B-127793, JUN. 1, 1956

B-127793, JUN. 1, 1956

TO MARINE BASIN COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 11, 1956, ACKNOWLEDGED JANUARY 31, REQUESTING REVIEW OF OUR SETTLEMENT OF DECEMBER 29, 1955, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $487.50, REPRESENTING A CHARGE FOR THREE LAY DAYS ALLEGEDLY CONSUMED IN CONNECTION WITH THE PERFORMANCE OF INDEFINITE ITEM NO. 13 UNDER CONTRACT NO. 03-26068 -56, DATED JULY 25, 1955, WITH THE UNITED STATES COAST GUARD.

YOUR REQUEST FOR REVIEW IS BASED ON THE FACT THAT THE WORK IN QUESTION WAS PERFORMED UNDER A CONTRACT CHANGE ORDER NO. 2 ISSUED SEPTEMBER 15, 1955, AND THAT THE COMPLETED WORK REQUIRED THE ADDITIONAL DRYDOCK TIME REFLECTED IN THE AMOUNT CLAIMED. THE MATTER WAS FORWARDED TO THE ADMINISTRATIVE OFFICE CONCERNED FOR VERIFICATION AND REPORT, AND THE REQUESTED INFORMATION WAS RETURNED TO OUR OFFICE ON APRIL 13, 1956, WITH COPIES OF THE CHANGE ORDERS ISSUED UNDER THE SUBJECT CONTRACT.

UNDER THE CONTRACT YOU AGREED TO PERFORM THE DRYDOCKING, PAINTING, AND REPAIRS, ETC., ON U.S. COAST GUARD LIGHTSHIP WAL-505 IN ACCORDANCE WITH ATTACHED SPECIFICATIONS FOR THE UNIT PRICES SPECIFIED OPPOSITE DEFINITE ITEMS 1 THROUGH 6 AND INDEFINITE ITEMS 7 THROUGH 15 UNDER SPECIFICATION NO. 687-55. THE CONTRACT FURTHER PROVIDED THAT THE WORK SHALL COMMENCE ONE DAY FROM THE DATE OF RECEIPT OF THE VESSEL AND SHALL BE COMPLETED WITHIN EIGHT DAYS FROM THE DATE OF ITS RECEIPT, EXCLUSIVE OF SUNDAYS AND HOLIDAYS.

IT APPEARS THAT THE CONTRACT TIME COVERED ONLY WORK SPECIFIED UNDER DEFINITE ITEMS 1 THROUGH 6 SINCE, ON PAGE 4 OF THE SPECIFICATIONS, IT WAS STATED THAT THE INDEFINITE ITEMS MIGHT NOT BE ORDERED. HOWEVER, IF ANY INDEFINITE ITEM OF WORK WAS TO BE UNDERTAKEN, AN ADDITIONAL WORK ORDER WOULD BE ISSUED AND EXTRA CONTRACT TIME AS AGREED UPON FOR SUCH WORK WOULD BE ALLOWED.

IT APPEARS FROM THE ADMINISTRATIVE REPORT OF APRIL 13, 1956, THAT THE FOLLOWING WORK WAS PERFORMED: (1) DEFINITE ITEMS 1-6; (2) INDEFINITE ITEMS 10, 13, AND 14/D); AND (3) NON-CONTRACT ITEMS AMOUNTING TO $60. ALTHOUGH THE NON-CONTRACT ITEMS ARE MENTIONED IN YOUR LETTER OF JANUARY 11, 1956 (CHANGE ORDER 1), YOUR INVOICE OF SEPTEMBER 27, 1955, FOR THREE LAY DAYS LIMITS YOUR CLAIM TO THE WORK UNDER ITEM 13. INDEFINITE ITEM NO. 13 COVERED THE INSTALLATION OF 500 POUNDS OF NEW SHELL PLATING AT 70 CENTS PER POUND. CHANGE ORDER 2, AMONG OTHER THINGS, INCREASED THE POUNDAGE TO 1,272 AND THE TOTAL PRICE FOR THE ITEM ACCORDINGLY. THE COMPLETED WORK, INCLUDING THE CHANGE ORDER ITEMS, REQUIRED A PERIOD OF 11 CALENDAR DAYS, OR 3 DAYS IN EXCESS OF THE TIME PROVIDED IN THE CONTRACT. THE GOVERNMENT INSPECTOR AT THE SITE, ACTING PURSUANT TO THE PROVISIONS CONTAINED IN THE THIRD PARAGRAPH AT PAGE 4 OF THE SPECIFICATIONS IMMEDIATELY FOLLOWING THE CAPTION "INDEFINITE ITEMS," AUTHORIZED AN EXTENSION OF THREE ADDITIONAL DAYS FOR COMPLETION OF THE WORK UNDER INDEFINITE ITEM NO. 13. PAYMENT OF THE TOTAL CONTRACT PRICE WAS MADE WITHOUT ANY DEDUCTION OF LIQUIDATED DAMAGES.

FOLLOWING THE FINAL PAYMENT YOU PRESENTED YOUR CLAIM FOR THREE LAY DAYS AT THE RATE OF $162.50 PER DAY AS PROVIDED UNDER INDEFINITE ITEM 15 OF THE CONTRACT. CLAUSE 2 (LAY DAYS) OF THE ADDITIONAL GENERAL PROVISIONS OF THE CONTRACT, PROVIDES, IN PART, THAT---

"IT IS UNDERSTOOD AND AGREED THAT NO COST FOR LAY DAYS SHALL BE ASSESSED AGAINST THE GOVERNMENT UNTIL ALL ACCEPTED ITEMS OF BASIC CONTRACT FOR WHICH A FIXED-PRICE WAS ESTABLISHED BY THE CONTRACTOR AND FOR WHICH DOCKING OF THE VESSEL WAS REQUIRED FOR ACCOMPLISHMENT HAVE BEEN COMPLETED TO THE SATISFACTION OF THE GOVERNMENT.'

IT ALSO PROVIDES THAT---

"LAY DAYS WILL BE PAID BY THE GOVERNMENT WHEN THE VESSEL REMAINS ON THE DRY DOCK OR MARINE RAILWAY BY CONTRACT CHANGE ORDER INVOLVING WORK IN ADDITION TO THE BASIC CONTRACT.'

IN THESE CIRCUMSTANCES IT MUST BE CONCLUDED THAT SINCE YOU QUOTED A FIRM PRICE FOR THE WORK AUTHORIZED IN THE ORIGINAL CONTRACT FOR INDEFINITE ITEM 13 THAT ITEM MUST BE REGARDED AS A PART OF THE BASIC CONTRACT WORK. THEREFORE, IT MUST BE HELD THAT NO LAY DAYS IN CONTEMPLATION OF THE PERTINENT CONTRACT PROVISIONS WERE USED BY YOU SINCE THE DAYS IN QUESTION WERE NOT CONSUMED IN THE PERFORMANCE OF WORK IN ADDITION TO THE BASIC CONTRACT WORK.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 29, 1955, DISALLOWING YOUR CLAIM, IS SUSTAINED.