B-164579, NOV. 19, 1968

B-164579: Nov 19, 1968

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11. WAS AWARDED TO YOU ON MARCH 1. PERFORMANCE AND PAYMENT BONDS WERE PROVIDED WITH THE WESTERN CASUALTY AND SURETY COMPANY. BY PERFORMING ALL OTHER OPERATIONS OF CARE FOR PROMOTION OF ROOT GROWTH AND PLANT LIFE SO THAT ALL WORK IS IN A SATISFACTORY CONDITION AT THE COMPLETION OF THE CONTRACT AND THROUGHOUT THE MAINTENANCE PERIOD. THAT ARE DEAD OR ARE IN AN UNHEALTHY OR UNSIGHTLY CONDITION OR HAVE LOST THEIR NATURAL SHAPE. IT IS ALSO PERTINENT TO POINT OUT THAT PARAGRAPH 2-04 PROVIDES AS FOLLOWS: "A. SPRING PLANTING SHALL NOT BE STARTED UNTIL THE FROST IS OUT OF THE GROUND AND SHALL BE COMPLETED NOT LATER THAN MAY 15. WHICHEVER IS EARLIEST).'.

B-164579, NOV. 19, 1968

TO SOUTHWEST ENGINEERING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 11, 1968, WITH ENCLOSURES, MAKING CLAIM FOR $600 ALLEGEDLY DUE UNDER CONTRACT NO. GS 06B- 10578 FOR LANDSCAPING AT THE HARRY S. TRUMAN LIBRARY, INDEPENDENCE, MISSOURI.

THE RECORD SHOWS THAT THE CONTRACT IN QUESTION, IN THE LUMP SUM AMOUNT OF $12,568.35, WITH NO BREAKDOWN AS TO THE PRICE FOR INDIVIDUAL ITEMS, WAS AWARDED TO YOU ON MARCH 1, 1968. PERFORMANCE AND PAYMENT BONDS WERE PROVIDED WITH THE WESTERN CASUALTY AND SURETY COMPANY, FORT SCOTT, KANSAS, AS SURETY. THE CONTRACT PROVIDED FOR THE SUPPLYING AND PLANTING OF SHRUBS AND OTHER ITEMS AND ONE YEAR'S MAINTENANCE, WITH THE TIME FOR COMPLETION OF ALL WORK, EXCEPT PLANT CARE AND MAINTENANCE, FIXED AS MAY 15, 1968. THE CONTRACT CALLED FOR PLANT MAINTENANCE AND CARE FOR A PERIOD OF ONE YEAR AS SET FORTH IN PARAGRAPH 5-19 OF THE CONTRACT SPECIFICATIONS. THAT PARAGRAPH READS AS FOLLOWS:

"A. THE CONTRACTOR SHALL BE RESPONSIBLE FOR A PERIOD OF ONE YEAR AFTER COMPLETION OF PLANT INSTALLATION TO MAINTAIN ALL PLANTING AND WORK INCIDENTAL THERETO BY REPLANTING, PLANT REPLACEMENTS, WATERING, WEEDING, CULTIVATING, FERTILIZING, PRUNING, CONTROLLING INSECTS AND DISEASES, REGUYING, AND BY PERFORMING ALL OTHER OPERATIONS OF CARE FOR PROMOTION OF ROOT GROWTH AND PLANT LIFE SO THAT ALL WORK IS IN A SATISFACTORY CONDITION AT THE COMPLETION OF THE CONTRACT AND THROUGHOUT THE MAINTENANCE PERIOD.

"B. THE ROOT SYSTEM OF ALL PLANTS SHALL BE WATERED AND WEEDED AT REGULAR INTERVALS TO KEEP THE SURROUNDING SOIL IN CONDITION FOR PROMOTION OF ROOT GROWTH AND PLANT LIFE.

"C. AT LEAST 6 WEEKS AFTER PLANTING AND ON A DATE APPROVED BY THE CONTRACTING OFFICER, APPLY TYPE 1, GRADE 10-6-4 FERTILIZER AT RATE OF TWO POUNDS OF ACTUAL NITROGEN PER 1000 SQUARE FEET. MULCH SHALL BE REMOVED, FERTILIZER PLACED AND CULTIVATED INTO THE TOP 2 INCHES OF SOIL, AND THE MULCH REPLACED.

"D. ALL PLANTING AND PLANT MATERIAL REQUIRED BY THIS CONTRACT SHALL BE IN A CONDITION ACCEPTABLE TO THE CONTRACTING OFFICER AT THE END OF THE MAINTENANCE PERIOD.

"E. THE CONTRACTOR SHALL PROMPTLY REPLACE ANY PLANTED TREES,GROUND COVER, AND SHRUBS, THAT ARE DEAD OR ARE IN AN UNHEALTHY OR UNSIGHTLY CONDITION OR HAVE LOST THEIR NATURAL SHAPE, OR BOTH, DUE TO DEAD BRANCHES, EXCESSIVE PRUNING, INADEQUATE OR IMPROPER MAINTENANCE WITHIN A ONE-YEAR PERIOD BEGINNING THE DATE OF THE FINAL INSPECTION REPORT. REPLACEMENT SHALL BE MADE IMMEDIATELY UNLESS THE LOCAL PLANTING SEASON HAS ENDED, IN WHICH CASE REPLACEMENT SHALL BE MADE DURING THE NEXT PLANTING SEASON AFTER THE NEED BECOMES APPARENT NOTWITHSTANDING THAT SUCH PLANTING SEASON MAY RUN BEYOND THE MAINTENANCE PERIOD.'

IT IS ALSO PERTINENT TO POINT OUT THAT PARAGRAPH 2-04 PROVIDES AS FOLLOWS:

"A. ALL WORK, EXCEPT PLANT CARE AND MAINTENANCE SHALL BE COMPLETED ON OR BEFORE MAY 15, 1968.

"B. PLANTING OPERATIONS SHALL BE PERFORMED DURING THE SPRING OF 1968. SPRING PLANTING SHALL NOT BE STARTED UNTIL THE FROST IS OUT OF THE GROUND AND SHALL BE COMPLETED NOT LATER THAN MAY 15, 1968.

"C. THE MAINTENANCE PERIOD FOR PLANT MATERIALS SHALL EXTEND TO ONE YEAR FROM DATE OF COMPLETION OF PLANT INSTALLATION. ALL MAINTENANCE PLANTING AND REPLACEMENT OF DEFECTIVE WORK SHALL BE CARRIED OUT DURING A LOCALLY RECOGNIZED PLANTING SEASON (SPRING OR FALL, WHICHEVER IS EARLIEST).'

ALSO PERTINENT IS THE SUPPLEMENT TO CLAUSE 7 OF THE SPECIAL PROVISIONS AS SUPPLEMENTED BY CLAUSE 1-13 OF THE GENERAL CONDITIONS APPEARING IN PARAGRAPH 2-06 (A) WHICH READS AS FOLLOWS:

"FINAL PAYMENT WILL BE MADE AFTER ALL WORK IS SATISFACTORILY EXECUTED IN PLACE AND ACCEPTED BY THE SERVICE.'

SOIL PREPARATIONS AND PLANTING OPERATIONS WERE COMPLETED BY MAY 1, 1968, WITH THE FINAL INSPECTION OF THIS PHASE OF WORK BEING MADE ON MAY 8, 1968. THAT DATE WAS ESTABLISHED AS THE DATE FOR THE BEGINNING OF ONE YEAR OF GUARANTEED PLANT CARE AND MAINTENANCE. FOLLOWING THIS INSPECTION THE BALANCE OF THE CONTRACT PRICE LESS THE SUM OF $600 WAS PAID TO THE CONTRACTOR. THAT $600 IS THE SUBJECT OF YOUR CLAIM.

IN MAKING PAYMENT TO THE CONTRACTOR OF ALL BUT $600 OF THE CONTRACT PRICE, IT WAS STATED THAT THE SUM OF $600 WAS BEING WITHHELD TO COVER THE PLANT CARE AND MAINTENANCE. IN THIS CONNECTION A LETTER DATED MAY 13, 1968, FROM THE PROCURING ACTIVITY TO THE CONTRACTOR READS, IN PART, AS FOLLOWS:

"A FINAL INSPECTION WAS HELD MAY 8, 1968, ON THIS PROJECT, AND ALL WORK WAS FOUND TO BE IN ACCORDANCE WITH CONTRACT SPECIFICATIONS.

"UNDER THE TERMS OF YOUR CONTRACT, THE PLANT CARE AND MAINTENANCE PERIOD SPECIFIED IN PARAGRAPH 5-19 WILL COMMENCE ON MAY 1, 1968, AND END APRIL 30, 1969. IT IS SUGGESTED THAT THE FERTILIZER APPLICATION SPECIFIED IN PARAGRAPH 5-19 (C) BE APPLIED DURING THE FALL PLANTING SEASON. HOWEVER, THE DATE THAT IS SELECTED MUST BE APPROVED BY THIS OFFICE.

"WE ARE PROCESSING A PAYMENT IN THE AMOUNT OF $769.95, RETAINING THE SUM OF $600 TO COVER THE PLANT CARE AND MAINTENANCE PERIOD.'

YOU SAY THAT THERE IS NO PROVISION IN THE CONTRACT FOR WITHHOLDING ANY AMOUNT FOR THE MAINTENANCE AND CARE PERIOD, EITHER SPECIFIED OR ARBITRARY; THAT THE CONTRACT HAS BEEN COMPLETED CAUSING THE FULL AMOUNT TO BE DUE; THAT THE FERTILIZER SECTION HAS VERY LITTLE MEANING, SINCE THE PLANTINGS WERE FERTILIZED WHEN PLACED IN THE GROUND; THAT, LIKEWISE, THE MAINTENANCE SECTION HAS VERY LITTLE MEANING, SINCE IT WAS AGREED AND UNDERSTOOD THAT AFTER THE PLANTINGS WERE ACCOMPLISHED, THE GOVERNMENT MAINTENANCE PERSONNEL EMPLOYED AT THE LIBRARY BUILDING AND SURROUNDING GROUNDS WOULD KEEP ALL THE SHRUBS, PLANTS, AND LAWNS WATERED, MOWED, AND MAINTAINED IN THE BEST MANNER, AND THAT UNDER THE CIRCUMSTANCES THERE REMAINED FOR THE CONTRACTOR ONLY THE OBLIGATION TO REPLACE ANY SHRUBS OR PLANTS WHICH DO NOT SUSTAIN LIFE FOR A PERIOD OF ONE YEAR; AND THAT THE PERFORMANCE BOND FURNISHED WHEN THE CONTRACT WAS EXECUTED AMPLY PROTECTS THE GOVERNMENT AGAINST ANY FAILURE OF THE CONTRACTOR TO FULFILL ALL REQUIREMENTS OF THE SPECIFICATIONS.

IN THIS REGARD, THE ADMINISTRATIVE OFFICE POINTS OUT THAT UNDER THE TERMS OF THE CONTRACT AN ADDITIONAL FERTILIZER APPLICATION IS REQUIRED AT LEAST SIX WEEKS AFTER THE INITIAL PLANTINGS HAVE BEEN APPROVED AND THAT AT THE TIME OF THE QUESTIONED WITHHOLDING SUCH FERTILIZER APPLICATION HAD NOT BEEN MADE, SINCE IT HAD BEEN DEFERRED UNTIL THE FALL PLANTING SEASON. THE ADMINISTRATIVE OFFICE ALSO STATES THAT IT KNOWS OF NO AGREEMENT THAT THE GOVERNMENT PERSONNEL WHO MAINTAIN OTHER PARTS OF THE LIBRARY GROUNDS WOULD PROVIDE THE MAINTENANCE WORK, THE OBLIGATION OF WHICH YOU HAD ASSUMED UNDER THE TERMS OF THE CONTRACT.

WITH RESPECT TO YOUR CONTENTION THAT THE PERFORMANCE BOND PROTECTS THE GOVERNMENT AGAINST ANY FAILURE OF THE CONTRACTOR TO FULFILL ALL REQUIREMENTS OF THE SPECIFICATIONS, IT IS WELL ESTABLISHED THAT A PERFORMANCE BOND IS NOT A SATISFACTORY SUBSTITUTE FOR THE FAITHFUL PERFORMANCE OF A CONTRACT. 47 COMP. GEN. 360.

SINCE THE WORK SET FORTH IN PARAGRAPH 5-19 WAS CLEARLY A PART OF THE WORK TO BE PERFORMED FOR THE CONTRACT PRICE, WE AGREE WITH THE ADMINISTRATIVE POSITION THAT FINAL PAYMENT IS NOT DUE UNTIL COMPLETION THEREOF. IF THERE IS ANY DISPUTE AS TO WHETHER THE WITHHELD $600 CORRECTLY REPRESENTS THE VALUE OF THE UNCOMPLETED WORK, THAT QUESTION APPEARS TO BE FOR ADMINISTRATIVE DETERMINATION IN ACCORDANCE WITH THE CONTRACTUAL DISPUTES PROVISIONS BEFORE IT MAY BE CONSIDERED BY THIS OFFICE. B-160778, MAY 27, 1968.

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