A-82928, SEPTEMBER 16, 1938, 18 COMP. GEN. 232

A-82928: Sep 16, 1938

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NOT AUTHORIZED WHERE THE EXTRA WORK ALLEGED WAS NOT ORDERED IN WRITING BY THE CONTRACTING OFFICER AS REQUIRED BY THE CONTRACT. DELAY IN COMPLETION OF A CONTRACT FOR WHICH LIQUIDATED DAMAGES HAVE BEEN DEDUCTED. THE FORMAL EXECUTION NOT BEING ESSENTIAL TO THE CONSUMMATION OF THE CONTRACT WHERE THE BID WAS ACCEPTED AND NOTICE OF AWARD GIVEN. 1938: THERE IS BEFORE ME FOR CONSIDERATION YOUR REQUEST FOR REVIEW OF SETTLEMENT OF FEBRUARY 1. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR ALLEGED EXTRA WORK IN THE AMOUNT OF $618.10. NO ADDITIONAL FACTS HAVE BEEN SUBMITTED BY YOU TO JUSTIFY A DIFFERENT CONCLUSION FROM THAT REACHED IN THE ABOVE CITED SETTLEMENT. WHICH WERE MADE A PART OF THE CONTRACT.

A-82928, SEPTEMBER 16, 1938, 18 COMP. GEN. 232

CONTRACTS - LIQUIDATED DAMAGES AND EXTRA WORK CLAIMS - CONTRACT REQUIREMENTS AND CONSUMMATION PAYMENT FOR ALLEGED EXTRA WORK, AND REFUND OF LIQUIDATED DAMAGES DEDUCTED FOR DELAYS IN COMPLETION OF A CONTRACT, NOT AUTHORIZED WHERE THE EXTRA WORK ALLEGED WAS NOT ORDERED IN WRITING BY THE CONTRACTING OFFICER AS REQUIRED BY THE CONTRACT, NOR THE REQUIRED NOTICE OF THE ALLEGED EXCUSABLE DELAY GIVEN BY THE CONTRACTOR. DELAY IN COMPLETION OF A CONTRACT FOR WHICH LIQUIDATED DAMAGES HAVE BEEN DEDUCTED, MAY NOT BE CONSIDERED EXCUSABLE BECAUSE OCCASIONED BY THE CONTRACTOR'S FAILURE TO RECEIVE THE SIGNED CONTRACT UNTIL AN EXTENDED PERIOD AFTER DATE OF AWARD, THE FORMAL EXECUTION NOT BEING ESSENTIAL TO THE CONSUMMATION OF THE CONTRACT WHERE THE BID WAS ACCEPTED AND NOTICE OF AWARD GIVEN.

ACTING COMPTROLLER GENERAL ELLIOTT TO IRWIN AND LEIGHTON, SEPTEMBER 16, 1938:

THERE IS BEFORE ME FOR CONSIDERATION YOUR REQUEST FOR REVIEW OF SETTLEMENT OF FEBRUARY 1, 1937, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR ALLEGED EXTRA WORK IN THE AMOUNT OF $618.10, AND REMISSION OF LIQUIDATED DAMAGES IN THE AMOUNT OF $4,450 DEDUCTED IN MAKING PAYMENTS UNDER CONTRACT W-6394-QM-295 OF FEBRUARY 15, 1935.

NO ADDITIONAL FACTS HAVE BEEN SUBMITTED BY YOU TO JUSTIFY A DIFFERENT CONCLUSION FROM THAT REACHED IN THE ABOVE CITED SETTLEMENT. PARAGRAPH G.C. 27, PAGE 6, SPECIFICATIONS NO. 92-E, WHICH WERE MADE A PART OF THE CONTRACT, PROVIDED:

EXTRAS.--- NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE C.Q.M., AND THE PRICE STATED IN SUCH ORDER.

IT DOES NOT APPEAR THAT THE ALLEGED EXTRA WORK FOR WHICH YOU NOW MAKE CLAIM WAS EVER ORDERED BY THE CONTRACTING OFFICER IN WRITING; AS A MATTER OF FACT THE CONSTRUCTING QUARTERMASTER REPORTS THAT: "AT NO TIME PRIOR TO THE ACCEPTANCE OF THE BUILDING (THE COMPLETION OF THE CONTRACT) WAS A REQUEST MADE BY THE CONTRACTOR FOR AN EXTRA FOR ANY EXTRA WORK.' IT SEEMS CLEAR, THEREFORE, THAT THERE IS NO AUTHORITY FOR ALLOWANCE OF ANY PORTION OF THE AMOUNT CLAIMED BY YOU FOR SO CALLED ,EXTRA WORK.' PLUMLEY V. UNITED STATES, 226 U.S. 545, 547.

THE CONTRACT ALSO PROVIDED A DEFINITE PROCEDURE TO BE FOLLOWED BY YOU IN ORDER TO SECURE RELIEF FROM THE FORCE AND EFFECT OF THE LIQUIDATED DAMAGE PROVISION IN THE EVENT DELAYS WERE ENCOUNTERED WHICH IN YOUR JUDGMENT WERE DUE TO CAUSES EXCUSABLE UNDER THE TERMS THEREOF. THUS ARTICLE 9 PROVIDED THAT YOU SHOULD NOT BE CHARGED WITH LIQUIDATED DAMAGES FOR DELAYS "DUE TO UNFORSEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR," BUT IN ORDER TO SECURE THE BENEFITS OF THIS PROVISION YOU WERE REQUIRED BY THE SAME ARTICLE TO NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSES OF THE DELAY "WITHIN 10 DAYS FROM THE BEGINNING OF ANY SUCH DELAY.' WHILE YOU NOW MAKE CLAIM FOR REMISSION OF THE LIQUIDATED DAMAGES DEDUCTED IN MAKING PAYMENTS UNDER YOUR CONTRACT ON THE GROUND THAT THE DELAY WAS DUE TO CAUSES EXCUSABLE WITHIN THE MEANING OF THIS PROVISION, IT DOES NOT APPEAR THAT YOU GAVE THE REQUIRED 10 DAYS' NOTICE IN WRITING. IN AN ANALOGOUS SITUATION THE SUPREME COURT STATED IN THE ABOVE-CITED CASE OF PLUMLEY V. UNITED STATES THAT "FOR FAILURE TO COMPLY WITH THIS REQUIREMENT OF THE CONTRACT (UNITED STATES V. GLEASON, 175 U.S. 588), THE PLAINTIFF IS NOT ENTITLED TO RECOVER.' PAGE 548 OF THE DECISION.

YOU ALSO CONTEND THAT DELAY WAS OCCASIONED "BY FAILURE TO RECEIVE THE SIGNED CONTRACT INSTRUMENT UNTIL 27 DAYS AFTER THE DATE OF AWARD; " IN OTHER WORDS, THAT THIS PERIOD OF TIME ELAPSED BEFORE THE CONTRACT WAS CONSUMMATED AND, THEREFORE, BEFORE ITS TERMS (INCLUDING THE 10-DAY NOTICE PROVISION) BECAME BINDING UPON THE PARTIES. THE FALLACY OF THIS POSITION IS CLEARLY INDICATED BY THE FOLLOWING EXCERPT FROM THE OPINION OF THE SUPREME COURT IN UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313, 319-320:

IT MAKES NO DIFFERENCE THAT THE CONTRACT WAS NOT FORMALLY SIGNED OR THE BOND FORMALLY APPROVED * * *. THEIR FORMAL EXECUTION, AS WE HAVE SEEN, WAS NOT ESSENTIAL TO THE CONSUMMATION OF THE CONTRACT. THAT WAS ACCOMPLISHED, AS WAS DECIDED IN THE GARFIELDE CASE, (93 U.S. 242) BY THE ACCEPTANCE OF THE BID OF THE ENVELOPE COMPANY AND THE ENTRY OF THE ORDER AWARDING THE CONTRACT TO IT. * * *

UNDER ALL THE FACTS AND CIRCUMSTANCES OF THE CASE IT MUST BE HELD THAT THE SETTLEMENT OF FEBRUARY 1, 1937, DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION AND FOR REMISSION OF LIQUIDATED DAMAGES WAS CORRECT AND MUST BE SUSTAINED. THE DECISION IS ACCORDINGLY.