B-157468, JUN. 9, 1966

B-157468: Jun 9, 1966

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TO BURNETT CONSTRUCTION COMPANY: REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER DATED JANUARY 21. 710 FOR DAMAGES ALLEGED TO HAVE BEEN SUFFERED BY YOU AS THE RESULT OF DELAYS IN PERFORMANCE OF SAID CONTRACT OCCASIONED BY ACTS OR DEFAULTS OF THE GOVERNMENT. 672.31 COVERS MATTERS WHICH WERE THE SUBJECT OF TWO APPEALS BY YOU BEFORE THE GSA BOARD OF CONTRACT APPEALS. ALTHOUGH THERE IS A DISCREPANCY OF $50 BETWEEN THE AMOUNT NOW BEING CLAIMED ($22. 710 WAS ALSO THE SUBJECT OF AN APPEAL TO THE BOARD IN DOCKET NO. 861. THE FOLLOWING PERTINENT FACTS ARE TAKEN FROM THE BOARD'S DECISION IN DOCKETS 831 AND 832. WAS AWARDED TO BURNETT ON JULY 24. DAVIS-BACON ACT (40 U.S.C. 276A-A (7) ( (A) ALL MECHANICS AND LABORERS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE WORK WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK.

B-157468, JUN. 9, 1966

TO BURNETT CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR ATTORNEY'S LETTER DATED JANUARY 21, 1965, PRESENTING YOUR CLAIMS FOR THE RECOVERY OF $22,672.31 ALLEGEDLY WRONGFULLY WITHHELD BY THE GENERAL SERVICES ADMINISTRATION (GSA) UNDER CONTRACT NO. GS-07-B-4355, AND FOR $23,710 FOR DAMAGES ALLEGED TO HAVE BEEN SUFFERED BY YOU AS THE RESULT OF DELAYS IN PERFORMANCE OF SAID CONTRACT OCCASIONED BY ACTS OR DEFAULTS OF THE GOVERNMENT.

THE CLAIM FOR $22,672.31 COVERS MATTERS WHICH WERE THE SUBJECT OF TWO APPEALS BY YOU BEFORE THE GSA BOARD OF CONTRACT APPEALS, DOCKET NOS. 831 AND 832, ALTHOUGH THERE IS A DISCREPANCY OF $50 BETWEEN THE AMOUNT NOW BEING CLAIMED ($22,672.31) AND THE AMOUNTS INVOLVED IN THOSE APPEALS ($18,902.31 AND $3,720 RESPECTIVELY, OR A TOTAL OF $22,622.31). YOUR DAMAGE CLAIM OF $23,710 WAS ALSO THE SUBJECT OF AN APPEAL TO THE BOARD IN DOCKET NO. 861.

THE FOLLOWING PERTINENT FACTS ARE TAKEN FROM THE BOARD'S DECISION IN DOCKETS 831 AND 832. CONTRACT NO. GS-07-B-4355, WHICH COVERED THE CONSTRUCTION (EXCEPT ELEVATOR) OF THE U.S. POST OFFICE AND COURT HOUSE AT VICTORIA, TEXAS, WAS AWARDED TO BURNETT ON JULY 24, 1959, FOR THE LUMP-SUM PRICE OF $1,076,070. THE CONTRACT CONTAINED THE GENERAL PROVISIONS (STANDARD FORM 23A) PRESCRIBED BY THE FEDERAL PROCUREMENT REGULATIONS, INCLUDING THE FOLLOWING CLAUSE IN CONFORMITY WITH THE DAVIS-BACON ACT:

"20. DAVIS-BACON ACT (40 U.S.C. 276A-A (7) (

(A) ALL MECHANICS AND LABORERS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE WORK WILL BE PAID UNCONDITIONALLY AND NOT LESS OFTEN THAN ONCE A WEEK, AND WITHOUT SUBSEQUENT DEDUCTION OR REBATE ON ANY ACCOUNT (EXCEPT SUCH PAYROLL DEDUCTIONS AS ARE PERMITTED BY THE COPELAND ACT (ANTI- KICKBACK) REGULATIONS (29 CFR, PART 3) ( THE FULL AMOUNTS DUE AT TIME OF PAYMENT, COMPUTED AT WAGE RATES NOT LESS THAN THOSE CONTAINED IN THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR WHICH IS ATTACHED HERETO AND MADE A PART HEREOF, REGARDLESS OF ANY CONTRACTUAL RELATIONSHIP WHICH MAY BE ALLEGED TO EXIST BETWEEN THE CONTRACTOR OR SUBCONTRACTOR AND SUCH LABORERS AND MECHANICS; AND A COPY OF THE WAGE DETERMINATION DECISION SHALL BE KEPT POSTED BY THE CONTRACTOR AT THE SITE OF THE WORK IN A PROMINENT PLACE WHERE IT CAN BE EASILY SEEN BY THE WORKERS.

"/B) IN THE EVENT IT IS FOUND BY THE CONTRACTING OFFICER THAT ANY LABORER OR MECHANIC EMPLOYED BY THE CONTRACTOR OR ANY SUBCONTRACTOR DIRECTLY ON THE SITE OF THE WORK COVERED BY THIS CONTRACT HAS BEEN OR IS BEING PAID AT A RATE OF WAGES LESS THAN THE RATE OF WAGES REQUIRED BY PARAGRAPH (A) OF THIS CLAUSE, THE CONTRACTING OFFICER MAY (1) BY WRITTEN NOTICE TO THE GOVERNMENT PRIME CONTRACTOR TERMINATE HIS RIGHT TO PROCEED WITH THE WORK, OR SUCH PART OF THE WORK AS TO WHICH THERE HAS BEEN A FAILURE TO PAY SAID REQUIRED WAGES, AND (2) PROSECUTE THE WORK TO COMPLETION BY CONTRACT OR OTHERWISE, WHEREUPON SUCH CONTRACTOR AND HIS SURETIES SHALL BE LIABLE TO THE GOVERNMENT FOR ANY EXCESS COSTS OCCASIONED THE GOVERNMENT THEREBY.

"/C) PARAGRAPHS (A) AND (B) OF THIS CLAUSE SHALL APPLY TO THIS CONTRACT TO THE EXTENT THAT IT IS (1) A PRIME CONTRACT WITH THE GOVERNMENT SUBJECT TO THE DAVIS-BACON ACT OR (2) A SUBCONTRACT UNDER SUCH PRIME CONTRACT.'

IN ADDITION, THE SPECIFICATIONS OF THE CONTRACT CONTAINED THE FOLLOWING PROVISIONS:

"SECTION 3

"APPLICABLE MINIMUM HOURLY RATES OF WAGES

"3-1. THE ATTACHED WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR SPECIFIES THE MINIMUM HOURLY RATES OF WAGES WHICH SHALL BE PAID TO LABORERS AND MECHANICS EMPLOYED OR WORKING DIRECTLY UPON THE SITE OF THE WORK EMBRACED BY THIS SPECIFICATION; THE RATES HAVING BEEN DETERMINED BY THE SECRETARY OF LABOR IN ACCORDANCE WITH THE PROVISIONS OF THE DAVIS- BACON LAW, AS AMENDED, TO BE THE PREVAILING RATES FOR THE CORRESPONDING CLASSES OF LABORERS AND MECHANICS EMPLOYED ON CONTRACTS OF A SIMILAR CHARACTER IN THE LOCALITY WHERE THIS WORK IS TO BE PERFORMED. THESE MINIMUM HOURLY RATES OF WAGES SHALL APPLY ONLY IF THE CONTRACT IS IN EXCESS OF $2,000 IN AMOUNT.

"3-2. WHILE THE WAGE RATES GIVEN IN THE ATTACHED DECISION ARE THE MINIMUM RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT, IT IS THE RESPONSIBILITY OF BIDDERS TO INFORM THEMSELVES AS TO LOCAL LABOR CONDITIONS SUCH AS THE PREVAILING WAGE RATES, THE LENGTH OF THE WORK DAY AND WORK WEEK, OVERTIME COMPENSATION, HEALTH AND WELFARE CONTRIBUTIONS, AVAILABLE LABOR SUPPLY, AND PROSPECTIVE CHANGES OR ADJUSTMENTS OF WAGE RATES. THE CONTRACTOR SHALL ABIDE BY AND CONFORM TO ALL APPLICABLE LAWS, EXECUTIVE ORDERS, AND RULES, REGULATIONS AND ORDERS OF FEDERAL AGENCIES AUTHORIZED TO PASS UPON AND DETERMINE WAGE RATES. NO INCREASE IN THE CONTRACT PRICE SHALL BE ALLOWED OR AUTHORIZED ON ACCOUNT OF THE PAYMENT OF WAGE RATES IN EXCESS OF THOSE LISTED IN THE ATTACHED DECISION.

"3-3. THE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR IS ATTACHED SOLELY FOR THE PURPOSE OF SETTING FORTH THE MINIMUM HOURLY WAGE RATES REQUIRED TO BE PAID DURING THE LIFE OF THE CONTRACT AND IS NOT TO BE ACCEPTED AS A GUARANTEE, WARRANTY OR REPRESENTATION AS TO THE WAGE RATES INDICATED. UNDER NO CIRCUMSTANCES SHALL ANY MISTAKE IN ATTACHING THE APPROPRIATE WAGE DETERMINATION DECISION OF THE SECRETARY OF LABOR AND IN THE WAGE RATES SET FORTH ENTITLE THE SUCCESSFUL BIDDER TO CANCELLATION OF HIS BID OR CONTRACT OR TO AN INCREASE IN THE CONTRACT PRICE OR OTHER ADDITIONAL PAYMENT OR RECOVERY.'

THE WAGE DETERMINATION DECISION REFERRED TO AND INCLUDED IN THE ADVERTISED SPECIFICATIONS (WAGE RATE DECISION NO. T-21,257, DATED APRIL 28, 1959) INCLUDED, AMONG OTHERS, THE FOLLOWING CRAFTS AND RATES:

CHART

"CRAFTS PER HOUR

LABORERS:

UNSKILLED $1.95

MASON TENDERS 2.125

MORTAR MIXERS 2.225

PIPELAYERS (CONCRETE AND CLAY) 2.125

ASPHALT RAKERS 1.95

WELL DRILLERS 2.50

BLASTERS 2.375

POWDERMEN 2.375

PLASTERERS' TENDERS 2.225

TRUCK DRIVERS 1.975

TRUCK DRIVERS, FLAT BED AND DUMP 2.025"

NOTICE TO PROCEED WAS ISSUED ON AUGUST 4, 1959. ON AUGUST 10, 1959, YOU PROTESTED TO THE SECRETARY OF LABOR THAT CERTAIN WAGE RATES IN THE DECISION WERE IN EXCESS OF THE ACTUAL WAGE RATES PREVAILING IN THE CONSTRUCTION AREA. ON DECEMBER 9, 1959, THE DEPARTMENT OF LABOR ISSUED A LETTER OF INADVERTENCE TO GSA STATING THAT THE ABOVE-QUOTED RATES SHOULD HAVE BEEN OMITTED AND THE FOLLOWING RATES SHOULD HAVE BEEN SPECIFIED:

CHART

PER HOUR

"LABORERS $1.25

PLASTERERS' TENDERS 1.50

MASON TENDERS 1.375

MORTAR MIXERS 1.50

TRUCK DRIVERS 1.50"

THEREAFTER CONSIDERABLE CORRESPONDENCE WAS EXCHANGED BETWEEN GSA AND THE CONTRACTOR REGARDING THE MATTER. IN A LETTER DATED MAY 20, 1960, THE CONTRACTING OFFICER INFORMED THE CONTRACTOR THAT IT HAD THE OPTION TO (A) PAY WAGES IN FULL AT NOT LESS THAN THE MINIMUM WAGE RATES CONTAINED IN THE SECRETARY OF LABOR'S ORIGINAL WAGE RATE DECISION, OR (B) PAY WAGES AT THE RATES SET FORTH IN THE AMENDED WAGE RATE DECISIONS, OR AT RATES BETWEEN THE MINIMUM RATES OF THE AMENDED DECISION AND THOSE OF THE ORIGINAL DECISION; AND FURTHER, THAT IF IT ELECTED TO FOLLOW THE COURSE OUTLINED UNDER (A) THERE WOULD BE NO NEED TO AMEND THE CONTRACT, BUT THAT IF IT ELECTED TO FOLLOW ONE OF THE COURSES OUTLINED UNDER (B) THE CONTRACT WOULD BE MODIFIED TO PERMIT THE PAYMENT OF THE LOWER MINIMUM WAGES, AND THE GOVERNMENT THUS WOULD BE ENTITLED TO A CREDIT DEDUCTION IN AN AMOUNT EQUAL TO THE TOTAL DIFFERENCE BETWEEN THE WAGES COMPUTED AT THE ORIGINAL SPECIFIED MINIMUM RATES AND THE ACTUAL WAGES PAID AT LOWER RATES FOR WORK PERFORMED UNDER THE APPROPRIATE CLASSIFICATIONS. BY LETTER DATED JULY 1, 1960, THE CONTRACTOR ADVISED CSA THAT IT HAD ELECTED TO PROCEED WITH THE COMPLETION OF THE PROJECT ON THE BASIS OF THE LOWER RATES SET FORTH IN THE DEPARTMENT OF LABOR'S LETTER OF INADVERTENCE, BUT THAT IT DID NOT AGREE THAT THE CONTRACT PRICE WOULD BE SUBJECT TO ANY ADJUSTMENT BECAUSE OF THAT PROCEDURE. THEREAFTER, IN A LETTER DATED JULY 13, 1960, GSA ADVISED THE CONTRACTOR THAT IN VIEW OF ITS ELECTION TO PAY THE LOWER RATES, GSA WOULD FOLLOW THE PROCEDURE OUTLINED IN THE LETTER OF MAY 20, 1960, AND WOULD DETERMINE THE AMOUNT OF THE CREDIT ADJUSTMENT DUE THE GOVERNMENT AFTER THE WORK ON THE PROJECT WAS COMPLETED.

WHEN THE WORK ON THIS PROJECT WAS COMPLETED, AN AUDIT WAS MADE OF THE PAYROLLS SUBMITTED TO GSA AND AS A RESULT OF THIS AUDIT, THE CONTRACTING OFFICER DETERMINED THAT EMPLOYEES WORKING ON THE PROJECT IN WAGE CLASSIFICATIONS AFFECTED BY THE LETTER OF INADVERTENCE HAD BEEN PAID $18,902.31 LESS THAN THEY WOULD HAVE RECEIVED IF THE RATES FIXED IN THE ORIGINAL SCHEDULE OF MINIMUM WAGE RATES HAD BEEN PAID. ON THIS BASIS, GSA WITHHELD FROM PAYMENTS OTHERWISE DUE THE CONTRACTOR THE AMOUNT OF $19,000.

IN A LETTER DATED JANUARY 20, 1962, YOU SUBMITTED A CLAIM FOR THE $19,000 WITHHELD, AND AT THE SAME TIME SUBMITTED A CLAIM FOR $3,720 TO COVER INCREASED EXPENSES INCURRED BETWEEN AUGUST 5, 1959, AND JANUARY 13, 1960, AS THE RESULT OF BEING DIRECTED TO PAY CERTAIN WORKERS AT THE SCHEDULE OF WAGE RATES CONTAINED IN THE ORIGINAL AWARD.

ON JUNE 6, 1962, THE CONTRACTING OFFICER NOTIFIED YOU THAT THE SUM OF $18,902.31 WOULD BE WITHHELD AS AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE AS A RESULT OF THE CHANGES WHICH HAD BEEN MADE IN THE WAGE RATES. YOUR APPEAL OF THIS DECISION UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT WAS REFERRED TO THE GSA BOARD OF CONTRACT APPEALS AND WAS ASSIGNED DOCKET NO. 831.

ON MAY 23, 1962, THE CONTRACTING OFFICER CONFIRMED THE PRIOR REJECTION OF ADDITIONAL COMPENSATION IN THE AMOUNT OF $3,700, AND YOUR APPEAL FROM THIS DECISION WAS REFERRED TO THE GSA BOARD OF CONTRACT APPEALS WHERE IT WAS ASSIGNED DOCKET NO. 832. HEARINGS ON THE TWO APPEALS WERE HELD IN THE GSA REGIONAL OFFICE, DALLAS, TEXAS, ON DECEMBER 5, 1962.

AT THE HEARING, THE CONTRACTOR CONTENDED THAT THE COST ESTIMATES ON WHICH IT RELIED IN PREPARING ITS BID HAD BEEN BASED ON THE ACTUAL PREVAILING WAGE RATES IN THE VICTORIA AREA AND THAT IT HAD OVERLOOKED THE HIGHER WAGE RATES CONTAINED IN THE SECRETARY OF LABOR'S WAGE RATE DECISION DATED APRIL 28, 1959, WHICH WAS INCLUDED IN THE ADVERTISED SPECIFICATIONS. IT STATED THAT ITS OFFICERS AND ESTIMATORS WERE WELL AWARE OF THE ACTUAL PREVAILING WAGE RATES SINCE THE VAST MAJORITY OF ITS WORK WAS PERFORMED IN THE CORPUS CHRISTI AREA WHICH INCLUDED VICTORIA. IN SUPPORT OF THIS STATEMENT, IT POINTED OUT THAT THE PRESIDENT OF THE COMPANY AND TWO OF HIS BROTHERS HAD SERVED AS OFFICERS IN THE LOCAL CHAPTER OF THE ASSOCIATED GENERAL CONTRACTORS AND AS MEMBERS OF THE NEGOTIATING COMMITTEE WHICH NEGOTIATED WAGE RATES WITH REPRESENTATIVES OF THE TRADES INVOLVED IN BUILDING CONSTRUCTION IN THE AREA. IT CONCEDED, HOWEVER, THAT IT DID NOT KNOW WHAT WAGE RATES ITS SEVERAL SUBCONTRACTORS HAD USED IN PREPARING THE ESTIMATES ON WHICH THEY HAD BASED THEIR SUBCONTRACT PRICES. IN FURTHER SUPPORT OF ITS POSITION BURNETT SUBMITTED AFFIDAVITS IN WHICH SEVERAL OF ITS OFFICERS AND EMPLOYEES STATED THAT ITS BID HAD BEEN PREPARED ON THE BASIS OF THE LOWER RATES.

IN THE DECISION DATED SEPTEMBER 30, 1963, CONCERNING APPEAL NO. 831, THE GSA BOARD OF CONTRACT APPEALS MADE REFERENCE TO THE BREAKDOWN OF ESTIMATED COSTS AND OTHER EVIDENCE SUBMITTED TO SHOW THAT THE BID WAS BASED ON THE LOWER WAGE RATES RATHER THAN THOSE INCLUDED IN THE SCHEDULE OF MINIMUM WAGE RATES INCLUDED IN THE ADVERTISED SPECIFICATIONS, AND CONCLUDED THAT THE EVIDENCE WAS NOT SUFFICIENT TO ESTABLISH THAT THE BID HAD BEEN SO COMPUTED.

THE BOARD FOUND ALSO THAT THE RECORD CLEARLY SHOWED THE CONTRACTING OFFICER HAD ISSUED A WRITTEN ORDER AUTHORIZING REDUCTIONS IN HOURLY WAGE RATES INCLUDED IN THE SCHEDULE OF MINIMUM WAGES IN THE SPECIFICATIONS, AND THAT SUCH AUTHORIZED LOWER RATES WERE PAID TO EMPLOYEES IN THOSE WAGE CLASSIFICATIONS FROM JANUARY 14, 1960, UNTIL THE COMPLETION OF THE PROJECT; THAT TOTAL WAGES PAID TO WORKMEN IN THESE LOWER WAGE CLASSIFICATIONS WERE $18,902.31 LESS THAN WOULD HAVE BEEN PAID IF THESE SAME WORKMEN HAD BEEN PAID THE HIGHER WAGE RATES ORIGINALLY INCLUDED IN THE CONTRACT SPECIFICATIONS. ON THESE FINDINGS THE BOARD HELD THAT THE GOVERNMENT IS ENTITLED TO AN EQUITABLE CREDIT ADJUSTMENT IN THE CONTRACT PRICE AS A RESULT OF THE ISSUANCE OF THE CHANGE ORDER REDUCING THE WAGE RATES INVOLVED IN THE ORIGINAL SCHEDULE OF WAGE RATES, AND THAT THE SUM OF $18,902.31 AS DETERMINED BY THE CONTRACTING OFFICER IS THE PROPER AND CORRECT AMOUNT OF THE EQUITABLE CREDIT ADJUSTMENT TO WHICH THE GOVERNMENT IS ENTITLED.

THE BOARD LIKEWISE DENIED APPEAL NO. 832. THE BASIS FOR THE DENIAL WAS THAT YOU DID NO MORE THAN YOU WERE OBLIGATED TO DO UNDER THE TERMS OF THE CONTRACT, AND THAT THE BOARD HAD NO JURISDICTION TO GRANT ANY RELIEF OUTSIDE THE TERMS OF THE CONTRACT. IN SUPPORT OF THE CLAIM FOR REFUND OF THE MONEYS WITHHELD TO EFFECTUATE EQUITABLE ADJUSTMENT YOU SAY, CITING 37 COMP. GEN. 326, THAT SINCE A MINIMUM WAGE SCHEDULE IS NOT A REPRESENTATION THAT LABOR CAN BE OBTAINED AT THE RATES SPECIFIED, AND SINCE IT IS THE OBLIGATION OF THE CONTRACTOR TO BEAR SUCH EXPENSE AS MAY BE NECESSARY TO FURNISH LABOR AND PERFORM THE CONTRACT, THE FACT THAT THE MINIMUM RATES INCORPORATED IN THE CONTRACT MAY BE RAISED (OR MAY BE LOWERED) DOES NOT NECESSARILY MEAN THAT PERFORMANCE IS MADE MORE EXPENSIVE (OR MADE LESS EXPENSIVE) AND THAT THE CONTRACTOR IS ENTITLED IN EVERY CASE TO ADDITIONAL COMPENSATION OR REQUIRED TO MAKE A REBATE TO THE GOVERNMENT. IN THIS REGARD YOU CONTEND THAT WHEN THE MINIMUM WAGE CONDITIONS OF A CONTRACT ARE MODIFIED, AS THEY WERE HERE, THAT AN ADJUSTMENT IN CONTRACT PRICE IS IN ORDER ONLY WHEN THE MODIFICATION HAS DECREASED (OR INCREASED) THE CONTRACTOR'S COST OF PERFORMANCE WHEN COMPARED WITH THE COSTS INCLUDED IN HIS BID AND THAT HERE CERTAIN BID PAPERS (WHICH YOU ATTACH) SHOW THAT THE CORRECT RATE WAS AT ALL TIMES CONTEMPLATED IN THE BIDDING PROCESS AND NO ADJUSTMENT IS IN ORDER.

THE DAVIS-BACON ACT PROVIDES THAT THE ADVERTISED SPECIFICATIONS OF CERTAIN GOVERNMENT CONSTRUCTION CONTRACTS SHALL CONTAIN A PROVISION STATING THE MINIMUM WAGES TO BE PAID VARIOUS CLASSES OF LABORERS AND MECHANICS, WHICH SHALL BE BASED UPON WAGES DETERMINED BY THE SECRETARY OF LABOR TO BE PREVAILING FOR CORRESPONDING CLASSES OF WORKERS EMPLOYED ON SIMILAR PROJECTS IN THE AREA. THE PERTINENT REQUIREMENT OF THE ACT IS FULLY COMPLIED WITH WHEN A CONTRACT IS AWARDED, AS HERE, ON THE BASIS OF ADVERTISED SPECIFICATIONS WHICH CONTAIN A MINIMUM WAGE SCHEDULE BASED UPON SUCH A DETERMINATION BY THE SECRETARY OF LABOR. 36 COMP. GEN. 341. ONCE A CONTRACT HAS BEEN AWARDED, THE MINIMUM WAGE FLOOR IS AS MUCH A FIXED AND BINDING CONDITION OF THE CONTRACT AS ANY OTHER PROVISION, AND IS SUBJECT TO CHANGE ONLY BY THE SAME METHODS AND ON THE SAME TERMS AND CONDITIONS--- THAT IS, AMENDMENT BY MUTUAL CONSENT AND UPON VALID CONSIDERATION OR, AS HERE, BY CHANGE ORDERS ISSUED IN ACCORDANCE WITH THE CONTRACT PROVISIONS, INCLUDING EQUITABLE ADJUSTMENT OF THE CONTRACT PRICE. 37 COMP. GEN. 326.

WHAT CONSTITUTES AN EQUITABLE ADJUSTMENT HAS BEEN HELD TO BE A QUESTION OF FACT. UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56; SILBERBLATT AND LASKER, INC. V. UNITED STATES, 101 CT.CL. 54. THE "DISPUTES" CLAUSE, CONSISTENT WITH THE WUNDERLICH ACT, 41 U.S.C. 321 MAKES THE DECISION OF THE ADMINISTRATOR'S DULY AUTHORIZED REPRESENTATIVE, THE BOARD OF CONTRACT APPEALS, FINAL AND CONCLUSIVE AS TO FACTUAL MATTERS UNLESS SUCH DECISION IS FRAUDULENT, CAPRICIOUS, ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS UNSUPPORTED BY SUBSTANTIAL EVIDENCE. B-142040, AUGUST 27, 1962.

IF THE BOARD'S DECISION, THAT THE GOVERNMENT IS ENTITLED TO AN EQUITABLE CREDIT ADJUSTMENT OF $18,902.31, IS CONSIDERED AS A DETERMINATION OF FACT, WE FIND IN THE RECORD NO BASIS FOR HOLDING IT TO BE FRAUDULENT, ARBITRARY, CAPRICIOUS, GROSSLY ERRONEOUS OR UNSUPPORTED BY SUBSTANTIAL EVIDENCE. AND IF THE DECISION IS CONSTRUED TO INVOLVE A LEGAL CONCLUSION WHICH IS NOT FINAL OR BINDING UNDER THE DISPUTES CLAUSE, WE MUST AGREE WITH THE BOARD'S VIEW OF THE APPLICABLE LAW. THE CONTRACT AS ADVERTISED AND AWARDED OBLIGATED YOU TO PAY AT LEAST THE WAGE RATES STIPULATED THEREIN, WHETHER YOUR BID WAS COMPUTED ON THE BASIS OF THOSE RATES, OR HIGHER RATES, OR LOWER RATES. THE SUBSEQUENT DETERMINATION OF THE SECRETARY OF LABOR THAT LOWER RATES SHOULD HAVE BEEN DETERMINED DID NOT CHANGE YOUR OBLIGATION AND DID NOT AUTOMATICALLY CHANGE OR BECOME A PART OF YOUR CONTRACT. FOLLOWS THAT THE CONTRACTING OFFICER WOULD NOT HAVE AUTHORITY TO MODIFY THE MINIMUM WAGE RATES FIXED BY THE CONTRACT WITHOUT REQUIRING AN ADJUSTMENT OF THE CONTRACT PRICE, AND WE ARE SATISFIED THAT SUCH ADJUSTMENT SHOULD BE MEASURED BY REFERENCE TO THE RATES WHICH WERE REQUIRED BY THE CONTRACT RATHER THAN TO LOWER RATES ALLEGED TO HAVE BEEN USED IN COMPUTING YOUR BID.

WITH RESPECT TO OUR DECISION OF JULY 27, 1954, B-119373, TO WHICH YOUR COUNSEL REFERS, THAT CASE ALSO INVOLVED A SITUATION WHERE AS THE RESULT OF A LETTER OF INADVERTENCE FROM THE DEPARTMENT OF LABOR, THE CONTRACTOR WAS AUTHORIZED TO PAY A LOWER WAGE RATE THAN THAT CONTAINED ORIGINALLY IN THE SPECIFICATIONS. HOWEVER, THE FACTS OF THAT CASE DIFFERED SIGNIFICANTLY FROM THOSE UNDER CONSIDERATION HERE IN THAT THERE IT WAS DEFINITELY ESTABLISHED THAT THE SPECIFICATION RATE WAS IN EXCESS OF THE MAXIMUM SCALE OF WAGES FIXED BY THE WAGE STABILIZATION BOARD, AND THAT THE CONTRACTOR, ALONG WITH OTHER BIDDERS, EMPLOYED THE LOWER RATE IN COMPUTING ITS BID. IT ALSO APPEARED THAT A MUCH HIGHER RATE WAS ACTUALLY PAID BY THE CONTRACTOR PRIOR TO THE COMPLETION OF THE PROJECT, AND THE CONTRACTOR CONTENDED THAT THE AVERAGE OF WAGES PAID EXCEEDED THE SPECIFICATION RATE. THUS, SINCE THE AUTHORIZATION TO PAY LOWER WAGES WAS NOT SHOWN TO HAVE RESULTED IN A DECREASE OF THE CONTRACTOR'S COSTS NO EQUITABLE CREDIT ADJUSTMENT WAS REQUIRED.

WITH RESPECT TO THE CLAIM FOR $3,720 WHICH WAS DOCKETED AS APPEAL NO. 832, ON OUR VIEW OF THE LAW AS INDICATED ABOVE WE AGREE WITH THE BOARD THAT THE CONTRACTOR'S PAYMENT OF THE SPECIFICATION RATES WAS STRICTLY IN ACCORDANCE WITH ITS CONTRACT AND THAT NO REIMBURSEMENT OF ANY AMOUNTS PAID IN EXCESS OF THE RATES AUTHORIZED BY THE CHANGE ORDER IS AUTHORIZED.

CLAIM IS ALSO MADE IN THE AMOUNT OF $23,710 FOR DAMAGES OCCASIONED BY UNREASONABLE DELAYS IN THE CONSTRUCTION PROGRAM CAUSED BY GSA AND ITS SUPERVISING ARCHITECTS DURING THE PERIOD BETWEEN AUGUST 24, 1959, AND OCTOBER 28, 1960, STATING THAT THE TOTAL NUMBER OF DAYS OF DELAY ATTRIBUTABLE TO THE GOVERNMENT IS 153 DAYS. THIS WAS THE SUBJECT OF YOUR APPEAL TO THE GSA BOARD OF CONTRACT APPEALS IN DOCKET NO. 861. THIS APPEAL WAS DISMISSED BY THE BOARD AS BEING A CLAIM FOR DAMAGES FOR BREACH OF CONTRACT OVER WHICH THE BOARD HAD NO JURISDICTION. THE DELAY CLAIM IS NOT BASED ON A SINGLE DELAY, BUT IS COMPRISED OF SEVERAL MATTERS INVOLVING DELAYS FOR WHICH YOU CHARGE THE GOVERNMENT WITH RESPONSIBILITY AS FOLLOWS:

"1. THE CONFLICTING DETAILS ON THE DRAIN TILE BEDS.

CLAIMANT DIRECTED THIS MATTER TO THE ATTENTION OF AN ARCHITECT EARLY IN THE PROJECT PERIOD AND WHEN UNABLE TO OBTAIN VERBAL ASSURANCE, BY LETTER DATED AUGUST 24, 1959 * * * CLAIMANT WROTE TO THE ARCHITECT NOTING WITH SPECIFICITY THE CONFLICTING REFERENCES SET FORTH IN THE PLANS APPLICABLE TO THE DRAINAGE IN THE BASEMENT AND PLANTING AREAS. PLAINTIFF ASKED THE ARCHITECT TO PLEASE SEND INSTRUCTIONS AS TO WHICH DRAINAGE METHOD WAS DESIRED IN THE SEVERAL AREAS INVOLVED. THE ARCHITECTS AND GENERAL SERVICE ADMINISTRATION WERE ON NOTICE OF THE TIME IMPORTANCE SURROUNDING THIS ISSUE; HOWEVER, THE REPLY WAS NOT FORTHCOMING UNTIL SEPTEMBER 28, 1959 * * * WHEN THE ANSWER AS SUPPLIED DID NOT FULLY COVER THE SUBJECT. ADDITIONAL TIME WAS REQUIRED TO FINALIZE THE MATTER; HOWEVER, CLAIM IS MADE ONLY FOR 20 DAYS OF THE 35 DAYS BETWEEN THE FILING OF THE WRITTEN REQUEST FOR EXPLANATION AND RECEIPT OF THE ANSWER INVOLVED.

"2. ERRONEOUS DATA PERTAINING TO SOILBEARING.

ON THURSDAY, SEPTEMBER 10, 1959, THE PROBLEM OF BASEMENT FOOTINGS AND THE REFUSAL OF THE CONSTRUCTION ENGINEER TO ALLOW CONCRETE TO BE PLACED UNTIL CLAIMANT ESTABLISHED THAT THE SOIL HAD ADEQUATE BEARING VALUE WAS DIRECTED TO THE ATTENTION OF ALL THE PARTIES INVOLVED. THE ARCHITECTS IMMEDIATELY CONTACTED THE GENERAL SERVICE ADMINISTRATION'S DALLAS OFFICE, BUT DID NOT RECEIVE A RESPONSE WITH FURTHER DIRECTIONS AS TO HOW TO PROCEED UNTIL SEPTEMBER 14, 1959. CLAIMANT WAS REFUSED APPROVAL BY THE ARCHITECT TO PROCEED FURTHER UNTIL SEPTEMBER 15, 1959. THE FINAL APPROVAL WAS NOT OBTAINED SO THE WORK COULD BEGIN UNTIL SEPTEMBER 16, 1959, THEREBY OCCASIONING A SIX DAY DELAY IN CONSTRUCTING A KEY SECTION OF THE BUILDING, AND THEREBY IN TURN CAUSING CONSIDERABLE DELAY FOR THE ENTIRE STRUCTURE. BY LETTER OF JANUARY 5, 1960 * * * THE CLAIM FOR THIS NET SIX DAYS OF TIME WAS FULLY SET FORTH AND THE DAMAGES OCCASIONED THEREBY WERE DETAILED. BECAUSE OF THE DELAY CLAIMANT EXPERIENCED TWO HEAVY RAINS DURING THE INSTALLATION OF THE REMAINDER OF THE BASEMENT FOOTINGS, WHICH CAUSED A GREATER TIME LOSS THAN THE SIX DAYS FOR WHICH CLAIM IS MADE.

"3. SOLUTION TO THE REPLACEMENT OF THE 4-INCH C.I. DRAIN.

BY LETTER OF SEPTEMBER 4, 1959 * * * CLAIMANT INFORMED THE ARCHITECT THAT THE DRAIN FROM THE CATCH BASEMENT FROM THE SUMP PUMP WOULD CUT INTO ANOTHER DRAIN TILE AND REQUESTED CLARIFICATION OF THIS DISCREPANCY. REPLY WAS RECEIVED UNTIL SEPTEMBER 29, 1959. STANDARD PROCEDURE IN PROBLEMS OF THIS TYPE WOULD DICTATE THAT NO MORE THAN TWO WEEKS SHOULD BE REQUIRED TO RESOLVE THE DIFFICULTY. IN THIS PARTICULAR CASE, 25 DAYS WERE REQUIRED TO EFFECT A VERY SIMPLE SOLUTION TO THE PROBLEM. ACCORDINGLY, A NET DELAY OF 12 DAYS IS CLAIMED UNDER THIS ITEM.

"4. CORRECTION OF ELEVATIONS ON GROUND FLOOR SLABS AND BEAMS AT MAIN STREET.

ON AUGUST 26, 1959, CLAIMANT SOUGHT ADVICE FROM THE ARCHITECT REGARDING THE DESIRED TREATMENT OF BEAMS UNDER THE SOLID SLAB AREAS AT THE FIRST FLOOR LEVEL AT THE MAIN STREET END OF THE BUILDING. IT WAS IMPERATIVE THAT CLAIMANT KNOW WHETHER THE BEAMS WERE TO SLOPE, DROP OR INCREASE IN SIZE, ETC. CLAIMANT COULD NOT DETAIL FORMS FOR THESE BEAMS UNTIL SUCH A DECISION WAS MADE. EVERY TWO OR THREE DAYS THEREAFTER A REQUEST WAS AGAIN MADE UPON THE ARCHITECT WITHOUT ANY RESPONSE OTHER THAN,"WE-LL LET YOU KNOW TOMORROW.' ON OCTOBER 2, 1959 * * * PLAINTIFF REQUESTED THE SAME INFORMATION IN WRITING FROM THE ARCHITECT; HOWEVER, IT WAS NOT UNTIL OCTOBER 14, 1959 * * * THAT A RESPONSE WAS RECEIVED ADVISING OF SOME CHANGE IN THE ELEVATION OF THE LOCATION OF THE SLAB AT THE WEST END OF THE BUILDING, AND THAT THE INFORMATION REQUESTED WOULD NOT BE FURNISHED UNTIL THE CORRECTED ELEVATION DATA WAS AVAILABLE. ON NOVEMBER 9, 1959, CLAIMANT AGAIN SOUGHT INFORMATION ON THIS PROBLEM FROM THE ARCHITECT, BUT IT WAS NOT UNTIL NOVEMBER 26, 1959, THAT THE DETAILS ALLEGEDLY DESIGNED TO CORRECT THE PROBLEM WERE RECEIVED. WHEN ACTUAL FORM WORK WAS INITIATED, ADDITIONAL CHANGES HAD TO BE MADE, AND IN SOME INSTANCES, IT WAS NECESSARY TO BOTH REMOVE AND REBUILD FORMS WHICH HAD ALREADY BEEN INSTALLED. CLAIMANT SEEKS A NET DELAY OF 50 DAYS ON THIS ITEM.

"5. INFORMATION ON TRAP DOOR IN CEILING.

BY LETTER OF SEPTEMBER 11, 1959, CLAIMANT SOUGHT APPROVAL FOR A CHANGE IN THE TRAP DOOR INSTALLATION IN THE CEILING * * *. WHEN ONE YEAR LATER NO SUCH INFORMATION HAD BEEN RECEIVED, PLAINTIFF AGAIN WROTE ON AUGUST 4, 1960, ASKING FOR ADVICE * * *. ON SEPTEMBER 2, 1960 * * * CLAIMANT AGAIN REQUESTED ADVICE ON THIS MATTER AND POINTED OUT THAT THIS FAILURE TO OBTAIN THE REQUESTED CHANGE PRECLUDED THE COMPLETION OF THE PLASTER WORK ON THE 4TH FLOOR. A CHANGE ORDER WAS FINALLY INITIATED BY THE GENERAL SERVICES ADMINISTRATION ON OCTOBER 28, 1960, AFTER THE PLASTERING CONTRACTOR HAD FINISHED THE WORK ON THE 4TH FLOOR. THIS RESULTED IN THE PATCHING OF THE PLASTER IN THE TRAP DOOR AREA FOLLOWING THE ISSUANCE OF THE CHANGE ORDER AND AWAITING THE SPECIFIED CURING PERIOD PRIOR TO THE START OF PAINTING. A CLAIM OF 45 DAYS IS SOUGHT FOR THIS DELAY.

"6. WALL LEAK IN UPPER FLOORS.

BY LETTER OF MARCH 17, 1960 * * * CLAIMANT ADVISED THE ARCHITECT OF THE LEAKAGE PROBLEM THOUGH THE EXTERIOR WALLS AT THE UPPER LEVEL OF THE BUILDING DUE TO THE FACT THAT FULL HEADER COURSES WERE REQUIRED EVERY SIXTH COURSE IN THE WALL CONSTRUCTION. BY LETTER OF AUGUST 23, 1960 * * * CLAIMANT WAS ADVISED THAT THE GENERAL SERVICES ADMINISTRATION WAS PROPOSING A CHANGE IN THE TREATMENT OF THIS AREA, AMONG OTHERS, AND, THEREFORE, THAT FURTHER WORK SHOULD BE STOPPED UNTIL THE MATTER WAS RESOLVED. FINALLY, A CHANGE ORDER WAS PROCESSED AND CLAIMANT WAS INSTRUCTED TO PROCEED WITH THE WORK ON SEPTEMBER 15, 1960. A NET CLAIM OF 20 DAYS DELAY IS REQUESTED.

"THE AFORESAID ITEMIZED CLAIMS TOTAL DELAYS OF 153 DAYS. A DETAIL BREAKDOWN OF THE COST AS A RESULT OF THE DELAYS IS SET FORTH ON ATTACHED EXHIBIT 17.'

IN ANSWER TO THE CLAIM CONCERNING "1. THE CONFLICTING DETAILS ON THE DRAIN TILE BEDS.' GSA STATES THAT YOU HAVE SUBMITTED NO EVIDENCE THAT PROJECT COMPLETION WAS DELAYED IN ANY WAY DURING THE INTERVAL BETWEEN YOUR LETTER REQUESTING CLARIFICATION OF CERTAIN REFERENCES IN THE SPECIFICATIONS AND RECEIPT OF THE ARCHITECT'S LETTER OF EXPLANATION; THAT YOU HAD LIKEWISE FAILED TO FURNISH TO GSA ANY EVIDENCE THAT YOU HAD BEEN DELAYED IN COMPLETING THE PROJECT BY AWAITING A RESPONSE TO ITS INQUIRY IN THIS PARTICULAR MATTER; AND THAT A CLAIM FOR MONEY DAMAGES FOR DELAY APPEARS GROUNDLESS IN THE ABSENCE OF EVIDENCE THAT THE PROJECT WAS, IN FACT, DELAYED.

IN ANSWER TO THE CLAIM CONCERNING "2. ERRONEOUS DATA PERTAINING TO SOILBEARING.' GSA STATES THAT WHILE YOU INDICATE THAT CONTRACT PERFORMANCE WAS STOPPED ON SEPTEMBER 10, 1959, PENDING A DETERMINATION OF WHETHER OR NOT THE WORK COULD PROCEED IN ACCORDANCE WITH EXISTING PLANS AND SPECIFICATIONS AND THAT THE WORK WAS RESUMED ON SEPTEMBER 16, 1959, ACCORDING TO GSA RECORDS, NOTICE TO RESUME THE WORK WAS NOT GIVEN UNTIL SEPTEMBER 22, 1959, AND WORK WAS RESUMED THE FOLLOWING DAY; AND THAT IN THE PERIOD BETWEEN SEPTEMBER 10 AND 22, 1959, THE FOLLOWING SEQUENCE OF EVENTS TOOK PLACE. YOU WERE INSTRUCTED TO MAKE SOIL TESTS, SIX OF THE SEVEN TESTS MADE PURSUANT THERETO BEING CONTRACT REQUIREMENTS. THE SEVEN TESTS WERE MADE ON SEPTEMBER 14, 1959. FURTHER TESTING WAS DETERMINED TO BE NECESSARY BUT THESE, WHEN MADE, FAILED TO MEET SPECIFICATION REQUIREMENTS. THEREFORE ON SEPTEMBER 16, 1959, REPRESENTATIVES OF THE ARCHITECT AND GSA VISITED THE JOB SITE AND DECIDED TO SEND SOIL SAMPLES TO AN INDEPENDENT TESTING LABORATORY IN AUSTIN, TEXAS. YOU WERE INSTRUCTED NOT TO PROCEED UNTIL INFORMATION WAS RECEIVED ON THE RESULTS. TEST RESULTS WERE RECEIVED ON SEPTEMBER 22, 1959, AND WERE THEN EVALUATED. THE SAME DATE SEPTEMBER 22, 1959, YOU WERE NOTIFIED TO PROCEED WITH THE WORK. GSA FURTHER STATES THAT IT FOUND THAT THE PROJECT HAD BEEN DELAYED ONLY SIX DAYS AS A RESULT OF THE INVESTIGATION OF THE UNKNOWN SOIL CONDITION; THAT A CONTRACT CHANGE ORDER PROPOSAL FROM YOU WAS ACCEPTED, COVERING THE EXTRA COSTS INCURRED BY YOU AS A RESULT OF THE INVESTIGATION OF THE UNKNOWN SOIL CONDITION; AND THAT THE CONTRACT PERIOD WAS EXTENDED SIX DAYS TO COVER THE DELAY ATTRIBUTABLE TO THIS INVESTIGATION.

IN ANSWER TO THE CLAIM CONCERNING "3. SOLUTION TO THE REPLACEMENT OF THE 4-INCH C.I. DRAIN.' GSA REPORTS THAT WHILE YOU HAVE ALLEGED THAT A TWELVE -DAY DELAY WAS INCURRED WHILE AWAITING AN ANSWER TO ITS INQUIRY CONCERNING THE DRAINS, YOU HAD REDUCED YOUR REQUEST TO THE CONTRACTING OFFICER FOR AN EXTENSION OF TIME FROM TWELVE DAYS TO ONLY ONE DAY BECAUSE OF OVERLAP WITH THE ALLEGED DELAY DISCUSSED IN CLAIM 1 ABOVE; THAT IN ORDER TO OVERCOME YOUR PREVIOUS ADMISSION, YOU WOULD BE REQUIRED TO SUBMIT SOME EVIDENCE SHOWING THAT YOU ACTUALLY DID INCUR GREATER DELAY THAN PREVIOUSLY ADMITTED; THAT YOU HAVE FURNISHED THE GENERAL ACCOUNTING OFFICE NOTHING MORE THAN YOUR LETTER ASKING FOR CLARIFICATION, WHICH HAS NO VALUE BY ITSELF AS EVIDENCE OF DELAY; AND THAT GSA, FROM A REVIEW OF ITS OWN RECORDS ON THIS PROJECT WAS UNABLE TO DETERMINE THAT YOU HAD INCURRED ANY DELAY IN COMPLETION OF THE CONTRACT AS A RESULT OF THIS PARTICULAR INQUIRY.

IN ANSWER TO THE CLAIM CONCERNING "4. CORRECTION OF ELEVATIONS ON GROUND FLOOR SLABS AND BEAMS AT MAIN STREET.' GSA REPORTS THAT ON OCTOBER 2, 1959, YOU REQUESTED INFORMATION WITH RESPECT TO THE BEAMS UNDER THE SOLID SLAB AREAS AT THE FIRST FLOOR LEVEL ON THE MAIN STREET END OF THE BUILDING; THAT ON OCTOBER 14, THE ARCHITECT REPLIED, INFORMING YOU THAT SOME CHANGES IN ELEVATION WOULD BE MADE, BUT THAT THE CHANGES COULD NOT BE FIRMLY SETTLED UPON UNTIL INFORMATION HAD BEEN RECEIVED FROM THE CITY OF VICTORIA WITH RESPECT TO POSSIBLE REVISIONS IN THE CURB GRADES; THAT BY NOVEMBER 12, 1959, THE ARCHITECT HAD PREPARED REVISED DRAWINGS AND SUBMITTED THEM TO GSA FOR APPROVAL; THAT ON NOVEMBER 18, 1959, THE ARCHITECT WAS INFORMED BY TELEPHONE THAT THE DRAWINGS WERE APPROVED; THAT YOU DID NOT COMMENCE THE WORK IN QUESTION UNTIL NOVEMBER 23, 1959; THAT IT APPEARS FROM INFORMATION FURNISHED BY THE ARCHITECT THAT YOU COULD NOT HAVE STARTED THE WORK EARLIER THAN THE FIRST WEEK IN NOVEMBER AND THAT AN IRON WORKERS STRIKE FROM NOVEMBER 5 TO 25, 1959, WOULD HAVE PREVENTED YOU FROM COMPLETING THE BEAMS PRIOR TO THE LATTER PART OF NOVEMBER IN ANY EVENT. GSA FURTHER REPORTS THAT A YEAR AND A HALF LATER, YOU ASKED FOR A CHANGE ORDER COVERING THE EXTRA COSTS INCURRED AS A RESULT OF THIS CHANGE; THE FULL AMOUNT OF YOUR PROPOSAL WAS ULTIMATELY APPROVED AND ACCEPTED; THAT YOU ALSO SOUGHT AN EXTENSION OF CONTRACT TIME OF 50 DAYS (SUBSEQUENTLY INCREASED TO 53 1/2 DAYS) FOR DELAYS ARISING FROM THIS CHANGE; BUT THAT TAKING ALL THE ABOVE-RECITED CIRCUMSTANCES INTO CONSIDERATION AS WELL AS THE FACT THAT CONSTRUCTION WAS NEVER STOPPED FOR LACK OF THE REVISED DRAWINGS, GSA FOUND THAT THE PROJECT HAD BEEN DELAYED BY ONLY 17 DAYS. IN CONNECTION THEREWITH GSA STATES THAT IT WILL BE SEEN THAT THE TOTAL PERIOD OF DELAY BETWEEN THE OCTOBER 2, 1959, REQUEST AND THE NOVEMBER 18, 1959, APPROVAL OF REVISED DRAWINGS WAS ATTRIBUTABLE IN PART TO THE NECESSITY OF FIRST SECURING THE CITY'S DECISION AS TO CURB GRADES, FOLLOWED BY THE PREPARATION OF DRAWINGS AND SECURING APPROVAL THEREOF; THAT THE FIRST CAUSE OF DELAY WAS DUE, NOT TO ANY ACTION ON THE PART OF GSA, BUT TO A CAUSE OUTSIDE GSA'S CONTROL; THAT THE SECOND PERIOD OF DELAY, WHICH CAN BE ATTRIBUTED TO THE GOVERNMENT, IS NOT EXCESSIVE IN GSA'S OPINION, THAT WHILE GSA BELIEVES YOU WERE DELAYED TO THE EXTENT OF 17 DAYS AS A RESULT OF THIS CHANGE, IT FEELS THAT ONLY A PORTION THEREOF WAS CAUSED BY THE GOVERNMENT; AND THAT THIS PORTION WAS NOT EXCESSIVE FOR PREPARATION AND APPROVAL OF PLANS AND THAT IT COULD NOT BE CONSIDERED SO UNREASONABLE AS TO CONSTITUTE A BREACH OF CONTRACT.

IN ANSWER TO THE CLAIM CONCERNING "5. INFORMATION ON TRAP DOOR IN CEILING.' GSA REPORTS THAT IT IS ACKNOWLEDGED THAT APPROXIMATELY A YEAR ELAPSED FROM THE TIME YOU FIRST MADE INQUIRY AND THE TIME A CHANGE ORDER PROPOSAL WAS ACCEPTED, BUT THAT GSA WAS UNABLE TO FIND THAT THE PROJECT COMPLETION ITSELF HAD BEEN DELAYED IN ANY WAY DURING THIS INTERVAL; THAT SINCE NONE OF THE SUPPORTING DOCUMENTS ATTACHED TO YOUR LETTER TO OUR OFFICE CONTAIN ANY EVIDENCE THAT THE PROJECT WAS, IN FACT, DELAYED BY THIS MATTER AND SINCE A CLAIM FOR DAMAGES ARISES ONLY AFTER A CLAIMANT HAS FIRST ESTABLISHED THAT A DELAY WAS INCURRED, GSA FINDS NO MERIT IN THIS PORTION OF THE CLAIM. GSA CONTINUES BY STATING THAT IT WOULD APPEAR THAT YOU ARE EQUATING A DELAY IN RECEIVING INFORMATION OR ACCEPTANCE OF A CHANGE ORDER WITH A DELAY IN ACTUAL PERFORMANCE OF THE PROJECT, AN EQUATION WHICH DOES NOT NECESSARILY EXIST AND, IN THIS CASE, ONE WHICH IS NOT PRESENT; AND THAT IT APPEARS OBVIOUS THIS MINOR CHANGE COULD NOT AND DID NOT HOLD UP CONTRACT PERFORMANCE BY 45 DAYS, AS YOU ALLEGE.

IN ANSWER TO THE CLAIM CONCERNING "6. WALL LEAK IN SUPPER FLOORS.' GSA STATES THAT WHILE YOU HAVE ALLEGED IN YOUR LETTER TO US THAT YOU WERE DELAYED 20 DAYS IN COMPLETING THE PROJECT AS A RESULT OF THE WATERPROOFING CHANGE ORDER, YOU HAD EARLIER REDUCED YOUR ALLEGATION OF DELAY TO ONLY 11 DAYS; THAT IF YOU BELIEVED YOU HAD BEEN DELAYED BY ONLY 11 DAYS (FOR WHICH A TIME EXTENSION WAS DULY GRANTED), YOU MUST NOW PRODUCE EVIDENCE TO SUPPORT AN ASSERTION THAT A LONGER DELAY WAS INCURRED; AND THAT FOR LACK OF SUCH EVIDENCE YOU HAVE FAILED TO SUBSTANTIATE THE CHARGE OF A 20-DAY DELAY. GSA ALSO STATES THAT THE ACTUAL DELAY WAS NOT DUE TO UNREASONABLY DILATORY ACTION ON THE PART OF THE GOVERNMENT; THAT THE ARCHITECT SUSPENDED THE WORK ON THIS PORTION OF THE PROJECT (NOT THE ENTIRE PROJECT) ON AUGUST 23, 1960, AND ON AUGUST 31, 1960, SUBMITTED TO YOU A DESCRIPTION OF THE AREA AND PROPOSED METHOD OF TREATMENT, TOGETHER WITH A REQUEST FOR A PROPOSAL FOR A CHANGE ORDER; THAT YOU DID NOT SUBMIT YOUR PROPOSAL UNTIL SEPTEMBER 12, 1960; THAT 3 DAYS LATER, THE PROPOSAL WAS ACCEPTED; THAT GSA FINDS NOTHING IN THIS SEQUENCE OF EVENTS CONSTITUTING UNNECESSARY OR UNREASONABLE DELAY ON THE PART OF THE GOVERNMENT; HALF OF WHICH IS ATTRIBUTABLE TO YOU; AND THAT IT, THEREFORE CANNOT BE CONSIDERED AS A BREACH OF THE CONTRACT BY THE GOVERNMENT.

AS YOU POINT OUT, CITING J. A. ROSS AND CO. V. UNITED STATES, 126 CT.CL. 323; JAMES STEWART AND CO., INC. V. UNITED STATES, 105 CT.CL. 284; NILS P. SEVERIN V. UNITED STATES, 101 CT.CL. 54; F. H. SILBERBLATT AND LASKER, INC. V. UNITED STATES, 101 CT.CL. 54; F. H. MCGRAW AND COMPANY V. UNITED STATES, 131 CT.CL. 501 IT IS WELL SETTLED THAT THE GOVERNMENT IS ALLOWED ONLY A REASONABLE TIME WITHIN WHICH TO MAKE PERMITTED CHANGES IN THE SPECIFICATIONS AND IS LIABLE FOR BREACH OF ITS CONTRACT IF IT UNREASONABLY DELAYS OR DISRUPTS CLAIMANT'S WORK. HOWEVER, IT IS EQUALLY WELL ESTABLISHED THAT WHILE A CONTRACTOR IS ENTITLED TO AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE FOR PERFORMING ADDITIONAL OR ALTERED WORK UNDER A CHANGE ORDER WHICH CHANGES THE CONTRACT DRAWINGS AND/OR SPECIFICATIONS, IN THE ABSENCE OF A "SUSPENSION OF WORK" CLAUSE, A CONTRACTOR MAY NOT BE PAID ADDITIONAL COMPENSATION TO COVER COSTS DUE TO REASONABLE DELAYS WHICH RESULT FROM A CHANGE ORDER OR ORDERS ISSUED UNDER THE "CHANGES" CLAUSE OR "CHANGED CONDITIONS" CLAUSE OF THE CONTRACT. UNITED STATES V. RICE, 317 U.S. 61; H. E. CROOK CO. V. UNITED STATES, 270 U.S. 4; AND CHOUTEAU V. UNITED STATES, 95 U.S. 61.

WHILE IT IS OUR POSITION THAT THE CLAIM SETTLEMENT JURISDICTION OF OUR OFFICE EXTENDS TO CLAIMS OF THE NATURE OF THOSE HERE ASSERTED, IT HAS BEEN OUR PRACTICE TO DECLINE TO SETTLE SUCH CLAIMS UNLESS BOTH THE GOVERNMENT'S LIABILITY AND THE AMOUNT OF THE DAMAGES RESULTING FROM THE GOVERNMENT'S WRONGFUL ACTS WERE ESTABLISHED WITH REASONABLE CERTAINTY. IN THIS INSTANCE THE STATEMENT OF GSA'S POSITION WITH RESPECT TO EACH OF THE SEVERAL BASES OF YOUR CLAIM INDICATES THAT THE OCCURRENCE OF UNREASONABLE DELAYS ATTRIBUTABLE TO THE GOVERNMENT, AND/OR RESULTING DAMAGE TO YOU, IS EMPHATICALLY DENIED AND MUST, AT BEST, BE CONSIDERED EXTREMELY DOUBTFUL. IN VIEW OF THE CONFLICTING ALLEGATIONS IN THE PRESENT RECORD WE CANNOT CONCLUDE THAT THE EVIDENCE BEFORE US IS SUFFICIENT TO CARRY THE BURDEN, WHICH IS UPON THE CONTRACTOR, TO ESTABLISH SUCH UNREASONABLE DELAY AS WOULD CONSTITUTE A BREACH OF THE GOVERNMENT'S OBLIGATIONS.

IN THE CIRCUMSTANCES WE MUST CONSIDER THE DELAY CLAIMS OF SUCH DOUBTFUL VALIDITY AS TO REQUIRE THEIR REJECTION BY THIS OFFICE, LEAVING YOU TO SEEK ANY REMEDY THEREFOR IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288; AND CHARLES V. UNITED STATES, 19 ID. 316.