A-38184, SEPTEMBER 25, 1931, 11 COMP. GEN. 112

A-38184: Sep 25, 1931

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EXCEPTING FOR THE DAYS WHEN PERFORMANCE WAS RENDERED IMPOSSIBLE BY THE ACTS OF GOD. ARE ALL A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT WITH THE UNITED STATES. THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD" TO EXCUSE DELAYS UNLESS SO ABNORMAL. OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT. BY WHICH WAS DISALLOWED HIS CLAIM FOR $150. TO COVER THE LIQUIDATED DAMAGES ALLEGED TO HAVE ACCRUED ON ACCOUNT OF 25 DAYS OF DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT. 878.60 UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR WAS OBLIGATED TO COMPLETE THE WORK WITHIN 20 CALENDAR DAYS AFTER RECEIPT OF THE GOVERNMENT'S NOTICE TO PROCEED THEREWITH.

A-38184, SEPTEMBER 25, 1931, 11 COMP. GEN. 112

CONTRACTS - LIQUIDATED DAMAGES - DELAYS DUE TO "ACTS OF GOD" WHERE A CONTRACT FOR GOVERNMENT CONSTRUCTION WORK MADE NO PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE OF THE CONTRACT FOR ANY CAUSES AND PROVIDED FOR LIQUIDATED DAMAGES IN THE EVENT OF DELAYS, LIQUIDATED DAMAGES ACCRUED TO THE UNITED STATES AT THE SPECIFIED PER DIEM RATE FOR EACH DAY OF DELAY, EXCEPTING FOR THE DAYS WHEN PERFORMANCE WAS RENDERED IMPOSSIBLE BY THE ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT. SEVERE WINTER WEATHER CONDITIONS, CONSISTING OF CONSTANT AND HEAVY RAINS OR SNOW, FREEZING OR ZERO WEATHER, AN ORDINARY FLOOD OR FRESHET, ARE ALL A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT WITH THE UNITED STATES, UNLESS THE CONTRACT PROVIDES OTHERWISE, AND THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD" TO EXCUSE DELAYS UNLESS SO ABNORMAL, EXTRAORDINARY, OR UNUSUAL, AND OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT.

DECISION BY COMPTROLLER GENERAL MCCARL, SEPTEMBER 25, 1931:

A. A. HAYMAN APPLIED AUGUST 8, 1931, FOR REVIEW OF SETTLEMENT OF JULY 14, 1931, BY WHICH WAS DISALLOWED HIS CLAIM FOR $150, THE AMOUNT DEDUCTED FROM THE CONTRACT PRICE UNDER HIS DEPARTMENT OF COMMERCE, BUREAU OF LIGHTHOUSES, CONTRACT NO. CA-575, DATED NOVEMBER 15, 1930, FOR CERTAIN DITCH CONSTRUCTION AND CONDITIONING WORK AT SITE NO. 52 OF THE JACKSONVILLE-RICHMOND AIRWAY, TO COVER THE LIQUIDATED DAMAGES ALLEGED TO HAVE ACCRUED ON ACCOUNT OF 25 DAYS OF DELAY IN COMPLETING PERFORMANCE OF THE CONTRACT.

UNDER THE PROVISIONS OF THE CONTRACT A. A. HAYMAN AGREED, FOR AND IN CONSIDERATION OF $1,878.60, TO FURNISH ALL LABOR AND MATERIALS AND TO PERFORM ALL WORK NECESSARY FOR CONDITIONING A 59.5-ACRE TRACT OF LAND, INCLUDING CLEANING OF DITCHES, GRADING, ETC., AND TO FURNISH CERTAIN TILE AND GRAVEL, CONSTRUCT THE DITCHES AND INSTALL SAME, AT SITE NO. 52 OF THE JACKSONVILLE-RICHMOND AIRWAY, AT PETERSBURG, VA., IN ACCORDANCE WITH THE GOVERNMENT'S SPECIFICATIONS AND SKETCH THEREFOR, AS FOLLOWS:

TABLE FOR COMPLETE CONDITIONING, TO INCLUDE CLEANING OF DITCHES, GRADING, ETC., OF A 59.5-ACRE TRACT OF LAND, AS SPECIFIED, AT $12 PER ACRE--------- ----------------------------------- $ 714.00 FOR FURNISHING TILE AND GRAVEL AND FOR CONSTRUCTION OF DITCHES AND INSTALLING, AS SPECIFIED: (A) 90 FT. OF 4 IN. TILE, AT $0.40---------- --------$ 36.00 (B) 988 FT. OF 6 IN. TILE, AT .45------------------- 444.60 (C) 900 FT. OF 8 IN. TILE, AT .52------------------- 468.00 (D) 300 FT. OF 12 IN. TILE, AT .72---------- --------- 216.00

$1,164.60

$1,878.60

UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR WAS OBLIGATED TO COMPLETE THE WORK WITHIN 20 CALENDAR DAYS AFTER RECEIPT OF THE GOVERNMENT'S NOTICE TO PROCEED THEREWITH. THE CONTRACT PROVIDED ALSO THAT IN THE EVENT OF DELAY IN PERFORMANCE LIQUIDATED DAMAGES IN THE SUM OF $6 PER CALENDAR DAY SHOULD BE CHARGED AGAINST THE CONTRACTOR FOR EACH DAY OF DELAY BEYOND THE COMPLETION DATE, AS SPECIFIED BY CONTRACTOR IN HIS BID.

IN HIS SUBMITTED BID THE CONTRACTOR FIXED THE PERIOD FOR PERFORMANCE OF THE WORK AT 20 CALENDAR DAYS AFTER RECEIPT OF THE GOVERNMENT'S NOTICE TO PROCEED THEREWITH. THE RECORD DISCLOSES THAT THE CONTRACTOR RECEIVED THE GOVERNMENT'S NOTICE TO PROCEED WITH THE WORK ON NOVEMBER 26, 1930. UNDER THE TERMS OF THE CONTRACT, THEREFORE, ALL OF THE WORK SHOULD HAVE BEEN COMPLETED ON OR BEFORE DECEMBER 16, 1930. HOWEVER, SUCH CONTRACT WORK WAS NOT COMPLETED UNTIL JANUARY 10, 1931, A DELAY OF 25 CALENDAR DAYS.

THE CONTRACTOR CLAIMS THAT ALL THE DELAYS WERE DUE TO CONDITIONS FOR WHICH HE WAS NOT RESPONSIBLE, AND HE HAS REQUESTED THAT REMISSION BE MADE OF THE LIQUIDATED DAMAGES CHARGED AGAINST HIM ON ACCOUNT THEREOF.

THE FACTS RELATIVE TO THE DELAYS AND THE CAUSES THEREOF WERE REPORTED BY THE ACTING COMMISSIONER OF LIGHTHOUSES TO THE SECRETARY OF COMMERCE ON MAY 5, 1931, FROM WHICH REPORT IT APPEARS THAT THERE WAS A RAIN ON DECEMBER 6, 1930, WHICH SATURATED THE SOIL SO THAT IT DID NOT PROPERLY DRY OUT FOR SEVERAL DAYS, AND THAT THE CONTRACT WORK WAS DELAYED THEREBY FOR TWO DAYS; THAT THERE WAS A SNOW ON DECEMBER 16, 1930, WHICH COVERED THE GROUND TO A DEPTH OF 6 INCHES OR MORE, AND THAT SAME REMAINED ON THE GROUND SEVERAL DAYS; THAT AFTER THE SNOW MELTED THE CONDITION OF THE SOIL WAS THEN EITHER FROZEN OR TOO WET TO BE WORKED, AND THE CONTRACT WORK WAS DELAYED THEREBY FOR A PERIOD BEGINNING DECEMBER 17, 1930, AND ENDING JANUARY 8, 1931, A TOTAL OF 23 CALENDAR DAYS.

THE COURTS HAVE HELD THAT IF A PARTY CHARGES HIMSELF WITH AN OBLIGATION WHICH AT THE TIME WAS POSSIBLE OF PERFORMANCE, HE MUST ABIDE BY IT UNLESS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE ACT OF GOD, BY THE LAW, OR BY THE OTHER PARTY. UNFORESEEN DIFFICULTIES, HOWEVER GREAT, WILL NOT EXCUSE PERFORMANCE. WHERE THE PARTIES HAVE MADE NO PROVISION FOR A DISPENSATION, THE TERMS OF THE CONTRACT MUST PREVAIL. IN THIS CONNECTION, SEE UNITED STATES V. GLEASON, 175 U.S. 588, 603; CARNEGIE STEEL CO. V. UNITED STATES, 240 U.S. 156, 164; COLUMBUS RY. POWER AND LIGHT CO. V. CITY OF COLUMBUS, 249 U.S. 399, 412; AND 13 CORPUS JURIS 635.

IN THE INSTANT CASE, THE CONTRACT MADE NO PROVISION FOR EXCUSING CONTRACTOR FOR DELAYS IN PERFORMANCE FOR ANY CAUSES. THEREFORE, THE QUESTION PRESENTED HERE IS WHETHER OR NOT PERFORMANCE WAS RENDERED IMPOSSIBLE FOR THE PERIODS OF DELAY, OR ANY PART THEREOF, BY THE ACTS OF GOD, BY THE LAW, OR BY THE GOVERNMENT. NONE OF THE DELAYS ARE SHOWN OR EVEN ALLEGED TO HAVE BEEN CAUSED EITHER BY THE GOVERNMENT OR BY THE LAW. ALL OF THE DELAYS APPEAR TO HAVE BEEN CAUSED BY UNFAVORABLE WEATHER CONDITION, CONSISTING OF RAIN, SNOW, FREEZING, AND COLD WEATHER. UNDER THE PROVISIONS OF THE CONTRACT THE CONTRACTOR IS NOT ENTITLED TO BE RELIEVED FROM THE ACCRUED LIQUIDATED DAMAGES UNLESS THE UNFAVORABLE WEATHER CONDITIONS CAUSING THE DELAYS WERE SUCH AS TO CONSTITUTE "ACTS OF GOD.'

THE COURTS HAVE HELD THAT OCCURRENCES WHICH MIGHT REASONABLY HAVE BEEN ANTICIPATED ARE NOT ACTS OF GOD IN THE LEGAL SENSE. 1 CORPUS JURIS, 1175; GLEESON V. VIRGINIA MIDLAND R.R. CO., 140 U.S. 435. LIGHTNING, EARTHQUAKES, GREAT DROUGHTS, TORNADOES, HIGH WINDS, EXTRAORDINARY FLOODS, A STORM OR TEMPEST OF EXTRAORDINARY VIOLENCE, WATERSPOUTS, VIOLENCE OF THE SEAS, AND OTHER LIKE DISTURBANCES OF THE ELEMENTS ARE USUALLY REGARDED AS ACTS OF GOD, BUT THIS IS NOT TRUE OF STORMS AND WEATHER CONDITIONS WHICH ARE NOT UNUSUAL IN CHARACTER AND WHICH REASONABLY COULD HAVE BEEN ANTICIPATED. FLOODS AND FRESHETS OF AN UNPRECEDENTED OR EXTRAORDINARY NATURE ARE ACTS OF GOD IN A LEGAL SENSE, BUT THEY ARE NOT SUCH WHERE THEY COULD HAVE BEEN ANTICIPATED BY ORDINARY FORESIGHT AND PRUDENCE. CONSTANT, UNUSUAL, OR HEAVY RAINS AND AN ORDINARY FLOOD OR FRESHET CAN NOT OF THEMSELVES BY CLASSED AS A PROVIDENTIAL HINDERANCE. FREEZING AND ZERO WEATHER OR HEAVY SNOW AT A SEASON OF THE YEAR WHEN SUCH WEATHER IS NATURALLY TO BE EXPECTED CAN NOT BE BROUGHT WITHIN THE DEFINITION OF OF THE TERM "ACT OF GOD.' IN THIS CONNECTION SEE 1 CORPUS JURIS, 1176, 1177, 1178, AND CASES THERE CITED. CONSTANT AND HEAVY RAINS OR SNOW, AN ORDINARY FLOOD OR FRESHET, FREEZING AND ZERO WEATHER, ARE ALL A PART OF THE GENERAL HAZARD ASSUMED BY A CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF HIS CONTRACT, UNLESS THE CONTRACT PROVIDES OTHERWISE, AND THEY ARE NOT TO BE CLASSED AS "ACTS OF GOD" TO EXCUSE DELAYS UNLESS SO ABNORMAL, EXTRAORDINARY OR UNUSUAL, AND OF SUCH SEVERITY THAT THEY COULD NOT REASONABLY HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT.

THERE IS NO EVIDENCE IN THIS CASE THAT THE RAIN, SNOW, COLD, AND FREEZING WEATHER, IN THE VICINITY OF PETERSBURG, VA., DURING THE CONTRACT PERIOD WERE OF SUCH AN EXTRAORDINARY OR ABNORMAL CHARACTER. EVEN THOUGH THERE WAS SOME RAIN, SNOW, COLD, AND FREEZING WEATHER IN DECEMBER AND JANUARY, DURING THE PROGRESS OF THE WORK, IT WAS A COMMON, NATURAL EVENT, SUCH AS NOT ONLY MIGHT HAVE BEEN FORESEEN AS PROBABLE, BUT SUCH AS MIGHT HAVE BEEN EXPECTED DURING THE WINTER SEASON, AND AGAINST WHICH IT WAS THE DUTY OF THE CONTRACTOR TO HAVE GUARDED IN HIS CONTRACT, IF HE DESIRED TO BE EXCUSED FOR THE DELAYS CAUSED THEREBY.

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

IN THE INSTANT CASE THE EVIDENCE DOES NOT ESTABLISH THE RAINFALL, THE SNOW, OR THE COLD AND FREEZING WEATHER HERE IN QUESTION AS BEING SO EXTRAORDINARY AND ABNORMAL AS TO BE CLASSED AS "ACTS OF GOD" WITHIN THE MEANING OF THE CONTRACT. NEITHER DOES THE EVIDENCE SHOW THAT ANY OF THE DELAYS IN PERFORMANCE WERE DUE TO CAUSES EXCUSABLE UNDER THE TERMS OF THE CONTRACT.

WITH REFERENCE TO THE CONTRACTOR'S CONTENTION THAT HE IS ENTITLED TO REMISSION OF A PORTION OF THE LIQUIDATED DAMAGES CHARGED AGAINST HIM BECAUSE OF A LOSS OF TIME ON THE WORK CAUSED BY THE FAILURE OF A DRAG TO PERFORM SATISFACTORILY AFTER IT HAD BEEN CONSTRUCTED IN ACCORDANCE WITH THE GOVERNMENT ENGINEER'S DESIGN, NECESSITATING SUBSEQUENT CHANGES WHICH ARE ALLEGED TO HAVE DELAYED THE WORK THREE DAYS, THERE WOULD APPEAR TO BE NO MERIT IN SUCH CONTENTION, AS THE CONTRACT IMPOSED NO LIABILITY ON THE GOVERNMENT TO FURNISH PLANS OR TO DESIGN FOR THE CONTRACTOR A DRAG OR ANY OTHER TOOLS WHICH HE USED ON THE WORK.

IN VIEW OF THE FACTS AND CIRCUMSTANCES, AND THE TERMS OF THE CONTRACT, AS ABOVE SET FORTH, THERE WOULD APPEAR TO BE NO LEGAL AUTHORITY FOR REMISSION OF THE LIQUIDATED DAMAGES ACCRUED TO THE UNITED STATES FOR THE 25 DAYS OF UNEXCUSED DELAY IN PERFORMANCE OF THE CONTRACT.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF JULY 14, 1931, MUST BE AND IS SUSTAINED.