B-140166, OCTOBER 30, 1959, 39 COMP. GEN. 343

B-140166: Oct 30, 1959

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CONTRACTS - DAMAGES - DELAYS BY SUBCONTRACTORS - CAUSE UNFORESEEN BY BOTH CONTRACTOR AND SUBCONTRACTOR DELAYS BY SUBCONTRACTORS OR SUPPLIERS OF GOVERNMENT CONTRACTORS TO BE REGARDED AS UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR UNDER THE STANDARD DEFAULT PROVISION EXCUSING THE PRIME CONTRACTOR FROM PERFORMANCE MUST BE DUE TO CAUSES WHICH COULD NOT HAVE BEEN FORESEEN BY EITHER THE CONTRACTOR OR THE SUBCONTRACTOR OR SUPPLIER. A DELAY WHICH IS CAUSED BY A CONTRACTOR'S INABILITY TO OBTAIN MATERIALS DUE TO A WIDESPREAD SHORTAGE OF MATERIALS AND WHICH MAY BE EQUATED TO ONE OF THE SPECIFIC EVENTS ENUMERATED IN THE STANDARD DEFAULT PROVISION IN GOVERNMENT CONTRACTS AS EXCUSABLE CAUSES FOR DELAY IN PERFORMANCE MAY BE REGARDED AS AN EXCUSABLE CAUSE.

B-140166, OCTOBER 30, 1959, 39 COMP. GEN. 343

CONTRACTS - DAMAGES - DELAYS BY SUBCONTRACTORS - CAUSE UNFORESEEN BY BOTH CONTRACTOR AND SUBCONTRACTOR DELAYS BY SUBCONTRACTORS OR SUPPLIERS OF GOVERNMENT CONTRACTORS TO BE REGARDED AS UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR UNDER THE STANDARD DEFAULT PROVISION EXCUSING THE PRIME CONTRACTOR FROM PERFORMANCE MUST BE DUE TO CAUSES WHICH COULD NOT HAVE BEEN FORESEEN BY EITHER THE CONTRACTOR OR THE SUBCONTRACTOR OR SUPPLIER. SEE WHITLOCK V. UNITED STATES, 141 C.1CLS. 758. A DELAY WHICH IS CAUSED BY A CONTRACTOR'S INABILITY TO OBTAIN MATERIALS DUE TO A WIDESPREAD SHORTAGE OF MATERIALS AND WHICH MAY BE EQUATED TO ONE OF THE SPECIFIC EVENTS ENUMERATED IN THE STANDARD DEFAULT PROVISION IN GOVERNMENT CONTRACTS AS EXCUSABLE CAUSES FOR DELAY IN PERFORMANCE MAY BE REGARDED AS AN EXCUSABLE CAUSE, PROVIDED THAT THE SHORTAGE COULD NOT HAVE BEEN FORESEEN AT THE TIME THE CONTRACT WAS EXECUTED.

TO THE ADMINISTRATOR, VETERANS ADMINISTRATION, OCTOBER 30, 1959:

REFERENCE IS MADE TO YOUR LETTER OF JULY 8, 1959, REQUESTING OUR OPINION ON CERTAIN QUESTIONS WHICH HAVE ARISEN IN THE CONSIDERATION OF APPEALS MADE BY CONTRACTORS WHICH INVOLVE AN INTERPRETATION OF CLAUSE 5 (C) OF STANDARD FORM 23A, ENTITLED " GENERAL PROVISIONS ( CONSTRUCTION CONTRACTS)," MADE A PART OF THEIR HOSPITAL CONSTRUCTION CONTRACTS WITH THE VETERANS ADMINISTRATION.

IT IS REPORTED THAT IN TWO OF THE DISPUTED CASES LIQUIDATED DAMAGES WERE ASSESSED FOR DELAYS IN PERFORMANCE AND BOTH CONTRACTORS CONTENDED THAT THEIR DELAYS RESULTED FROM CAUSES WHICH ARE EXCUSABLE UNDER CLAUSE 5 (C). ONE CONTRACTOR ALLEGED THAT HIS SUBCONTRACTOR FAILED TO PERFORM IN ACCORDANCE WITH AN AGREEMENT TO DELIVER MECHANICAL EQUIPMENT BY A CERTAIN DATE. THE DELAY IN PERFORMANCE OF THE SUBCONTRACT IS ATTRIBUTED IN PART TO THE PRESSURE OF OTHER BUSINESS AND IN PART TO DIFFICULTY EXPERIENCED BY THE SUBCONTRACTOR IN NEGOTIATING WITH ANOTHER MANUFACTURER. THE OTHER CONTRACTOR ALLEGED THAT HIS DELAY WAS CAUSED BY HIS INABILITY TO OBTAIN CERTAIN BUILDING MATERIAL IN QUANTITIES NEEDED, DUE TO A WIDESPREAD MARKET SHORTAGE WHICH DEVELOPED ON ACCOUNT OF INCREASED CONSTRUCTION ACTIVITY.

YOU REFER TO THE POSSIBILITY THAT THE EVIDENCE IN THESE CASES MIGHT BE FOUND TO BE SUFFICIENT TO WARRANT THE CONCLUSION THAT THE DELAY IN PERFORMANCE IN EACH CASE WAS DUE TO AN UNFORESEEABLE CAUSE BEYOND THE CONTRACTOR'S CONTROL AND WITHOUT HIS FAULT OR NEGLIGENCE. IN THAT EVENT, YOU INDICATE THAT THE VETERANS ADMINISTRATION WOULD STILL BE CONFRONTED WITH THE FOLLOWING QUESTIONS INVOLVING THE INTERPRETATION OF CLAUSE 5 (C) OF STANDARD FORM 23A:

1. IN THE FIRST CASE, DOES THE LANGUAGE OF THE CLAUSE REQUIRE AS A PREREQUISITE OF EXCUSABILITY THAT THE EVENTS CAUSING THE DELAY MUST HAVE BEEN UNFORESEEABLE TO BOTH THE PRIME CONTRACTOR AND THE SUBCONTRACTOR AND BEYOND THEIR CONTROL, AND WITHOUT THE FAULT OR NEGLIGENCE OF EITHER OF THEM?

2.IN THE SECOND CASE, DOES MARKET SHORTAGE OF MATERIALS NOT CAUSED BY ONE OF THE EVENTS ENUMERATED IN CLAUSE 5 (C) CONSTITUTE AN EXCUSABLE CAUSE OF DELAY?

CLAUSE 5 (C) OF STANDARD FORM 23A PROVIDES, IN PERTINENT PART, THAT THE RIGHT OF THE CONTRACTOR TO PROCEED SHALL NOT BE TERMINATED, NOR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES OR ACTUAL DAMAGES BECAUSE OF ANY DELAY IN THE COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, IN EITHER ITS SOVEREIGN OR CONTRACTUAL CAPACITY, ACTS OF ANOTHER CONTRACTOR IN THE PERFORMANCE OF A CONTRACT WITH THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES AND UNUSUALLY SEVERE WEATHER, OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS DUE TO SUCH CAUSES.

OUR CONSIDERATION OF THE FOREGOING QUESTIONS HAS BEEN REQUESTED IN VIEW OF WHAT HAS BEEN FOUND BY OUR ADMINISTRATION TO HAVE BEEN CONFLICTING INTERPRETATIONS OF SIMILAR CONTRACT PROVISIONS IN DECISIONS RENDERED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS AND THE BOARD OF CONTRACT APPEALS, DEPARTMENT OF THE INTERIOR; AND BY OUR OFFICE AND THE COURTS.

IT IS STATED THAT SOME OF THESE DECISIONS SUPPORT THE VIEW THAT WHERE THE PRIME CONTRACTOR'S DELAY IS CAUSED BY THE DELAY OF A SUBCONTRACTOR OR SUPPLIER AND THE SUBCONTRACTOR'S DEFAULT WAS UNFORESEEABLE TO THE PRIME CONTRACTOR, BEYOND HIS CONTROL AND WITHOUT HIS FAULT OR NEGLIGENCE, THE DELAY IS EXCUSED WITHOUT REGARD TO WHETHER THE CAUSE OF THE DELAY WAS UNFORESEEABLE TO THE CONTRACTOR OR WITHIN HIS CONTROL OR WHETHER HE WAS FREE FROM FAULT. FOUR DECISIONS OF OUR OFFICE AND TWO DECISIONS OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS WERE CITED AS SUPPORTING THAT VIEW (37 COMP. GEN. 513; B 100534, B-100608, B-120505 DATED JANUARY 24, 1951, FEBRUARY 5, 1951, JUNE 19, 1956, RESPECTIVELY; JOHN ANDRESEN AND CO., INC., ASBCA NO. 6331/DECEMBER 13, 1960; AND PAROMEL ELECTRONICS CORPORATION, ASBCA 4025 AND 4123-1MAY 26, 1958).

OTHER CASES ARE CITED AS SUPPORTING THE VIEW THAT THE CAUSE OF DELAY MUST BE UNFORESEEABLE TO AND BEYOND THE CONTROL OF BOTH THE PRIME CONTRACTOR AND THE SUBCONTRACTOR AND WITHOUT THE FAULT OR NEGLIGENCE OF EITHER OF THEM. ( WALSH BROTHERS V. UNITED STATES, 107 C.1CLS. 627; WHITLOCK V. UNITED STATES, C.1CLS. NO. 32-54, DECIDED MARCH 5, 1958; KRAUSS V. GREENBARG, 137 F.2D 569; AND INTERIOR BOARD OF CONTRACT APPEALS CASES NOS. IBCA-16, IBCA-29, IBCA-104, AND IBCA-127, DATED OCTOBER 12, 1955, NOVEMBER 10, 1955, JUNE 3, 1957, AND SEPTEMBER 12, 1958, RESPECTIVELY, CONCERNING APPEALS OF THE PELTON WATER WHEEL COMPANY, SCHMIDT STEEL COMPANY, ZINSCO ELECTRICAL PRODUCTS AND THE C. H. WHEELER MANUFACTURING COMPANY). IT IS STATED THAT ONE CASE SEEMS TO IGNORE ANY DISTINCTION BETWEEN CASES WHICH INVOLVE SUBCONTRACTORS AND THOSE WHICH DO NOT (H. B. NELSON CONSTRUCTION COMPANY V. UNITED STATES, 87 C.1CLS. 375).

IT IS INDICATED THAT YOUR SECOND QUESTION HAS BEEN PRESENTED BECAUSE THERE IS SOME DIFFERENCE OF OPINION IN YOUR ADMINISTRATION AS TO WHETHER THE CONTRACT CLAUSE PROTECTS THE CONTRACTOR FROM ALL TYPES OF UNANTICIPATED CONDITIONS. THE WHITLOCK CASE IS STATED AS HAVING EMPLOYED LANGUAGE TO THE EFFECT THAT NO CAUSE OF DELAY IS AN EXCUSABLE CAUSE UNLESS IT IS ONE OF THE SPECIFIC EVENTS ENUMERATED IN THE CONTRACT CLAUSE OR IS "EQUATED" TO THEM. OTHER CASES ARE CITED AS TENDING TO SUPPORT SUCH A STATEMENT ( CARNEGIE STEEL COMPANY V. UNITED STATES, 204 U.S. 1561; B- 136624, OCTOBER 3, 1958; WALSH BROTHERS V. UNITED STATES, SUPRA; AND POLORON PRODUCTS V. UNITED STATES, 126 C.1CLS. 816). HOWEVER, YOU STATE THAT NONE OF SUCH CASES CONTAINS A DEFINITIVE STATEMENT OF WHAT WOULD BE "EQUATED" TYPES; ALSO THAT MANY DECISIONS PROCEED ON THE PRINCIPLE THAT THE SPECIFIC CAUSES OF DELAY ENUMERATED IN THE CLAUSE ARE MERE ILLUSTRATIONS AND ANY EVENT OR OCCURRENCE, REGARDLESS OF TYPE OR NATURE, MAY BE AN EXCUSABLE CAUSE OF DELAY IF IT COULD NOT REASONABLY HAVE BEEN FORESEEN BY THE CONTRACTOR AND WAS BEYOND HIS CONTROL ( UNITED STATES V. BROOKS-CALL AWAY CO., 318 U.S. 120; B-100534, JANUARY 24, 1951, B-120505, JUNE 19, 1956; ASBCA NO. 6331--- APPEAL OF JOHN ANDRESEN AND CO., INC., AND IBCA-85, APPEAL OF LARSEN-MEYER CONSTRUCTION COMPANY).

THE CONCLUSIONS REACHED IN THE FOREGOING DECISIONS ARE CONSIDERED IN A MEMORANDUM OF JUNE 24, 1959, A COPY OF WHICH WAS PRESENTED INFORMALLY BY REPRESENTATIVES OF YOUR ADMINISTRATION AT A CONFERENCE HELD ON JULY 15, 1959.

THE MEMORANDUM EXPRESSES THE VIEW THAT A PROPER ANALYSIS OR DISCUSSION OF THE PROBLEM SHOULD BE PRECEDED BY CONSIDERATION OF THE DECISIONS OF THE SUPREME COURT IN UNITED STATES V. BROOKS-CALL AWAY COMPANY, IN WHICH IT WAS HELD THAT THE PURPOSE OF THE CONTRACT PROVISION EXCUSING DELAYS WAS TO PROTECT THE CONTRACTOR FROM THE UNEXPECTED AND THE LISTED EVENTS WERE NOT ALWAYS TO BE REGARDED AS UNFORESEEABLE, NO MATTER WHAT THE ATTENDANT CIRCUMSTANCES WERE. IN THAT CASE, IT HAD BEEN ESTABLISHED THAT "HIGH WATER" WAS CUSTOMARY IN THE MISSISSIPPI RIVER AT THE PARTICULAR LOCALITY DURING CERTAIN PERIODS OF THE YEAR AND THE SUPREME COURT CONSIDERED THAT A PART OF THE DELAY ALLEGED TO HAVE BEEN CAUSED BY FLOOD CONDITIONS WAS NOT UNFORESEEABLE. THE COURT STATED, HOWEVER, THAT THE CONTRACT PROVISION EXCUSING DELAYS "SETS FORTH SOME ILLUSTRATIONS OF UNFORESEEABLE INTERFERENCES," WHICH STATEMENT IS CLEARLY IN ACCORD WITH THE USE OF THE WORDS "INCLUDING, BUT NOT RESTRICTED TO," PRECEDING THE LISTING IN GOVERNMENT CONTRACTS OF VARIOUS TYPES OF UNFORESEEABLE CAUSES WHICH WOULD EXCUSE PERFORMANCE OR ENTITLE THE CONTRACTOR TO ADDITIONAL TIME FOR COMPLETION OF THE CONTRACT.

UNFORTUNATELY, THE COURTS HAVE NOT ATTEMPTED IN THEIR DECISIONS TO SHOW ALL OF THE VARIOUS TYPES OF CAUSES WHICH WOULD EXCUSE A DELAY IN PERFORMANCE UNDER CONTRACT PROVISIONS SIMILAR TO THOSE OF CLAUSE 5 (C) OF STANDARD FORM 23A. IN THE WHITLOCK CASE, THERE WAS CONSIDERED A PROVISION OF A GOVERNMENT SUPPLY CONTRACT WHICH DID NOT USE THE WORD "UNFORESEEABLE" AND IT IS NOTED THAT THE COURT REJECTED THE CONTENTION THAT THE SUBCONTRACTOR'S INSOLVENCY WAS AN EXCUSABLE CAUSE FOR DEFAULT UNDER THE PRIME CONTRACT FOR THE REASON THAT THE SUBCONTRACTOR'S INSOLVENCY "WAS NOT SHOWN TO BE WITHOUT ITS FAULT OR NEGLIGENCE OR BEYOND ITS CONTROL; " AND BECAUSE THE SUPPLIES IN QUESTION WERE PROCURABLE IN THE OPEN MARKET, WHICH CIRCUMSTANCE CONSTITUTED AN EXCEPTION UNDER THE TERMS OF THE CONTRACT TO THE PROVISION CONCERNING EXCUSABLE CAUSES FOR A DEFAULT OR A FAILURE TO RENDER TIMELY PERFORMANCE. IT IS QUESTIONABLE WHETHER INSOLVENCY OF A CONTRACTOR OR A SUBCONTRACTOR COULD BE HELD TO BE UNFORESEEABLE BUT THE COURT WAS NOT CONCERNED WITH THE PROBLEM AS TO WHETHER OR NOT INSOLVENCY OF THE SUBCONTRACTOR COULD HAVE BEEN FORESEEN BY EITHER THE PRIME CONTRACTOR OR THE SUBCONTRACTOR. SIMILARLY, IN 37 COMP. GEN. 513, WHICH WAS DECIDED SHORTLY BEFORE THE COURTS OF CLAIMS RENDERED ITS DECISION IN THE WHITLOCK CASE, WE TOOK THE POSITION THAT IT WAS UNNECESSARY TO SHOW THAT A SHORTAGE OF SUPPLIES WAS AN UNFORESEEABLE CAUSE OF DELAY IN PERFORMANCE OF A GOVERNMENT CONTRACT WHICH DID NOT USE THE WORD "UNFORESEEABLE" IN THE PROVISION EXCUSING DELAY IN PERFORMANCE.

ORDINARILY, AN INABILITY TO PROCURE NECESSARY MATERIALS, SUPPLIES OR EQUIPMENT HAS NOT BEEN REGARDED BY OUR OFFICE AS AN UNFORESEEABLE CAUSE OF DELAY UNDER CONTRACT PROVISIONS SIMILAR TO THOSE OF CLAUSE 5 (C) OF STANDARD FORM 23A. IN B-136624, IT WAS STATED: "IF THE COMPLETION WAS DELAYED BY THE INABILITY OF THE CONTRACTOR OR HIS SUPPLIER TO PROCURE NECESSARY MATERIALS, EITHER THROUGH A FAILURE TO OBTAIN TIMELY FIRM COMMITMENTS OR TO ASCERTAIN THE AVAILABILITY OF SUCH MATERIALS PRIOR TO THE SUBMISSION OF THE BID, THAT IS A MATTER FOR WHICH, EVEN IN EQUITY, RELIEF MAY NOT BE GRANTED.' IN B-100534 AND B-100608, THERE APPEARED TO HAVE BEEN NO ALTERNATIVE TO THE ACCEPTANCE OF THE CONTRACTING OFFICER'S FINDINGS THAT THE DELAYS INVOLVED WERE EXCUSABLE, SINCE THE CONTRACTS RECOGNIZED THE INABILITY OF THE CONTRACTORS TO OBTAIN NECESSARY MATERIALS AND LABOR AS POSSIBLE UNFORESEEABLE CAUSES OF DELAY.

IN B-120505, WE CONSIDERED A CASE INVOLVING CONTRACT PROVISIONS SIMILAR TO THOSE OF CLAUSE 5 (C) OF STANDARD FORM 23A, WHERE IT WAS CLAIMED THAT A DELAY IN PERFORMANCE OF A GOVERNMENT CONTRACT WAS DUE TO INABILITY TO SECURE PROMPT DELIVERY OF SUPPLIES, MATERIALS, OR EQUIPMENT. THE PRIME CONTRACTOR HAD PROMPTLY ISSUED AN ORDER TO IS SUPPLIER, THE WESTINGHOUSE ELECTRIC SUPPLY COMPANY, FOR CERTAIN ELECTRICAL EQUIPMENT MANUFACTURED ONLY BY THE GAMEWELL COMPANY. WESTINGHOUSE ACCEPTED THE ORDER UNDER ITS STANDARD TERMS AND CONDITIONS WHICH INCLUDED A DISCLAIMER FOR "DELAYS IN OVER USUAL SOURCES OF SUPPLY" AND THEN ORDERED THE EQUIPMENT FROM A JOBBER IN CONNECTICUT. THE MANUFACTURER FAILED TO MAKE TIMELY DELIVERY IN ACCORDANCE WITH THE JOBBER'S ORDER BECAUSE OF A BACKLOG OF ORDERS WHICH WAS IN EXCESS OF ITS ABILITY TO OVERCOME.

IN THE CIRCUMSTANCES, WE CONSIDERED THAT WE WOULD NOT BE WARRANTED IN TAKING THE POSITION THAT THE CONTRACTING OFFICER WAS NOT JUSTIFIED IN DETERMINING THAT THE DELAY IN THE PERFORMANCE OF THE GOVERNMENT CONTRACT WAS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTRACTOR'S CONTROL AND WITHOUT HIS FAULT OR NEGLIGENCE. THE QUESTION AS TO WHETHER THE DELAY WAS ONE WHICH THE INITIAL SUBCONTRACTOR OR SUPPLIER COULD HAVE FORESEEN WAS NOT DISCUSSED IN THE DECISION. HOWEVER, THE EQUIPMENT INVOLVED APPARENTLY CONSISTED OF STANDARD ITEMS OF MANUFACTURE AND, WHILE WESTINGHOUSE HAD NOT GIVEN A DEFINITE COMMITMENT AS TO TIME OF DELIVERY, AS WAS ITS GENERAL POLICY, IT WOULD APPEAR THAT THE PARTIES COULD NOT REASONABLY HAVE FORESEEN THAT ANY CONSIDERABLE DELAY WOULD BE EXPERIENCED IN OBTAINING DELIVERY.

AS INDICATED BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS IN THE PAROMEL CASE, OUR OFFICE DID RECOGNIZE AND APPLY THE PRINCIPLE OF THE ANDRESEN CASE IN B-134892. THE ANDRESEN RULE WAS DEFINED BY THE BOARD AS MEANING THAT A PRIME CONTRACTOR IS EXCUSED FROM NONPERFORMANCE OR DELAYS, TO THE EXTENT THAT THEY RENDER PERFORMANCE IMPOSSIBLE, BY DEFAULTS OF SUBCONTRACTORS OR SUPPLIERS IF SUCH DEFAULTS CANNOT BE CHARGED TO THE FAULT OR NEGLIGENCE OF THE PRIME CONTRACTOR, AND IT IS IMMATERIAL WHETHER OR NOT THE DEFAULT OF THE SUBCONTRACTOR CAN BE PLACED UNDER ONE OF THE ENUMERATED CAUSES FOR EXCUSABILITY BECAUSE SUCH ENUMERATED CAUSES ARE ILLUSTRATIVE AND NOT EXCLUSIVE AND ALSO THEY RELATE TO THE PRIME CONTRACTOR.

SUBSEQUENT TO OUR RULING IN B-134892, HOWEVER, THE COURT OF CLAIMS RENDERED ITS DECISION IN THE WHITLOCK CASE HOLDING THAT THE DEFAULT PROVISION OF THE CONTRACT EXCUSES THE CONTRACTOR FROM PERFORMANCE FOR THE DEFAULT OF ITS SUBCONTRACTOR ONLY IF THE SUBCONTRACTOR'S FAILURE TO PERFORM IS ATTRIBUTABLE TO CERTAIN ENUMERATED CAUSES WHICH ARE BEYOND ITS CONTROL AND WITHOUT ITS FAULT OR NEGLIGENCE. WE SEE NO COGENT REASON FOR REFUSING TO FOLLOW THE DECISION OF THE COURT. ACCORDINGLY, IN ANSWER TO YOUR FIRST QUESTION, YOU ARE ADVISED THAT IT IS OUR OPINION THAT CLAUSE 5 (C) OF STANDARD FORM 23A SHOULD BE CONSTRUED AS EVIDENCING AN INTENTION TO HOLD THE CONTRACTOR RESPONSIBLE FOR DELAYS OF SUBCONTRACTORS OR SUPPLIERS UNLESS THE DELAYS WERE DUE TO CAUSES WHICH COULD NOT HAVE BEEN FORESEEN BY EITHER THE CONTRACTOR OR THE SUBCONTRACTOR OR SUPPLIER. WITH RESPECT TO THE SECOND QUESTION, IT IS OUR VIEW THAT A WIDESPREAD SHORTAGE OF MATERIAL COULD BE EQUATED TO ONE OF THE ENUMERATED CAUSES AND REGARDED AS AN EXCUSABLE CAUSE OF DELAY UNDER CLAUSE 5 (C), PROVIDED THAT SUCH SHORTAGE COULD NOT REASONABLY HAVE BEEN FORESEEN AT THE TIME THE CONTRACT WAS ENTERED INTO.