A-95837, JULY 23, 1938, 18 COMP. GEN. 76

A-95837: Jul 23, 1938

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PAYMENT IS NOT AUTHORIZED FOR EXTRA WORK AND EXPENSE IN RECONDITIONING AND REPLACING A PART OF THE MATERIAL INVOLVED OCCASIONED BY RUSTING AND CORRODING DURING A PERIOD OF SUSPENSION FROM WORK CAUSED BY A LABOR DISPUTE ARISING UNDER THE COINCIDENT BUILDING CONSTRUCTION CONTRACT OF ANOTHER CONTRACTOR NOR ARE THERE PRESENT SUCH ELEMENTS OF EQUITY AS TO JUSTIFY REPORTING THE MATTER TO THE CONGRESS UNDER THE ACT OF APRIL 10. UNDER THE TERMS OF THE CONTRACT IT WAS AGREED THAT YOU WOULD FURNISH ALL LABOR AND MATERIALS. LIQUIDATED DAMAGES WERE TO BE ASSESSED AT THE RATE OF $250 PER DAY UNLESS THE DELAY WAS DUE TO UNFORESEEABLE CAUSES BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT OR NEGLIGENCE. THIS PROVISION SHALL NOT BE CONSTRUED AS RELIEVING THE CONTRACTOR FROM THE SOLE RESPONSIBILITY FOR THE CARE AND PROTECTION OF MATERIALS AND WORK UPON WHICH PAYMENTS HAVE BEEN MADE OR THE RESTORATION OF ANY DAMAGED WORK.

A-95837, JULY 23, 1938, 18 COMP. GEN. 76

CONTRACTS - DAMAGES - EXTRA WORK AND EXPENSE CAUSED BY DELAYS OF ANOTHER CONTRACTOR - GOVERNMENT LIABILITY WHERE A CONTRACT PROVIDING FOR LIQUIDATED DAMAGES IN CASE OF DELAY IN THE DELIVERY AND INSTALLATION OF AN ELEVATOR, AND FOR THE PROPER CARE AND PROTECTION OF ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE, ALSO PROVIDES FOR AN EXTENSION OF TIME FOR CONTRACT PERFORMANCE IN THE EVENT OF UNAVOIDABLE DELAYS, WITHOUT FURTHER AGREEMENT, EITHER EXPRESS OR IMPLIED, FOR COMPENSATING THE CONTRACTOR FOR DAMAGES RESULTING THEREFROM, AND THE CONTRACT PRICE HAS BEEN PAID FOR SUBSTANTIAL PERFORMANCE WITHIN THE REQUIRED PERIOD, PAYMENT IS NOT AUTHORIZED FOR EXTRA WORK AND EXPENSE IN RECONDITIONING AND REPLACING A PART OF THE MATERIAL INVOLVED OCCASIONED BY RUSTING AND CORRODING DURING A PERIOD OF SUSPENSION FROM WORK CAUSED BY A LABOR DISPUTE ARISING UNDER THE COINCIDENT BUILDING CONSTRUCTION CONTRACT OF ANOTHER CONTRACTOR NOR ARE THERE PRESENT SUCH ELEMENTS OF EQUITY AS TO JUSTIFY REPORTING THE MATTER TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.

ACTING COMPTROLLER GENERAL ELLIOTT TO WESTINGHOUSE ELECTRIC ELEVATOR COMPANY, JULY 23, 1938:

YOUR LETTER OF MAY 20, 1938, REQUESTS REVIEW OF SETTLEMENT DATED APRIL 20, 1938, WHICH DISALLOWED YOUR CLAIM FOR $10,038.56, REPRESENTING AN AMOUNT ALLEGED TO BE DUE FOR EXTRA WORK AND EXPENSE INCURRED IN RECONDITIONING AND REPLACING CERTAIN ELEVATOR EQUIPMENT DELIVERED AND INSTALLED IN THE POST OFFICE AND COURTHOUSE BUILDING, PITTSBURGH, PA., UNDER CONTRACT NO. TLSA-2750, DATED DECEMBER 24, 1931.

UNDER THE TERMS OF THE CONTRACT IT WAS AGREED THAT YOU WOULD FURNISH ALL LABOR AND MATERIALS, AND PERFORM ALL WORK REQUIRED FOR INSTALLING A COMPLETE ELEVATOR PLANT IN THE AFORESAID BUILDING, THE WORK TO BE COMPLETED COINCIDENT WITH THE COMPLETION OF CONSTRUCTION OF SAID BUILDING BY ANOTHER CONTRACTOR. IN THE EVENT OF DELAY IN COMPLETING THE WORK, LIQUIDATED DAMAGES WERE TO BE ASSESSED AT THE RATE OF $250 PER DAY UNLESS THE DELAY WAS DUE TO UNFORESEEABLE CAUSES BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT OR NEGLIGENCE, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF THE GOVERNMENT AND STRIKES. ALSO, THE FOLLOWING ARTICLES OF THE CONTRACT AND PARAGRAPHS OF THE SPECIFICATIONS PROVIDED:

ARTICLE 10. PERMITS AND CARE OF WORK.--- THE CONTRACTOR SHALL * * * BE RESPONSIBLE FOR THE PROPER CARE AND PROTECTION OF ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE.

19. PROTECTION AND DAMAGES.--- ALL WORK CONTEMPLATED IN THIS SPECIFICATION AND ALL WORK IN CONNECTION THEREWITH OR IN PLACE OR FURNISHED UNDER OTHER CONTRACTS MUST BE PROPERLY PROTECTED.

ARTICLE 16 (C). ALL MATERIAL AND WORK COVERED BY PARTIAL PAYMENTS MADE SHALL THEREUPON BECOME THE SOLE PROPERTY OF THE GOVERNMENT, BUT THIS PROVISION SHALL NOT BE CONSTRUED AS RELIEVING THE CONTRACTOR FROM THE SOLE RESPONSIBILITY FOR THE CARE AND PROTECTION OF MATERIALS AND WORK UPON WHICH PAYMENTS HAVE BEEN MADE OR THE RESTORATION OF ANY DAMAGED WORK, OR AS A WAIVER OF THE RIGHT OF THE GOVERNMENT TO REQUIRE THE FULFILLMENT OF ALL OF THE TERMS OF THE CONTRACT.

15. VISIT TO THE SITE OR BUILDING.--- BIDDERS ARE REQUESTED TO VISIT THE SITE OR THE BUILDING, COMPARE THE SPECIFICATIONS WITH THE WORK IN PLACE, AND INFORM THEMSELVES AS TO ALL THE CONDITIONS, AND FAILURE TO DO SO WILL IN NO WAY RELIEVE THE SUCCESSFUL BIDDER FROM THE NECESSITY OF FURNISHING ANY MATERIALS OR PERFORMING ANY LABOR THAT MAY BE REQUIRED TO COMPLETE THE WORK IN ACCORDANCE WITH THE TRUE INTENT AND MEANING OF THE SPECIFICATIONS WITHOUT ADDITIONAL COST TO THE GOVERNMENT.

47. SPECIAL NOTICE.--- BIDDERS ARE REQUIRED TO FULLY INFORM THEMSELVES OF THE CONDITIONS RELATING TO CONSTRUCTION AND LABOR UNDER WHICH WORK IS NOW BEING OR IS TO BE PERFORMED AT THE BUILDING, AND THE CONTRACTOR MUST EMPLOY SUCH METHODS AND MEANS IN THE CARRYING OUT OF THIS WORK AS WILL NOT CAUSE ANY INTERRUPTION OR INTERFERENCE WITH ANY OTHER CONTRACTOR.

IN CONSIDERATION OF YOUR UNDERTAKING THE GOVERNMENT AGREED TO PAY YOU THE SUM OF $303,930, SUBJECT TO INCREASE OR DECREASE DUE TO CHANGES AUTHORIZED THEREIN, AND FURTHER SUBJECT TO A DEDUCTION OF $250 PER DAY AS LIQUIDATED DAMAGES FOR DELAYS NOT EXCUSABLE UNDER THE CONTRACT.

IT APPEARS THAT WORK UNDER YOUR CONTRACT WAS PROCEEDING CONCURRENTLY WITH THAT OF THE GENERAL CONTRACTORS ERECTING THE BUILDING AND INSTALLING THE MAIL HANDLING EQUIPMENT BUT THAT ON MAY 22, 1933, PERFORMANCE THEREUNDER WAS INTERRUPTED DUE TO A STRIKE CALLED ON ACCOUNT OF A JURISDICTIONAL DISPUTE AS TO WHICH PARTICULAR TYPE OF SKILLED MECHANICS SHOULD INSTALL THE MAIL HANDLING EQUIPMENT. WHILE THE RECORD SHOWS THAT THIS LABOR DISPUTE DID NOT ARISE FROM WORK TO BE PERFORMED UNDER YOUR CONTRACT, IT DOES APPEAR THAT THE ELEVATOR ERECTORS EMPLOYED BY YOU WERE FORCED TO WITHDRAW FROM THE PROJECT, THEREBY CAUSING SUSPENSION OF THE WORK FOR A PERIOD OF SEVERAL MONTHS WHILE THE STRIKE CONTINUED IN FORCE. AS A RESULT OF THIS SUSPENSION, A LARGE PART OF THE METAL WORK, EQUIPMENT, AND MATERIAL THERETOFORE DELIVERED AND/OR INSTALLED BY YOU DETERIORATED BY RUSTING AND CORRODING DUE TO IMPROPER VENTILATION AND DAMPNESS FROM LACK OF HEAT. THE GOVERNMENT REQUIRED YOU TO CLEAN, RECONDITION, AND REPLACE THE DAMAGED MATERIAL AS A RESULT OF WHICH YOU HAVE FILED THE PRESENT CLAIM FOR THE EXPENSES THUS INCURRED. YOU HAVE BEEN PAID THE AGREED CONTRACT PRICE, AND SINCE THE WORK WAS SUBSTANTIALLY COMPLETED PRIOR TO THE DATE OF COMPLETION OF THE SUPERSTRUCTURE, THERE WAS NO DELAY IN COMPLETING THE WORK, WITHIN THE MEANING OF THE CONTRACT.

IT WAS YOUR STIPULATED LEGAL DUTY TO PERFORM THE CONTRACT WITHIN THE TIME AGREED UPON, AND, DURING PERFORMANCE, TO PROTECT THE WORK PROPERLY. THE GOVERNMENT BOUND ITSELF TO EXTEND THE CONTRACT PERIOD OF PERFORMANCE IN THE EVENT OF UNAVOIDABLE DELAYS, AND, UPON COMPLETION, TO PAY YOU THE AGREED CONTRACT PRICE. THIS WAS THE EXTENT OF THE GOVERNMENT'S UNDERTAKING. THE GOVERNMENT NEITHER EXPRESSLY NOR IMPLIEDLY AGREED TO COMPENSATE YOU FOR DAMAGES RESULTING FROM UNFORESEEABLE DELAYS, BUT LIMITED ITS LIABILITY FOR SUCH DELAYS TO EXTENDING THE TIME FOR PERFORMANCE. THE COURTS HAVE HELD THAT WHERE A CONTRACT EXPRESSLY PROVIDES FOR A POSSIBLE DELAY IN PERFORMANCE AND FOR THE GRANTING OF AN EXTENSION OF TIME IN THE EVENT OF DELAY, THE CONTRACTOR IS NOT ENTITLED TO DAMAGES CAUSED BY SUCH DELAY. SEE CROOK V. UNITED STATES, 270 U.S. 4. THAT CASE THE CONTRACT INVOLVED THE INSTALLATION OF HEATING PLANTS IN BUILDINGS TO BE ERECTED FOR THE GOVERNMENT BY OTHER CONTRACTORS BUT MADE NO REFERENCE TO DELAYS BY THE GOVERNMENT EXCEPT AS GROUNDS FOR TIME EXTENSIONS TO THE CONTRACTOR. IN HOLDING THAT THE CONTRACTOR WAS NOT ENTITLED TO EXTRA COST DUE TO DELAYS IN COMPLETING THE BUILDINGS BY THE OTHER CONTRACTORS, THE COURT SAID (P. 6):

THE GOVERNMENT DID FIX THE TIME VERY STRICTLY FOR THE CONTRACTOR. * * * LIQUIDATED DAMAGES ARE FIXED FOR HIS DELAYS. BUT THE ONLY REFERENCE TO DELAYS ON THE GOVERNMENT SIDE IS IN THE AGREEMENT, THAT IF CAUSED BY ITS ACTS THEY WILL BE REGARDED AS UNAVOIDABLE, WHICH THOUGH PROBABLY INSERTED PRIMARILY FOR THE CONTRACTOR'S BENEFIT AS A GROUND FOR EXTENSION OF TIME, IS NOT WITHOUT A BEARING ON WHAT THE CONTRACT BOUND THE GOVERNMENT TO DO. DELAYS BY THE BUILDING CONTRACTORS WERE UNAVOIDABLE FROM THE POINT OF VIEW OF BOTH PARTIES TO THE CONTRACT IN SUIT. * * * WE ARE OF THE OPINION THAT THE FAILURE TO EXCLUDE THE PRESENT CLAIM WAS DUE TO THE FACT THAT THE WHOLE FRAME OF THE CONTRACT WAS UNDERSTOOD TO SHUT IT OUT, ALTHOUGH IN SOME CASES THE GOVERNMENT'S LAWYERS HAVE BEEN MORE CAREFUL. WOOD V. UNITED STATES, 258 U.S. 120. THE PLAINTIFF'S TIME WAS EXTENDED, AND IT WAS PAID THE FULL CONTRACT PRICE. IN OUR OPINION IT IS ENTITLED TO NOTHING MORE.

IN DAY V. UNITED STATES, 245 U.S. 159, INVOLVING A SOMEWHAT ANALOGOUS PRINCIPLE, IT WAS STATED THAT THE CONTRACT CONTEMPLATED, IN TERMS, THAT THE CONTRACTOR MIGHT BE DELAYED IN COMPLETING THE WORK BY CERTAIN CAUSES AND PROVIDED THAT, IN THAT EVENT, THE TIME FOR COMPLETION WOULD BE EXTENDED. THE COURT ALLOWED NO OTHER RELIEF. SEE IN THIS CONNECTION, ALSO, LANGE AND BERGSTROM V. UNITED STATES, 61 CT.CLS. 666; G. AND H. HEATING CO. V. UNITED STATES, 63 ID. 164; CARROLL ET AL. V. UNITED STATES, 68 ID. 500; AND MITTRY ET AL. V. UNITED STATES, 73 ID. 341. IN ATLANTIC, GULF, ETC., CO. V. PHILIPPINE ISLANDS, 219 U.S. 17, IT WAS STATED THAT---

* * * WHATEVER THE GOVERNMENT HAD NOT PROMISED TO PAY FOR THE CONTRACTOR HAD TO DO IN ORDER TO OFFER THE COMPLETED WORK WHICH IT HAD AGREED TO FURNISH. * * *

IN THE MITTRY CASE, SUPRA, IT WAS HELD IN CONNECTION WITH A CONTRACT CONTAINING PROVISIONS SIMILAR TO THOSE APPLICABLE HERE, THAT THE GOVERNMENT WAS NOT LIABLE FOR DAMAGES TO THE PLAINTIFF'S WORK CAUSED BY OTHER CONTRACTORS, IT BEING THE PLAINTIFF'S DUTY TO MAKE DELIVERY IN A "COMPLETE AND PERFECT STATE" AND UNTIL DELIVERY WAS SO MADE RESPONSIBILITY FOR PROPER CARE AND PROTECTION OF THE WORK WAS THAT OF THE PLAINTIFF. AND IN THE HEATING COMPANY CASE, SUPRA, INVOLVING A CONTRACT, THE PERFORMANCE OF WHICH WAS DEPENDENT UPON THE WORK OF OTHER CONTRACTORS, AND WHICH PROVIDED THAT THE BIDDER SHOULD EXAMINE THE SITE AND INFORM HIMSELF THOROUGHLY AS TO ACTUAL CONDITIONS, THE COURT HELD THAT THE GOVERNMENT WAS NOT LIABLE FOR DELAYS CAUSED BY OTHER CONTRACTORS, STATING THAT (P. 170):

THE DELAYS COMPLAINED OF WERE BEYOND THE CONTROL OF THE GOVERNMENT, AND IT CAN NOT BE IMPLIED FROM THE PROVISIONS OF THE CONTRACT THAT THE GOVERNMENT IS BOUND FOR ANY EXCESS WAGES AND SUPERINTENDENT CHARGES WHICH THE PLAINTIFF HAD TO PAY BY REASON OF DELAYS WHICH THE GOVERNMENT COULD NOT CONTROL AND WHICH THE PLAINTIFF MUST HAVE CONTEMPLATED AS BEING POSSIBLE WHEN IT EXECUTED THE CONTRACT, SINCE THE CONTRACT PROVIDED THAT BIDDERS SHOULD EXAMINE THE SITE OF THE PROPOSED WORK AND INFORM THEMSELVES THOROUGHLY OF ACTUAL CONDITIONS. WE THINK THAT THE PETITION OF THE PLAINTIFF MUST BE DISMISSED AS TO THE ITEM OF $4,272.20.

THE FOREGOING DECISIONS, AND OTHERS, WHICH MIGHT BE CITED, SHOW THAT THE LAW REQUIRES PARTIES TO DO WHAT THEY HAVE STIPULATED IN THEIR CONTRACTS TO DO. IF UNEXPECTED IMPEDIMENTS BE IN THE WAY AND A LOSS MUST ENSUE, THE LAW LEAVES THE LOSS WHERE THE CONTRACT HAS PLACED IT. IF THE PARTIES HAVE NOT STIPULATED FOR A DISPENSATION, THE LAW GIVES NONE. IT DOES NOT ALLOW A CONTRACT FAIRLY MADE TO BE ANNULLED, AND IT DOES NOT PERMIT TO BE INTERPOLATED WHAT THE PARTIES THEMSELVES HAVE NOT STIPULATED. DERMOTT V. JONES, 2 WALL.

IN RECONDITIONING AND REPLACING THE ELEVATOR EQUIPMENT IN QUESTION YOU DID NO MORE THAN THE CONTRACT REQUIRED YOU TO DO. THE GOVERNMENT HAS PAID YOU IN ACCORDANCE WITH ITS AGREEMENT; CONSEQUENTLY THERE IS NO LEGAL BASIS WHICH WOULD JUSTIFY THIS OFFICE IN ALLOWING YOU ANY ADDITIONAL AMOUNT. NOR DOES THE CLAIM POSSESS SUCH EQUITY AS TO JUSTIFY ACTION UNDER THE ACT OF APRIL 10, 1928, 45 STAT. 413.