A-62267, AUGUST 12, 1935, 15 COMP. GEN. 123

A-62267: Aug 12, 1935

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AS FOLLOWS: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER. YOU STATE IN YOUR LETTER THAT THE STATUS OF THE MATTER UNDER THE CONTRACT "DOES NOT APPEAR TO BE SUCH AT THIS TIME AS WILL ENABLE THIS OFFICE TO DETERMINE THE BALANCE. CHARGEABLE AGAINST THE CONTRACTOR THEREUNDER AS THE WORK APPEARS NOT TO HAVE BEEN COMPLETED.'. IT IS BELIEVED THAT YOUR OFFICE HAS MISCONSTRUED THE REASON FOR THE TRANSMITTAL OF THESE BRIEFS TO YOU. BY REFERENCE TO THE BRIEF SUBMITTED ON BEHALF OF THE DEPARTMENT IT WILL BE NOTED THAT THE CONTRACTOR HAD BEEN NOTIFIED TO STOP WORK UNDER THE CONTRACT AND THAT HIS SURETY WAS BEING NOTIFIED TO COMPLETE THE JOB. ASKED THAT A REPRESENTATIVE OF THIS DEPARTMENT ACCOMPANY HIM TO YOUR OFFICE IN ORDER TO OBTAIN INFORMATION AS TO THE MANNER IN WHICH THE QUESTION WAS TO BE SUBMITTED TO YOU.

A-62267, AUGUST 12, 1935, 15 COMP. GEN. 123

CONTRACTS - ACCEPTANCE OF COMPLETED WORK WHERE A CONTRACT STIPULATES THE PARTICULAR FEDERAL OFFICER, FOR INSTANCE, THE HEAD OF A BUREAU, TO ACCEPT WORK WHEN COMPLETED UNDER A CONTRACT, THE ALLEGED ACCEPTANCE OF THE WORK BY ANOTHER, FOR INSTANCE A SUBORDINATE, FORMS NO BASIS FOR DETERMINATION OF THE RESPECTIVE RIGHTS OF THE GOVERNMENT AND THE CONTRACTOR UNDER THE TERMS OF THE CONTRACT, SUCH AS RESPONSIBILITY FOR THE PROTECTION OF THE WORK AGAINST DAMPNESS AND COLD AND COMPUTATION OF LIQUIDATED DAMAGES FOR DELAY IN COMPLETION.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF AGRICULTURE, AUGUST 12, 1935:

CONSIDERATION HAS BEEN GIVEN TO YOUR LETTER OF JULY 25, 1935, AS FOLLOWS:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER, A-62267, DATED JUNE 27, 1935, AND CONTENTS NOTED, RELATIVE TO THE BRIEFS TRANSMITTED TO YOUR OFFICE BY THE STANDARD ACCIDENT INSURANCE COMPANY, SURETY ON THE BOND OF THE TEMPLE CONSTRUCTION COMPANY, AND THE TEMPLE CONSTRUCTION COMPANY, AND THE BRIEF FILED BY THIS DEPARTMENT IN CONNECTION WITH THE CONTRACT NO. ALS-9445, DATED DECEMBER 21, 1933.

YOU STATE IN YOUR LETTER THAT THE STATUS OF THE MATTER UNDER THE CONTRACT "DOES NOT APPEAR TO BE SUCH AT THIS TIME AS WILL ENABLE THIS OFFICE TO DETERMINE THE BALANCE, IF ANY, CHARGEABLE AGAINST THE CONTRACTOR THEREUNDER AS THE WORK APPEARS NOT TO HAVE BEEN COMPLETED.'

IT IS BELIEVED THAT YOUR OFFICE HAS MISCONSTRUED THE REASON FOR THE TRANSMITTAL OF THESE BRIEFS TO YOU. BY REFERENCE TO THE BRIEF SUBMITTED ON BEHALF OF THE DEPARTMENT IT WILL BE NOTED THAT THE CONTRACTOR HAD BEEN NOTIFIED TO STOP WORK UNDER THE CONTRACT AND THAT HIS SURETY WAS BEING NOTIFIED TO COMPLETE THE JOB. AS A RESULT OF THE LETTER TO THE SURETY COMPANY A REPRESENTATIVE OF THAT COMPANY VISITED THE DEPARTMENT AND STATED THAT THE WHOLE QUESTION DEPENDED UPON A LEGAL INTERPRETATION OF THE SPECIFICATIONS AND ESPECIALLY APPENDIX A THEREOF, AND ASKED THAT A REPRESENTATIVE OF THIS DEPARTMENT ACCOMPANY HIM TO YOUR OFFICE IN ORDER TO OBTAIN INFORMATION AS TO THE MANNER IN WHICH THE QUESTION WAS TO BE SUBMITTED TO YOU.

FOLLOWING THE SUGGESTION OF YOUR OFFICE THE SURETY AND THE DEPARTMENT FILED BRIEFS IN THIS CASE IN ORDER TO PRESENT THEIR RESPECTIVE INTERPRETATIONS OF THE SPECIFICATIONS COVERED BY THIS CONTRACT. THE MAIN CONTENTION OF THE SURETY IS THAT APPENDIX A OF THE SPECIFICATIONS ELIMINATED THE NECESSITY OF HAVING LABORATORY TABLES INSTALLED, WHEREAS THE DEPARTMENT CONTENDS THAT UNDER THE CONTRACT (PAGE 44) LABORATORY TABLES WERE SPECIFICALLY CALLED FOR. AS A RESULT OF THIS CONTENTION, WHICH FIRST AROSE ON NOVEMBER 26, 1934, THE CONTRACTOR ADDRESSED A LETTER TO THE DEPARTMENT STATING THAT THE WORK UNDER THIS PROJECT WAS COMPLETED AND REQUESTED THAT FINAL INSPECTION BE MADE. AT THAT TIME HE REFUSED TO COMPLY WITH THE REQUIREMENTS OF THE SPECIFICATIONS IN RESPECT OF THE LABORATORY TABLES. INSPECTION WAS MADE BY THE DEPARTMENT ON NOVEMBER 27 AND IT WAS DISCLOSED THAT THE BUILDING WAS NOT COMPLETED. A LIST OF ITEMS WAS SUBMITTED TO THE CONTRACTOR SHOWING THE WORK NECESSARY TO BE DONE. FURTHER, ON DECEMBER 7, DR. J. R. MOHLER, CHIEF BUREAU OF ANIMAL INDUSTRY, NOTIFIED MR. BORRIELLO, THE REPRESENTATIVE OF THE CONTRACTOR, THAT THE GOVERNMENT WOULD NOT ACCEPT THE BUILDING UNTIL A NUMBER OF ITEMS HAD BEEN ADJUSTED, INCLUDING THE DISAGREEMENT OF LONG STANDING OVER THE AMOUNT OF THE LABORATORY EQUIPMENT REQUIRED BY ALTERNATE A OF THE SPECIFICATIONS.

AGAIN ON DECEMBER 29, MR. M. C. BETTS, OFFICER IN CHARGE OF THE PROJECT, ADDRESSED A LETTER TO THE TEMPLE CONSTRUCTION COMPANY, REPLYING TO THEIR LETTER OF DECEMBER 18, AND CALLED ATTENTION TO THE FACT THAT SOME OF THE ITEMS LISTED TO BE CORRECTED IN THE LETTER OF DECEMBER 7 HAD NOT BEEN CORRECTED, NOR HAD THE GRADING OF THE WEST SIDE OF THE BUILDING BEEN COMPLETED WHEN AN INSPECTION WAS MADE ON DECEMBER 28, AND ADVISED THE CONTRACTOR THAT UNLESS THIS WORK WAS COMPLETED IMMEDIATELY RECOMMENDATION WOULD BE MADE TO HAVE THE WORK DONE BY OTHERS AND CHARGED TO THE CONTRACTOR. IT WAS DURING THIS PERIOD OF CONTROVERSY THAT, ON OR ABOUT JANUARY 29, 1935, DURING VERY COLD WEATHER, MANY OF THE RADIATORS BURST, DUE TO THE FAILURE OF THE CONTRACTOR TO HEAT THE BUILDING AS CALLED FOR UNDER THE SPECIFICATIONS. IT WAS ALSO AT THIS TIME THAT AN ATTORNEY FOR THE TEMPLE CONSTRUCTION COMPANY FILED A BRIEF WITH THE DEPARTMENT AND LATER, ON FEBRUARY 4, 1935, FILED A SUPPLEMENTAL BRIEF RELATIVE TO THE CONTROVERSY OVER THE LABORATORY TABLES, WHICH WERE REPLIED TO BY THE DEPARTMENT NOTIFYING THE COMPANY THAT THE SECRETARY FOUND THAT THEY WERE REQUIRED UNDER THE SPECIFICATIONS TO PERFORM CERTAIN WORK WHICH THEY HAD FAILED TO DO.

ON MARCH 1, 1935, A LETTER WAS ADDRESSED TO THE TEMPLE CONSTRUCTION COMPANY NOTIFYING THEM THAT THEY WERE IN DEFAULT AND THAT THE CONTRACT WAS BEING TURNED OVER TO THE BONDING COMPANY FOR COMPLETION. THE BONDING COMPANY WAS LIKEWISE NOTIFIED ON MARCH 1.

AS THE RESULT OF THIS LONG-DRAWN-OUT CONTROVERSY THE DEPARTMENT HAS NEVER ACCEPTED THE BUILDING, AS DR. MOHLER, CHIEF OF THE BUREAU OF ANIMAL INDUSTRY, HAS NEVER GIVEN A WRITTEN ACCEPTANCE TO THE CONTRACTOR, NOR HAS MR. BETTS, THE OFFICER IN CHARGE, MADE A RECOMMENDATION TO DR. MOHLER FOR ACCEPTANCE OF THE BUILDING BASED ON THE INSPECTION MADE BY HIM. TWO QUESTIONS, THEREFORE, PRESENT THEMSELVES FOR DETERMINATION BY YOUR OFFICE:

(1) IS THE CONTRACTOR REQUIRED UNDER THE PROVISIONS OF THE SPECIFICATIONS TO INSTALL LABORATORY TABLES, OR DOES ALTERNATE A EXCLUDE LABORATORY TABLES FROM THE PROVISIONS OF THE SPECIFICATIONS?

(2) THE CONTRACTOR CONTENDS THAT LABORATORY TABLES WERE EXCLUDED FROM THE PROVISIONS OF THE SPECIFICATIONS; IF THAT CONTENTION IS FOUND BY YOUR OFFICE TO BE CORRECT, THEN THE QUESTIONS OF WHO IS RESPONSIBLE FOR DAMAGE TO THE HEATING PLANT AND HOW LONG LIQUIDATED DAMAGES RUN AGAINST THE CONTRACTOR, WOULD BE FOR DETERMINATION.

THE CONTRACT IN QUESTION WAS ENTERED INTO MARCH 19, 1934, BETWEEN THE UNITED STATES, REPRESENTED BY THE SECRETARY OF AGRICULTURE, AND THE TEMPLE CONSTRUCTION CORPORATION, AND PROVIDED THAT IN CONSIDERATION OF $45,718 THE CONTRACTOR SHOULD FURNISH ALL LABOR AND MATERIAL, EXCEPT AS MODIFIED BY ALTERNATE A OF THE SPECIFICATION, AND PERFORM ALL WORK REQUIRED FOR THE ERECTION OF THE MAIN LABORATORY BUILDING FOR THE BUREAU OF ANIMAL INDUSTRY, DIVISION OF ZOOLOGY, DEPARTMENT OF AGRICULTURE, AT BELTSVILLE, MD., WITH REQUIREMENT THAT THE WORK BE COMMENCED WITHIN 10 CALENDAR DAYS AFTER DATE OF RECEIPT OF NOTICE TO PROCEED AND BE COMPLETED WITHIN 180 CALENDAR DAYS AFTER DATE OF RECEIPT OF SAID NOTICE. THE CONTRACT STIPULATED THAT THE CHIEF OF THE BUREAU OF ANIMAL INDUSTRY OF THE DEPARTMENT OF AGRICULTURE WAS DESIGNATED AS THE AUTHORIZED REPRESENTATIVE OF THE CONTRACTING OFFICER, AND IT FURTHER STIPULATED THAT THE CONTRACTOR WOULD BE RESPONSIBLE FOR THE WORK UNTIL THE FINAL ACCEPTANCE THEREOF AS EVIDENCED IN WRITING BY THE CHIEF OF SAID BUREAU AND THE FINAL PAYMENT MADE, AT WHICH TIME THE CONTRACTOR WOULD BE RELEASED FROM FURTHER OBLIGATION EXCEPT UPON PROOF OF ERROR OR AS REQUIRED IN THE CONTRACT AND SET FORTH IN THE PERFORMANCE BOND.

THE CONTRACT FURTHER PROVIDED, IN CONNECTION WITH THE DETAILS OF THE WORK TO BE PERFORMED UNDER THE CONTRACT, THAT:

LABORATORY TABLES SHALL BE BUILT-IN AS INDICATED ON DRAWINGS. TABLE TOPS, SPLASH BACKS AND TOP OF CURBS SHALL BE OF SELECTED WHITE PINE. TABLE TOPS SHALL BE WORKED FROM 2-INCH STOCK AND THE SPLASH BACKS AND TOP OF CURBS FROM 1 1/4-INCH STOCK, AND SHALL BE GLUED UP FOR WIDTH USING WATER-RESISTING GLUE AND HARDWOOD SPLINES AS INDICATED. FRAMES FOR DRAWERS AND CUPBOARDS SHALL BE 1 1/8-INCH THICK, SHELVES AND PARTITIONS 7/8-INCH THICK GLUED UP IN THE REQUIRED WIDTHS. CUPBOARD DOORS SHALL BE ONE PANEL STOCK DOOR WITH NEAT MOLDING AROUND PANEL AND WITH RAILS AND STILES WORKED FROM ONE INCH BY 2-INCH STOCK.

DRAWERS UNDER TABLES SHALL HAVE SIDES DOVETAILED TO THE FRONTS AND GROOVED FOR BACKS, BOTTOMS, AND GUIDE STRIPS. SIDES SHALL EXTEND BACK AS FAR AS SPACE PERMITS. BOTTOMS SHALL BE THREE-PLY LAMINATED AND LET INTO THE FRONTS, SIDES, AND BACKS. DRAWERS SHALL HAVE HARDWOOD RUNS AND GUIDE STRIPS, AND SHALL BE DOUBLE FACED WHERE INDICATED.

CABINETS ON WALL OVER LABORATORY TABLES SHALL HAVE GLASS-PANELED DOORS WITH WOOD MOUNTINGS AND WOOD SHELVES, AS INDICATED. SLIDING CABINET DOORS, WHERE INDICATED, SHALL OPERATE ON BALL BEARING METAL SHEAVES, SPECIFIED ELSEWHERE.

AS STATED IN THE CONTRACT, THE WORK WAS MODIFIED BY "ALTERNATE A" OF THE SPECIFICATIONS AS FOLLOWS:

ALL BUILT-IN CABINETS, CUPBOARDS, AND TABLE-TYPE SOAPSTONE SINKS IN ALL LABORATORY ROOMS ON THE FIRST AND SECOND FLOORS (EXCEPT IN ROOMS 201 AND 213), AS SHOWN ON THE DRAWINGS AND HEREIN SPECIFIED, SHALL BE OMITTED.

THE CONTRACTOR SHALL INSTALL ALL WOOD GROUNDS IN PLASTER WALLS WHERE INDICATED FOR CABINET WORK TO BE INSTALLED AT A FUTURE DATE.

HOT AND COLD-WATER SUPPLIES AND WASTE LINES FOR OMITTED SINKS SHALL BE ROUGHED IN THROUGH WALL AND ABOVE FLOOR AND CAPPED FOR FUTURE CONNECTION.

ALL REQUIREMENTS OF THE FOREGOING SPECIFICATIONS, EXCEPT AS HEREIN MODIFIED, SHALL GOVERN UNDER THIS ALTERNATE.

AS YOU HAVE INDICATED, THERE IS A CONTROVERSY BETWEEN THE CONTRACTING OFFICER AND THE CONTRACTOR WHETHER THE CONTRACTOR IS REQUIRED BY THE TERMS OF THE CONTRACT TO CONSTRUCT LABORATORY TABLES AS INDICATED ON THE DRAWINGS OR WHETHER ALL LABORATORY TABLES WERE ELIMINATED UNDER ALTERNATE A EXCEPT IN ROOMS 201 AND 213. IT IS UNDERSTOOD THE CONTRACTOR HAS CONSTRUCTED THE LABORATORY TABLES IN ROOMS 201 AND 213 OF THE BUILDING, BUT HAS DECLINED TO CONSTRUCT SAID TABLES IN THE OTHER ROOMS INDICATED ON THE DRAWINGS BECAUSE OF THE STATED BELIEF OF THE CONTRACTOR THAT UNDER ALTERNATE A THERE WAS NO SUCH REQUIREMENT FOR THE CONSTRUCTION OF LABORATORY TABLES IN THE OTHER ROOMS. IT IS TOO CLEAR FOR SERIOUS ARGUMENT THAT LABORATORY TABLES ARE NOT IN TERMS MENTIONED IN THE ABOVE- QUOTED ALTERNATE A OF THE CONTRACT WHILE THEY ARE SPECIFICALLY MENTIONED AND REQUIRED IN THE CONTRACT TO BE "BUILT-IN AS INDICATED ON DRAWINGS.' THE CONTRACTOR APPARENTLY URGES THAT THE BUILT-IN CABINETS, CUPBOARDS, AND TABLE-TYPE SOAPSTONE SINKS ARE AN INTEGRAL PART OF A LABORATORY TABLE AND THAT SUCH CABINETS, CUPBOARDS, AND TABLE-TYPE SOAPSTONE SINKS HAVING BEEN ELIMINATED UNDER ALTERNATE A FROM THE WORK TO BE PERFORMED IT NECESSARILY FOLLOWS THAT THE LABORATORY TABLES WERE LIKEWISE SO ELIMINATED.

HOWEVER, IT IS AN OBVIOUS FACT THAT A LABORATORY TABLE IS NOT NECESSARILY REQUIRED TO HAVE BUILT-IN CABINETS, CUPBOARDS, AND SOAPSTONE SINKS ATTACHED THERETO; THAT IT IS POSSIBLE TO CONSTRUCT A LABORATORY TABLE WITHOUT CABINETS, CUPBOARDS, AND SINKS, AND IF IT HAD BEEN THE INTENTION TO ELIMINATE FROM THE CONTRACT WORK ALL OF THE LABORATORY TABLES, AS REQUIRED BY THE TERMS OF THE CONTRACT, EXCEPT IN ROOMS 201 AND 213, AS URGED BY THE CONTRACTOR, ALTERNATE A SHOULD HAVE BEEN IN THE TERMS OF THE REQUIREMENT WHICH WAS TO BE ELIMINATED THEREUNDER. IT IS CLEAR THAT IT WAS NOT IN SUCH TERMS, AND ATTENTION MAY BE INVITED TO ARTICLE 2 OF THE CONTRACT, WHICH STIPULATED THAT ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS SHOULD BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. WHILE THE LABORATORY TABLES TO BE INSTALLED WERE INDICATED ON THE DRAWINGS AND WHILE ALTERNATE A OF THE SPECIFICATIONS ELIMINATED BUILT-IN CABINETS, CUPBOARDS, AND TABLE-TYPE SOAPSTONE SINKS, SAID ALTERNATE DID NOT ELIMINATE THE LABORATORY TABLES SHOWN ON THE DRAWINGS.

THE CONCLUSION APPEARS INESCAPABLE THAT UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR IS REQUIRED AS A PART OF THE WORK COVERED BY THE CONTRACT PRICE TO CONSTRUCT, IN ALL OF THE ROOMS INDICATED ON THE DRAWINGS, LABORATORY TABLES, BUT, WITH THE EXCEPTION OF ROOMS 201 AND 213, SUCH CONTRACTOR IS NOT REQUIRED TO CONSTRUCT BUILT-IN CABINETS, CUPBOARDS, AND TABLE-TYPE SOAPSTONE SINKS IN THE LABORATORY ROOMS ON THE FIRST AND SECOND FLOORS, AND THIS CONCLUSION IS SUPPORTED BY THE SPECIFIC TERMS OF ALTERNATE A, THAT HOT- AND COLD-WATER SUPPLIES AND WASTE LINES FOR OMITTED SINKS SHALL BE ROUGHED IN THROUGH WALL AND ABOVE FLOOR AND CAPPED FOR FUTURE CONNECTION, AND THE REQUIREMENT IN SAID ALTERNATE FOR INSTALLATION OF "WOOD GROUNDS IN PLASTER WALLS WHERE INDICATED FOR CABINET WORK TO BE INSTALLED AT A FUTURE DATE.'

WITH RESPECT TO THE RESPONSIBILITY FOR THE ALLEGED DAMAGE TO THE HEATING PLANT DUE TO FREEZING ON OR ABOUT JANUARY 29, 1935, THE CONTRACT STIPULATED THAT:

THE CONTRACTOR SHALL PROVIDE TEMPORARY HEAT TO PROTECT ALL WORK AND MATERIALS AGAINST INJURY FROM DAMPNESS AND COLD. AT ALL TIMES WHEN THERE IS CONCRETE NOT THOROUGHLY SET, AND AFTER STARTING TO APPLY THE FIRST COAT OF PLASTERING, HE SHALL MAINTAIN A TEMPERATURE OF NOT LESS THAN 40 DEGREES FAHRENHEIT AT THE PLACES WHERE THOSE CONDITIONS EXIST. FOR 10 DAYS PREVIOUS TO PLACING OF INTERIOR WOOD FINISH, A TEMPERATURE OF AT LEAST 70 DEGREES FAHRENHEIT SHALL BE MAINTAINED IN THE BUILDING.

AS ABOVE STATED, UNDER THE EXPRESS TERMS OF THE CONTRACT THE CONTRACTOR WAS RESPONSIBLE FOR THE PROTECTION, ETC., OF THE BUILDING UNTIL COMPLETION AND FINAL ACCEPTANCE IN WRITING BY THE CHIEF OF THE BUREAU OF ANIMAL INDUSTRY, WHO IS DESIGNATED IN THE CONTRACT AS A REPRESENTATIVE OF THE CONTRACTING OFFICER AND THE OFFICIAL AUTHORIZED TO ACCEPT THE WORK AS COMPLETED. NO OTHER SUBORDINATE OF THE DEPARTMENT OF AGRICULTURE HAD ANY AUTHORITY TO ACCEPT THE WORK AS COMPLETED. SEE HAWKINS V. UNITED STATES, 96 U.S. 689. IT IS REPORTED THAT THE WORK HAD NOT BEEN ACCEPTED AS COMPLETED WHEN THE DAMAGE TO THE HEATING SYSTEM OCCURRED, AND IN FACT HAD NOT BEEN ACCEPTED AS COMPLETED ON MARCH 1, 1935, WHEN THE CONTRACTOR WAS NOTIFIED THAT ITS RIGHT TO PROCEED HAD BEEN TERMINATED AND REQUEST MADE ON THE SURETY COMPANY TO COMPLETE THE WORK. THE WORK WAS NOT ACCEPTED AS COMPLETED, NOT ONLY BECAUSE OF THE FAILURE AND REFUSAL OF THE CONTRACTOR TO INSTALL THE LABORATORY TABLES IN THE BUILDINGS AS INDICATED ON THE DRAWINGS, BUT BECAUSE THE CONTRACTOR WAS NOTIFIED IN LETTER OF DECEMBER 7, 1934, BY THE CHIEF OF THE BUREAU OF ANIMAL INDUSTRY, THAT THE GOVERNMENT WOULD NOT ACCEPT THE BUILDING AS COMPLETED UNTIL A NUMBER OF ITEMS NAMED IN SAID LETTER HAD BEEN ADJUSTED. THE INSPECTOR IN CHARGE OF THE PROJECT WAS NOTIFIED DECEMBER 4, 1934, OF DEFECTS IN THE ATTIC STAIR LANDING, LEAKS IN HEATING AND WATER SYSTEM, AND OF WRONG TYPE OF DAMPER INSTALLED ON BOILER. ON DECEMBER 18 THE CONTRACTOR NOTIFIED THE DEPARTMENT OF AGRICULTURE THAT THE ADJUSTMENTS LISTED IN THE LETTER OF DECEMBER 7 HAD BEEN COMPLETED, BUT AN INSPECTION OF DECEMBER 21 SHOWED WATER TABLE, GRADING, LEAKS, AND DAMPER NOT SATISFACTORY. A FURTHER INSPECTION ON DECEMBER 28, 1934, SHOWED CERTAIN ITEMS AS UNCOMPLETED, AND THE CONTRACTOR WAS INFORMED THAT UNLESS THE WORK WAS COMPLETED IMMEDIATELY RECOMMENDATION WOULD BE MADE TO HAVE THE WORK DONE BY OTHERS AND CHARGED TO THE CONTRACTOR. A FURTHER INSPECTION OF JANUARY 12, 1935, DISCLOSED CONDITIONS NOT PREVIOUSLY NOTED, INCLUDING A WRONGLY CUT ROOF RAFTER, NECESSITY FOR ADJUSTMENT OF CASEMENT HARDWARE AND WINDOW SCREENS, AND UNSATISFACTORY STUCCO WORK. THE CONTROVERSY WITH RESPECT TO THESE UNCOMPLETED ITEMS, AS WELL AS THE LABORATORY TABLES, FINALLY DRAGGED ON UNTIL MARCH 1, 1935, WHEN THE RIGHT OF THE CONTRACTOR TO PROCEED WAS TERMINATED, AS PROVIDED FOR IN ARTICLE 9 OF THE CONTRACT.

THE CONTRACT SPECIFICALLY PROVIDED IN ARTICLE 15 THAT ALL DISPUTES, EXCEPT LABOR ISSUES, ARISING UNDER THE CONTRACT SHOULD BE DECIDED BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO WRITTEN APPEAL BY THE CONTRACTOR WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION SHOULD BE FINAL AND CONCLUSIVE UPON THE PARTIES THERETO AS TO SUCH QUESTIONS. ALSO, THAT "IN THE MEANTIME THE CONTRACTOR SHALL DILIGENTLY PROCEED WITH THE WORK AS DIRECTED.' SEE IN THIS CONNECTION PENN BRIDGE CO. V. UNITED STATES, 59 CT.CLS. 892, AND CASES THERE CITED AT PAGE 897. IT IS APPARENT THAT THE CONTRACTOR DID NOT DILIGENTLY PROCEED WITH THE WORK, AND THE RECORD IS NOT CLEAR THAT THE CONTRACTOR APPEALED TO THE SECRETARY OF AGRICULTURE CONCERNING DISPUTES BETWEEN THE CONTRACTOR AND THE INSPECTOR OR CHIEF OF THE BUREAU OF ANIMAL INDUSTRY WITH RESPECT TO THE NAMED ITEMS OF WORK WHICH WERE REPORTED AS UNCOMPLETED. IN VIEW OF THE SPECIFIC TERMS OF THE CONTRACT, THERE IS NO LEGAL BASIS FOR THE CONCLUSION REACHED BY THE CONTRACTOR THAT THE DELIVERY OF THE KEYS TO AN EMPLOYEE OF THE DEPARTMENT OF AGRICULTURE AT BELTSVILLE CONSTITUTED ACCEPTANCE OF THE CONTRACT WORK, AND SUCH EMPLOYEE WAS NOT AUTHORIZED BY THE TERMS OF THE CONTRACT TO ACCEPT THE WORK AS COMPLETED OR TO ASSUME THE RESPONSIBILITY ON THE PART OF THE UNITED STATES FOR THE PROTECTION OF THE BUILDING OR THE HEATING SYSTEM, WHICH THE CONTRACT DEFINITELY AND UNEQUIVOCALLY PLACED ON THE CONTRACTOR UNTIL THE WORK HAD BEEN ACCEPTED IN WRITING BY THE CHIEF OF THE BUREAU OF ANIMAL INDUSTRY.

IT FOLLOWS THAT THE CONTRACTOR IS PROPERLY CHARGEABLE WITH THE COST OF REPAIRING OR REPLACING THE HEATING SYSTEM DUE TO THE FREEZE AND WITH LIQUIDATED DAMAGES FOR ANY DELAYS AFTER THE STIPULATED DATE FOR COMPLETION, UNLESS SUCH DELAYS RESULTED FROM CAUSES STATED IN ARTICLE 9 OF THE CONTRACT AS ENTITLING THE CONTRACTOR TO REMISSION OF LIQUIDATED DAMAGES. DEFINITE FINDINGS OF FACT AS TO THE CAUSES AND PERIODS OF DELAY SHOULD BE MADE BY THE CONTRACTING OFFICER OR HIS AUTHORIZED REPRESENTATIVE, AS PROVIDED IN ARTICLE 9 OF THE CONTRACT.

AS STATED IN MY LETTER OF JUNE 27, 1935, TO THE SECRETARY OF AGRICULTURE IN THIS CONNECTION, THE CONTRACT SHOULD BE PROMPTLY COMPLETED, BY CONTRACT OR OTHERWISE, AS STIPULATED IN ARTICLE 9 OF THE CONTRACT AND THERE SHOULD BE TRANSMITTED TO THIS OFFICE A FULL REPORT, INCLUDING THE REQUIRED FINDINGS OF FACTS, FOR CONSIDERATION IN THE SETTLEMENT OF THE CLAIMS OF THE CONTRACTOR OR THE COMPLETING SURETY UNDER SAID CONTRACT.