCLUDING SATURDAY AS A WORKING DAY BECAUSE THE LABOR UNIONS IN ST. LOUIS HAD PRESCRIBED THAT THE WORKING WEEK IN ST. LOUIS SHOULD CONSIST OF FIVE WORKING DAYS.

THE CASE OF CHRISTOPHER AND SIMPSON ARCHITECTURAL IRON AND FOUNDRY CO. V. E. A. STEININGER CONSTRUCTION CO. 200 MO.APP. 33, 205 S.W. 278, 283, WAS ONE CONCERNING DELAY IN THE CONSTRUCTION OF AN ICE STORAGE HOUSE IN ST. LOUIS, MO., DURING THE YEAR 1906. THE MATERIAL FACTS AND THE CONCLUSION OF THE COURT THEREON ARE QUOTED FROM THE DECISION OF THE ST. LOUIS COURT OF APPEALS OF JULY 12, 1918 (REHEARING DENIED JULY 24, 1918), AS FOLLOWS:

THE CONTRACTOR AGREED TO COMPLETE THESE TWO SECTIONS IN 55 WORKING DAYS FROM THE DATE OF ITS CONTRACT, WHICH WAS IN FACT ENTERED INTO ON JULY 25, 1906. IT BECOMES IMPORTANT THEN TO DETERMINE WHEN THIS PERIOD OF 55 WORKING DAYS AFTER JULY 25, 1906, EXPIRED, WITHIN THE MEANING OF THIS CONTRACT.

IN COMPUTING THE PERIOD OF 55 WORKING DAYS FROM JULY 25, 1906, THE REFEREE EXCLUDED SUNDAYS, HOLIDAYS, AND RAINY DAYS, AND ALSO EXCLUDED HALF A DAY FOR EACH INTERVENING SATURDAY. IN THE REFEREE'S CONCLUSIONS OF LAW SATURDAYS ARE REFERRED TO AS "HALF DAYS, WHICH, BY REASON OF LABOR RULES, WERE MADE HOLIDAYS.' BY THIS METHOD OF COMPUTATION THE REFEREE DETERMINED THAT THE PERIOD OF 55 WORKING DAYS EXPIRED OCTOBER 10, 1906, WHILE UNDER THE FACT FOUND BY THE REFEREE THIS PERIOD WOULD EXPIRE OCTOBER 3, 1906, IF SATURDAY BE COUNTED AS A WHOLE WORKING DAY.

(8) WE REGARD IT AS CLEAR THAT THE TERM "WORKING DAYS" AS USED IN THE CONTRACT, SHOULD BE TAKEN AS EXCLUDING NOT ONLY SUNDAYS AND HOLIDAYS, BUT ALSO DAYS UPON WHICH WORK COULD NOT BE DONE BECAUSE OF WEATHER CONDITIONS. HAD THIS NOT BEEN THE INTENTION OF THE PARTIES, IT MAY WELL BE ASSUMED THAT A DEFINITE DATE FOR THE COMPLETION OF THE WORK WOULD HAVE BEEN AGREED UPON. THE ONLY EXTRINSIC EVIDENCE IN THE RECORD REGARDING THE MEANING OF THE TERM "WORKING DAYS" IS THE TESTIMONY OF ONE HELFENSTELLER, THE ARCHITECT OF THE BUILDING. IN RESPONSE TO QUESTIONS PROPOUNDED TO HIM BY THE REFEREE, HE TESTIFIED, WITHOUT OBJECTION, TO THE EFFECT THAT BY "WORKING DAYS" WAS MEANT DAYS UPON WHICH WEATHER CONDITIONS WERE SUCH AS TO PERMIT WORK TO BE DONE, I.E., WHERE THE BUILDING WAS, AS HERE, NOT UNDER ROOF; BUT THAT SATURDAY IS A WORKING DAY--- "A WHOLE WORKING DAY.' THOUGH THE QUESTION ASKED THIS WITNESS WAS NOT SO FRAMED, IT IS EVIDENT THAT IT WAS SOUGHT TO ELICIT FROM HIM, AS AN ARCHITECT, TESTIMONY AS TO A USAGE AND CUSTOM, AMONG ARCHITECTS AND BUILDERS, WITH RESPECT TO THE CONSTRUCTION OF SUCH WORDS IN A BUILDING CONTRACT. WHAT EFFECT MAY PROPERLY BE GIVEN TO THIS TESTIMONY WE NEED NOT SAY. WE REFER TO IT AS BEING THE ONLY TESTIMONY RESPECTING THE MATTER. AND IN ANY EVENT, IT IS IN HARMONY WITH THE VIEW WHICH WE TAKE OF THE GENERAL CONTRACT. WHILE, AS SAID, WE THINK THAT THE PARTIES MUST HAVE INTENDED THAT DAYS UPON WHICH WORK COULD NOT BE DONE BECAUSE OF WEATHER CONDITIONS WOULD BE EXCLUDED IN COMPUTING THE PERIOD OF 55 WORKING DAYS, WE KNOW OF NO GOOD REASON FOR ASSUMING THAT THEY INTENDED THAT SATURDAY BE COUNTED AS HALF A WORKING DAY WITHIN THE MEANING OF THE CONTRACT. THOUGH IT BE THAT OWING TO "LABOR RULES" WORK WAS SUSPENDED ON SATURDAY AFTERNOONS, WE ARE OF THE OPINION THAT UNDER A CONTRACT OF THIS CHARACTER SATURDAY IS TO BE CONSTRUED AS A WORKING DAY IN THE ABSENCE OF ANYTHING TO INDICATE A CONTRARY INTENTION. THERE IS NOTHING IN THE CONTRACT, OR IN THE CONDUCT OF THE PARTIES AS SHOWN BY THE EVIDENCE, LENDING SUPPORT TO THE VIEW THAT SATURDAY WAS TO BE COUNTED AS HALF OF A WORKING DAY IN COMPUTING THE PERIOD MENTIONED. AND THERE IS NO EVIDENCE THAT, BY USAGE AND CUSTOM IN SUCH BUSINESS IN THE COMMUNITY, THE TERM "WORKING DAY" IS TO BE SO CONSTRUED.

(9) THE OWNER SAYS THAT THE TERM "WORKING DAY" HAS A SETTLED MEANING, AND THAT IT INCLUDES ALL DAYS EXCEPT SUNDAYS AND LEGAL HOLIDAYS CITING PEDERSEN V. EUGSTER (D.C.) 14 FED. 422; LAWSON ON CUSTOM AND USAGE, P. 368. BUT WE REGARD THESE AUTHORITIES AS WITHOUT INFLUENCE HERE. THE WORDS IN QUESTION ARE TO BE HERE CONSTRUED WITH REFERENCE TO THE NATURE OF THE CONTRACT IN WHICH THEY ARE EMPLOYED, AND WE THINK THAT THEY MUST BE TAKEN TO MEAN DAYS UPON WHICH WORK COULD BE DONE.

ACCORDING TO THE REFEREE'S FINDINGS OF FACT, COUNTING SATURDAY AS A WHOLE WORKING DAY, THE PERIOD OF 55 DAYS EXPIRED THE NIGHT OF OCTOBER 3, 1906. AND AS THE EVIDENCE SHOWS THAT THE REFEREE FOUND THAT THE FIRST TWO SECTIONS OF THE BUILDING WERE COMPLETED ON OCTOBER 26, 1906, THE GENERAL CONTRACTOR WAS 23 DAYS LATE IN COMPLETING THESE TWO SECTIONS; AND, UNDER THE FACTS FOUND, SUCH DELAY WAS CAUSED BY THE DELAY OF PLAINTIFF IN COMPLETING ITS WORK UNDER ITS CONTRACT.

IT WILL BE NOTED THAT THE CONTENTION IN SAID CASE WAS THAT SATURDAY SHOULD BE COUNTED AS A HALF OF A WORKING DAY BECAUSE OF THE RULES OF THE LABOR UNIONS THEN IN EFFECT THAT A WEEK SHOULD CONSIST OF FIVE AND ONE- HALF WORKING DAYS, WHEREAS THE CONTENTION HERE IS THAT THE WORKING WEEK SHOULD CONSIST OF FIVE DAYS. THE MISSOURI COURT DENIED THE CONTENTION AND HELD THAT THE WORKING DAY MUST BE TAKEN TO MEAN DAYS UPON WHICH WORK COULD BE DONE REGARDLESS OF UNION RULES, AND THAT IS THE RULE APPLIED BY THE ACCOUNTING OFFICERS OF THE UNITED STATES IN INTERPRETING THE PHRASE ,WORKING DAY.'

THERE IS NO LEGAL BASIS FOR REFUND OF LIQUIDATED DAMAGES DEDUCTED BECAUSE OF THE DELAYS OF THE CONTRACTOR IN COMPLETION OF THE WORK, AND THE SETTLEMENT DISALLOWING THE CLAIM MUST BE, AND IS, SUSTAINED.