A-76725, JUNE 18, 1936, 15 COMP. GEN. 1115

A-76725: Jun 18, 1936

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THE APPROVAL OF THE GOVERNOR OF THE CANAL AS TO SAID FINDINGS IS UNNECESSARY UNLESS UPON APPEAL TAKEN BY THE CONTRACTOR AS PROVIDED IN THE CONTRACT. 1936: THIS OFFICE IS IN RECEIPT OF A LETTER DATED FEBRUARY 1. THE INVESTIGATIONS AND CORRESPONDENCE REGARDING THIS CLAIM HAVE BEEN COMPLETED. AS THIS IS THE FIRST CLAIM OF THIS KIND TO BE FORWARDED BY THIS OFFICE WE ARE NOT FAMILIAR WITH THE EXACT ROUTINE WHICH SHOULD BE FOLLOWED IN SUBMITTING THE MATTER TO THE COMPTROLLER GENERAL FOR HIS DECISION. FOLLOWING IS A SYNOPSIS OF THIS CLAIM AND THE POINTS ON WHICH INFORMATION IS DESIRED: 3. THE GOVERNMENT FAILED TO PROVIDE CERTAIN MATERIALS FOR SOME OF THE BUILDINGS INCLUDED IN PROJECT A WHEN THE CONTRACTOR WAS READY TO INSTALL THE MATERIAL.

A-76725, JUNE 18, 1936, 15 COMP. GEN. 1115

STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT - EXTENSIONS OF TIME WHERE, UNDER A PANAMA CANAL CONSTRUCTION CONTRACT ON STANDARD GOVERNMENT FORM NO. 23, THERE ARISES A MATTER OF EXTENSION OF TIME FOR PERFORMANCE, THERE SHOULD BE RESERVED IN MAKING PROGRESS PAYMENTS TO THE CONTRACTOR AN AMOUNT AS LIQUIDATED DAMAGES SUFFICIENT FOR ALL DELAYS, AND THE FINAL PAYMENT VOUCHER, TOGETHER WITH ALL ORIGINAL PAPERS AND THE FINDINGS OF FACT OF THE CONTRACTING OFFICER REGARDING SAID DELAYS, SHOULD BE TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT, BUT THE APPROVAL OF THE GOVERNOR OF THE CANAL AS TO SAID FINDINGS IS UNNECESSARY UNLESS UPON APPEAL TAKEN BY THE CONTRACTOR AS PROVIDED IN THE CONTRACT.

COMPTROLLER GENERAL MCCARL TO THE GENERAL PURCHASING OFFICER, THE PANAMA CANAL, JUNE 18, 1936:

THIS OFFICE IS IN RECEIPT OF A LETTER DATED FEBRUARY 1, 1936, FROM THE CHIEF QUARTERMASTER, SUPPLY DEPARTMENT, THE PANAMA CANAL, AS FOLLOWS:

1. PLEASE BE REFERRED TO THE CONTRACT ENTERED INTO WITH GREBIEN AND MARTINZ, INC., PANAMA, R. DE P., UNDER DATE OF JULY 17, 1935, NUMBERED AS ABOVE, FOR THE CONSTRUCTION OF 34 QUARTERS BUILDINGS FOR THE PANAMA CANAL AT GATUN, CANAL ZONE, UNDER THE INVITATION FOR BIDS, SCHEDULE, AND SPECIFICATIONS DATED APRIL 15, 1935.

2. THE CONTRACTOR HAS SUBMITTED A REQUEST FOR AN EXTENSION FOR COMPLETING THE BUILDINGS UNDER PROJECT A OF THE SCHEDULE, FOR THE REASON THAT THE GOVERNMENT FAILED TO SUPPLY CERTAIN NECESSARY MATERIALS AS REQUIRED UNDER THE SPECIFICATIONS. THE INVESTIGATIONS AND CORRESPONDENCE REGARDING THIS CLAIM HAVE BEEN COMPLETED, BUT AS THIS IS THE FIRST CLAIM OF THIS KIND TO BE FORWARDED BY THIS OFFICE WE ARE NOT FAMILIAR WITH THE EXACT ROUTINE WHICH SHOULD BE FOLLOWED IN SUBMITTING THE MATTER TO THE COMPTROLLER GENERAL FOR HIS DECISION. FOLLOWING IS A SYNOPSIS OF THIS CLAIM AND THE POINTS ON WHICH INFORMATION IS DESIRED:

3. THE GOVERNMENT FAILED TO PROVIDE CERTAIN MATERIALS FOR SOME OF THE BUILDINGS INCLUDED IN PROJECT A WHEN THE CONTRACTOR WAS READY TO INSTALL THE MATERIAL, AND HE THEREUPON FILED CLAIMS FOR EXTENSIONS. CORRESPONDENCE ENSUED WITH THE CONTRACTOR AND THE INSPECTING OFFICER, AND THE FACTS HAVE BEEN DETERMINED AS NEARLY AS POSSIBLE.

4. AFTER THE CONTRACT WAS ENTERED INTO IT BECAME NECESSARY TO CHANGE THE SCHEDULE AS SUBMITTED TO THE BIDDERS WITH THE SPECIFICATIONS. THE SITES FOR SOME OF THE 13 BUILDINGS WHICH WERE INCLUDED UNDER PROJECT A COULD NOT BE PREPARED BY THE GOVERNMENT IN TIME FOR THE CONTRACTOR TO PROCEED WITHOUT DELAY, BUT SOME OF THE SITES FOR THE 21 BUILDINGS UNDER PROJECT B COULD BE PREPARED. IT WAS ARRANGED WITH THE CONTRACTOR TO SUBSTITUTE SOME OF THE BUILDINGS UNDER PROJECT B FOR A LIKE NUMBER OF BUILDINGS UNDER PROJECT A. A REVISED SCHEDULE WAS SUBMITTED TO THE CONTRACTOR AND WAS ACCEPTED BY HIM WITHOUT INCREASE IN COST TO THE GOVERNMENT AND WITHOUT MODIFYING ANY PROVISIONS OF THE PLANS AND SPECIFICATIONS, ALTHOUGH SEVERAL OF THE BUILDINGS TRANSFERRED FROM PROJECT B TO PROJECT A ON THE REVISED SCHEDULE REQUIRE MORE WORK THAN THOSE FOR WHICH THEY WERE SUBSTITUTED. FAILURE TO PROVIDE SITES AS ORIGINALLY PLANNED WAS DUE TO THE DELAYED COMPLETION OF QUARTERS UNDER CONSTRUCTION UNDER A PREVIOUS CONTRACT (NO. PC1P265) WITH MR. ALFRED SCHAFF. THIS DELAYED THE GOVERNMENT IN TRANSFERRING FAMILIES FROM OLD QUARTERS WHICH HAD TO BE REMOVED TO MAKE THE SITES AVAILABLE FOR BUILDINGS UNDER PROJECT A AS ORIGINALLY PLANNED.

5. THE CONTRACT WITH GREBIEN AND MARTINZ, INC. (NO. PC1P295), ALLOWS 180 DAYS FOR COMPLETION OF THE 13 BUILDINGS INCLUDED IN PROJECT A AND 300 DAYS FOR COMPLETION OF THE 21 BUILDINGS INCLUDED IN PROJECT B OF THE SCHEDULE. THE CONTRACTOR RECEIVED NOTICE TO PROCEED WITH PROJECT A ON AUGUST 23, 1935, AND NOTICE TO PROCEED WITH PROJECT B WAS RECEIVED BY THE CONTRACTOR ON DECEMBER 24, 1935. THE SPECIFICATIONS PROVIDE THAT NOTICE TO PROCEED WITH PROJECT B WOULD BE ISSUED WHEN PROJECT A WAS ABOUT HALF COMPLETED. LIQUIDATED DAMAGES ARE TO BE APPLIED IF THE BUILDINGS ARE NOT COMPLETED WITHIN THE TIME ALLOWED.

6. THE CONTRACTOR SUBMITTED A CONSTRUCTION PROGRAM AS REQUIRED UNDER THE SPECIFICATIONS, WHICH SHOWS THAT THE BUILDINGS WERE TO BE CONSTRUCTED AND COMPLETED IN CONSECUTIVE ORDER SO THAT THOSE STARTED FIRST WOULD BE COMPLETED WELL AHEAD OF THE COMPLETION TIME ALLOWED AND THOSE STARTED LAST WOULD BE COMPLETED AT THE END OF THE TIME ALLOWED.

7. THE CLAIMED DELAY OCCURRED ON BUILDINGS WHICH WILL PROBABLY BE COMPLETED WITHIN THE TIME ALLOWED FOR PROJECT A, BUT THE CONTRACTOR CLAIMS THAT THIS DELAY SET HIS ENTIRE PROGRAM BACK AND REQUESTS AN EXTENSION EQUAL TO THE DELAY ON ANY OF THE HOUSES WHICH MAY NOT BE COMPLETED WITHIN THE TIME ALLOWANCE.

8. THE SPECIFICATIONS DESIGNATE THE GOVERNOR OF THE PANAMA CANAL AS THE HEAD OF DEPARTMENT AND THE CHIEF QUARTERMASTER AS THE CONTRACTING OFFICER.

9. INFORMATION IS DESIRED ON THE FOLLOWING POINTS:

(A) SHOULD THE CLAIM FOR EXTENSION BE FORWARDED TO YOUR OFFICE BY THE GOVERNOR OF THE PANAMA CANAL AS HEAD OF DEPARTMENT, OR SHOULD IT BE FORWARDED BY THE CHIEF QUARTERMASTER AS THE CONTRACTING OFFICER?

(B) IS THE GOVERNOR EXPECTED TO REVIEW THE CLAIM AND EXPRESS HIS OPINIONS THEREON IN CASE IT IS NECESSARY FOR HIM TO FORWARD THE DOCUMENTS?

(C) THIS OFFICE INTENDS TO PREPARE A RESUME OF THE CORRESPONDENCE AND FINDINGS IN THE CASE, BUT IT IS NOT KNOWN IF THE ORIGINAL OR COPIES OF THE CORRESPONDENCE SHOULD BE FORWARDED THEREWITH.

10. YOUR INSTRUCTIONS ON THE ABOVE WILL BE APPRECIATED.

THE REFERRED-TO CONTRACT, PC1P-295, DATED JULY 17, 1935, WAS EXECUTED ON BEHALF OF THE UNITED STATES BY ROY R. WATSON, CHIEF QUARTERMASTER, THE PANAMA CANAL, AND HE IS THUS THE CONTRACTING OFFICER, WHOSE DUTY IT IS TO MAKE FINDINGS OF FACTS AS STIPULATED IN THE CONTRACT. THE GOVERNOR OF THE PANAMA CANAL IS NOT REQUIRED BY THE TERMS OF THE CONTRACT TO APPROVE THE FINDINGS OF FACTS MADE BY THE CONTRACTING OFFICER UNLESS THERE SHOULD BE AN APPEAL BY THE CONTRACTOR TO THE GOVERNOR FROM SUCH FINDINGS OF FACT AS MADE BY THE CONTRACTING OFFICER.

THE CONTRACT WAS ON STANDARD FORM NO. 23, STANDARD GOVERNMENT FORM OF CONSTRUCTION CONTRACT, AND THERE IS NO PROVISION THEREIN FOR EXTENSIONS OF TIME AS MENTIONED IN THE ABOVE-QUOTED LETTER (SEE 6 COMP. GEN. 650; ID. 763). IN MAKING PROGRESS PAYMENTS UNDER THE CONTRACT THERE SHOULD BE RESERVED A SUFFICIENT AMOUNT TO PROTECT THE UNITED STATES IN THE MATTER OF LIQUIDATED DAMAGES FOR ALL DELAYS AND THE FINAL PAYMENT VOUCHER SHOULD BE FORWARDED TO THIS OFFICE FOR DIRECT SETTLEMENT ACCOMPANIED BY THE FINDINGS OF FACTS BY THE CONTRACTING OFFICER AS TO THE CAUSES AND EXTENT OF DELAY, AND IF THE CONTRACTOR APPEALED FROM THE CONTRACTING OFFICER'S FINDINGS, THERE SHOULD BE FORWARDED, ALSO, THE FINDINGS OF FACT MADE BY THE GOVERNOR OF THE PANAMA CANAL ON THE APPEAL. ORIGINAL PAPERS, IF AVAILABLE, SHOULD BE FORWARDED TO THIS OFFICE FOR USE IN THE SETTLEMENT OF CLAIMS.