A-89510, OCTOBER 16, 1937, 17 COMP. GEN. 343

A-89510: Oct 16, 1937

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NOR MAY SAID AMOUNT BE PAID AS A CLAIM FOR EXTRA WORK WHERE NO WRITTEN ORDER WAS GIVEN AS REQUIRED BY THE CONTRACT. PARTICULARLY WHERE THERE IS NO CONVINCING PROOF OF SUCH EXTRA EXPENSE. DISALLOWING YOUR CLAIM FOR ALLEGED DAMAGES OR EXTRAS BY REASON OF DELAYS WHICH YOU ASSERT WERE NOT REASONABLY TO BE ANTICIPATED IN CONNECTION WITH YOUR AGREEMENT TLSA-375 OF NOVEMBER 28. CONSTRUCTION OF WHICH WAS IN CONTEMPLATION AT THE TIME OF AWARD TO YOU. LABOR FOR HANDLING MATERIAL WHEN WE WERE NOT PERMITTED TO UNLOAD OUR EQUIPMENT ON THE DATE OF OCTOBER 11. THIS EXPENSE IS ITEMIZED AS FOLLOWS: CHART STORAGE. - 20.00 300.50 (2) AFTER THE LATHERS' STRIKE HAD BEEN SETTLED AND WE WERE PERMITTED. IT WAS NECESSARY TO RECONDITION MATERIAL WHICH HAD BEEN PREVIOUSLY INSTALLED.

A-89510, OCTOBER 16, 1937, 17 COMP. GEN. 343

CONTRACTS - ADDITIONAL AMOUNTS - CONTRACTOR'S CLAIM FOR EXTRA EXPENSE BECAUSE OF DELAYS INCIDENT TO DEFAULT OF ANOTHER GOVERNMENT CONTRACTOR CONTRACTOR'S CLAIM FOR AN AMOUNT IN ADDITION TO THE CONTRACT PRICE FOR FURNISHING AND INSTALLING ELEVATORS IN A GOVERNMENT BUILDING THEN IN CONTEMPLATION, AS FOR EXTRA EXPENSE INCURRED IN CONNECTION WITH STORAGE, CARTAGE, AND LABOR EXPENSES INCIDENT TO DELAYS IN CONSTRUCTION OF THE BUILDING DUE TO DEFAULT OF THE ORIGINAL CONSTRUCTION CONTRACTOR, BEING AN UNLIQUIDATED CLAIM FOR DAMAGES, MAY NOT BE PAID ADMINISTRATIVELY, OR CERTIFIED FOR PAYMENT BY THE GENERAL ACCOUNTING OFFICE IN THE ABSENCE OF SPECIFIC STATUTORY AUTHORIZATION, NOR MAY SAID AMOUNT BE PAID AS A CLAIM FOR EXTRA WORK WHERE NO WRITTEN ORDER WAS GIVEN AS REQUIRED BY THE CONTRACT, PARTICULARLY WHERE THERE IS NO CONVINCING PROOF OF SUCH EXTRA EXPENSE, AND THE TERMS OF THE CONTRACT OTHERWISE NEGATIVE SUCH PAYMENT.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE OTIS ELEVATOR CO., OCTOBER 16, 1937:

YOUR LETTER OF JULY 20, 1937, REQUESTS REVIEW OF SETTLEMENT 07820 (1) OF JULY 2, 1937, DISALLOWING YOUR CLAIM FOR ALLEGED DAMAGES OR EXTRAS BY REASON OF DELAYS WHICH YOU ASSERT WERE NOT REASONABLY TO BE ANTICIPATED IN CONNECTION WITH YOUR AGREEMENT TLSA-375 OF NOVEMBER 28, 1932, FOR FURNISHING AND INSTALLING ONE ELECTRIC FREIGHT ELEVATOR AND ONE ELECTRIC DUMB-WAITER IN THE NEW POST-OFFICE BUILDING AT OAK PARK, ILL., CONSTRUCTION OF WHICH WAS IN CONTEMPLATION AT THE TIME OF AWARD TO YOU. PAYMENT IN FULL HAS BEEN MADE OF THE PRICE FOR WHICH YOU AGREED TO PERFORM THIS WORK.

YOUR LETTER OF FEBRUARY 11, 1936, TO THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, DESCRIBES YOUR CLAIM AND THE BASIS THEREOF AS FOLLOWS:

(1) WE INCURRED AN EXPENSE IN THE FORM OF STORAGE, CARTAGE, AND LABOR FOR HANDLING MATERIAL WHEN WE WERE NOT PERMITTED TO UNLOAD OUR EQUIPMENT ON THE DATE OF OCTOBER 11, 1933. THIS EXPENSE IS ITEMIZED AS FOLLOWS:

CHART

STORAGE, 15 MONTHS; 16,695 LBS., AT 10 CENTS PER 100 LBS.

PER MONTH, OR $16.70 PER MONTH -------------------------- $250.50

CARTAGE --------------------------------------------------- 50.00

LABOR ----------------------------------------------------- 20.00

300.50

(2) AFTER THE LATHERS' STRIKE HAD BEEN SETTLED AND WE WERE PERMITTED, FOR THE SECOND TIME, TO RESUME WORK, IT WAS NECESSARY TO RECONDITION MATERIAL WHICH HAD BEEN PREVIOUSLY INSTALLED. THIS EXPENSE WAS IN THE FORM OF REMOVING RUST AND DIRT AND RE-PAINTING AND IS IN THE AMOUNT OF $65.00.

ON MARCH 14, 1936, THE SUPERVISING ENGINEER INFORMED YOU THAT PART (1) OF YOUR CLAIM IN THE AMOUNT OF $300.50 WAS A CLAIM FOR DAMAGES WHICH THE PROCUREMENT DIVISION WAS NOT AUTHORIZED TO SETTLE AND THAT PART (2) OF YOUR CLAIM WAS REJECTED BECAUSE PARAGRAPH NO. 36 OF THE SPECIFICATIONS REQUIRED YOU TO PERFORM SUCH WORK.

ARTICLE 1 OF THE AGREEMENT OF NOVEMBER 28, 1932, REQUIRED YOU TO COMMENCE INSTALLATION OF THE ELEVATOR AND DUMB-WAITER AS SOON AS PRACTICAL AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED AND TO COMPLETE YOUR WORK "COINCIDENT WITH THE COMPLETION OF THE CONSTRUCTION OF SAID BUILDING, SUBJECT TO THE STIPULATIONS OF PARAGRAPHS 36 AND 37 OF * * * SPECIFICATION.'

THE SAID PARAGRAPHS OF SPECIFICATION, IN MATERIAL PART, PROVIDE:

36. * * * THE ELEVATOR CONTRACTOR MUST ARRANGE HIS WORK TO FIT IN WITH THAT TO BE PERFORMED UNDER THE GENERAL CONTRACT AT THE BUILDING. IN CASE THE ELEVATOR CONTRACT IS COMPLETED PRIOR TO THE COMPLETION OF THE BUILDING, THE ELEVATOR CONTRACTOR WILL BE HELD SOLELY RESPONSIBLE FOR THE PROTECTION OF ALL ELEVATOR MACHINERY AND EQUIPMENT INSTALLED BY HIM PRIOR TO THE COMPLETION OF THE BUILDING AND HE MUST PRESENT SAME FOR THE THREE MONTHS OPERATING TEST IN PERFECT CONDITION WITHOUT ADDITIONAL COST TO THE GOVERNMENT. NO CLAIM WILL BE ALLOWED FOR DEFECTIVE OPERATION, CONDITION, ETC., OF THE APPARATUS DUE TO ITS HAVING LAID IDLE IN AN UNCOMPLETED BUILDING * * *.

37. THE TIME FIXED FOR COMPLETION OF THE CONSTRUCTION OF THE BUILDING IS 420 CALENDAR DAYS FROM DATE OF NOTICE TO PROCEED WITH THE WORK PLUS ANY ADDITIONAL DAYS APPROVED.

THE DELAY IN CONSTRUCTION OF THE BUILDING WAS DUE TO DEFAULT ON THE PART OF THE ORIGINAL CONTRACTOR AND THE INABILITY OF ITS SURETIES TO COMPLETE THE WORK. THE GOVERNMENT WAS IN NOWISE RESPONSIBLE FOR THIS SITUATION.

ARTICLE 5 OF YOUR AGREEMENT PROVIDES, TO THE EXTENT HERE MATERIAL, AS FOLLOWS:

* * * NO CHARGE FOR ANY EXTRA WORK OR MATERIAL WILL BE ALLOWED UNLESS THE SAME HAS BEEN ORDERED IN WRITING BY THE CONTRACTING OFFICER AND THE PRICE STATED IN SUCH ORDER.

YOUR CLAIM AS PRESENTED TO THIS OFFICE IS CONFINED TO THE UNLIQUIDATED DAMAGE ITEM OR CLAIM FOR EXTRAS OF $300.50.

SUCH CLAIM IS NOT ALLOWABLE UNDER ARTICLE 5 OF THE AGREEMENT AS A CLAIM FOR EXTRA WORK, NO WRITTEN ORDER FOR EXTRA WORK WITH THE PRICE STATED IN SUCH ORDER HAVING BEEN GIVEN, NOR, AS SHOWN BELOW, IS THERE CONVINCING PROOF OF SUCH EXTRA WORK, ETC., IN ANY EVENT. PLUMLEY V. UNITED STATES, 226 U.S. 545.

THE ACTING ASSISTANT DIRECTOR OF PROCUREMENT ON FEBRUARY 25, 1937, IN RESPONSE TO DIRECT INQUIRY FROM THIS OFFICE, STATED THAT YOUR CLAIM FOR $300.50 AS DAMAGES "IS NOT SUPPORTED BY RECORDS BUT IS CONSIDERED REASONABLE, AND IS ADMINISTRATIVELY APPROVED," ON THE GROUND, APPARENTLY-- - AS HE SAID--- THAT THERE WAS A DELAY OF MORE THAN 2 YEARS IN COMPLETION OF CONSTRUCTION OF THE POST-OFFICE BUILDING WHICH AFFECTED THE PROGRESS OF YOUR WORK IN A MANNER AGAINST WHICH YOU COULD NOT PROTECT YOURSELF.

IN YOUR LETTER OF APRIL 29, 1937, YOU REPORTED TO THIS OFFICE ON THE MATTER OF PROOF, AS FOLLOWS:

* * * WE ARE UNABLE TO FURNISH YOU WITH ANY RECEIPTED INVOICES FOR STORAGE OR CARTAGE BECAUSE THE HAULING FROM OAK PARK WAS DONE BY OUR OWN TRUCK AND EMPLOYEES, AND THE MATERIAL WAS STORED IN OUR OWN SMALL WAREHOUSE.

IN 1933 AND 1934 WE WERE PAYING OUR MEN AT THE RATE OF $1.42 1/2 PER HOUR FOR MECHANICS AND $1.00 PER HOUR FOR HELPERS.

THE RATE FOR STORAGE OF 10 CENTS PER HUNDRED POUNDS PER MONTH IS WHAT WE HAVE ALWAYS HAD TO PAY WHEN WE STORED SIMILAR EQUIPMENT IN ANY PUBLIC WAREHOUSES.

IT IS PLAIN FROM WHAT HAS BEEN SAID THAT THIS MAY BE CONSIDERED ONLY AS AN UNLIQUIDATED CLAIM FOR DAMAGES. THE SUPERVISING ENGINEER CORRECTLY INFORMED YOU THAT SUCH A CLAIM COULD NOT BE CONSIDERED OR PAID ADMINISTRATIVELY, AS HAS BEEN OFTEN DECIDED. DUNBAR V. UNITED STATES, 19 CT.CLS. 489, 493; BRANNER V. UNITED STATES, 20 ID. 219; STATE OF PENNSYLVANIA V. UNITED STATES, 36 ID. 131, 135; ALSO, SEE 33 OP.ATTY.GEN. 354.

IN THE ABSENCE OF SPECIFIC STATUTE THIS OFFICE IS WITHOUT AUTHORITY TO CERTIFY SUCH CLAIMS FOR PAYMENT FROM APPROPRIATED MONEYS. POWER V. UNITED STATES, 18 CT.CLS. 263, 275; MCCLURE V. UNITED STATES, 19 ID. 173, 180; DENNIS V. UNITED STATES, 20 ID. 119, 121, AND 23 ID. 324; 4 OP.ATTY.GEN. 327; ID. 627, 630; 14 ID. 24; 15 ID. 39.

WERE YOUR CLAIM OTHERWISE PROPER FOR SETTLEMENT AND ADJUSTMENT IN THIS OFFICE THE RECORD WHOLLY FAILS TO ESTABLISH ANY DAMAGES IN THE AMOUNT CLAIMED OR IN ANY LESSER AMOUNT. IT COULD NOT BE ACCEPTED, IN THE ABSENCE OF CONCLUSIVE PROOF, THAT LABOR OF THE CLASS ENTITLED TO $1 AND $1.42 1/2 PER HOUR WAS UTILIZED TO TRANSPORT AND STORE THE EQUIPMENT, AND IF IN FACT SUCH CLASS OF LABOR WAS USED IT WOULD BE SO UNREASONABLE THAT NO CLAIM AS FOR DAMAGES ON THAT BASIS WOULD APPEAR PROPER FOR CONSIDERATION IN ANY FORUM. MOREOVER, IT DOES NOT APPEAR THAT THE LABOR AND MOVING EQUIPMENT WHICH WAS USED WOULD NOT HAVE BEEN REGULARLY MAINTAINED ANYWAY OR THAT THE STORAGE SPACE UTILIZED WAS OTHERWISE IN DEMAND OR COULD OR WOULD HAVE BEEN UTILIZED TO REALIZE THE PROFIT YOU MENTION.

EVEN CONCLUSIVE PROOF OF YOUR HAVING ACTUALLY INCURRED COSTS IN THE AMOUNT CLAIMED WHICH WOULD NOT HAVE BEEN INCURRED BUT FOR THE DELAY IN COMPLETING THE BUILDING BY OTHER CONTRACTORS COULD NOT BE ACCEPTED AS A PROPER BASIS FOR ALLOWING YOUR CLAIM. H. E. CROOK CO. V. UNITED STATES, 270 U.S. 4; G. AND H. HEATING CO. V. UNITED STATES, 63 CT.CLS. 164. ..END