A-55534, JUNE 5, 1934, 13 COMP. GEN. 409

A-55534: Jun 5, 1934

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WHEREIN WAS DISALLOWED ITS CLAIM FOR $1. AS COMPENSATION FOR EXTRA EXPENSES ALLEGED TO HAVE BEEN INCURRED IN CONNECTION WITH THE CONSTRUCTION OF A STEEL BULKHEAD WHARF AT CHESAPEAKE CITY. 146.15 IS INCORRECT. THE CONTRACT IS DATED MARCH 28. ON THAT DATE WE WERE ADVISED IN WRITING OF THE CHIEF OF ENGINEERS APPROVAL OF THE CONTRACT. THE CONTRACT WAS COMPLETED WHEN WE DELIVERED TO THE DISTRICT ENGINEERS OFFICE THE EXECUTED AGREEMENT WITH A SATISFACTORY BOND. WHEN WE WERE ASKED OVER THE TELEPHONE BY THE DISTRICT ENGINEER TO SUSPEND WORK UNDER THE CONTRACT. A CONTRACT WAS ENTERED INTO IN WHICH THE CLAIMANT. THE WORK WAS DUE FOR COMPLETION AUGUST 25. THAT IT WAS INFORMED THAT IF WORK WAS BEGUN.

A-55534, JUNE 5, 1934, 13 COMP. GEN. 409

CONTRACTS - INCREASED COSTS - SUSPENSION OF WORK WHERE CONTRACTOR ELECTED TO BEGIN CONSTRUCTION WORK ON A GOVERNMENT CONTRACT IN ANTICIPATION OF APPROVAL OF THE CONTRACT, AND PRIOR TO RECEIPT OF NOTICE TO PROCEED WITH THE WORK, IT MUST BEAR ANY EXPENSES INCURRED INCIDENT TO A SUBSEQUENT SUSPENSION ORDER ISSUED BEFORE NOTICE TO PROCEED HAD BEEN GIVEN.

DECISION BY COMPTROLLER GENERAL MCCARL, JUNE 5, 1934:

THOMAS EARLE AND SONS, INC., REQUESTED APRIL 23, 1934, REVIEW OF THAT PART OF SETTLEMENT NO. 0323846, DATED APRIL 11, 1934, WHEREIN WAS DISALLOWED ITS CLAIM FOR $1,146.15, AS COMPENSATION FOR EXTRA EXPENSES ALLEGED TO HAVE BEEN INCURRED IN CONNECTION WITH THE CONSTRUCTION OF A STEEL BULKHEAD WHARF AT CHESAPEAKE CITY, MD., UNDER CONTRACT W-1108 488, DATED MARCH 28, 1933, AS A RESULT OF AN ORDER TO STOP ALL WORK ON APRIL 24, 1934, THE WORK HAVING BEEN COMMENCED PRIOR TO THE RECEIPT OF FORMAL NOTICE TO PROCEED.

IN ITS REQUEST FOR REVIEW, THE CLAIMANT STATES:

THE STATEMENT CONTAINED IN YOUR LETTER IN REFERENCE TO OUR CLAIM OF $1,146.15 IS INCORRECT. THE CONTRACT IS DATED MARCH 28, 1933, AND ON THAT DATE WE WERE ADVISED IN WRITING OF THE CHIEF OF ENGINEERS APPROVAL OF THE CONTRACT. THE CONTRACT WAS COMPLETED WHEN WE DELIVERED TO THE DISTRICT ENGINEERS OFFICE THE EXECUTED AGREEMENT WITH A SATISFACTORY BOND.

PARAGRAPH 3 OF THE SPECIFICATION GIVES THE LAST DATE ON WHICH WORK CAN BE STARTED AND FIXES THE DATE OF COMPLETION. IT DOES NOT, HOWEVER, SAY THAT WORK CANNOT BE STARTED AT AN EARLIER DATE, AND AT NO TIME DID THE ENGINEERS OFFICE ADVISE US NOT TO PROCEED WITH THE WORK UNTIL APRIL 24, 1933, WHEN WE WERE ASKED OVER THE TELEPHONE BY THE DISTRICT ENGINEER TO SUSPEND WORK UNDER THE CONTRACT.

THE FACTS APPEAR TO BE AS FOLLOWS:

ON DECEMBER 30, 1932, THE CHIEF OF ENGINEERS, UNITED STATES ARMY, ADVERTISED INVITING PROPOSALS TO BE OPENED JANUARY 31, 1933, FOR THE CONSTRUCTION OF A STEEL BULKHEAD WHARF ON THE CHESAPEAKE AND DELAWARE CANAL AT CHESAPEAKE CITY, MD. ON MARCH 28, 1933, A CONTRACT WAS ENTERED INTO IN WHICH THE CLAIMANT, FOR AND IN CONSIDERATION OF $24,709, AGREED TO COMPLETE THE WHARF, WITH THE FOLLOWING PROVISIONS:

THIS CONTRACT SHALL BE SUBJECT TO THE WRITTEN APPROVAL OF THE DIVISION ENGINEER, UNITED STATES ARMY, AND SHALL NOT BE BINDING UNTIL SO APPROVED.

THE WORK SHALL BE COMMENCED WITHIN 30 CALENDAR DAYS AFTER DATE OF RECEIPT BY CONTRACTOR OF NOTICE TO PROCEED, AND SHALL BE COMPLETED WITHIN 90 CALENDAR DAYS AFTER SAID RECEIPT OF NOTICE TO PROCEED.

IT APPEARS THAT THE CHIEF OF ENGINEERS APPROVED THE CONTRACT MAY 22, 1933, AND THAT THE CONTRACTOR RECEIVED NOTICE TO PROCEED MAY 27, 1933. HENCE, THE WORK WAS DUE FOR COMPLETION AUGUST 25, 1933.

IT APPEARS, ALSO, THAT THE CONTRACTOR REQUESTED PERMISSION TO PROCEED WITH THE WORK PRIOR TO APPROVAL OF THE CONTRACT AND THE RECEIPT OF NOTICE TO PROCEED, AND THAT IT WAS INFORMED THAT IF WORK WAS BEGUN, IT DID SO AT ITS OWN RISK. THE CONTRACTOR DID BEGIN WORK PRIOR TO RECEIPT OF NOTICE TO PROCEED AND WAS ORDERED TO SUSPEND ITS OPERATIONS APRIL 24, 1933.

ON SEPTEMBER 30, 1933, THE CONTRACTOR SUBMITTED ITS CLAIM AS FOLLOWS:

TABLE

CONSTRUCTION AND BACKFILLING OF STEEL BULKHEAD WHARF, CHESAPEAKE CITY,

MARYLAND TOW--- PILE DRIVER FROM CHESAPEAKE CITY TO DELAWARE CITY--- MAY 20 $25.00 TOW--- DERRICK BOAT FROM CHESAPEAKE CITY TO DELAWARE CITY--- MAY 1 25.00 TOW--- PILE DRIVER FROM DELAWARE CITY TO CHESAPEAKE CITY--- JUNE 6 25.00 TOW--- DERRICK BOAT FROM DELAWARE CITY TO CHESAPEAKE CITY--- JUNE 1 25.00 HAULING--- POWER SHOVEL FROM CHESAPEAKE CITY TO WILMINGTON, DEL. -- 40.00 HAULING--- POWER SHOVEL FROM NEWPORT TO CHESAPEAKE CITY, DEL. ----- 35.00 DAY TIME--- PILE DRIVER NO. 1--- APRIL 26 TO MAY 20--- 21 DAYS

AT $20.00 -------------------------------------------------- 420.00DAY TIME--- DERRICK BOAT NO. 5--- APRIL 26 TO MAY 1--- 5 DAYS

AT $30.00 -------------------------------------------------- 150.00 DAY TIME--- DECK LIGHTER HELEN--- APRIL 26 TO MAY 27--- 32 DAYS

AT $5.00 --------------------------------------------------- 160.00 STORAGE OF MATERIALS ON CARS AT WILMINGTON, DELAWARE ---------- --- 37.92

942.92 LABOR:

WATCHMAN'S SERVICES--- APRIL 26 TO JUNE 3RD--- 5 1/7 WEEKS

AT $20.00 ------------------------------------------------------- 102.86

HOISTING ENGINEER--- 4 DAYS ( ( AT 7.00 -------- 28.00

FIREMAN--- 4 DAYS ( MOVING PLANT ( AT 4.80 -------- 19.20

SHOVEL OPERATOR--- 2 DAYS MOVING SHOVEL AT 6.00 -------- 12.00

162.06

COMPENSATION AND PUBLIC LIABILITY, 7.645 ------------------------ 12.38

174.44

GENERAL OVERHEAD ON LABOR, 10 PERCENT --------------------------- 17.44

191.88

942.92

1,134.80

BOND, 1 PERCENT ----------------------------------------------- 11.35

1,146.15

THE CONTRACT, SUPRA, SPECIFICALLY PROVIDES THAT IT WAS SUBJECT TO THE WRITTEN APPROVAL OF THE DIVISION ENGINEER, UNITED STATES ARMY, AND THAT THE GOVERNMENT RESERVED THE RIGHT TO DIRECT WHEN THE WORK SHOULD BE COMMENCED. THEREFORE, IF THE CONTRACTOR ELECTED TO BEGIN THE WORK IN ANTICIPATION OF APPROVAL OF THE CONTRACT AND PRIOR TO RECEIPT OF NOTIFICATION TO PROCEED WITH THE WORK, IT MUST BEAR ANY EXPENSES INCIDENT TO A SUBSEQUENT SUSPENSION ORDER ISSUED BEFORE NOTICE TO PROCEED HAD BEEN GIVEN.