B-120505, JUN. 19, 1956

B-120505: Jun 19, 1956

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UNITED STATES COAST GUARD: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13. REQUESTING RECONSIDERATION OF THE CLAIM AND FORWARDING ADDITIONAL PERTINENT DOCUMENTS WHICH WERE NOT BEFORE US WHEN OUR DECISION OF JANUARY 3. 1954 (1955) WAS RENDERED. THE FACTS AS SHOWN BY THE RECORD THEN AVAILABLE WERE SET OUT RATHER FULLY IN THE DECISION OF JANUARY 3. THE CONCLUSION THEN REACHED WAS THAT THE VOUCHER SHOULD NOT BE CERTIFIED FOR PAYMENT. THERE BEING NO EVIDENCE THAT THE DELAY FOR WHICH THE LIQUIDATED DAMAGES WERE ASSESSED WAS EXCUSABLE UNDER ARTICLE 9 OF THE CONTRACT. IN THE DECISION IT WAS STATED: "THE FILE FURNISHED THE GENERAL ACCOUNTING OFFICE. NEITHER IS IT SHOWN WHAT PARTICULAR EQUIPMENT WAS TO BE OBTAINED FROM ANY OF THE THREE SUPPLIERS MENTIONED.

B-120505, JUN. 19, 1956

TO MR. M. J. CONNOLLY, AUTHORIZED CERTIFYING OFFICER, UNITED STATES COAST GUARD:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 13, 1955, RECEIVED THROUGH THE OFFICE OF THE COMMANDANT, UNITED STATES COAST GUARD HEADQUARTERS, WASHINGTON, D. C., RESUBMITTING A VOUCHER IN THE AMOUNT OF $540, WITH SUPPORTING FILE, IN FAVOR OF BERKENS ELECTRIC COMPANY. THE AMOUNT COVERED BY THE VOUCHER REPRESENTS RECLAIM OF AN AMOUNT RETAINED AS LIQUIDATED DAMAGES UNDER CONTRACT NO. TO9CG-1890, DATED JUNE 30, 1953, COVERING THE INSTALLATION OF A FIRE ALARM SYSTEM. YOU ENCLOSE A LETTER DATED DECEMBER 3, 1955, FROM THE CLAIMANT, REQUESTING RECONSIDERATION OF THE CLAIM AND FORWARDING ADDITIONAL PERTINENT DOCUMENTS WHICH WERE NOT BEFORE US WHEN OUR DECISION OF JANUARY 3, 1954 (1955) WAS RENDERED.

THE FACTS AS SHOWN BY THE RECORD THEN AVAILABLE WERE SET OUT RATHER FULLY IN THE DECISION OF JANUARY 3, 1954 (1955) TO H. B. SHERMAN, AUTHORIZED CERTIFYING OFFICER, AND NEED NOT BE REPEATED HERE. THE CONCLUSION THEN REACHED WAS THAT THE VOUCHER SHOULD NOT BE CERTIFIED FOR PAYMENT, THERE BEING NO EVIDENCE THAT THE DELAY FOR WHICH THE LIQUIDATED DAMAGES WERE ASSESSED WAS EXCUSABLE UNDER ARTICLE 9 OF THE CONTRACT. IN THE DECISION IT WAS STATED:

"THE FILE FURNISHED THE GENERAL ACCOUNTING OFFICE, WHICH PURPORTS TO BE THE COMPLETE COAST GUARD FILE ON THE MATTER, DOES NOT CONTAIN THE WESTINGHOUSE ACKNOWLEDGMENT MENTIONED, NOR A STATEMENT OF ANY KIND FROM THE GAMEWELL COMPANY. NEITHER IS IT SHOWN WHAT PARTICULAR EQUIPMENT WAS TO BE OBTAINED FROM ANY OF THE THREE SUPPLIERS MENTIONED.

"IT APPEARS FROM THE JUSTIFICATION GIVEN IN CHANGE ORDER B THAT THE PARTICULAR EQUIPMENT WHICH THE CONTRACTOR COULD NOT SECURE ON TIME CONSISTED OF A GAMEWELL SHUNT TYPE CITY BOX AND A GAMEWELL PEDESTAL STATION. AS HAS BEEN STATED, THE FILE DOES NOT DISCLOSE THE SUPPLIER FROM WHOM THE CONTRACTOR SECURED THIS EQUIPMENT NOR THE REASON FOR THAT SUPPLIER'S DELAY IN FURNISHING IT TO THE CONTRACTOR. UNDER THESE CIRCUMSTANCES, IT HAS NOT BEEN ESTABLISHED BY SUBSTANTIAL EVIDENCE, OR INDEED BY ANY EVIDENCE, THAT THE CONTRACTOR'S DELAY WAS EXCUSABLE UNDER ARTICLE 9 OF THE CONTRACT.'

FROM THE FILE NOW FURNISHED, IT APPEARS THAT THE CONTRACTOR PLACED AN ORDER FOR THE CITY BOX AND PEDESTAL STATION WITH WESTINGHOUSE ELECTRIC SUPPLY COMPANY, CLEVELAND, OHIO, ON JULY 7, 1953, WHICH IS ALSO THE DATE WHEN THE CONTRACTOR RECEIVED NOTICE TO PROCEED UNDER THE CONTRACT. THE WESTINGHOUSE COMPANY ACCEPTED THE ORDER UNDER ITS STANDARD TERMS AND CONDITIONS, WHICH INCLUDED A DISCLAIMER OF LIABILITY FOR "DELAYS IN OUR USUAL SOURCES OF SUPPLY.' IT FURTHER APPEARS THAT THE WESTINGHOUSE COMPANY IN TURN ORDERED THE EQUIPMENT FROM EDWARDS COMPANY, INC., OF NORWALK, CONNECTICUT, WHICH APPARENTLY WAS A JOBBER OF GAMEWELL APPARATUS, AND CORRESPONDENCE FURNISHED SHOWS THAT THE EDWARDS COMPANY WAS DILIGENT IN ITS EFFORTS TO OBTAIN DELIVERY FROM THE GAMEWELL COMPANY THROUGHOUT THE PERIOD INVOLVED.

IN ITS LETTER OF DECEMBER 3, 1955, THE CLAIMANT STATES:

"* * * SINCE THE EDWARDS COMPANY, THROUGH THE WESTINGHOUSE ELECTRIC SUPPLY COMPANY, WAS OUR ONLY SOURCE OF SUPPLY FROM WHICH WE COULD BUY THE GAMEWELL PEDESTAL AND THE GAMEWELL COMPANY COULD NOT SUPPLY THE PEDESTAL TO THE EDWARDS COMPANY DUE TO THEIR INABILITY TO MANUFACTURE ENOUGH MERCHANDISE TO FILL THEIR ORDERS, IT WAS, THEREFORE, IMPOSSIBLE FOR US TO OBTAIN IN TIME THE SPECIFIED PEDESTAL FOR YOUR JOB.'

IN CHANGE ORDER B DATED OCTOBER 6, 1953, ISSUED AS A JUSTIFICATION FOR A PRIOR CHANGE ORDER WHICH GRANTED A SIXTY DAY EXTENSION OF TIME FOR PERFORMANCE, THE CONTRACTING OFFICER STATED IN SUBSTANCE THAT THE CONTRACTOR HAD PROCEEDED UNDER THE TERMS OF THE CONTRACT DILIGENTLY AND SATISFACTORILY AND THAT, SINCE THE EQUIPMENT IN QUESTION WAS REQUIRED TO BE SUCH AS APPROVED BY THE CITY OF CLEVELAND, NO SUBSTITUTE ITEMS WOULD BE ACCEPTABLE.

FROM THE RECORD NOW BEFORE US IT APPEARS THAT THE CONTRACTOR PROMPTLY ORDERED THE EQUIPMENT NEEDED TO PERFORM THE CONTRACT WORK AND DILIGENTLY CONTINUED ITS EFFORTS TO OBTAIN THE EQUIPMENT; THAT NO OTHER SOURCE OF SUPPLY WAS OPEN TO THE CONTRACTOR AND THAT NO SUBSTITUTE EQUIPMENT WOULD HAVE BEEN ACCEPTABLE; AND THAT THE ULTIMATE REASON FOR THE DELAY ENCOUNTERED WAS THAT THE MANUFACTURER'S BACKLOG OF ORDERS WAS IN EXCESS OF ITS ABILITY TO OVERCOME. THE QUESTION AS TO WHAT CONSTITUTES AN UNFORESEEABLE CAUSE OF DELAY IS PRIMARILY ONE OF FACT PROPER FOR DETERMINATION BY THE CONTRACTING OFFICER AND THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE. ALBINA MARINE WORKS, INC. V. UNITED STATES, 79 C.CLS. 714. ON THE BASIS OF THE RECORD NOW AVAILABLE, THE DELAY IN OBTAINING THE EQUIPMENT MAY BE REGARDED AS "DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR" WITHIN THE MEANING OF ARTICLE 9 OF THE CONTRACT, WHICH SPECIFICALLY INCLUDED DELAYS OF SUBCONTRACTORS "DUE TO SUCH CAUSES.' THE CHANGE ORDERS EXTENDING THE TIME FOR COMPLETION MAY ACCORDINGLY BE GIVEN EFFECT AS INTENDED, AND THE VOUCHER MAY BE CERTIFIED FOR PAYMENT IF OTHERWISE CORRECT.