B-144497, MAR. 7, 1961

B-144497: Mar 7, 1961

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5. SINCE NO REPLIES HAVE BEEN RECEIVED TO OFFICE LETTERS OF DECEMBER 6. OUR REVIEW WILL BE ON THE BASIS OF THE PRESENT RECORD. THE ERECTION OF THE FENCE WAS CONSIDERED TO HAVE BEEN 99.8 PERCENT COMPLETED. IT IS REPORTED FURTHER THAT AT YOUR REQUEST THE COMPLETION DATE WAS EXTENDED TO SEPTEMBER 24. THAT THE PROJECT WAS COMPLETED AND ACCEPTED ON SEPTEMBER 23. THAT FINAL PAYMENT WAS MADE ON OCTOBER 21. THIS PROVISION SHALL NOT BE CONSTRUED AS RELIEVING THE CONTRACTOR FROM THE SOLE RESPONSIBILITY FOR ALL MATERIALS AND WORK UPON WHICH PAYMENTS HAVE BEEN MADE OR THE RESTORATION OF ANY DAMAGED WORK. YOUR OBLIGATION IN THE MATTER OF CARE AND PROTECTION OF THE FENCE UNTIL THE TIME OF ITS COMPLETION AND FINAL ACCEPTANCE BY THE GOVERNMENT IS SET FORTH IN PARAGRAPH 11 OF THE GENERAL CONDITIONS UNDER THE HEADING PERMITS AND RESPONSIBILITY FOR WORK WHICH STIPULATES THAT THE CONTRACTOR SHALL BE "RESPONSIBLE FOR ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE.

B-144497, MAR. 7, 1961

TO CLARKE, STEWART AND WOOD, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 5, 1960, CONCERNING YOUR CLAIM FOR $2,144.32 FOR ADDITIONAL EXPENSES INCURRED FOR LABOR, MATERIALS AND EQUIPMENT RENTAL, PLUS 15 PERCENT, INCIDENT TO THE ERECTION OF SECURITY FENCING AT BLUE GRASS ORDNANCE DEPOT, RICHMOND, KENTUCKY, UNDER CONTRACT NO. DA-15-040-ORD-126, DATED JUNE 30, 1958, AS AMENDED BY SUPPLEMENTAL AGREEMENTS NOS. 1, 2 AND 3. SINCE NO REPLIES HAVE BEEN RECEIVED TO OFFICE LETTERS OF DECEMBER 6, 1960, AND JANUARY 10, 1961, OUR REVIEW WILL BE ON THE BASIS OF THE PRESENT RECORD.

UNDER THE TERMS OF THE CONTRACT AS AMENDED YOUR COMPANY AGREED TO ERECT TO 155,654 LINEAL FEET OF SECURITY FENCING FOR $319,003.84. THE CONTRACTING OFFICER HAS REPORTED THAT AS OF THE CLOSE OF BUSINESS AUGUST 27, 1959, THE ERECTION OF THE FENCE WAS CONSIDERED TO HAVE BEEN 99.8 PERCENT COMPLETED; THAT THE UNCOMPLETED PORTION INVOLVED THE CORRECTION OF MINOR DEFICIENCIES IN CONSTRUCTION AS NOTED ON A PRELIMINARY INSPECTION BY THE POST ENGINEER (CONTRACTING OFFICER'S AUTHORIZED TECHNICAL REPRESENTATIVE); THAT AT SUCH TIME YOUR COMPANY HAD BEEN PAID $283,394.26; AND THAT BETWEEN THE HOURS OF 8 A.M. AUGUST 28, 1959, AND 8 A.M. THE FOLLOWING DAY 7.12 INCHES OF RAIN FELL AT THE SITE OF THE FENCE RESULTING IN WASHING OUT 320 FEET OF LINE FENCING AND THE MUDDY CREEK STREAM CROSSING. IT IS REPORTED FURTHER THAT AT YOUR REQUEST THE COMPLETION DATE WAS EXTENDED TO SEPTEMBER 24, 1959, TO PERMIT REPAIR OF THE DAMAGE AND COMPLETION OF THE CONTRACT; THAT THE PROJECT WAS COMPLETED AND ACCEPTED ON SEPTEMBER 23, 1959; AND THAT FINAL PAYMENT WAS MADE ON OCTOBER 21, 1959.

PARAGRAPH 7 (C) OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACTS) PROVIDES THAT---

"ALL MATERIAL AND WORK COVERED BY PARTIAL PAYMENTS MADE SHALL THEREUPON BECOME THE SOLE PROPERTY OF THE GOVERNMENT, BUT THIS PROVISION SHALL NOT BE CONSTRUED AS RELIEVING THE CONTRACTOR FROM THE SOLE RESPONSIBILITY FOR ALL MATERIALS AND WORK UPON WHICH PAYMENTS HAVE BEEN MADE OR THE RESTORATION OF ANY DAMAGED WORK, OR AS A WAIVER OF THE RIGHT OF THE GOVERNMENT TO REQUIRE THE FULFILLMENT OF ALL THE TERMS OF THE CONTRACT.'

YOUR OBLIGATION IN THE MATTER OF CARE AND PROTECTION OF THE FENCE UNTIL THE TIME OF ITS COMPLETION AND FINAL ACCEPTANCE BY THE GOVERNMENT IS SET FORTH IN PARAGRAPH 11 OF THE GENERAL CONDITIONS UNDER THE HEADING PERMITS AND RESPONSIBILITY FOR WORK WHICH STIPULATES THAT THE CONTRACTOR SHALL BE "RESPONSIBLE FOR ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE, EXCEPT FOR ANY COMPLETED UNIT THEREOF WHICH THERETOFORE MAY HAVE BEEN FINALLY ACCEPTED.'

PARAGRAPH GC-18, PART II OF THE GENERAL CONDITIONS OF SPECIFICATIONS TO LUMP SUM CONSTRUCTION CONTRACT STIPULATES THAT---

"* * * AS SOON AS PRACTICABLE AFTER THE COMPLETION OF THE ENTIRE WORK, OR ANY DIVISIBLE PART THEREOF AS MAY BE DESIGNATED IN THESE SPECIFICATIONS, A THOROUGH EXAMINATION THEREOF WILL BE MADE BY THE CONTRACTING OFFICER AT THE SITE OF THE WORK. IF SUCH WORK IS FOUND TO COMPLY FULLY WITH THE REQUIREMENTS OF THE CONTRACT IT WILL BE ACCEPTED; AND FINAL PAYMENT THEREFORE WILL BE MADE IN ACCORDANCE WITH THE ARTICLE OF THE CONTRACT ENTITLED "PAYMENTS TO CONTRACTORS.'"

BY SUPPLEMENTAL AGREEMENT NO. 3, DATED SEPTEMBER 3, 1959, THE COMPLETION DATE OF THE CONTRACT WAS EXTENDED FROM SEPTEMBER 4, 1949, TO SEPTEMBER 24, 1959, AT YOUR REQUEST IN ORDER TO "REPAIR THE DAMAGE AND COMPLETE THE CONTRACT" WHICH DAMAGE IT IS STATED WAS CAUSED BY THE "UNUSUALLY SEVERE RAINFALL WHICH OCCURRED DURING THE PERIOD 28-31 AUGUST 1959.'

THE GENERALLY ACCEPTED RULE IS THAT ONE WHO CONTRACTS UNDER AN ENTIRE OR INDIVISIBLE CONTRACT TO ERECT A STRUCTURE FOR A STIPULATED PRICE IS NOT EXCUSED FROM THE FULL PERFORMANCE OF HIS CONTRACT BY THE DESTRUCTION OR DAMAGE OF THE STRUCTURE WHEN PARTLY COMPLETED, BUT MUST HIMSELF BEAR THE LOSS, EVEN THOUGH SUCH DESTRUCTION OR DAMAGE MAY BE DUE TO AN UNAVOIDABLE ACCIDENT. 53 A.L.R. 103, 105; 9 C.J. 805; 17 C.J.S. CONTRACTS, SEC. 466 B (1); 6 COMP. GEN. 261. CF. 16 COMP. GEN. 975.

WHILE IN THE PRESENT INSTANCE IT IS ADMINISTRATIVELY REPORTED THAT YOU HAD COMPLETED 99.8 PERCENT OF THE CONTRACT AND THAT THE GOVERNMENT WAS ENJOYING BENEFICIAL USE OF THE FACILITY, THESE FACTORS MAY NOT BE CONSIDERED AS RELIEVING YOUR COMPANY FROM ITS CONTRACTUAL RESPONSIBILITY FOR ,ALL MATERIALS DELIVERED AND WORK PERFORMED UNTIL COMPLETION AND FINAL ACCEPTANCE" OR "FROM THE SOLE RESPONSIBILITY FOR ALL MATERIALS AND WORK UPON WHICH PAYMENTS HAVE BEEN MADE OR THE RESTORATION OF ANY DAMAGED WORK.' 25 COMP. GEN. 332. WHILE, AS INDICATED ABOVE, IT IS REPORTED THAT THE FENCE HAD BEEN COMPLETED EXCEPT FOR THE CORRECTION OF MINOR DEFICIENCIES IN THE CONSTRUCTION AS NOTED IN A PRELIMINARY INSPECTION, THE FACT REMAINS THAT IT HAD NOT BEEN FINALLY ACCEPTED AT THE TIME OF THE FLOOD DAMAGE. IN THE CIRCUMSTANCES, THE FACT OF SUBSTANTIAL COMPLETION IS NOT CONSIDERED AS SUFFICIENT TO RELIEVE YOUR COMPANY OF RESPONSIBILITY FOR THE REPAIRS. SEE MITTRY, ET AL. V. UNITED STATES, 73 CT.CL. 341; DAY V. UNITED STATES, 245 U.S. 159.

AS INDICATED ABOVE THE WORK FOR WHICH REIMBURSEMENT IS NOW CLAIMED WAS PERFORMED UNDER SUPPLEMENTAL AGREEMENT NO. 3. SUCH AGREEMENT NOT ONLY CONTAINED NO PROVISION FOR COMPENSATION IN ADDITION TO THE CONTRACT PRICE BUT IT SPECIFICALLY PROVIDED THAT "ALL OTHER TERMS AND CONDITIONS OF THE CONTRACT AS IT HERETOFORE HAS BEEN MODIFIED SHALL BE AND REMAIN THE SAME.' THIS PROVISION NECESSARILY INCLUDED THE COMPENSATION AS FIXED IN THE CONTRACT AS AMENDED BY SUPPLEMENTAL AGREEMENT NO. 1 OF JULY 10, 1959. THE ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION OR PRICE TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168 AND SIMPSON V. UNITED STATES, 172 U.S. 372.

IN VIEW OF THE FOREGOING WE FIND NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM. THEREFORE, THE ACTION TAKEN IN THE SETTLEMENT OF MARCH 17, 1960, MUST BE SUSTAINED.