B-161721, MAR. 25, 1969

B-161721: Mar 25, 1969

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THE RECORD FORWARDED WITH THE CLAIM INDICATES THAT THE CLAIM WAS ORIGINALLY FILED WIH THE CONTRACTING OFFICER. THE CLAIM WAS DENIED BY THE CONTRACTING OFFICER. "IT IS CONCEDED THAT A MAJORITY OF FLOORS WERE ASSIGNED NEW LAYOUTS OF BOTH MOVABLE METAL AND FIXED MASONRY PARTITIONS. THERE WERE ALSO CONTRACT MODIFICATIONS ISSUED TO ACCOMMODATE VARIOUS CONTRACT DEVIATIONS BY BOTH THE CONTRACTOR AND THE GOVERNMENT. THE CHANGES WERE NOTABLY LESS THAN IN SIMILAR CONTRACT CONSTRUCTION.'. THE GOVERNMENT MOVED TO DISMISS ON THE GROUND THAT THE CLAIM WAS BASED UPON BREACH OF CONTRACT AND IS THEREFORE OUTSIDE THE JURISDICTION OF THE BOARD. THIS ACTION WAS AGREED TO BY GOVERNMENT COUNSEL AFTER CONSULTATIONS WITH YOUR OFFICE CONCERNING THE POSSIBILITY OF SUCCESSFULLY NEGOTIATING A SATISFACTORY SETTLEMENT OF THE CLAIM.

B-161721, MAR. 25, 1969

TO MR. KUNZIG:

ON APRIL 11, 1967, YOUR GENERAL COUNSEL TRANSMITTED THE CLAIM OF THE BASIC CONSTRUCTION COMPANY FOR THREE MONTHS' DELAY DAMAGES AMOUNTING TO $96,996, RESULTING FROM ALLEGED GOVERNMENT-CAUSED DELAYS AMOUNTING TO BREACH OF CONTRACT IN CONNECTION WITH THE CONSTRUCTION OF THE FEDERAL OFFICE BUILDING, PITTSBURGH, PENNSYLVANIA, UNDER CONTRACT NO. GS-02B- 9509.

THE RECORD FORWARDED WITH THE CLAIM INDICATES THAT THE CLAIM WAS ORIGINALLY FILED WIH THE CONTRACTING OFFICER, AND ASKED FOR AN EQUITABLE ADJUSTMENT IN THE AMOUNT OF $286,958.44, REPRESENTING ACTUAL EXPENSES ATTRIBUTABLE TO DELAYED CHANGE ORDERS. THE CLAIM WAS DENIED BY THE CONTRACTING OFFICER, W. A. BOYD, CHIEF, DESIGN AND CONSTRUCTION DIVISION, REGION 2, BY A DECISION DATED AUGUST 11, 1965, WHICH COMMENTED IN PERTINENT PART ON THE MERITS OF THE CLAIM AS FOLLOWS:

"SUBJECT PROPOSALS CONSTITUTE A CLAIM IN THE GROSS AMOUNT OF $286,958.44, STATED TO REPRESENT ADDITIONAL COSTS DUE TO DELAYS IN RECEIVING FLOOR LAYOUT PLANS PLUS OTHER UNDEFINED CHANGES.

"IT IS CONCEDED THAT A MAJORITY OF FLOORS WERE ASSIGNED NEW LAYOUTS OF BOTH MOVABLE METAL AND FIXED MASONRY PARTITIONS. THERE WERE ALSO CONTRACT MODIFICATIONS ISSUED TO ACCOMMODATE VARIOUS CONTRACT DEVIATIONS BY BOTH THE CONTRACTOR AND THE GOVERNMENT. IN BOTH NUMBER AND AMOUNT, HOWEVER, THE CHANGES WERE NOTABLY LESS THAN IN SIMILAR CONTRACT CONSTRUCTION.'

THE CONTRACTOR THEN APPEALED TO THE GENERAL SERVICES BOARD OF CONTRACT APPEALS, CLAIMING ON THE BASIS OF CONSTRUCTIVE CHANGES RESULTING FROM DEFECTIVE SPECIFICATIONS AND DECELERATION FOR THE GOVERNMENT'S BENEFIT. THE GOVERNMENT MOVED TO DISMISS ON THE GROUND THAT THE CLAIM WAS BASED UPON BREACH OF CONTRACT AND IS THEREFORE OUTSIDE THE JURISDICTION OF THE BOARD, AND ON FEBRUARY 4, 1966, THE BOARD DENIED THE MOTION. AT A PREHEARING CONFERENCE ON MARCH 25, 1966, THE BOARD AGREED TO HOLD THE CONTRACTOR'S APPEAL IN ABEYANCE PENDING SETTLEMENT NEGOTIATIONS BETWEEN THE PARTIES. PURSUANT TO SUCH AGREEMENT, ON MARCH 31, 1966, THE CHIEF, DESIGN AND CONSTRUCTION AREA LBD, ADVISED THE CHIEF, DESIGN AND CONSTRUCTION DIVISION - 2PC, AS FOLLOWS:

"AT THE PREHEARING CONFERENCE HELD ON MARCH 25, 1966, THE BOARD OF CONTRACT APPEALS AGREED TO HOLD THE APPEAL IN ABEYANCE PENDING NEGOTIATIONS WITH THE APPELLANT TOWARD SETTLEMENT OF THE ISSUES IN DISPUTE. THIS ACTION WAS AGREED TO BY GOVERNMENT COUNSEL AFTER CONSULTATIONS WITH YOUR OFFICE CONCERNING THE POSSIBILITY OF SUCCESSFULLY NEGOTIATING A SATISFACTORY SETTLEMENT OF THE CLAIM.

"SINCE THE CLAIM APPEARS TO BE BASED ON A BREACH OF CONTRACT BY THE GOVERNMENT, THE CONTRACTOR SHOULD BE ADVISED THAT ANY PROPOSED SETTLEMENT MUST BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR APPROVAL PRIOR TO PAYMENT.

"IN THE EVENT YOUR OFFICE IS ABLE TO AGREE WITH THE CONTRACTOR ON THE AMOUNT OF A SATISFACTORY SETTLEMENT, A VOUCHER COVERING THE AMOUNT AGREED TO, AN ANALYSIS OF THE SETTLEMENT, AND A STATEMENT BY THE CONTRACTOR THAT THE AGREED AMOUNT IS ACCEPTABLE AS FULL AND FINAL SATISFACTION OF THE CLAIM, SHOULD BE SUBMITTED TO THIS OFFICE FOR TRANSMITTAL TO GAO.'

NEGOTIATIONS PURSUANT TO THE FOREGOING APPEAR TO BE SYNOPSIZED IN A SUMMARY OF BACKGROUND INFORMATION TRANSMITTED UNDER DATE OF MARCH 10, 1967, BY THE CHIEF, DESIGN AND CONSTRUCTION DIVISION - 2PC (WHO ALSO APPEARS TO BE THE SUCCESSOR TO THE CONTRACTING OFFICER) AS FOLLOWS:

"AS A RESULT OF CERTAIN AGREEMENTS REACHED AT A PREHEARING CONFERENCE, THE CHIEF, DESIGN AND CONSTRUCTION DIVISION, REGION NO. 2, WAS ADVISED BY MEMORANDUM DATED MARCH 31, 1966, IDENTIFIED AS EXHIBIT VI, TO ATTEMPT TO NEGOTIATE A SATISFACTORY SETTLEMENT WITH THE CONTRACTOR. THIS MEMORANDUM FURTHER ADVISED THAT IF A SATISFACTORY SETTLEMENT WAS REACHED, A VOUCHER COVERING THE AMOUNT AGREED TO, AND ANALYSIS OF THE SETTLEMENT, AND A STATEMENT BY THE CONTRACTOR THAT THE AGREED AMOUNT WAS ACCEPTABLE AS FULL AND FINAL SATISFACTION OF THE CLAIM, SHOULD BE SUBMITTED TO THE GSA CENTRAL OFFICE FOR TRANSMITTAL TO GAO.

AS A RESULT OF THE ABOVE MEMORANDUM SEVERAL MEETINGS WERE HELD WITH THE CONTRACTOR AND HIS SUBCONTRACTORS TO ATTEMPT TO REACH A MUTUALLY SATISFACTORY SETTLEMENT OF THE CLAIM IN THE AMOUNT OF $286,954.44. THIS AMOUNT WAS SUBSEQUENTLY REDUCED TO $272,521.57 BY THE CONTRACTOR'S LETTER DATED MAY 16, 1966, WHICH IS IDENTIFIED AS EXHIBIT VII.

ON AUGUST 31, 1966, THE CONTRACTING OFFICER CALLED BASIC CONSTRUCTION CO. (MR. J. T. SPRATLEY) AND REQUESTED CERTAIN INFORMATION, AS OUTLINED IN EXHIBIT VIII. THIS INFORMATION IS CONTAINED IN THE CONTRACTOR'S LETTER DATED SEPTEMBER 27, 1966, IDENTIFIED AS EXHIBIT IX.

ON OCTOBER 17, 1966, THE CONTRACTING OFFICER SUBMITTED HIS FINDINGS OF WHAT CONSTITUTED A FAIR AND REASONABLE SETTLEMENT FOR THE CONCURRENCE OF THE CONTRACTOR, BY LETTER WHICH IS IDENTIFIED AS EXHIBIT X. THE CONTRACTOR REPLIED TO THIS LETTER ON NOVEMBER 7, 1966, ADVISING THAT ONE OF HIS SUBCONTRACTORS FELT THE SETTLEMENT PROPOSED WAS UNFAIR. THIS LETTER IS IDENTIFIED AS EXHIBIT XI.

SUBSEQUENT DISCUSSIONS RESULTED IN THE CONTRACTOR'S LETTER DATED DECEMBER 12, 1966 WHICH CONTAINED ADDITIONAL INFORMATION PERTAINING TO THE SUBCONTRACTOR'S (COST BROS.) CLAIM, AND IS IDENTIFIED AS EXHIBIT XII. AFTER EVALUATING THIS INFORMATION, THE CONTRACTOR WAS ADVISED BY TELEPHONE THAT A NEW SETTLEMENT WOULD BE RECOMMENDED FOR COST BROS., IN THE AMOUNT OF $2,203. ON JANUARY 25, 1967, THE CONTRACTOR SENT A LETTER INDICATED THAT THE NEW TOTAL OF $96,996 WOULD BE ACCEPTED AS FULL AND FINAL SATISFACTION OF ITS CLAIM. THIS IS IDENTIFIED AS EXHIBIT XIII.

NOTE: IT WAS MUTUALLY AGREED THAT BASIC'S PROPOSAL NO. 121 (EXHIBIT III), WOULD NOT BE INCLUDED IN ARRIVING AT THE DOLLAR VALUE OF ADDITIONAL COSTS DUE TO GOVERNMENT CAUSED DELAYS.'

AS INDICATED BY THE RECORDS FORWARDED WITH THE CLAIM, SECTION 49 OF THE CONTRACT SPECIFICATIONS REQUIRED THE CONTRACTOR TO PROVIDE AND INSTALL MOVABLE METAL PARTITIONS FOR SUBDIVIDING OFFICE AREAS TO BE LOCATED IN ACCORD WITH TENANT LAYOUT DRAWINGS WHICH WOULD BE FURNISHED BY THE GOVERNMENT DURING CONSTRUCTION.

WHILE THE CONTRACTOR NOTIFIED THE GOVERNMENT THAT THE PARTITION LAYOUT DRAWINGS WOULD BE REQUIRED BY APRIL 1, 1963, IF DELAY WAS TO BE AVOIDED, IT WAS NOT UNTIL JULY 22, 1963, THAT THE CONTRACTOR RECEIVED THE DRAWINGS FOR THE FIRST THREE FLOORS, AND IT WAS MARCH 23, 1964, BEFORE THE CONTRACTOR RECEIVED THE LAYOUT DRAWINGS FOR THE LAST TWO FLOORS.

THE CONTRACTOR'S CLAIM IS CONTAINED IN FOUR SEPARATE LETTERS DATED JUNE 10, 1964, JANUARY 20, 1965, JANUARY 21, 1965, AND JUNE 18, 1965. IN THE CONTRACTOR'S JUNE 1964 LETTER, WHICH WAS PREPARED NEARLY THREE MONTHS AFTER ALL OF THE TENANT LAYOUT DRAWINGS HAD BEEN FURNISHED, THE CONTRACTOR CLAIMED FOUR MONTHS' DELAY RESULTING FROM THE GOVERNMENT'S DELAY IN ISSUING THE LAYOUT DRAWINGS. HE THEREFORE REQUESTED A FOUR MONTH EXTENSION OF THE CONTRACT COMPLETION DATE TO OCTOBER 12, 1964, AND HE CLAIMED $177,284 AS ADDITIONAL COSTS RESULTING FROM SUCH DELAY.

WITH HIS LETTER OF JANUARY 20, 1965, THE CONTRACTOR SUBMITTED AN EXHIBIT WHICH INCLUDED BOTH THE CHANGE ORDERS UNDER WHICH LAYOUT DRAWINGS HAD BEEN FURNISHED UP TO MARCH 23, 1964, AND ELEVEN ADDITIONAL CHANGE ORDERS, COVERING VARIOUS TYPES OF CHANGES, WHICH WERE ISSUED AFTER MARCH 23, 1964. APPARENTLY SINCE NO ACTION HAD BEEN TAKEN ON HIS REQUEST OF JUNE 10, 1964, FOR AN EXTENSION, THE CONTRACTOR'S LETTER OF JANUARY 20 ASKED AN EXTENSION OF THE CONTRACT COMPLETION DATE TO FEBRUARY 12, 1965,"BASED UPON MAJOR CHANGES AS MADE TO THE VARIOUS FLOORS PER THE ATTACHED EXHIBIT.'

BY HIS LETTER OF JANUARY 21, 1965, THE CONTRACTOR REFERRED TO HIS LETTER OF JANUARY 20, 1965, AGAIN REQUESTED THAT THE CONTRACT COMPLETION DATE BE EXTENDED TO FEBRUARY 12, 1965, AND SUBMITTED SUPPLEMENTARY PROPOSAL FOR DELAY COSTS IN THE AMOUNT OF $99,562.45 COVERING THE PERIOD FROM OCTOBER 12, 1964, THROUGH FEBRUARY 12, 1965.

BY HIS LETTER OF JUNE 18, 1965, THE CONTRACTOR REQUESTED AN ADDITIONAL FOUR MONTHS' DELAY COSTS IN THE AMOUNT OF $10,111.99 COVERING THE PERIOD FEBRUARY 12, 1965, TO JUNE 12, 1965. AS INDICATED IN THE FINDINGS OF THE SUCCESSOR CONTRACTING OFFICER QUOTED ABOVE, THIS AMOUNT (BASIC'S PROPOSAL NO. 121 EXHIBIT III) HAS BEEN EXCLUDED FROM CONSIDERATION IN THE SETTLEMENT AGREEMENT.

AS ORIGINALLY SUBMITTED TO THIS OFFICE ON APRIL 11, 1967, BASIC'S CLAIM, AND YOUR GENERAL COUNSEL'S CONCURRENCE THEREIN, WAS BASED UPON A CONCLUSION THAT THE FAILURE OF THE GOVERNMENT TO FURNISH ALL OF THE REQUIRED PARTITION LAYOUT DRAWINGS UNTIL MARCH 23, 1964, UNREASONABLY DELAYED COMPLETION OF THE CONTRACT FOR A FOUR-MONTH PERIOD FROM JUNE 12, 1964, TO OCTOBER 11, 1964, WHICH HAD BEEN REDUCED TO A THREE-MONTH PERIOD BY NEGOTIATION FOR SETTLEMENT PURPOSES. IN RESPONSE TO OUR ORAL REQUEST FOR CLARIFICATION, ON JULY 24, 1967, YOUR GENERAL COUNSEL'S OFFICE ADVISED US THAT THE TOTAL AMOUNT OF UNREASONABLE DELAY IN FAILING TO FURNISH THESE DRAWINGS UNTIL MARCH 23, 1964, WAS ACTUALLY SEVEN MONTHS RATHER THAN THE THREE MONTHS PREVIOUSLY REPORTED, AND THEREFORE, DELAY DAMAGES WERE ALLOWED FOR THE PERIOD FROM JUNE 12, 1964, TO FEBRUARY 12, 1965, LESS OVERHEAD COSTS INCURRED DURING A ONE MONTH FLOOD PERIOD.

IN RESPONSE TO SUBSEQUENT CORRESPONDENCE WITH YOUR ADMINISTRATION ON APRIL 19, 1968, YOUR GENERAL COUNSEL ADVISED US THAT CONTRACT CHANGE NO. 121, DATED AUGUST 2, 1965, EXTENDED PERFORMANCE TIME UNDER THE CONTRACT TO DECEMBER 31, 1964, BECAUSE OF AUTHORIZED CHANGES TO THE CONTRACT, BUT THAT NO FORMAL EXTENSION OF THE CONTRACT BEYOND THAT DATE HAD BEEN MADE. ALSO STATED THAT THE AUTHORIZED CHANGES FOR WHICH A TIME EXTENSION WAS GRANTED WERE THOSE RELATED TO THE DELAYED ISSUANCE OF TENANT LAYOUT DRAWINGS UNTIL MARCH 1964, AND THAT BREACH OF CONTRACT BY THE GOVERNMENT WAS CO-EXTENSIVE WITH THIS PERIOD. TWELVE ADDITIONAL DAYS OF UNREASONABLE DELAY WERE ATTRIBUTED TO THE DELAY IN FURNISHING THESE DRAWINGS AND WERE THEREFORE INCLUDED IN THE SETTLEMENT OF THE CLAIM BY THE CONTRACTING OFFICER. THIS ACTION WAS CONSIDERED AN INFERENTIAL EXTENSION OF THE CONTRACT COMPLETION DATE TO THE TIME OF SUBSTANTIAL COMPLETION IN FEBRUARY 1965. SINCE WE STILL LACKED AN ANALYSIS OF THE CLAIM BY THE CONTRACTING OFFICER, OR OTHER PERSONNEL WHO PARTICIPATED IN SETTLEMENT AT THE REGIONAL LEVEL, WE REQUESTED AN EXPLANATION BY REGIONAL PERSONNEL AS TO WHETHER THE DELAYS ALLEGED BY THE CONTRACTOR WITH RESPECT TO PROPOSALS 63, 68, 83, 87, 93, 100, 111, 103, 108 AND 110, REFERENCED IN HIS JANUARY 1965 LETTERS, HAD EFFECTED THE PEROD OF DELAY FOR WHICH DAMAGES WERE ALLOWED.

ON AUGUST 26, 1968, WE RECEIVED A MEMORANDUM PREPARED BY PAUL F. CIRILLO, REGIONAL COUNSEL (GSA), REGION 2, ON AUGUST 22, SETTING FORTH AN EXPLANATION OF THIS MATTER AS FOLLOWS:

"REFERENCE IS MADE TO THE CONTRACTOR'S LETTER OF JANUARY 20, 1965 REQUESTING AN EXTENSION OF THE CONTRACT COMPLETION DATE OF FEBRUARY 12, 1965 AND ITS LETTER OF JANUARY 21, 1965 SETTING FORTH COSTS EXPENDED BY REASON OF THE DELAY:

"THE CHANGES REFERRED TO IN THE LETTER OF JANUARY 20, 1965 WHICH WERE NOT INCLUDED INT HE ORIGINAL FOUR (4) MONTH PERIOD ARE IDENTIFIED AS PROPOSALS NUMBERED 63, 68, 83, 87, 93, 100, 111, 103, 108 AND 110 ON THE EXHIBIT ATTACHED. THESE CHANGES CONSTITUTE THE BASIS OF THE CLAIM FOR THE TIME EXTENSIONS FROM OCTOBER 12, 1964 TO FEBRUARY 12, 1965.

"THE BASIS FOR NEGOTIATIONS WITH THE CONTRACTOR TO REIMBURSE HIM FOR THIS DELAY WAS PREMISED ON THE FACT THAT THE DELAY WAS UNREASONABLE AND CONSTITUTED A BREACH OF CONTRACT.'

SINCE MR. CIRILLO CLEARLY IMPLED THAT THE REFERENCED PROPOSALS CONSTITUTED THE BASIS FOR PAYMENT OF DELAY DAMAGES FROM OCTOBER 12, 1964, THROUGH FEBRUARY 12, 1965, AND AS WE WERE NOT SATISFIED THAT HIS EXPLANATION ESTABLISHED THAT THIS DELAY WAS CAUSED BY GOVERNMENTAL ACTS SO UNREASONABLE AS TO CONSTITUTE A BREACH OF CONTRACT, IN A LETTER, DATED DECEMBER 6, 1968, WE REQUESTED THAT THE CONTRACTING OFFICER WHO PARTICIPATED IN SETTLEMENT PROCEEDINGS FURNISH US WITH DETAILED FINDINGS TO SHOW WHY THE PROMULGATION OF THESE PROPOSALS SHOULD BE CONSIDERED SO IMPROPER AS TO CONSTITUTE A BREACH OF CONTRACT.

ON JANUARY 24, 1969, WE WERE ADVISED BY YOUR GENERAL COUNSEL THATMR. CIRILLO'S MEMORANDUM, QUOTED ABOVE, DID NOT ALLOCATE THE DELAY PERIOD IN THE MANNER WE SUGGESTED, BUT THAT THE PHRASE ,DELAY IN FURNISHING LAYOUT DRAWINGS" AS USED IN THE ORIGINAL SUBMISSION OF THE CLAIM ALSO REFERRED TO REVISIONS OF TENANT DRAWINGS, WHICH WERE PRESUMABLY EFFECTED AFTER MARCH 1964. WHETHER THESE REVISIONS WERE TO BE EQUATED WITH THE PROPOSALS REFERENCED IN MR. CIRILLO'S MEMORANDUM WAS NOT STATED. IN ANY EVENT IT IS CLEAR THAT THE SETTLEMENT WAS BASED ON DELAY OTHER THAN THAT OF THE FAILURE OF THE GOVERNMENT TO DELIVER THE ORIGINAL TENANT LAYOUT DRAWINGS UNTIL MARCH 1964 AND THAT WITH RESPECT TO THIS DELAY OUR OFFICE HAS NEVER BEEN FURNISHED AN ANALYSIS SETTING FORTH GOVERNMENTAL ACTS SO UNREASONABLE AS TO CONSTITUTE A BREACH OF CONTRACT. FROM THE FOREGOING IT WOULD APPEAR TO BE THE POSITION OF YOUR ADMINISTRATION THAT CHANGE NO. 121 EXTENDED THE COMPLETION DATE OF THE CONTRACT FROM JUNE 12, 1964, TO DECEMBER 31, 1964; THAT THE ACTION OF THE SUCCESSOR CONTRACTING OFFICER IN NEGOTIATING A SETTLEMENT WHICH INCLUDED DELAY DAMAGES FOR THE PERIOD JANUARY 1 THROUGH FEBRUARY 12, 1965, OPERATED AS AN INFERENTIAL EXTENSION OF THE CONTRACT COMPLETION DATE TO FEBRUARY 12, 1965; AND THAT THE ACTIONS OF THE CONTRACTING OFFICER AND HIS SUCCESSOR IN THUS EXTENDING THE CONTRACT COMPLETION DATE, AND IN NEGOTIATING A SETTLEMENT WHICH INCLUDED DELAY DAMAGES FOR THE PERIOD JUNE 12, 1964, THROUGH FEBRUARY 12, 1965 (LESS ONE MONTH DELAY ATTRIBUTABLE TO FLOODING), MUST BE CONSTRUED TO BE BASED UPON, AND TO INCLUDE, A DETERMINATION BY THE CONTRACTING OFFICER THAT THE CONTRACTOR WAS DELAYED FOR SEVEN MONTHS AS A RESULT OF THE GOVERNMENT'S UNREASONABLE DELAY IN FURNISHING ORIGINAL PARTITION LAYOUT DRAWINGS AND IN SUBSEQUENTLY ISSUING CERTAIN ADDITIONAL CHANGE ORDERS.

FOR THE FOLLOWING REASONS, WE ARE UNABLE TO CONCUR IN YOUR ADMINISTRATION'S POSITION:

1. CHANGE 121, WHICH WAS ISSUED BY THE ORIGINAL CONTRACTING OFFICER, DOES NOT PURPORT TO EITHER EXTEND THE CONTRACT COMPLETION DATE OR TO ACKNOWLEDGE ANY UNREASONABLE DELAY ON THE PART OF THE GOVERNMENT IN ISSUING THE CHANGE ORDERS WHICH PREVENTED THE CONTRACTOR FROM COMPLETING THE WORK PRIOR TO DECEMBER 31, 1964. IN THIS CONNECTION, SEE COMMERCE INTERNATIONAL COMPANY, INC. V UNITED STATES, 167 CT.CL. 529, 539 (1964), WHEREIN THE COURT, IN HOLDING THAT AN EXTENSION OF THE TIME FOR PERFORMANCE IS NOT TANTAMOUNT TO A FINDING OF BREACH OF CONTRACT FOR THE SAME PERIOD OF TIME, STATED AS FOLLOWS:

"ON THIS VIEW, IT IS NOT SIGNIFICANTLY HELPFUL TO PLAINTIFF THAT THE ORIGINAL SCHEDULE FOR THE CONTRACT WAS CHANGED, SO AS TO PROLONG PLAINTIFF'S TIME, BECAUSE OF DELAYS IN RECEIVING PARTS (AND DRAWINGS). THE CIRCUMSTANCES, THESE EXTENSIONS COULD WELL MEAN THAT THE PARTIES' HOPES HAD OUTRUN REALITY, RATHER THAN THAT THE DEFENDANT HAD ACTED IMPROPERLY. RECOGNIZING THE DELAYS AS THE CAUSE OF THE EXTENSIONS WOULD FREE THE PLAINTIFF OF THE THREAT OF LIQUIDATED DAMAGES, BUT IT WOULD NOT, IN ITSELF, PROVE THAT THE DELAY WAS WRONGFUL. CF. ROBERT E. LEE AND CO. V UNITED STATES" 164 CT.CL. 365, 368-70 (1964) * * *.'

2. THE RECORD CONTAINS NO INDICATION THAT THE ORIGINAL CONTRACTING OFFICER CONSIDERED THE GOVERNMENT'S DELAYS TO BE UNREASONABLE. CONVERSELY THE CONTRACTING OFFICER'S AUGUST 11, 1965, FINDING THAT "IN BOTH NUMBER AND AMOUNT, HOWEVER, THE CHANGES WERE NOTABLY LESS THAN IN SIMILAR CONTRACT CONSTRUCTION," WOULD APPEAR TO INDICATE THAT HE DID NOT BELIEVE THE GOVERNMENT'S DELAY WAS UNREASONABLE OR HAD UNDULY DELAYED PERFORMANCE BY THE CONTRACTOR. IN THIS CONNECTION, IT MUST ALSO BE NOTED THAT THE GOVERNMENT DID DELIVER THE TENANT LAYOUT DRAWINGS FOR FLOORS 3, 5 AND 6 ON JULY 22, 1963, WHICH IS LESS THAN 4 MONTHS FROM THEIR DUE DATE, AND IT IS NOT APPARENT WHY THIS ENTIRE DELAY PERIOD SHOULD BE CONSIDERED UNREASONABLE; OR HOW THE CONTRACTOR WAS DAMAGED BY FAILURE TO RECEIVE ALL LAYOUT DRAWINGS ON JULY 22, 1963; OR WHY AND TO WHAT EXTENT THE DELAY IN MAKING OTHER CHANGES SUBSEQUENT TO MARCH 1964 WAS UNREASONABLE; AND HOW AND TO WHAT EXTENT THE CONTRACTOR WAS DELAYED IN COMPLETING THE CONTRACT BY ANY SUCH UNREASONABLE DELAY ON THE GOVERNMENT'S PART.

3.THE RECORD CONTAINS NOTHING TO ESTABLISH THAT THE SUCCESSOR CONTRACTING OFFICER CONSIDERED THE GOVERNMENT'S DELAY UNREASONABLE OR, IN THE EVENT HE DID CONSIDER SUCH DELAY UNREASONABLE, THE BASIS FOR SUCH BELIEF, THE REASONS HE BELIEVES THE CONTRACTOR WAS DELAYED BY THE GOVERNMENT'S UNREASONABLE DELAY, AND THE EXTENT OF SUCH DELAY. CONVERSELY, IT WOULD APPEAR FROM THE RECORD THAT THE DETERMINATION OF UNREASONABLE DELAY (BREACH) WAS MADE BY THE CHIEF, DESIGN AND CONSTRUCTION AREA - LBD; THAT THE CONTRACTING OFFICER WAS EITHER REQUESTED OR DIRECTED TO ATTEMPT TO NEGOTIATE A SETTLEMENT OF THE CONTRACTOR'S CLAIM ON THE ASSUMPTION THE GOVERNMENT HAD BREACHED ITS ONTRACT; AND THAT THE NEGOTIATIONS WERE CONDUCTED BY THE SUCCESSOR CONTRACTING OFFICER, AND THE SETTLEMENT AGREEMENT REACHED WITH THE CONTRACTOR, WITHOUT PROPER FINDINGS AND DETERMINATION BY THE SUCCESSOR CONTRACTING OFFICER THAT THE GOVERNMENT'S DELAY WAS UNREASONABLE AND THE EXTENT OF DELAY AND DAMAGE RESULTING TO THE CONTRACTOR FROM SUCH UNREASONABLE DELAY.

IN VIEW OF THE FOREGOING, IT IS OUR OPINION THAT THE INSTANT CLAIM IS FOR ALLOWANCE ONLY IF A DETAILED STATEMENT OF THE CIRCUMSTANCES SURROUNDING THE DELAY INCURRED IN FURNISHING ORIGINAL CHANGES AND SUBSEQUENT REVISIONS THERETO CLEARLY INDICATES THAT THE GOVERNMENT BREACHED ITS CONTRACTUAL OBLIGATION, THE EXTENT OF SUCH BREACH, WHY SUCH BREACH DELAYED THE CONTRACTOR, AND THE EXTENT OF SUCH DELAY. IN THIS CONNECTION, AND ESPECIALLY IN VIEW OF THE CONTRACTING OFFICER'S STATEMENT OF AUGUST 11, 1965, QUOTED ABOVE, IT WOULD APPEAR TO BE BOTH APPROPRIATE AND NECESSARY THAT AN ANALYSIS BE PREPARED BY, OR INCLUDE THE COMMENTS OF, THE CONTRACTING OFFICER OR HIS SUCCESSOR ON SUCH FACTUAL QUESTIONS AS THE REASONS FOR THE DELAY AND THE EXTENT OF THE DELAY, AS WELL AS HIS OPINION AS TO WHETHER THE DELAY SHOULD BE CONSIDERED REASONABLE OR UNREASONABLE AND, IN THE LATTER EVENT, THE EXTENT TO WHICH THE DELAY MUST BE CONSIDERED UNREASONABLE.

SINCE THE PRESENT RECORD DOES NOT CONTAIN SUCH EVIDENCE, OR ANY OTHER EVIDENCE WHICH, IN OUR OPINION, IS ADEQUATE TO SUPPORT A CONCLUSION THAT THE CONTRACT HAS BEEN BREACHED BY THE GOVERNMENT AND THAT THE CONTRACTOR HAS BEEN DAMAGED IN THE CLAIMED AMOUNT BY SUCH BREACH, WE ARE UNABLE TO CONCUR IN THE SETTLEMENT PROPOSED BY YOUR ADMINISTRATION, AND THE CONTRACTOR'S CLAIM MUST THEREFORE BE DENIED.