B-151659, AUG. 8, 1963

B-151659: Aug 8, 1963

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DEPARTMENT OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED MAY 22. THE CLAUSE IN QUESTION IS IN PART AS FOLLOWS: "/D) THE CONTRACTOR'S RIGHT TO PROCEED SHALL NOT BE SO TERMINATED NOR THE CONTRACTOR CHARGED WITH RESULTING DAMAGE IF: "/1) THE DELAY IN THE COMPLETION OF THE WORK ARISES FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. AND" IT IS STATED THAT A QUESTION HAS ARISEN WHETHER OR NOT UNDER THE CITED CLAUSE A PRIME CONTRACTOR MAY BE EXCUSED FOR LATE PERFORMANCE CAUSED BY THE UNEXCUSABLE DELAY OF A SUBCONTRACTOR OR SUPPLIER NOT HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH THE PRIME CONTRACTOR WHERE THE DEFAULT WAS BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF BOTH THE PRIME CONTRACTOR AND HIS FIRST TIER SUBCONTRACTOR OR SUPPLIER.

B-151659, AUG. 8, 1963

TO THE CHIEF OF ENGINEERS, DEPARTMENT OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MAY 22, 1963, FROM THE DEPUTY CHIEF OF ENGINEERS, REQUESTING A DECISION AS TO INTERPRETATION TO BE PLACED ON THE PROVISIONS OF CLAUSE 5 (D) OF STANDARD FORM 23-A, GENERAL PROVISIONS (CONSTRUCTION CONTRACT), SHOWN IN APPENDIX F OF THE MARCH 1, 1963, EDITION OF THE ARMED SERVICES PROCUREMENT REGULATION.

THE CLAUSE IN QUESTION IS IN PART AS FOLLOWS:

"/D) THE CONTRACTOR'S RIGHT TO PROCEED SHALL NOT BE SO TERMINATED NOR THE CONTRACTOR CHARGED WITH RESULTING DAMAGE IF:

"/1) THE DELAY IN THE COMPLETION OF THE WORK ARISES FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, * * * OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS ARISING FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF BOTH THE CONTRACTOR AND SUCH SUBCONTRACTORS OR SUPPLIERS; AND"

IT IS STATED THAT A QUESTION HAS ARISEN WHETHER OR NOT UNDER THE CITED CLAUSE A PRIME CONTRACTOR MAY BE EXCUSED FOR LATE PERFORMANCE CAUSED BY THE UNEXCUSABLE DELAY OF A SUBCONTRACTOR OR SUPPLIER NOT HAVING DIRECT CONTRACTUAL RELATIONSHIP WITH THE PRIME CONTRACTOR WHERE THE DEFAULT WAS BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF BOTH THE PRIME CONTRACTOR AND HIS FIRST TIER SUBCONTRACTOR OR SUPPLIER. THERE HAVE NOT BEEN FURNISHED ANY FACTS OF A CASE NOW PENDING IN YOUR OFFICE WHICH REQUIRES A RESOLUTION OF THIS QUESTION AND IN SUCH CIRCUMSTANCES WE WOULD NOT FEEL WARRANTED IN ATTEMPTING TO RENDER AN AUTHORITATIVE DECISION ON THE BASIS OF YOUR LETTER. SEE 26 COMP. GEN. 993. WE ARE INCLINED TO THE VIEW, HOWEVER, THAT AS A GENERAL PROPOSITION NEITHER A PRIME CONTRACTOR NOR A SUBCONTRACTOR SHOULD BE PERMITTED TO EVADE HIS DUTY TO RENDER PROMPT PERFORMANCE MERELY BY ENGAGING ANOTHER PARTY TO PERFORM PART OF THE WORK.