A-37508, AUGUST 13, 1931, 11 COMP. GEN. 73

A-37508: Aug 13, 1931

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CONTRACTS - LIQUIDATED DAMAGES - ADDITIONAL PAYMENTS FOR SUBSURFACE CONDITIONS UNDER THE STANDARD FORM OF CONSTRUCTION CONTRACT THE CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES FOR DELAYS IN COMPLETION OF THE WORK WHEN IT DOES NOT APPEAR FROM THE ADMINISTRATIVE OFFICERS' FINDINGS OF FACT THAT THE DELAYS IN COMPLETION RESULTED FROM THE CAUSES SPECIFIED IN THE CONTRACT. THE FACT THAT THE WORK WAS COMPLETED TO SUCH AN EXTENT THAT SOME USE WAS MADE THEREOF DOES NOT STOP THE ACCRUAL OF LIQUIDATED DAMAGES. UNDER THE STANDARD FORM OF CONSTRUCTION CONTRACT A CONTRACTOR IS NOT ENTITLED TO ADDITIONAL PAYMENTS ON ACCOUNT OF THE DISCLOSURE OF UNEXPECTED SUBSURFACE OR LATENT CONDITIONS WHEN THE UNITED STATES HAS MADE NO REPRESENTATIONS WITH RESPECT THERETO.

A-37508, AUGUST 13, 1931, 11 COMP. GEN. 73

CONTRACTS - LIQUIDATED DAMAGES - ADDITIONAL PAYMENTS FOR SUBSURFACE CONDITIONS UNDER THE STANDARD FORM OF CONSTRUCTION CONTRACT THE CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES FOR DELAYS IN COMPLETION OF THE WORK WHEN IT DOES NOT APPEAR FROM THE ADMINISTRATIVE OFFICERS' FINDINGS OF FACT THAT THE DELAYS IN COMPLETION RESULTED FROM THE CAUSES SPECIFIED IN THE CONTRACT, AND THE FACT THAT THE WORK WAS COMPLETED TO SUCH AN EXTENT THAT SOME USE WAS MADE THEREOF DOES NOT STOP THE ACCRUAL OF LIQUIDATED DAMAGES. UNDER THE STANDARD FORM OF CONSTRUCTION CONTRACT A CONTRACTOR IS NOT ENTITLED TO ADDITIONAL PAYMENTS ON ACCOUNT OF THE DISCLOSURE OF UNEXPECTED SUBSURFACE OR LATENT CONDITIONS WHEN THE UNITED STATES HAS MADE NO REPRESENTATIONS WITH RESPECT THERETO.

DECISION BY COMPTROLLER GENERAL MCCARL, AUGUST 13, 1931:

FLEMING AND SHEPPARD CO. (INC.) REQUESTED JUNE 26, 1931, REVIEW OF SETTLEMENT DATED JUNE 4, 1931, WHEREIN WAS DISALLOWED ITS CLAIM UNDER CONTRACT VBC-727, DATED JULY 21, 1930, FOR AN ITEM OF $465 CHARGED AS LIQUIDATED DAMAGES FOR 31 DAYS' DELAY FROM OCTOBER 28 TO NOVEMBER 28, 1930, AND AN ITEM OF $3,287.24 CLAIMED AS ADDITIONAL COMPENSATION ON ACCOUNT OF ENCOUNTERING ROCK IN DOING THE WORK UNDER THE CONTRACT.

THE CONTRACT WAS ON THE STANDARD FORM OF CONSTRUCTION CONTRACT AND CONTAINED THE USUAL STIPULATION IN ARTICLE 9 FOR DEDUCTION OF LIQUIDATED DAMAGES WITH THE PROVISO THAT THE CONTRACTOR SHOULD NOT BE 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.

WHILE THE CONTRACT SHOULD HAVE BEEN COMPLETED ON OCTOBER 28, 1930, IT WAS NOT ACTUALLY COMPLETED UNTIL NOVEMBER 28, 1930, AND IT APPEARS FROM THE ADMINISTRATIVE FINDINGS OF FACT THAT THE DELAY WAS NOT DUE TO ANY OF THE NAMED CAUSES IN THE ABOVE-QUOTED EXTRACT FROM THE CONTRACT. SUCH FINDING OF FACT IS MADE BY THE TERMS OF THE CONTRACT FINAL AND CONCLUSIVE ON THE CONTRACTOR.

IT IS ADMITTED BY THE CLAIMANT THAT THE WORK WAS NOT ENTIRELY COMPLETED UNTIL NOVEMBER 28, 1930, BUT IT IS INSISTED THAT THE WORK WAS PRACTICALLY COMPLETED ON OCTOBER 31, 1930, AND THAT ALL WORK WHICH THEN REMAINED FOR COMPLETION CONSISTED OF CERTAIN MINOR ITEMS WHICH DID NOT INTERFERE WITH THE COMPLETE USE OF THE ROAD, IT BEING INSISTED THAT THE "AUTHORITIES ARE TOO WELL SETTLED TO REQUIRE CITATION, THAT THE GOVERNMENT CAN NOT HAVE COMPLETE AND ABSOLUTE USE OF THE ROAD AND HAVE LIQUIDATED DAMAGES TOO.' IT APPEARS TO BE A FACT THAT ON NOVEMBER 11, 1930, THE CLAIMANT WAS INFORMED THAT THE ROAD HAD BEEN CONSTRUCTED AT A CERTAIN POINT 17.8 FEET IN WIDTH, WHILE THE CONTRACT REQUIRED THE ROAD TO BE 18 FEET PLUS 6 FEET 4 INCHES OR 24 FEET 4 INCHES IN ALL, AT A CERTAIN CURVE, AND THAT THE DEFECTS WOULD HAVE TO BE CORRECTED. THERE WAS, ALSO, SOME DELAY IN ERECTING THE WIRE FENCE. WHATEVER THE DEFECTS AND WHATEVER THE EXTENT THAT THE DEFECTS INTERFERED WITH THE USE OF THE ROAD, THE UNITED STATES WAS ENTITLED UNDER THE TERMS OF THE CONTRACT TO HAVE THE ROAD COMPLETED IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS WITHIN THE CONTRACT PERIOD OR TO CHARGE THE CONTRACTOR THE STIPULATED LIQUIDATED DAMAGES IN LIEU THEREOF. SEE KOHLMAN, TRUSTEE OF THE ESTATE OF FLEISCHMANN CONSTRUCTION COMPANY, V. THE UNITED STATES, 63 CT.CLS. 604, 613, CERTIORARI DENIED 277 U.S. 584. THE CHARGE OF $465 FOR LIQUIDATED DAMAGES WAS IN ACCORDANCE WITH THE TERMS OF THE CONTRACT AND THE CONTRACTOR IS NOT ENTITLED TO PAYMENT THEREOF.

AS STATED, THE ITEM OF $3,287.24 IS CLAIMED UNDER ARTICLE 4 OF THE CONTRACT AS ADDITIONAL COMPENSATION ON ACCOUNT OF ROCK EXCAVATION IN CONNECTION WITH THE CONSTRUCTION OF THE ROAD. THE SPECIFICATIONS FOR THE WORK NOTIFIED ALL CONCERNED THAT THE WORK INCLUDED THE FURNISHING OF ALL LABOR, EQUIPMENT, AND MATERIAL REQUIRED FOR EXCAVATING AND GRADING OF THE ROAD, AND THE CONSTRUCTION AND FINISHING COMPLETE OF NEW CONCRETE ROADS, CULVERTS, CATTLE-PASSERS, ETC., AND PARAGRAPH 1 OF THE STANDARD INSTRUCTIONS TO BIDDERS NOTIFIED THAT THE "BIDDERS MUST MAKE THEIR OWN ESTIMATES OF THE FACILITIES AND DIFFICULTIES ATTENDING THE EXECUTION OF THE PROPOSED CONTRACT, INCLUDING LOCAL CONDITIONS, UNCERTAINTY OF WEATHER, AND ALL OTHER CONDITIONS.' THE SPECIFICATION FURTHER PROVIDED THAT---

EXCAVATION AND EMBANKMENT FOR ROAD SHALL BE CARRIED TO A REASONABLY UNIFORM SURFACE APPROXIMATELY 6 INCHES BELOW THE FINISHED GRADE INDICATED WITH PROPER ALLOWANCE FOR SETTLEMENT OF FILLS. SIDE SLOPE OF CUTS EXCEPT WHERE SOLID LEDGE ROCK IS ENCOUNTERED SHALL BE AS SHOWN BY FINISHED CONTOUR LINES, BUT IN NO CASE STEEPER THAN THE NATURAL ANGLE OF REPOSE OF THE SOIL. IF LEDGE ROCK IS ENCOUNTERED, SIDE SLOPE OF CUTS SHALL BE 1 FOOT HORIZONTAL TO 12 FEET VERTICAL; THE TOE OF THE SLOPE STARTING AT THE BACK OF THE DITCH.

THERE WAS NO OTHER DESCRIPTION OF THE CHARACTER OF THE MATERIAL TO BE EXCAVATED AND IT HAS BEEN DETERMINED THAT UNDER ARTICLE 4 OF THIS FORM OF CONTRACT A CONTRACTOR IS NOT ENTITLED TO ADDITIONAL COMPENSATION ON ACCOUNT OF THE DISCLOSURE OF UNEXPECTED SUBSURFACE OR LATENT CONDITIONS UNLESS THE UNITED STATES HAD IN FACT MADE REPRESENTATIONS IN THE DRAWINGS OR SPECIFICATIONS AS TO SUCH SUBSURFACE OR LATENT CONDITIONS. SEE 10 COMP. GEN. 533, 536. IT WOULD SEEM TOO CLEAR FOR SERIOUS ARGUMENTS THAT THE ABOVE DESCRIPTION AND THE NOTICE TO PROSPECTIVE BIDDERS TO VISIT THE SITE AND DETERMINE FOR THEMSELVES THE WORK TO BE PERFORMED NEGATIVE ANY ASSUMPTION OR INFERENCE OF A REPRESENTATION ON THE PART OF THE UNITED STATES THAT ROCK--- WHETHER LEDGE ROCK OR BOULDERS--- WOULD NOT BE ENCOUNTERED IN THE PERFORMANCE OF THE WORK. AS THE GOVERNMENT MADE NO REPRESENTATIONS AS TO THE SUBSURFACE OR LATENT CONDITIONS IT IS NOT CHARGEABLE WITH ANY EXCESS COST OF PERFORMING THE CONTRACT WHEN THE CONTRACTOR FOUND THAT THE SUBSURFACE OR LATENT CONDITIONS DIFFERED FROM THOSE CONTEMPLATED BY IT WHEN THE CONTRACT WAS ENTERED INTO. MOREOVER, ARTICLE 4 OF THE CONTRACT PROVIDES THAT IF THE CONTRACTING OFFICER FINDS THAT THE SUBSURFACE OR LATENT CONDITIONS DIFFER MATERIALLY 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.' THESE WERE NO SUCH WRITTEN ORDERS WITH THE APPROVAL OF THE ADMINISTRATOR OF VETERANS' AFFAIRS IN THIS CASE. SEE EATON, BROWN AND SIMPSON, INC., V. THE UNITED STATES, 62 CT. CLS. 668.

UPON CAREFUL CONSIDERATION OF THE ENTIRE MATTER THE SETTLEMENT APPEARS CORRECT AND IS AFFIRMED.