A-53708, DECEMBER 7, 1934, 14 COMP. GEN. 431

A-53708: Dec 7, 1934

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EXCEPTING FOR THE DELAY DUE TO "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR" THERE IS NO LEGAL AUTHORITY FOR REMISSION OF THE ACCRUED LIQUIDATED DAMAGES UNLESS THE DELAY WAS DUE TO CAUSES EXCUSABLE UNDER THE TERMS OF THE CONTRACT. BY WHICH WAS DISALLOWED ITS CLAIM FOR REMISSION OF THE $60 LIQUIDATED DAMAGES CHARGED AGAINST IT ON ACCOUNT OF THE 3 DAYS OF ALLEGED UNEXCUSED DELAY IN COMPLETING PERFORMANCE OF WAR DEPARTMENT CONTRACT NO. EYE BOLTS WHICH WERE TO BE FURNISHED BY THE GOVERNMENT) AND TO PERFORM ALL WORK REQUIRED FOR THE CONSTRUCTION OF 57 CONCRETE TENT PLATFORMS. THE CONTRACT PROVIDED THAT IF THERE WERE ANY DELAYS IN COMPLETING PERFORMANCE THEREOF THE CONTRACTOR SHOULD BE CHARGED WITH LIQUIDATED DAMAGES AT THE RATE OF $20 PER DAY FOR EACH CALENDAR DAY OF DELAY BEYOND THE DATE FIXED BY THE CONTRACT FOR COMPLETION.

A-53708, DECEMBER 7, 1934, 14 COMP. GEN. 431

CONTRACTS - DELAYS IN PERFORMANCE - LIQUIDATED DAMAGES WHERE A CONTRACT FOR GOVERNMENT CONSTRUCTION WORK PROVIDES FOR LIQUIDATED DAMAGES AT A STIPULATED PER DIEM RATE FOR THE DAYS OF DELAY IN COMPLETING PERFORMANCE, EXCEPTING FOR THE DELAY DUE TO "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR" THERE IS NO LEGAL AUTHORITY FOR REMISSION OF THE ACCRUED LIQUIDATED DAMAGES UNLESS THE DELAY WAS DUE TO CAUSES EXCUSABLE UNDER THE TERMS OF THE CONTRACT. "UNUSUALLY SEVERE WEATHER," SPECIFIED IN ARTICLE 9 OF THE CONTRACT AS AN EXCUSABLE CAUSE FOR DELAY IN PERFORMANCE, 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 SAME TIME OF YEAR INVOLVED IN THE CONTRACT.

DECISION BY COMPTROLLER GENERAL MCCARL, DECEMBER 7, 1934.

M. J. MURPHY, INC., APPLIED OCTOBER 8, 1934, FOR REVIEW OF SETTLEMENT NO. 0317746, DATED SEPTEMBER 22, 1934, BY WHICH WAS DISALLOWED ITS CLAIM FOR REMISSION OF THE $60 LIQUIDATED DAMAGES CHARGED AGAINST IT ON ACCOUNT OF THE 3 DAYS OF ALLEGED UNEXCUSED DELAY IN COMPLETING PERFORMANCE OF WAR DEPARTMENT CONTRACT NO. W-668-QM-280, DATED DECEMBER 2, 1932, FOR THE CONSTRUCTION OF CONCRETE TENT PLATFORMS, INCLUDING GRADING, AT THE PRESIDIO OF MONTEREY, CALIF.

UNDER THE PROVISIONS OF THE CONTRACT M. J. MURPHY, INC., AGREED, FOR AND IN CONSIDERATION OF THE PAYMENT OF $21.45 EACH, TO FURNISH THE LABOR AND MATERIALS (EXCEPT THE POSTS, RAILINGS, METAL COLLARS, AND EYE BOLTS WHICH WERE TO BE FURNISHED BY THE GOVERNMENT) AND TO PERFORM ALL WORK REQUIRED FOR THE CONSTRUCTION OF 57 CONCRETE TENT PLATFORMS, MORE OR LESS, INCLUDING GRADING, AT THE PRESIDIO OF MONTEREY, CALIF., IN ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, AND DRAWINGS THEREFOR, ALL A PART OF THE CONTRACT, AND THAT THE CONTRACT WORK WOULD BE COMMENCED ON OR BEFORE DECEMBER 12, 1932, AND COMPLETED WITHIN 12 DAYS THEREAFTER, BEING ON OR BEFORE DECEMBER 24, 1932. THE CONTRACT PROVIDED THAT IF THERE WERE ANY DELAYS IN COMPLETING PERFORMANCE THEREOF THE CONTRACTOR SHOULD BE CHARGED WITH LIQUIDATED DAMAGES AT THE RATE OF $20 PER DAY FOR EACH CALENDAR DAY OF DELAY BEYOND THE DATE FIXED BY THE CONTRACT FOR COMPLETION, EXCEPT FOR THE DELAYS, IF ANY, DUE TO CAUSES WHICH ARE EXCUSABLE UNDER THE TERMS OF THE CONTRACT.

THE RECORD DISCLOSES THAT THE CONTRACTOR WAS REQUIRED BY THE GOVERNMENT TO CONSTRUCT ONLY 52 CONCRETE TENT PLATFORMS UNDER SAID CONTRACT; THAT PAYMENT OF THE FULL CONTRACT PRICE OF $1,115.40 THEREFOR WAS MADE TO CONTRACTOR JANUARY 18, 1933, ON VOUCHER NO. 1651, ACCOUNT OF H. G. FOSTER, MAJOR, F.D., FORT MASON, CALIF.; THAT SUBSEQUENTLY THE CONTRACTOR WAS REQUIRED TO REFUND TO THE GOVERNMENT $60 OF SUCH CONTRACT MONEYS SO RECEIVED IN ORDER TO LIQUIDATE THE DAMAGES ALLEGED TO HAVE ACCRUED TO THE GOVERNMENT ON ACCOUNT OF DELAYS IN COMPLETING THE WORK. THE CONTRACTOR CONTENDS THAT THE DELAYS IN PERFORMANCE OF THE CONTRACT WERE DUE TO CAUSES EXCUSABLE UNDER THE TERMS THEREOF, AND IT HAS REQUESTED REMISSION OF THE $60 DAMAGES CHARGED.

IT APPEARS THAT ON DECEMBER 17, 1932, CONTRACTOR IN WRITING REQUESTED THE QUARTERMASTER AT THE PRESIDIO OF MONTEREY, CALIF., TO EXTEND FOR A PERIOD OF 5 DAYS THE STIPULATED CONTRACT PERFORMANCE PERIOD, ON ACCOUNT OF DELAYS IN COMPLETING THE CONTRACT WORK DUE TO "RAINY WEATHER.' ON DECEMBER 20, 1932, THE ACTING QUARTERMASTER, PRESIDIO OF MONTEREY, CALIF., IN WRITING ADVISED CONTRACTOR THAT "UNDER THE PROVISIONS OF PARAGRAPH 9 OF THE CONTRACT AN EXTENSION HAS BEEN GRANTED FROM DECEMBER 25 TO 29, INCLUSIVE.' HOWEVER, THE ACTION OF THE ADMINISTRATIVE OFFICER IN PURPORTING TO GRANT SUCH 5-DAY EXTENSION OF THE STIPULATED CONTRACT PERFORMANCE PERIOD, WAS OF NO FORCE AND EFFECT WHATEVER, INASMUCH AS THE PROVISIONS OF THE INVOLVED CONTRACT DID NOT VEST IN THE CONTRACTING OFFICER, OR ANY OTHER ADMINISTRATIVE OFFICER, THE AUTHORITY TO GRANT, FOR ANY CAUSE WHATSOEVER, AN EXTENSION OF THE CONTRACT PERFORMANCE PERIOD.

UNDER ARTICLE 9 OF THE STANDARD GOVERNMENT FORM OF CONTRACT, SUCH AS THE ONE UNDER CONSIDERATION, THE QUESTION WHETHER A CONTRACTOR IS CHARGEABLE WITH LIQUIDATED DAMAGES DEPENDS UPON THE TERMS OF THE CONTRACT AND THE FACTS AS FOUND BY THE CONTRACTING OFFICER. IT IS FOR THE ADMINISTRATIVE OFFICER TO DETERMINE THE FACTS AS TO THE CAUSES AND EXTENT OF DELAY AND FOR THE GENERAL ACCOUNTING OFFICE, OR THE COURTS, TO DETERMINE THE QUESTION OF LAW WHETHER, UNDER SUCH FACTS AND THE TERMS OF THE CONTRACT, THE CONTRACTOR IS TO BE HELD LIABLE FOR LIQUIDATED DAMAGES. SEE 6 COMP. GEN. 650; 7 ID. 505; ID. 534; 8 ID. 13; 9 ID. 164; 10 ID. 257; AND 13 ID. 325. THE LAW REGARDS THE SANCTITY OF CONTRACTS. IT REQUIRES THE PARTIES THERETO TO DO WHAT THEY HAVE AGREED TO DO. IF UNEXPECTED IMPEDIMENTS BE IN THE WAY, AND A LOSS MUST ENSUE, IT LEAVES THE LOSS WHERE THE CONTRACT PLACES IT. IF THE PARTIES HAVE MADE NO PROVISION FOR A DISPENSATION, THE RULE OF LAW GIVES NONE. IT DOES NOT ALLOW A CONTRACT FAIRLY MADE TO BE ANNULLED, AND IT DOES NOT PERMIT TO BE INTERPOLATED WHAT THE PARTIES THEMSELVES HAVE NOT STIPULATED. DERMOTT V. JONES, 2 WALL.

IN INSTANT MATTER THE CONTRACT MAKES NO PROVISION FOR REMISSION OF DAMAGES FOR DELAYS IN PERFORMANCE EXCEPT AS STIPULATED IN ARTICLE 9 THEREOF, FOR "UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR," AND THEN ONLY WHEN NOTICE OF THE CAUSE OF DELAY WAS GIVEN IN WRITING WITHIN 10 DAYS OF THE TIME OF THE BEGINNING OF ANY SUCH CAUSE.

THE CONTRACTING OFFICER HAS FOUND AS A FACT THAT THE DELAY IN PERFORMANCE OF THE WORK WAS CAUSED BY RAINY WEATHER. HOWEVER, THERE IS NO FINDING OR EVIDENCE THAT THE WEATHER WAS "UNUSUALLY SEVERE" WITHIN THE MEANING OF ARTICLE 9 OF THE CONTRACT--- THAT IS, SUCH AS COULD NOT HAVE BEEN FORESEEN FOR THE LOCALITY AND THE SEASON INVOLVED. THE UNITED STATES WEATHER BUREAU OBSERVER'S REPORT OF NOVEMBER 3, 1933, SUBMITTED IN SUPPORT OF THE CLAIM, SHOWS THAT AT THE DEL MONTE (CALIF.) COOPERATIVE WEATHER STATION, NEAR THE SITE OF THE WORK, DURING THE PERIOD FROM DECEMBER 9 TO 25, 1932, BOTH DATES INCLUSIVE, THERE WERE 4 DAYS OF RAINY AND UNSETTLED WEATHER. THERE IS NO EVIDENCE THAT SUCH RAINY AND UNSETTLED WEATHER CONDITIONS WERE ANY MORE SEVERE THAN THE WEATHER DURING THE SAME PERIOD OF THE YEAR IN THAT LOCALITY REASONABLY MAY BE EXPECTED TO BE. A MERE SHOWING THAT THERE WAS RAIN OR SNOW OR FREEZING TEMPERATURE OR OTHER UNSETTLED WEATHER CONDITIONS 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 THAT A PRUDENT CONTRACTOR IN AGREEING TO COMMENCE WORK WITHIN A CERTAIN SPECIFIED PERIOD AND TO COMPLETE SAME WITHIN CERTAIN STIPULATED DAYS THEREAFTER TAKES INTO CONSIDERATION THE WEATHER CONDITIONS WHICH ORDINARILY PREVAIL DURING SUCH SEASON OF THE YEAR AT THE SITE OF THE WORK AND SUBMITS HIS BID ACCORDINGLY (11 COMP. GEN. 442).

"UNUSUALLY SEVERE WEATHER," SPECIFIED IN ARTICLE 9 OF THE CONTRACT AS AN EXCUSABLE CAUSE FOR DELAY IN PERFORMANCE, 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 SAME TIME OF YEAR INVOLVED IN THE CONTRACT. EVEN THOUGH THERE WERE SOME RAIN AND UNSETTLED WEATHER CONDITIONS AT THE SITE OF THE WORK DURING THE CONTRACT PERIOD, THERE IS NO AUTHORITY TO RELIEVE THE CONTRACTOR OF THE LIQUIDATED DAMAGES ACCRUED UNDER THE TERMS OF THE CONTRACT ON ACCOUNT THEREOF, INASMUCH AS THERE IS NO EVIDENCE THAT SUCH WEATHER CONDITIONS WERE "UNUSUALLY SEVERE" WITHIN THE MEANING OF ARTICLE 9 OF THE CONTRACT.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT OF SEPTEMBER 22, 1934, DISALLOWING SAID CLAIM, MUST BE AND IS AFFIRMED.