B-150404, FEB. 26, 1963

B-150404: Feb 26, 1963

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INC.: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29. THE CONTRACT PROVIDES THAT LIQUIDATED DAMAGES OF $50 PER DAY WILL BE ASSESSED FOR ANY DELAY IN COMPLETION OF THE WORK BEYOND THE DATE SPECIFIED IN THE CONTRACT. WHICH WAS JULY 18. UNLESS THE DELAY IS "DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. THAT LIQUIDATED DAMAGES WOULD BE ASSESSED AT THE RATE OF $50 PER DAY FOR EACH CALENDAR DAY'S DELAY AND YOU WERE REQUESTED TO ACKNOWLEDGE RECEIPT OF THE LETTER. NO ACKNOWLEDGMENT WAS RECEIVED AND THERE IS NO RECORD THAT YOU ADVISED THE CONTRACTING OFFICER OF ANY CAUSES OF DELAY AS REQUIRED BY THE TERMS OF THE CONTRACT. WORK WAS COMPLETED AUGUST 2.

B-150404, FEB. 26, 1963

TO THE FRANK VLACK COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 29, 1962, APPEALING THE ASSESSMENT OF LIQUIDATED DAMAGES IN THE AMOUNT OF $800 FOR DELAY IN COMPLETION OF CONTRACT NO. J5C-3648 DATED JUNE 13, 1962, FOR THE CONSTRUCTION OF TWO BOILER FOUNDATIONS AND ADJACENT CONSTRUCTION AT THE FEDERAL REFORMATORY, CHILLICOTHE, OHIO.

THE CONTRACT PROVIDES THAT LIQUIDATED DAMAGES OF $50 PER DAY WILL BE ASSESSED FOR ANY DELAY IN COMPLETION OF THE WORK BEYOND THE DATE SPECIFIED IN THE CONTRACT, WHICH WAS JULY 18, 1962, UNLESS THE DELAY IS "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: PROVIDED, THAT THE CONTRACTOR SHALL WITHIN 10 DAYS FROM THE BEGINNING OF ANY SUCH DELAY, UNLESS THE CONTRACTING OFFICER SHALL GRANT A FURTHER PERIOD OF TIME PRIOR TO THE DATE OF FINAL SETTLEMENT OF THE CONTRACT, NOTIFY THE CONTRACTING OFFICER IN WRITING OF THE CAUSES OF DELAY.'

WHEN YOU FAILED TO COMPLETE THE CONTRACT BY THE DATE AGREED UPON, THE CONTRACTING OFFICER REMINDED YOU BY LETTER OF JULY 23, 1962, THAT LIQUIDATED DAMAGES WOULD BE ASSESSED AT THE RATE OF $50 PER DAY FOR EACH CALENDAR DAY'S DELAY AND YOU WERE REQUESTED TO ACKNOWLEDGE RECEIPT OF THE LETTER. NO ACKNOWLEDGMENT WAS RECEIVED AND THERE IS NO RECORD THAT YOU ADVISED THE CONTRACTING OFFICER OF ANY CAUSES OF DELAY AS REQUIRED BY THE TERMS OF THE CONTRACT. WORK WAS COMPLETED AUGUST 2, 1962, PAYMENT WAS MADE AUGUST 24, 1962, AND LIQUIDATED DAMAGES WERE DEDUCTED IN THE AMOUNT OF $800 TO COVER A DELAY OF 16 DAYS (ACTUAL PERIOD OF DELAY 15 DAYS).

IT APPEARS THAT THE DELAY IN COMPLETION OF THE JOB WAS CAUSED BY (1) THE NECESSITY FOR SHORING UP THE SIDES OF THE EXCAVATION, DUE TO A GRAVEL VEIN, AND (2) THE FAILURE OF YOUR SUPPLIER TO FURNISH CERTAIN ITEMS OF STEEL WITHIN ITS ORIGINAL ESTIMATED DELIVERY TIME.

THE RECORD SHOWS THAT MR. VLACK VISITED THE SITE BEFORE THE BID WAS SUBMITTED, THAT THE SOIL WAS VISIBLE AT THAT TIME, AND THAT HE WAS INFORMED OF THE GRAVEL CONDITIONS WHICH PREVAIL IN THE AREA. ALSO, WHENEVER EXCAVATION IS INVOLVED, IT IS INCUMBENT UPON THE BIDDER TO GIVE CAREFUL CONSIDERATION TO ALL POSSIBLE SUBSURFACE CONDITIONS AND TO PROTECT HIMSELF AGAINST SAME EITHER SPECIFICALLY OR IN ARRIVING AT THE BID PRICE.

AS TO THE FAILURE OF YOUR SUPPLIER TO FURNISH THE STEEL, A COPY OF A LETTER DATED JULY 30, 1962, FROM UNITED STATES STEEL SUPPLY DIVISION OF UNITED STATES STEEL INDICATES THAT 45 ITEMS OF STEEL WERE ORDERED AND THAT A SIX-DAY DELAY IN DELIVERY WAS OCCASIONED BY THE NECESSITY FOR PREPARING SHOP DRAWINGS, WHICH THE STEEL COMPANY ORIGINALLY WAS ADVISED BY YOU WOULD NOT BE NECESSARY.

IT SEEMS CLEAR THAT THE ABOVE CAUSES OF DELAY WERE NOT UNFORESEEABLE AND WERE NOT BEYOND YOUR CONTROL AND WITHOUT ANY FAULT ON YOUR PART, WITHIN THE CONTEMPLATION OF THE CONTRACT TERMS. WE MUST HOLD, THEREFORE, THAT THE DELAY WAS NOT EXCUSABLE AND THAT LIQUIDATED DAMAGES WERE PROPERLY FOR ASSESSING. HOWEVER, SINCE THEY WERE ASSESSED FOR ONE DAY IN EXCESS OF THE PERIOD OF DELAY, THE DEPARTMENT OF JUSTICE IS BEING AUTHORIZED TO REMIT THE SUM OF $50 TO YOU.