B-162368, SEP. 21, 1967

B-162368: Sep 21, 1967

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DUE TO FAILURE TO CLARIFY SPECIFICATIONS AND WHETHER CONTRACTOR WAS ENTITLED TO EXTENSION ARE DISPUTES FOR DETERMINATION BY THE CONTRACTING OFFICER AND THEREFORE THE CASE IS RETURNED FOR SUCH DETERMINATION. THE CLAIMANT ALSO IS REQUESTING REMISSION OF LIQUIDATED DAMAGES ASSESSED BY THE CONTRACTING OFFICER IN AN UNKNOWN AMOUNT. THE RECORD BEFORE US INDICATES THAT UNDER THE TERMS OF THE CONTRACT THE CLAIMANT WAS TO CONSTRUCT A PREFABRICATED METAL AIRCRAFT SYSTEMS TRAINING BUILDING AT THE MARINE CORPS AUXILIARY LANDING FIELD. ARTICLE NO. 7.2.3.2 OF THE CONTRACT SPECIFICATIONS EVIDENTLY PROVIDED THAT THE BUILDING PLANS WERE TO BE SUPPLIED BY THE CONTRACTOR OR ITS SUBCONTRACTOR. THE SELECTED SUBCONTRACTOR SUBMITTED A SET OF SHOP DRAWINGS WHICH WAS REJECTED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE MINIMUM NEEDS OF THE CONTRACTING AGENCY WERE NOT REFLECTED THEREIN.

B-162368, SEP. 21, 1967

CONTRACTS - DISPUTES - ADMINISTRATIVE FINDINGS DECISION TO SECY. OF THE NAVY CONCERNING CLAIM BY ACCENT CONSTRUCTION CORP. AND HARRY B. DEAN (JOINT VENTURE) FOR SUM FOR DELAY BY GOVT. AND REMISSION OF LIQUIDATED DAMAGES UNDER CONSTRUCTION CONTRACT FOR PREFABRICATED METAL AIRCRAFT SYSTEMS TRAINING BUILDING AT CAMP PENDLETON. SINCE RECORD BEFORE COMP. GEN. CONCERNING ALLEGATION OF DELAY BY GOVT. DUE TO FAILURE TO CLARIFY SPECIFICATIONS AND WHETHER CONTRACTOR WAS ENTITLED TO EXTENSION ARE DISPUTES FOR DETERMINATION BY THE CONTRACTING OFFICER AND THEREFORE THE CASE IS RETURNED FOR SUCH DETERMINATION.

TO MR. SECRETARY:

ON AUGUST 10, 1967, THE HONORABLE BOB WILSON, MEMBER OF CONGRESS, FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT, THE ENCLOSED CLAIM BY THE ACCENT CONSTRUCTION CORPORATION AND HARRY B. DEAN (JOINT VENTURE) FOR $25,243.76, REPRESENTING A SUM ALLEGEDLY DUE AND OWING AS THE RESULT OF A DELAY CAUSED BY THE GOVERNMENT UNDER CONSTRUCTION CONTRACT NO. NBY- 60175, ISSUED BY THE NAVAL FACILITIES ENGINEERING COMMAND, SOUTHWEST DIVISION. THE CLAIMANT ALSO IS REQUESTING REMISSION OF LIQUIDATED DAMAGES ASSESSED BY THE CONTRACTING OFFICER IN AN UNKNOWN AMOUNT.

THE RECORD BEFORE US INDICATES THAT UNDER THE TERMS OF THE CONTRACT THE CLAIMANT WAS TO CONSTRUCT A PREFABRICATED METAL AIRCRAFT SYSTEMS TRAINING BUILDING AT THE MARINE CORPS AUXILIARY LANDING FIELD, CAMP PENDLETON, CALIFORNIA. ARTICLE NO. 7.2.3.2 OF THE CONTRACT SPECIFICATIONS EVIDENTLY PROVIDED THAT THE BUILDING PLANS WERE TO BE SUPPLIED BY THE CONTRACTOR OR ITS SUBCONTRACTOR, SUBJECT TO THE APPROVAL OF THE CONTRACTING OFFICER. ACCORDANCE THEREWITH, THE SELECTED SUBCONTRACTOR SUBMITTED A SET OF SHOP DRAWINGS WHICH WAS REJECTED BY THE CONTRACTING OFFICER ON THE BASIS THAT THE MINIMUM NEEDS OF THE CONTRACTING AGENCY WERE NOT REFLECTED THEREIN. THE CLAIMANT THEREAFTER ALLEGED THAT ARTICLE NO. 7.2.3.2 WAS VAGUE, AND IN THE ABSENCE OF AN INTERPRETATION THEREOF BY THE CONTRACTING AGENCY, THAT THERE WAS NO WAY OF DETERMINING WHAT WAS REQUIRED UNDER THE TERMS OF THE CONTRACT.

THE CONTRACTING OFFICER REFUSED TO FURTHER CLARIFY THE CITED SPECIFICATION ON THE GROUNDS THAT IT SATISFACTORILY OUTLINED THE CONTRACTING AGENCY'S REQUIREMENT FROM A PERFORMANCE STANDPOINT, AND THAT THE ONUS WAS UPON THE CONTRACTOR (OR SUBCONTRACTOR) TO ADAPT ITS PRODUCT TO COMPLY WITH ALL OF THE TERMS OF THE CONTRACT.

THE SUBCONTRACTOR SUBSEQUENTLY SUBMITTED TWO MORE SETS OF SHOP DRAWINGS WHICH WERE LIKEWISE DETERMINED BY THE CONTRACTING OFFICER TO BE UNACCEPTABLE. THE FOURTH SET OF DRAWINGS WAS ACCEPTED BY THE CONTRACTING OFFICER; HOWEVER, BY THAT TIME THE CONTRACTOR WAS SUBSTANTIALLY DELINQUENT IN PERFORMANCE OF THE CONTRACT. THEREAFTER, AT AN UNDETERMINED DATE, THE CONTRACTING OFFICER ASSESSED LIQUIDATED DAMAGES AT THE RATE OF $85.00 A DAY BECAUSE OF THE CONTRACTOR'S FAILURE TO COMPLETE THE CONSTRUCTION OF THE BUILDING WITHIN THE TIME PERIOD SPECIFIED IN THE CONTRACT ON THE BASIS THAT DELAYS INCIDENT TO THE FURNISHING OF INCOMPLETE AND/OR DISAPPROVED SHOP DRAWINGS WOULD NOT JUSTIFY AND EXTENSION OF TIME UNDER THE CONTRACT.

DUE TO THE DELAY IN PERFORMANCE WHICH THE CONTRACTOR ATTRIBUTES SOLELY TO THE CONTRACTING OFFICER'S REFUSAL TO CLARIFY ARTICLE NO. 7.2.3.2, UNANTICIPATED EXPENSES WERE ALLEGEDLY INCURRED WHICH COMPRISE THE BASIS FOR THE INSTANT CLAIM. IN THIS REGARD, IT SHOULD BE NOTED THAT THE CLAIM INCLUDES THE AMOUNT OF $18,320,REPRESENTING ANTICIPATED OVERHEAD AND PROFIT.

BY LETTER DATED JULY 11, 1967, THE ACQUISITION DEPARTMENT, NAVAL FACILITIES ENGINEERING COMMAND, SOUTHWEST DIVISION, DENIED THE CLAIMANT'S REQUEST FOR AN EXTENSION OF THE CONTRACT TIME, AND PAYMENT OF ALLEGED DAMAGES ON THE BASIS THAT DELAY IN PERFORMANCE WAS ENTIRELY THE FAULT OF THE CONTRACTOR. ADDITIONALLY, IN REGARD TO THE CLAIMANT'S ALLEGATION THAT THE CONTRACTING OFFICER HINDERED THE PERFORMANCE OF THE CONTRACT BY HIS UNREASONABLE REFUSAL TO INTERPRET THE SPECIFICATION, IT WAS STATED THAT ASSISTANCE WAS, IN FACT, GIVEN TO THE SUBCONTRACTOR, BUT NOT TO THE EXTENT OF INFRINGING UPON THE RESPONSIBILITIES AND DUTIES OF THE CONTRACTOR.

FROM THE INFORMATION CONTAINED IN THE FILE ACCOMPANYING THE CLAIM, IT APPEARS THAT THERE IS, AT THE LEAST, A DISPUTE WHETHER THE CONTRACTOR WAS ENTITLED TO AN EXTENSION OF TIME UNDER THE CONTRACT AND WHETHER THE ALLEGED DELAYS BY THE GOVERNMENT WERE FOR ADMINISTRATIVE CONSIDERATION UNDER THE TERMS OF THE CONTRACT. 44 COMP. GEN. 353. SEE ALSO, B-140792, NOVEMBER 10, 1959, WHERE WE STATED AS FOLLOWS:

"WHERE, AS IN THIS INSTANCE, A CONTRACT PROVIDES FOR A DECISION WITH RESPECT TO SPECIFIED MATTERS BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH DECISION MADE BY THE DESIGNATED OFFICIAL. SEE UNITED STATES V. NORTH AMERICAN COMMERCIAL CO.,74 F. 145; PHOENIX BRIDGE CO. V. UNITED STATES, 85 C. CLS. 603, 629; SAMUEL PLATO V. UNITED STATES, 86 C. CLS. 665, 667. FURTHER, WHERE AS HERE THE CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES AS TO FACT ARE TO BE SETTLED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM MATERIALLY RELEVANT TO A FACTUAL QUESTION FOR DETERMINATION PURSUANT TO THE PROCEDURE IS COGNIZABLE EITHER BY THE COURTS OR BY OUR OFFICE. UNITED STATES V. JOSEPH A. HOLPUCH CO., 328 U.S. 234; UNITED STATES V. BLAIR, 321 U.S. .730, UNITED STATES V. CALLAHAN WALKER CONST. CO., 317 U.S. 56; B-98784, NOVEMBER 28, 1950; B- 122849, MARCH 21, 1955.'

WHILE THE RECORD BEFORE US INDICATES THAT FINDINGS WITH RESPECT TO THE CAUSES OF DELAY WERE COMMUNICATED TO THE CLAIMANT BY THE CONTRACTING AGENCY, THE RECORD DOES NOT CONTAIN FINDINGS OF FACT BY THE CONTRACTING OFFICER RELATING TO THE SUBJECT CLAIM AND THE REQUEST FOR REMISSION OR THAT THE CLAIMANT WAS EVER INFORMED OF THE AVENUES OF RELIEF AVAILABLE TO HIM UNDER THE CONTRACT. ACCORDINGLY, THE PAPERS COMPRISING THE CLAIM AND THE REQUEST FOR REMISSION ARE TRANSMITTED HEREWITH SO THAT THE ADMINISTRATIVE PROCEDURES PRESCRIBED BY THE "DISPUTES" CLAUSE OR OTHER APPLICABLE CLAUSES OF THE CONTRACT MAY BE CARRIED OUT. WE HAVE INFORMED CONGRESSMAN BOB WILSON THAT THE CLAIM HAS BEEN FORWARDED TO YOUR DEPARTMENT FOR APPROPRIATE ACTION.