A-80855, OCTOBER 14, 1936, 16 COMP. GEN. 379

A-80855: Oct 14, 1936

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CONTRACTS - INABILITY OF PERFORMANCE - DELAYS BY THE GOVERNMENT A CONTRACTOR IS NOT TO BE REGARDED AS IN DEFAULT. THE TAKING OF WHICH WAS TO BE EFFECTED BY THE GOVERNMENT. WHERE HE WAS ABLE TO FURNISH ONLY A SMALL PORTION WHEN CALLED UPON DUE TO EXTENDED DELAY BY THE GOVERNMENT. HAVING OBLIGATED THE GOVERNMENT FOR PAYMENT OF ONLY SUCH MATERIAL AS WAS ACTUALLY HAULED AWAY. 000 CUBIC YARDS OF DAIRY LOAM WERE ISSUED ON MARCH 19. THE CONTRACTOR HAD SOLD THE MAJOR PORTION OF HIS LAND UPON WHICH THE LOAM WAS LOCATED AND HAD AVAILABLE ONLY 56 CUBIC YARDS OF SUCH MATERIAL. PROVIDES AS FOLLOWS: BIDDERS ARE REQUIRED TO FILL IN THE FOLLOWING CLAUSE: I. WILL COMMENCE DELIVERY WITHIN 10 CALENDAR DAYS FROM DATE OF RECEIPT OF AWARD.

A-80855, OCTOBER 14, 1936, 16 COMP. GEN. 379

CONTRACTS - INABILITY OF PERFORMANCE - DELAYS BY THE GOVERNMENT A CONTRACTOR IS NOT TO BE REGARDED AS IN DEFAULT, AND MAY BE EXCUSED FROM FURTHER PERFORMANCE UNDER A CONTRACT FOR DAIRY LOAM, THE TAKING OF WHICH WAS TO BE EFFECTED BY THE GOVERNMENT, WHERE HE WAS ABLE TO FURNISH ONLY A SMALL PORTION WHEN CALLED UPON DUE TO EXTENDED DELAY BY THE GOVERNMENT, THE CONTRACT HAVING CONTEMPLATED PROMPT PERFORMANCE, AND HAVING OBLIGATED THE GOVERNMENT FOR PAYMENT OF ONLY SUCH MATERIAL AS WAS ACTUALLY HAULED AWAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, OCTOBER 14, 1936:

THERE HAS BEEN RECEIVED YOUR LETTER OF SEPTEMBER 23, 1936, AND ACCOMPANYING PAPERS, RELATIVE TO THE CONTRACT OF MR. G. C. PILANT OF CROWLEY, TEX., FOR FURNISHING DAIRY LOAM TO THE WORKS PROGRESS ADMINISTRATION FOR USE IN DISTRICT NO. 7 OF THE STATE OF TEXAS.

YOU REQUEST DECISION WHETHER UNDER THE FACTS HEREINAFTER SUMMARIZED THE CONTRACTOR SHOULD BE REGARDED AS IN DEFAULT.

BY THE TERMS OF THE CONTRACT--- BID DATED MARCH 18, 1936, ACCEPTED MARCH 19--- THE CONTRACTOR AGREED TO FURNISH THE WORKS PROGRESS ADMINISTRATION WITH 1,000 CUBIC YARDS OF DAIRY LOAM "F.O.B. LOAM LOCATION," THE MATERIAL TO BE TAKEN BY WORKS PROGRESS ADMINISTRATION LABOR AND EQUIPMENT AND PAYMENT TO BE MADE ONLY FOR MATERIAL ACTUALLY HAULED AWAY. PURCHASE ORDERS FOR AN AGGREGATE OF 1,000 CUBIC YARDS OF DAIRY LOAM WERE ISSUED ON MARCH 19, 1936. HOWEVER, THE WORKS PROGRESS ADMINISTRATION DELAYED THE TAKING OF ANY MATERIAL UNTIL JULY 1936, APPROXIMATELY 4 1/2 MONTHS AFTER THE DATE OF THE PURCHASE ORDER. IN THE MEANTIME, THE CONTRACTOR HAD SOLD THE MAJOR PORTION OF HIS LAND UPON WHICH THE LOAM WAS LOCATED AND HAD AVAILABLE ONLY 56 CUBIC YARDS OF SUCH MATERIAL, WHICH QUANTITY HAS BEEN TAKEN BY THE WORKS PROGRESS ADMINISTRATION.

PARAGRAPH 9 OF THE SPECIAL NOTICE TO BIDDERS, TO WHICH YOU INVITE ATTENTION, PROVIDES AS FOLLOWS:

BIDDERS ARE REQUIRED TO FILL IN THE FOLLOWING CLAUSE:

I, OR WE, WILL COMMENCE DELIVERY WITHIN 10 CALENDAR DAYS FROM DATE OF RECEIPT OF AWARD, AND WILL COMPLETE DELIVERY IN 60 CALENDAR DAYS FROM DATE OF RECEIPT OF AWARD. "SHIPMENT" CANNOT BE CONSTRUED AS MEANING "DELIVERY.'

THE USE OF THIS COMMON AND MORE OR LESS STANDARD PARAGRAPH WAS NOT APPROPRIATE IN THE INSTANT CONTRACT. HOWEVER, IT APPEARS CLEAR THAT THE CONTRACT CONTEMPLATED PROMPT PERFORMANCE; THAT THE TAKING OF THE LOAM WAS TO BE EFFECTED BY THE GOVERNMENT; AND THAT THE GOVERNMENT WAS OBLIGATED TO PAY FOR ONLY SUCH MATERIAL AS WAS ACTUALLY HAULED AWAY. UNDER SUCH CIRCUMSTANCES IT WAS NOT INCUMBENT ON THE CONTRACTOR TO HOLD HIMSELF IN A POSITION TO PERFORM FOR MORE THAN A REASONABLE TIME. SEE IN THIS CONNECTION DECISIONS OF FEBRUARY 28, 1936, A-70909, AND APRIL 14, 1936, A- 71662, TO YOU.

ACCORDINGLY, THE CONTRACTOR IS NOT TO BE REGARDED AS IN DEFAULT BUT MAY BE RELEASED FROM FURTHER PERFORMANCE.