B-134927, FEB. 3, 1958

B-134927: Feb 3, 1958

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IN AN ACCOMPANYING REPORT OF THE CHIEF OF ENGINEERS IT IS STATED THAT AS A RESULT OF ADMINISTRATIVE INADVERTENCE THE CONTRACT WAS DRAWN WITHOUT PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE OF THE CONTRACT FOR ANY CAUSES. IT IS FURTHER STATED THAT IT WAS THE INTENTION OF THE CONTRACTING OFFICER TO INCLUDE THE REQUIRED PROVISION. ALSO THE UNDERSTANDING OF THE CONTRACTOR THAT PROVISION WOULD BE MADE FOR EXCUSING DELAYS WHICH WERE NOT DUE TO HIS FAULT OR NEGLIGENCE OR WERE BEYOND HIS CONTROL AND THAT ALL GOVERNMENT CONTRACTS CONTAINED A PROVISION AUTHORIZING EXTENSION OF TIME FOR SUCH DELAYS. THAT THE WORK WAS UNDERTAKEN WITH THIS UNDERSTANDING. IT IS RECOMMENDED IN THE REPORT AND IN THE LETTER OF JANUARY 17.

B-134927, FEB. 3, 1958

TO THE SECRETARY OF THE ARMY:

LETTER OF JANUARY 17, 1958, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTS AUTHORIZATION TO REFORM CONTRACT NO. DA-03-050 CIVENG-57-393, WITH E. L. COLBURN, FOR THE RELOCATION OF FIVE CEMETERIES FROM THE TABLE ROCK RESERVOIR, STONE AND TANEY COUNTIES, MISSOURI, AND TO PAY THE ENTIRE AMOUNT EARNED WITHOUT DEDUCTION OF THE LIQUIDATED DAMAGES PROVIDED BY THE CONTRACT. IN AN ACCOMPANYING REPORT OF THE CHIEF OF ENGINEERS IT IS STATED THAT AS A RESULT OF ADMINISTRATIVE INADVERTENCE THE CONTRACT WAS DRAWN WITHOUT PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE OF THE CONTRACT FOR ANY CAUSES, ALTHOUGH PARAGRAPH 7 -105.5 OF THE ARMED SERVICES PROCUREMENT REGULATION REQUIRES THAT, IN ANY CONTRACT PROVIDING FOR ASSESSMENT OF LIQUIDATED DAMAGES, CLAUSE 11 OF THE GENERAL PROVISIONS OF STANDARD FORM 32 SHALL BE AMENDED TO PROVIDE THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES WHEN THE DELAY ARISES OUT OF CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. IT IS FURTHER STATED THAT IT WAS THE INTENTION OF THE CONTRACTING OFFICER TO INCLUDE THE REQUIRED PROVISION, AND ALSO THE UNDERSTANDING OF THE CONTRACTOR THAT PROVISION WOULD BE MADE FOR EXCUSING DELAYS WHICH WERE NOT DUE TO HIS FAULT OR NEGLIGENCE OR WERE BEYOND HIS CONTROL AND THAT ALL GOVERNMENT CONTRACTS CONTAINED A PROVISION AUTHORIZING EXTENSION OF TIME FOR SUCH DELAYS, AND THAT THE WORK WAS UNDERTAKEN WITH THIS UNDERSTANDING. FOR THESE REASONS, IT IS RECOMMENDED IN THE REPORT AND IN THE LETTER OF JANUARY 17, THAT FULL PAYMENT BE MADE TO THE CONTRACTOR WITHOUT DEDUCTION OF LIQUIDATED DAMAGES.

THE ADMINISTRATIVE REPORT SHOWS THAT AWARD WAS MADE ON MARCH 4, 1957, TO THE LOW BIDDER, E. L. COLBURN, ROUTE 1, HULBERT, OKLAHOMA, IN THE ESTIMATED AMOUNT OF $10,616.33, WITH CONTRACT COMPLETION DATE FIXED AS MAY 20, 1957. THE CONTRACTOR COMMENCED WORK PROMPTLY ON RECEIPT OF NOTICE TO PROCEED ON MARCH 4, 1957. EXCESSIVE AND ABNORMAL RAINFALL THROUGH THE WATERSHED ABOVE TABLE ROCK DAM DURING THE EARLY PART OF 1957 CAUSED A FILLING OF THE RESERVOIR AREA, SITUS OF THE CEMETERIES TO BE RELOCATED, AT AN EARLIER DATE THAN REASONABLY COULD BE ANTICIPATED. AS A RESULT, THE CEMETERIES WERE COMPLETELY INUNDATED DURING THE PERIOD APRIL 3, 1957, TO SEPTEMBER 22, 1957, A TOTAL OF 173 CALENDAR DAYS. THE CONTRACT WORK WAS COMPLETED ON OCTOBER 17, 1957, 150 CALENDAR DAYS AFTER THE DATE OF COMPLETION REQUIRED BY THE CONTRACT. THE CONTRACTING OFFICER FOUND THAT THE CONTRACT WORK WAS DELAYED 150 DAYS DUE TO CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, VIZ., FLOODING OF THE CEMETERIES. THE CONTRACTING OFFICER ALSO FOUND THAT NO ACTUAL DAMAGES WERE SUFFERED BY THE GOVERNMENT DUE TO THE FAILURE OF THE CONTRACTOR TO COMPLETE THE WORK UNDER THE CONTRACT WITHIN THE PRESCRIBED TIME AND THAT HAD THE CONTRACT BEEN DRAWN AS REQUIRED BY ASPR AN EXTENSION OF TIME OF 150 CALENDAR DAYS WOULD HAVE BEEN GRANTED TO THE CONTRACTOR AND ACCORDINGLY NO LIQUIDATED DAMAGES WOULD HAVE BEEN ASSESSED.

WHERE, BY REASON OF A MUTUAL MISTAKE IN OMITTING FROM A CONTRACT A MATERIAL PROVISION ON WHICH THE PARTIES PREVIOUSLY HAD AGREED OR INTENDED MUTUALLY TO INCLUDE, THE CONTRACT, AS REDUCED TO WRITING, DOES NOT REFLECT THE ACTUAL AGREEMENT AND INTENTION OF THE PARTIES, SUCH MISTAKE OR INADVERTENCE IS GROUND FOR REFORMING THE WRITTEN INSTRUMENT IF IT CAN BE ESTABLISHED WHAT THE CONTRACT ACTUALLY WAS OR WOULD HAVE BEEN BUT FOR THE MISTAKE. SEE 30 COMP. GEN. 220. THE REPORTED FACTS AND CIRCUMSTANCES NOW CLEARLY ESTABLISH THAT THE CONTRACT AS WRITTEN DID NOT EXPRESS THE INTENTION OF THE PARTIES THAT THE CONTRACTOR NOT BE CHARGED WITH DAMAGES FOR DELAYS BEYOND HIS CONTROL AND WITHOUT HIS FAULT OR NEGLIGENCE, AND THAT THE DELAY IN PERFORMANCE AROSE OUT OF CAUSES BEYOND THE CONTROL OF THE CONTRACTOR AND WITHOUT HIS FAULT OR NEGLIGENCE. ACCORDINGLY, THE CONTRACT MAY BE VIEWED IN THE LIGHT OF THE TRUE UNDERSTANDING OF THE PARTIES, AND THE FULL AMOUNT OF THE EARNED CONTRACT PRICE, WITHOUT DEDUCTION OF LIQUIDATED DAMAGES, MAY BE ALLOWED THE CONTRACTOR, IF OTHERWISE PROPER. SINCE THE CONTRACT WORK HAS BEEN COMPLETED AND ACCEPTED NO PURPOSE WILL BE SERVED IN REFORMING THE CONTRACT AT THIS TIME.