B-135304, MAR. 10, 1958

B-135304: Mar 10, 1958

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23. THE CONTRACT "DISPUTES" CLAUSE HAS REFERENCE TO QUESTIONS OF FACT ARISING UNDER THE CONTRACT WHICH ARE FOR DETERMINATION BY THE CONTRACTING OFFICER UNDER THE PROCEDURES PRESCRIBED BY SUCH CLAUSE. THE QUESTION INVOLVED HERE IS ONE OF LAW AND. PROPERLY IS FOR SETTLEMENT BY OUR OFFICE UNDER THE PROVISIONS OF 31 U.S.C. 71. YOU LETTER WILL BE CONSIDERED AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE CERTIFICATE OF SETTLEMENT DISALLOWING YOUR CLAIM. THE CONTRACT CLEARLY INDICATED THE EXISTENCE OF OTHER SEPARATE CONTRACTS FOR CONSTRUCTION AND SUPPLY INCIDENT TO THE MODERNIZATION PROGRAM FOR THESE ROLLING MILL SITES AND THAT YOUR GENERAL INSTALLATION WORK WAS DEPENDENT UPON THE PROGRESS OF THESE OTHER CONTRACTORS.

B-135304, MAR. 10, 1958

TO JOHN P. HALLAHAN COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 23, 1958, REQUESTING THAT OUR CERTIFICATE OF SETTLEMENT DATED OCTOBER 21, 1957, WHICH DISALLOWED YOUR CLAIM FOR INCREASED COSTS INCIDENT TO PERFORMANCE OF CONTRACT NO. T2M- 1460, DATED JUNE 26, 1956, BE WITHDRAWN AND THE MATTER CONSIDERED UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT BY THE CONTRACTING OFFICER.

THE CONTRACT "DISPUTES" CLAUSE HAS REFERENCE TO QUESTIONS OF FACT ARISING UNDER THE CONTRACT WHICH ARE FOR DETERMINATION BY THE CONTRACTING OFFICER UNDER THE PROCEDURES PRESCRIBED BY SUCH CLAUSE. THE QUESTION INVOLVED HERE IS ONE OF LAW AND, AS SUCH, PROPERLY IS FOR SETTLEMENT BY OUR OFFICE UNDER THE PROVISIONS OF 31 U.S.C. 71. HENCE, IN ORDER TO EXPEDITE THE MATTER, YOU LETTER WILL BE CONSIDERED AS IN THE NATURE OF A REQUEST FOR REVIEW OF THE CERTIFICATE OF SETTLEMENT DISALLOWING YOUR CLAIM.

IT APPEARS THAT THE CONTRACT, AS MODIFIED, PROVIDED FOR THE FURNISHING OF GENERAL INSTALLATION WORK IN CONNECTION WITH THE REVISION AND MODERNIZATION OF MACHINERY AND EQUIPMENT OF THREE ROLLING MILL SITES OF THE PHILADELPHIA MINT FOR A TOTAL LUMP-SUM CONSIDERATION OF $54,713. THE CONTRACT CLEARLY INDICATED THE EXISTENCE OF OTHER SEPARATE CONTRACTS FOR CONSTRUCTION AND SUPPLY INCIDENT TO THE MODERNIZATION PROGRAM FOR THESE ROLLING MILL SITES AND THAT YOUR GENERAL INSTALLATION WORK WAS DEPENDENT UPON THE PROGRESS OF THESE OTHER CONTRACTORS.

PRIOR TO AWARD, YOU ADVISED THE PHILADELPHIA MINT THAT THE WORK CONTEMPLATED BY YOUR BID COULD BE COMPLETED WITHIN 154 CALENDAR DAYS, PROVIDED THERE WERE NO DELAYS ON THE PART OF OTHER CONTRACTORS CAUSING DELAY TO YOUR WORK. HOWEVER, DUE TO UNFORESEEN DELAYS ENCOUNTERED BY OTHER CONTRACTORS BECAUSE OF UNKNOWN CONDITIONS AT THE SITE OF THE WORK WHICH NECESSARILY POSTPONED YOUR MAJOR INSTALLATION WORK UNTIL JANUARY 10, 1957, THE PERIOD OF CONTRACT PERFORMANCE WAS EXTENDED FROM THE ORIGINAL ESTIMATED 154 CALENDAR DAYS TO 11 MONTHS, OR FROM JULY 9, 1956, TO MAY 15, 1957. ON THE BASIS THAT SUCH PROLONGATION OF CONTRACT PERFORMANCE INCREASED YOUR COSTS BEYOND THOSE PROVIDED BY THE CONTRACT, ADDITIONAL COMPENSATION IN THE AMOUNT OF $10,639.31 IS BELIEVED TO BE DUE FROM THE GOVERNMENT. HOWEVER, IN THAT REGARD, YOU STATE IN YOUR REQUEST FOR "CHANGE IN CONTRACT CONSIDERATION," DATED MAY 13, 1957, THAT "BY FAR THE MAJORITY OF THESE DELAYS WERE NOT DUE TO THE ACTION OF OURSELVES OR OF MINT PERSONNEL BUT WERE ENTIRELY BEYOND THE CONTROL OF THIS CONTRACTOR OR OUR PRIME GOVERNMENT REPRESENTATIVE (SUPERINTENDENT OF THE MINT).'

IT IS THE ESTABLISHED RULE THAT DELAY RESULTING FROM DELAY IN PERFORMANCE OF ANOTHER CONTRACTOR DOES NOT CONSTITUTE A BREACH BY THE GOVERNMENT, AND THAT THE CONTRACTOR'S RIGHT TO RELIEF IS LIMITED TO AN EXTENSION OF TIME AND DOES NOT INCLUDE THE RIGHT TO RECOVER FROM THE GOVERNMENT CONSEQUENTIAL DAMAGES FOR THE DELAY. CF. UNITED STATES V. RICE, 317 U.S. 61; COOK CO. V. UNITED STATES, 270 U.S. 4; UNITED STATES V. HOWARD P. FOLEY CO., 329 U.S. 64.

THE CONTRACT CONTAINED NO WARRANTY THAT THE GOVERNMENT WOULD ASSURE THE TIMELY PERFORMANCE OF OTHER CONTRACTORS OR OBLIGATING ITSELF TO HAVE THE FACILITIES READY FOR YOU AT ANY SPECIFIED TIME. IN THE ABSENCE OF SUCH UNDERTAKINGS BY THE GOVERNMENT AND SINCE THERE IS NO SHOWING THAT THE GOVERNMENT WAS AT FAULT IN ANY WAY, THE UNITED STATES IS NOT LIABLE FOR INCREASED COSTS, OR DAMAGES, SUSTAINED BY YOU BECAUSE OF DELAYS OF OTHER CONTRACTORS. RAYMOND S. DAUM V. UNITED STATES, 120 C.CLS. 192; OTIS WILLIAMS AND CO. V. UNITED STATES, 120 C.CLS. 249.

ACCORDINGLY, ON THE PRESENT RECORD, THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.