B-152093, AUG. 3, 1964

B-152093: Aug 3, 1964

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HERON: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 18. THAT CONTRACT WAS AWARDED TO WILLIAM H. IT WAS ADMINISTERED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION SUBSEQUENT TO THE ESTABLISHMENT OF THAT AGENCY IN 1958. ALL WORK UNDER THE CONTRACT WAS ORIGINALLY SCHEDULED FOR COMPLETION ON OR BEFORE JULY 11. IT WAS LATER AGREED THAT THIS SCHEDULED COMPLETION DATE WAS IN CONFLICT WITH ONE OF THE REQUIREMENTS OF THE CONTRACT SPECIFICATIONS AND THAT THE CONTRACT WORK SHOULD BE COMPLETED ON OR BEFORE AUGUST 1. THE WORK WAS FINALLY COMPLETED AND ACCEPTED BY THE GOVERNMENT ON FEBRUARY 19. SOME OF THE TIME EXTENSIONS WERE GRANTED IN CONNECTION WITH CHANGES MADE IN THE SPECIFICATIONS. WAS GRANTED FOR DELAY OF THE GOVERNMENT IN MAKING AVAILABLE THE FREON EQUIPMENT BUILDING IN WHICH THE FREON SYSTEM WAS TO BE INSTALLED.

B-152093, AUG. 3, 1964

TO MR. ALEXANDER M. HERON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 18, 1963, PRESENTING ON BEHALF OF WILLIAM H. SINGLETON COMPANY, INCORPORATED, ARLINGTON, VIRGINIA, A CLAIM IN THE AMOUNT OF $774,767.08 FOR RECOVERY OF ALLEGED INCREASED COSTS INCURRED IN THE PERFORMANCE OF CONTRACT NO. NAW-6336 DUE TO DELAYS ALLEGEDLY CAUSED BY THE GOVERNMENT. THAT CONTRACT WAS AWARDED TO WILLIAM H. SINGLETON COMPANY, INCORPORATED, ON OCTOBER 16, 1953, BY THE FORMER NATIONAL ADVISORY COMMITTEE FOR AERONAUTICS, AND IT WAS ADMINISTERED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION SUBSEQUENT TO THE ESTABLISHMENT OF THAT AGENCY IN 1958.

THE CONTRACT PROVIDED FOR THE DESIGNING, MANUFACTURING, FURNISHING AND INSTALLING OF A FREONIZATION SYSTEM FOR THE 19-FOOT PRESSURE WIND TUNNEL LOCATED IN THE EAST AREA OF LANGLEY FIELD, VIRGINIA, FOR A FIXED PRICE OF $1,394,473, SUBJECT TO EQUITABLE ADJUSTMENTS MADE IN ACCORDANCE WITH PARAGRAPH 3 OF THE GENERAL PROVISIONS OF THE CONTRACT WHICH RELATES TO AUTHORIZED CHANGES IN THE CONTRACT DRAWINGS AND/OR SPECIFICATIONS. ALL WORK UNDER THE CONTRACT WAS ORIGINALLY SCHEDULED FOR COMPLETION ON OR BEFORE JULY 11, 1955, BUT IT WAS LATER AGREED THAT THIS SCHEDULED COMPLETION DATE WAS IN CONFLICT WITH ONE OF THE REQUIREMENTS OF THE CONTRACT SPECIFICATIONS AND THAT THE CONTRACT WORK SHOULD BE COMPLETED ON OR BEFORE AUGUST 1, 1956. THE WORK WAS FINALLY COMPLETED AND ACCEPTED BY THE GOVERNMENT ON FEBRUARY 19, 1960, AFTER SEVEN EXTENSIONS OF TIME WHICH ESTABLISHED JANUARY 4, 1960, AS THE FINALLY AGREED UPON REQUIRED COMPLETION DATE. SOME OF THE TIME EXTENSIONS WERE GRANTED IN CONNECTION WITH CHANGES MADE IN THE SPECIFICATIONS. HOWEVER, AN INITIAL TIME EXTENSION OF 377 DAYS,FROM AUGUST 1, 1956, TO AUGUST 13, 1957, WAS GRANTED FOR DELAY OF THE GOVERNMENT IN MAKING AVAILABLE THE FREON EQUIPMENT BUILDING IN WHICH THE FREON SYSTEM WAS TO BE INSTALLED. ALSO, A TIME EXTENSION OF 736 DAYS, FROM OCTOBER 9, 1957, TO OCTOBER 15, 1959, WAS GRANTED IN CONNECTION WITH A DETERMINATION THAT THE CONTRACTOR WAS DELAYED BY ACTS OF ANOTHER CONTRACTOR IN PERFORMANCE OF ANOTHER CONTRACT WITH THE GOVERNMENT.

FIFTY-ONE AMENDMENTS TO THE CONTRACT WERE MADE TO PROVIDE FOR ADDITIONAL PERFORMANCE TIME AND FOR CHANGES IN THE CONTRACT WORK WHICH IN MOST INSTANCES RESULTED IN INCREASING OR DECREASING THE CONTRACT PRICE PURSUANT TO THE CHANGES CLAUSE OF THE GENERAL PROVISIONS OF THE CONTRACT. ALTHOUGH THE CONTRACT PROVIDED FOR ASSESSMENT OF LIQUIDATED DAMAGES FOR DELAY ON CERTAIN PORTIONS OF THE REQUIRED WORK, NO LIQUIDATED DAMAGES WERE ASSESSED. THERE WERE 31 INCREASES AND SEVEN DECREASES IN CONTRACT PRICE FOR A NET INCREASE OF $128,734.58, WHICH RESULTED IN AN AGREED TOTAL CONTRACT PRICE OF $1,523,207.58.

YOU STATE THAT THE SINGLETON COMPANY'S ACTUAL EXPENDITURES FOR PERFORMANCE OF THE CONTRACT AMOUNTED TO $2,297,674.66, THAT THE COMPANY HAS BEEN PAID THE SUM OF $1,522,907.58, AND THAT IT IS ENTITLED TO BE PAID THE DIFFERENCE OF $774,767.08. WE NOTE THAT THERE IS A $300 DIFFERENCE BETWEEN THE REVISED CONTRACT PRICE OF $1,523,207.58 AND THE AMOUNT WHICH, YOU STATE, THE SINGLETON COMPANY HAS BEEN PAID.

YOUR FIRM REPRESENTED THE SINGLETON COMPANY IN AN APPEAL MADE TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION FROM A DETERMINATION BY THE CONTRACTING OFFICER THAT HE WAS NOT AUTHORIZED TO CONSIDER AND SETTLE A CLAIM AGAINST THE UNITED STATES WHICH IS BASED ON AN ALLEGED BREACH OF CONTRACT. IN MAKING SUCH APPEAL IT WAS MAINTAINED THAT THE GOVERNMENT AND THE SINGLETON COMPANY HAD BY THEIR ACTIONS ABANDONED THE FIXED TERMS OF CONTRACT NO. NAW-6336, AND THAT AN IMPLIED AGREEMENT AROSE IN ITS PLACE UNDER WHICH THE CONTRACTOR IS ENTITLED TO BE PAID THE REASONABLE VALUE OF THE WORK DONE, OR ON A QUANTUM MERUIT BASIS. THE SINGLETON COMPANY NEVERTHELESS RESERVED THE RIGHT TO ASSERT A CLAIM, APPARENTLY BEFORE EITHER THIS OFFICE OR THE COURT OF CLAIMS, ON A BREACH OF CONTRACT THEORY IF THE AGENCY'S BOARD OF CONTRACT APPEALS REFUSED TO GRANT RELIEF ON A CONTRACT ABANDONMENT THEORY.

IN A DECISION DATED MAY 17, 1962, THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION'S BOARD OF CONTRACT APPEALS HELD THAT NEITHER THE CONTRACTING OFFICER NOR THE BOARD WAS AUTHORIZED TO SETTLE A CLAIM BASED ON THE ABANDONMENT THEORY ADVANCED BY THE CONTRACTOR.

IT IS YOUR CONTENTION THAT THE GOVERNMENT PREVENTED THE SINGLETON COMPANY FROM PROCEEDING WITH THE WORK IN A REASONABLE MANNER; THAT THE GOVERNMENT REQUIRED THE CONTRACTOR TO ACCOMPLISH THE WORK IN A WHOLLY DIFFERENT MANNER THAN ORIGINALLY CONTEMPLATED, AND TO PERFORM DIFFERENT AND ADDITIONAL SERVICES, INCLUDING THE STORAGE OF CERTAIN EQUIPMENT FOR AN UNREASONABLE PERIOD OF TIME AND RECONDITIONING OF SAME BEFORE INSTALLATION; AND THAT THE GOVERNMENT BREACHED THE CONTRACT BY FAILING TO MAKE TIMELY AWARD OF A CONTRACT FOR CONSTRUCTION OF THE FREON EQUIPMENT BUILDING, BY INTERRUPTING THE SINGLETON COMPANY'S TESTING OF THE SYSTEM AND ITS COMPONENT PARTS, AND BY FAILING TO PROVIDE BY EFFECTIVE CONTRACT ADMINISTRATION FOR THE COMPLETION OF THE FREON EQUIPMENT BUILDING AND MODIFICATIONS OF THE WIND TUNNEL COVERED BY CONTRACTS WITH THE PITTSBURGH DES-MOINES STEEL COMPANY.

IT IS ARGUED THAT THE DIFFERENCES IN THE METHOD OF PERFORMANCE AND OPERATION ORDERED BY OR SUGGESTED BY THE GOVERNMENT FOR ITS OWN CONVENIENCE AND BENEFIT, INCLUDING THE VASTLY EXTENDED TIME OF PERFORMANCE, WERE SO GREAT AS TO RESULT IN A SUBSTANTIALLY CHANGED PROJECT FROM THAT OF THE CONTRACT AS WRITTEN. IT IS ALSO ARGUED THAT THE INCREASED REQUIREMENTS BY THE GOVERNMENT AND THE CONTRACTOR'S COMPLIANCE WITH THEM CONSTITUTED AN ABANDONMENT OF THE FORMAL CONTRACT AND THE SUBSTITUTION OF AN IMPLIED AGREEMENT TO ACCOMPLISH THE DESIRED PHYSICAL RESULT BY VERY DIFFERENT METHODS.

IN SUPPORT OF YOUR VARIOUS CONTENTIONS IN THE MATTER, YOU CITE 38 COMP. GEN. 38 AND TWO OTHER DECISIONS OF THIS OFFICE (B-91952 OF SEPTEMBER 20, 1950, AND B-141586 OF MARCH 23, 1962); HENLEY CONSTRUCTION COMPANY, IBCA NO. 185, 61-2 BCA, 3239, AND ROBERT E. LEE AND COMPANY, INCORPORATED, ASBCA NO. 6919, 61-2 BCA, 3236, RENDERED BY APPEAL BOARDS OF ADMINISTRATIVE AGENCIES; WUNDERLICH CONTRACTING COMPANY V. UNITED STATES, 240 F.2D 201; FREUND V. UNITED STATES, 260 U.S. 60; SALT LAKE CITY V. SMITH, 104 F. 457; AND DIAMOND V. UNITED STATES, 98 CT.CL. 543.

AN ADMINISTRATIVE REPORT ON THE CLAIM HAS BEEN RECEIVED FROM THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION WHICH SETS FORTH THAT:

1. FIVE MAJOR CONTRACTS WERE AWARDED FOR THE VARIOUS PHASES OF A PROJECT FOR CONVERSION OF THE 19-FOOT PRESSURE WIND TUNNEL AT LANGLEY FIELD TO A TRANSONIC TUNNEL SUITABLE FOR CARRYING OUT RESEARCH IN THE FIELD OF AEROELASTICITY. IN ADDITION TO CONTRACT NO. NAW-6336 OF OCTOBER 16, 1953, CONTRACTS WERE AWARDED TO THE WESTINGHOUSE ELECTRIC CORPORATION, THE NEWPORT NEWS SHIPBUILDING AND DRYDOCK COMPANY, THE PITTSBURGH DES-MOINES STEEL COMPANY AND THE BALDWIN-LIMA-HAMILTON COMPANY ON THE FOLLOWING RESPECTIVE DATES: MAY 26, 1953, SEPTEMBER 8, 1954, JUNE 13, 1955, AND JUNE 27, 1955. THE CONTRACT AWARD OF JUNE 13, 1955 TO THE PITTSBURGH DES- MOINES STEEL COMPANY COVERED WORK INCLUDING THE CONSTRUCTION OF A BUILDING TO BE MADE AVAILABLE TO THE SINGLETON COMPANY FOR INSTALLATION OF THE FREONIZATION SYSTEM AND ERECTION OF COMPONENTS OUTSIDE THE BUILDING.

2. THE SPECIFICATIONS OF THE SINGLETON COMPANY'S CONTRACT INDICATED THAT THE FREON EQUIPMENT BUILDING WAS SCHEDULED FOR COMPLETION UNDER ANOTHER CONTRACT BETWEEN JUNE 1, 1955, AND SEPTEMBER 1, 1955, AND STATED THAT, IF THE CONTRACTOR WISHED TO STORE EQUIPMENT OR START EQUIPMENT INSTALLATION THEREIN BEFORE THE BUILDING WAS COMPLETED, HE SHOULD MAKE HIS OWN ARRANGEMENTS WITH THE BUILDING CONTRACTOR. THE SPECIFICATIONS OTHERWISE INDICATED THAT THE CONTRACTOR SHOULD SCHEDULE HIS OPERATIONS SO THAT THE FREON SYSTEM WOULD BE OPERATED FOR TUNNEL CALIBRATION TESTS WITHIN 11 MONTHS OF THE DATE OF COMPLETION OR ACCEPTANCE OF THE FREON EQUIPMENT BUILDING; AND THAT THE CONTRACTOR SHOULD PROVIDE IN HIS PLANNING FOR VARIATIONS FROM THE STATED ESTIMATED TIME THAT THE BUILDING WOULD BE MADE AVAILABLE.

3. AN INVITATION FOR BIDS COVERING THE PROPOSED CONSTRUCTION OF THE FREON EQUIPMENT BUILDING WAS ISSUED ON JANUARY 12, 1955, WITH BIDS HAVING BEEN SCHEDULED FOR PUBLIC OPENING ON MARCH 22, 1955. SINCE THE LOW RESPONSIVE BID WAS CONSIDERABLY IN EXCESS OF THE GOVERNMENT'S COST ESTIMATE, AND SINCE ADDITIONAL FUNDS WERE NOT AVAILABLE, IT WAS DECIDED TO REJECT ALL BIDS AND READVERTISE THE PROCUREMENT UNDER REVISED SPECIFICATIONS UNDER WHICH VARIOUS ECONOMIES COULD BE EFFECTED. THE PROCUREMENT WAS READVERTISED ON MAY 6, 1955, BIDS OPENED ON JUNE 1, 1955, AND AWARD MADE TO THE PITTSBURGH DES-MOINES STEEL COMPANY ON JUNE 13, 1955.

4. THE DESIGN OF THE BUILDING WAS DEPENDENT UPON DESIGN DATA, DRAWINGS AND OTHER TECHNICAL INFORMATION TO BE SUBMITTED BY THE SINGLETON COMPANY. THE COMPANY SUBMITTED 12 DRAWINGS FOR APPROVAL ON FEBRUARY 13, 1954, SOME OR ALL OF WHICH WERE SUBMITTED LATER THAN REQUIRED, AND THEY WERE FOUND FOR THE MOST PART TO BE INADEQUATE. IT WAS NOT UNTIL THE MONTH OF JUNE 1954 THAT THE CONTRACTOR MADE CORRECTIONS IN THE PARTICULAR DRAWINGS. ALSO, DURING THE FIRST TWO YEARS OF THE CONTRACT THE SINGLETON COMPANY DID NOT SUBMIT NECESSARY LOAD INFORMATION AND WHEN SUBMITTED IT APPEARED THAT THE COMPANY DID NOT HAVE SUFFICIENT APPRECIATION OF THE PROCEDURE NECESSARY TO OBTAIN DATA FOR LOADS. ALTHOUGH THE BUILDING CONTRACT WAS AWARDED ON JUNE 13, 1955, IT WAS NOT UNTIL NOVEMBER 1956 THAT THE SINGLETON COMPANY SUBMITTED ANY ACCEPTABLE LOAD-ANALYSIS DATA. ADDITIONAL DATA WAS SUBMITTED IN JANUARY 1958 BUT THE GOVERNMENT HAS NO KNOWLEDGE AS TO WHETHER THE CONTRACTOR PERFORMED THE ANALYSIS OF THE DYNAMICS EVEN THOUGH A SEVERE DYNAMICS PROBLEM (VIBRATION) OF THE PIPING WAS FOUND TO EXIST WHEN COMPONENTS, SUBSYSTEMS AND SYSTEMS WERE OPERATED IN 1959.

5. DESPITE THE LACK OF TECHNICAL DATA AND RELATED INFORMATION WHICH THE SINGLETON COMPANY WAS REQUIRED TO FURNISH DURING THE EARLY STAGES OF CONTRACT PERFORMANCE, WITH RELATIVELY HIGH LIQUIDATED DAMAGES RATES HAVING BEEN SPECIFIED FOR DELAYS IN FURNISHING ACCEPTABLE DRAWINGS, THE GOVERNMENT ENGINEERS CONTINUED TO DESIGN THE FREON EQUIPMENT BUILDING DURING 1954 BECAUSE OF THE URGENCY OF TIME. BOTH THE CONTRACTOR AND THE GOVERNMENT KNEW DURING THAT TIME THAT THE CONTRACT DRAWINGS FOR THE BUILDING BASED UPON INCOMPLETE INFORMATION RELATING TO THE FREONIZATION SYSTEM WOULD BE SUBJECT TO CHANGE ORDERS TO THE BUILDING CONTRACT AS THE SINGLETON COMPANY SUBMITTED ADDITIONAL DATA TOWARD A MORE COMPLETE DESIGN OF THE FREONIZATION SYSTEM.

6. THE TIME FOR COMPLETION OF THE BUILDING CONTRACT WAS EXTENDED FROM MARCH 9, 1956, TO SEPTEMBER 21, 1956, BECAUSE OF A STRIKE (7 DAYS), UNFORESEEN UNDERGROUND INTERFERENCE (48 DAYS), ADDITIONAL WORK, REJECTION OF MATERIAL FOUND LATER TO BE ACCEPTABLE AND DELAY OF THE SINGLETON COMPANY IN FURNISHING THE GOVERNMENT WITH DRAWINGS WHICH FINALLY LOCATED THE FIRST ANCHOR BOLTS (141 DAYS).

7. THE FREON EQUIPMENT BUILDING WAS MADE AVAILABLE TO THE SINGLETON COMPANY ON SEPTEMBER 15, 1956, PRIOR TO WHICH DATE THE COMPANY WAS ABLE TO DO SOME WORK IN THE VICINITY OF THE BUILDING BY INSTALLING A CHILLED WATER TANK AND PIPING. NO WORK WAS PERFORMED FROM SEPTEMBER 15, 1956, TO JANUARY 28, 1957. FROM THAT TIME UNTIL THE END OF 1959 THE COMPANY INSTALLED EQUIPMENT IN THE BUILDING AND IT EXPERIENCED DIFFICULTIES DUE TO THE FACT THAT MUCH OF THE EQUIPMENT OBTAINED FROM SUBCONTRACTORS REQUIRED MODIFICATIONS, CLEANING AND RENOVATING.

8. DURING THE LATTER PART OF THE MONTH OF OCTOBER 1959, IT BECAME APPARENT TO THE GOVERNMENT THAT THE SINGLETON COMPANY HAD REACHED THE LIMIT OF ITS ABILITY TO RESOLVE THE PIPING PROBLEM WHICH DEVELOPED PRIOR TO APRIL 1959 WHEN THE SINGLETON COMPANY ATTEMPTED TO ELIMINATE THE PIPING VIBRATION IN ORDER TO OPERATE THE SYSTEM IN A MANNER TO MEET THE PERFORMANCE REQUIREMENTS OF CONTRACT NO. NAW-6336. THE GOVERNMENT, WHILE RECOGNIZING THAT CORRECTION OF THE WORK WAS THE RESPONSIBILITY OF THE SINGLETON COMPANY, TOOK THE INITIATIVE IN RESOLVING THE VIBRATION PROBLEMS IN ORDER TO BE ABLE TO USE THE FACILITY AT THE EARLIEST POSSIBLE DATE. SEVERAL OCCASIONS THE CONTRACTOR'S REPRESENTATIVES DID NOT AGREE WITH THE GOVERNMENT'S METHOD OF PROCEDURE IN TESTING AND EFFECTING CORRECTIONS TO THE SYSTEM. HOWEVER, THE GOVERNMENT'S PROCEDURES PROVED TO BE SOUND AND BY JANUARY 6, 1960, THE VIBRATION PROBLEM HAD BEEN SUFFICIENTLY CORRECTED TO PERMIT AIR OPERATION OVER THE COMPLETE RANGE OF SUCTION PRESSURE AS SPECIFIED. THIS WAS ACCOMPLISHED BY MINOR MODIFICATIONS TO THE FREON SYSTEM RATHER THAN BY MODIFICATIONS OF THE BUILDING STRUCTURE. THE SYSTEM THAT WAS ACCEPTED IN FEBRUARY 1960 STILL HAD DEFICIENCIES IN ITS PERFORMANCE. DESPITE THE SHORT-COMINGS IN THE PERFORMANCE OF THE SYSTEM, ACCEPTANCE WAS MADE BY THE GOVERNMENT BECAUSE OF THE URGENT NEED OF THE FACILITY FOR RESEARCH. 9. BY AMENDMENT NO. 6 TO THE CONTRACT IT WAS RECOGNIZED THAT STORAGE MUST BE PROVIDED FOR EQUIPMENT DELIVERED TO THE PROJECT SITE BEFORE COMPLETION OF THE FREON EQUIPMENT BUILDING AND THAT THE GOVERNMENT SHOULD MAKE PROGRESS PAYMENTS RELATING TO SUCH EQUIPMENT. AMENDMENT NO. 15 DECREASED THE PROGRESS PAYMENT RATE FROM 90 PERCENT TO 75 PERCENT. AMENDMENT NO. 21 ALLOWED A PRICE INCREASE OF $299 FOR INSPECTION AT AN OFF-SITE STORAGE PLACE FOR POSSIBLE DAMAGE OF PISTONS TO BE USED IN A CLARK COMPRESSOR, AND THEN TO APPLY A PROTECTIVE COVERING TO THE PISTONS UNTIL THE CONTRACTOR WOULD BE IN A POSITION TO MAKE THE INSTALLATION. AMENDMENT NO. 26 ALLOWED A PRICE INCREASE OF $599.01 FOR DISASSEMBLY, CHECKING AND CLEANING OF VALVE ASSEMBLIES NECESSITATED BY LONG OFF-SITE STORAGE. AMENDMENT NO. 27 ALLOWED A PRICE INCREASE OF $600 FOR RETRANSPORTATION OF MATERIAL FROM GOVERNMENT WAREHOUSE.

10. BOTH PARTIES ADMIT THAT THE FREONIZATION SYSTEM FINALLY INSTALLED WAS SUBSTANTIALLY IDENTICAL TO THAT REQUIRED IN THE ORIGINAL SPECIFICATIONS, AND THE CUMULATIVE EFFECT OF THE CHANGES DID NOT IN FACT EXCEED THE GENERAL SCOPE OF THE CONTRACT. THE TIME OF PERFORMANCE OF THE CONTRACT WAS MORE THAN DOUBLED BUT THE QUESTION AS TO WHICH PARTY CAUSED MOST OF THE DELAY IS NOT FULLY ANSWERABLE; ALSO, ANY QUESTION OF ADDITIONAL CLAIM BY THE CONTRACTOR BASED UPON DELAY DUE TO NONAVAILABILITY OF PROPERTY IS FORECLOSED BY THE RULE OF UNITED STATES V. FOLEY, 329 U.S. 64. FURTHERMORE, THE NEGOTIATED AMENDMENTS TO THE CONTRACT MEET THE TEST OF UNITED STATES V. RICE, 317 U.S. 61, AND RELATED CASES IN THAT THEY ARE FOR CHANGES AUTHORIZED UNDER THE CONTRACT TERMS. AS TO THE QUESTION OF GRANTING RELIEF ON A CONTRACT ABANDONMENT THEORY, NONE OF THE CASES WHICH YOU CITE INVOLVE SITUATIONS WHICH ARE ANALOGOUS TO THE FACTS AND CIRCUMSTANCES OF THIS CASE SINCE AT NO TIME, APPARENTLY, DID THE SINGLETON COMPANY STOP WORK AND REFUSE TO CONTINUE UNLESS THE PRICE PROBLEMS WERE RESOLVED AND THERE WAS POSITIVE AND UNEQUIVOCAL CONDUCT ON THE GOVERNMENT'S PART TO SHOW AN INTENT TO BE BOUND BY THE CONTRACT.

IN WILLIAM A. SMITH CONTRACTING COMPANY, INCORPORATED, ET AL. V. UNITED STATES, 292 F.2D 847, THE COURT OF CLAIMS DISCUSSED SEVERAL OF ITS PREVIOUS DECISIONS INVOLVING THE QUESTION AS TO THE GOVERNMENT'S LIABILITY FOR DELAYS IN CONTRACT PERFORMANCE. IN THE ABSENCE OF A CLEAR SHOWING IN A PARTICULAR CASE THAT DELAYS CAUSED BY THE GOVERNMENT WERE DUE TO ITS NEGLIGENCE OR INCONSIDERATE CONDUCT, THE GOVERNMENT IS NOT LIABLE FOR BREACH OF THE CONTRACT AND CANNOT BE SAID TO BE UNDER ANY LEGAL OBLIGATION TO PAY AN AMOUNT IN ADDITION TO THE CONTRACT PRICE FOR DELAYS ATTRIBUTABLE TO THE GOVERNMENT UNLESS THE CONTRACT SO PROVIDES. CF. CROOK COMPANY V. UNITED STATES, 270 U.S. 4; UNITED STATES V. RICE, SUPRA; UNITED STATES V. FOLEY, SUPRA.

INSOFAR AS THE DELAY IN CONSTRUCTION OF THE FREON EQUIPMENT BUILDING IS CONCERNED, IT DOES NOT APPEAR THAT THE GOVERNMENT WAS NEGLIGENT IN THE ADMINISTRATION OF THE BUILDING CONTRACT, OR THAT IT ACTED UNREASONABLY WHEN IT REJECTED THE LOWEST BID RECEIVED ON THE BASIS OF THE ORIGINALLY PREPARED SPECIFICATIONS. ALSO, IT SEEMS TO BE FAIRLY EVIDENT THAT THE SINGLETON COMPANY WAS RESPONSIBLE FOR ALL OF THE DELAYS WHICH OCCURRED PRIOR TO MARCH 22, 1955, THE SCHEDULED DATE FOR PUBLIC OPENING OF BIDS UNDER THE FIRST ADVERTISEMENT, AND UNTIL ABOUT APRIL 4, 1955, CONSIDERING THAT ABOUT 15 DAYS NORMALLY WOULD HAVE BEEN REQUIRED FOR EVALUATION OF THE BIDS AND THE MAKING OF A CONTRACT AWARD. POSSIBLY IT COULD BE HELD THAT THE GOVERNMENT WAS RESPONSIBLE FOR THE DELAY OF APPROXIMATELY TWO MONTHS THEREAFTER (APRIL 6 TO JUNE 1, 1955), WHICH RESULTED FROM THE DECISION TO READVERTISE THE PROCUREMENT, BUT WE NOTE THAT THE SINGLETON COMPANY HAS NOT BEEN CHARGED LIQUIDATED DAMAGES OR FOR THE ADDITIONAL EXPENSE INCURRED BY THE GOVERNMENT IN PREPARING THE SPECIFICATIONS DUE TO THE SINGLETON COMPANY'S REPORTED FAILURE TIMELY TO SUBMIT ADEQUATE DRAWINGS AND LOAD INFORMATION AS REQUIRED BY THE TERMS OF CONTRACT NO. NAW-6336.

WITH RESPECT TO THE STORAGE OF EQUIPMENT DELIVERED TO THE SITE BEFORE COMPLETION OF THE BUILDING CONTRACT, THE RECORD SHOWS THAT STORAGE WAS ACCOMPLISHED THROUGH THE MUTUAL AGREEMENT OF THE PARTIES AND THAT THE GOVERNMENT IN NO MANNER TOOK ADVANTAGE OF THE SINGLETON COMPANY BUT CONSIDERED AND MADE REASONABLE ALLOWANCES FOR THE ADDITIONAL COSTS INVOLVED IN SUCH STORAGE.

OTHERWISE THERE IS APPARENTLY NO SUBSTANTIAL BASIS FOR YOUR CONTENTIONS THAT THE GOVERNMENT PREVENTED THE SINGLETON COMPANY FROM PROCEEDING WITH THE CONTRACT WORK IN A REASONABLE MANNER AND THAT THE COMPANY WAS REQUIRED TO ACCOMPLISH THE WORK IN A WHOLLY DIFFERENT MANNER THAN ORIGINALLY CONTEMPLATED. IN OUR OPINION THE REPORTED FACTS OF THE CASE REASONABLY SUGGEST THAT ALL OF THE CHANGES MADE IN THE ORIGINAL CONTRACT SPECIFICATIONS WERE FOR THE MUTUAL BENEFIT OF THE PARTIES AND WITHIN THE GENERAL SCOPE OF THE CONTRACT; AND THAT MOST OF THE DELAY IN PERFORMING THE CONTRACT WAS DUE TO THE SINGLETON COMPANY'S APPARENT INABILITY TO PERFORM WITHOUT THE ASSISTANCE OF THE GOVERNMENT, DIFFICULTIES WITH SUBCONTRACTORS, AND DELAYS CAUSED BY ANOTHER CONTRACTOR ENGAGED IN THE PERFORMANCE OF WORK AT LANGLEY FIELD.

IN THESE CIRCUMSTANCES, WE DO NOT AGREE THAT THE GOVERNMENT IS LIABLE FOR BREACH OF CONTRACT NO. NAW-6336 OR THAT THERE IS ANY BASIS FOR CONSIDERING THAT ADDITIONAL COMPENSATION SHOULD BE PAID TO THE CONTRACTOR ON THE THEORY THAT THE PARTIES HAD ABANDONED THE FORMAL CONTRACT AND SUBSTITUTED IN ITS PLACE AN IMPLIED AGREEMENT TO ACCOMPLISH THE DESIRED PHYSICAL RESULT BY DIFFERENT METHODS, WITH THE PRICE PAYABLE FOR THE WORK BEING FOR SUBSEQUENT DETERMINATION ON THE BASIS OF ACTUAL COST. IN ANY EVENT, WE BELIEVE THAT THE CLAIM OF THE SINGLETON COMPANY IS OF SUCH DOUBTFUL VALIDITY AS TO REQUIRE ITS REJECTION BY THIS OFFICE. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; AND CHARLES V. UNITED STATES, 19 ID. 316, 319. AS HAS BEEN REPORTED BY THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION, THE DECISIONS WHICH YOU HAVE CITED IN SUPPORT OF THE CLAIM DO NOT APPEAR TO BE APPLICABLE IN THIS CASE.

ACCORDINGLY, THE CLAIM FOR $774,767.08 MUST BE, AND IS, HEREBY DISALLOWED IN ITS ENTIRETY.