B-165140, OCT. 1, 1968

B-165140, OCT. 1, 1968

TO MR. JENSEN:

REFERENCE IS MADE TO YOUR LETTER 6540 DATED AUGUST 20, 1968, WITH ENCLOSURES, REQUESTING A DECISION WHETHER A VOUCHER IN THE AMOUNT OF $6,904.80, REPRESENTING "DOWN TIME" FOR EQUIPMENT, UNDER FOREST SERVICE CONTRACT NO. 001572 WITH JOE M. OLLIS, CAVE JUNCTION, OREGON, MAY BE CERTIFIED FOR PAYMENT.

YOU STATE THAT THE VOUCHER IS BASED ON THE AGREED DAMAGES FOR "DOWN TIME" ON THE CONTRACTOR'S EQUIPMENT CAUSED BY THE GOVERNMENT'S DELAY IN FURNISHING REPLACEMENT PLATES FOR A MULTIPLE-ARCH CULVERT WHICH THE CONTRACTOR WAS TO ASSEMBLE AND INSTALL UNDER CONTRACT NO. 001572. IT ALSO IS STATED THAT THE CONTRACTING OFFICER SUBMITTED THE QUESTION AS TO PAYMENT BECAUSE THE FAILURE TO MAKE THE REPLACEMENT COMPONENTS AVAILABLE PROMPTLY CONSTITUTED A BREACH OF CONTRACT WHICH MAY NOT BE SETTLED ADMINISTRATIVELY.

THE CONTRACT PROVIDED FOR THE CONSTRUCTION OF CAVE CREEK CAMP CAMPGROUND ROAD NO. 4032 AND FOR THE RESTORATION AND OILING OF THE EXISTING CAVE CREEK CAMP ROAD NO. 4032. THE CONTRACT SCHEDULE INCLUDED THE ASSEMBLY AND INSTALLATION OF A MULTIPLATE ARCH CULVERT WITH GOVERNMENT-FURNISHED SECTIONAL PLATES FOR A TOTAL COST OF $1,850.

THE RECORD SHOWS THAT THE CONTRACT WAS AWARDED ON MAY 8, 1967, FOR COMPLETION WITHIN 90 DAYS AFTER RECEIPT OF NOTICE TO PROCEED, AND THAT THE CONTRACT WORK WAS COMPLETED ON NOVEMBER 10, 1967. HOWEVER, THE CONTRACTOR WAS DELAYED FOR 18 DAYS -- JULY 6 THROUGH AUGUST 2, 1967 -- IN COMPLETING THE INSTALLATION OF THE ARCH CULVERT BECAUSE SOME OF THE SECTIONAL PLATES HAD BEEN PREVIOUSLY DAMAGED SO AS TO REQUIRE THE GOVERNMENT TO ORDER NEW REPLACEMENT PLATES. THE RECORD ALSO SHOWS THAT THE GOVERNMENT ACTED WITH DILIGENCE IN ORDERING THE REPLACEMENT PLATES BUT DELIVERY THEREOF WAS DELAYED. SEVERAL WORK SUSPENSION ORDERS WEREISSUED TO THE CONTRACTOR DURING THE DELAY PERIOD PENDING RECEIPT OF THE REPLACEMENT PLATES. IT WAS DURING THIS PERIOD THAT THE CONTRACTOR'S EQUIPMENT WAS IDLE.

PARAGRAPH 9 (A) OF THE CONTRACT SUPPLEMENTAL SPECIFICATIONS PROVIDED:

"THIS WORK SHALL CONSIST OF INSTALLING A PIPE ARCH OF THE SIZE AND DIMENSIONS AS SHOWN ON THE PLANS, IN CONFORMITY WITH THE LINES AND GRADES GIVEN ON THE PLANS OR BY THE ENGINEER. U.S. FOREST SERVICE IS FURNISHING THE STRUCTURAL PLATES AND ALL OTHER COMPONENTS AND BOLTS NEEDED FOR ERECTION, WITHIN THE PROJECT LIMITS.'

IN PARAGRAPH 9 (C) OF THESE SPECIFICATIONS, THE CONTRACTOR WAS ADVISED THAT:

"SOME OF THE PLATES HAVE BEEN USED BEFORE, AND THE CONTRACTOR IS CAUTIONED THAT THESE PLATES MAY BE SOMEWHAT SPRUNG OR DEFORMED, AND CAUSE AN ADDED ASSEMBLY PROBLEM.'

THE CONTRACT DID NOT CONTAIN A "SUSPENSION OF WORK" CLAUSE OR OTHER PROVISION EXPRESSLY GRANTING THE CONTRACTOR A RIGHT TO COMPENSATION FOR DELAY. IT HAS BEEN THE CONSISTENT POSITION OF OUR OFFICE WITH RESPECT TO SUCH A CONTRACT THAT A CLAIM BY THE CONTRACTOR FOR COSTS INCURRED THROUGH DELAYS BY THE GOVERNMENT IS ESSENTIALLY A CLAIM FOR BREACH OF CONTRACT DAMAGES WHICH THE CONTRACTING OFFICER OR OTHER ADMINISTRATIVE OFFICIALS OF THE AGENCY CONCERNED HAVE NO AUTHORITY TO PAY. 44 COMP. GEN. 353. WHILE OUR OFFICE HAS JURISDICTION TO SETTLE A CLAIM FOR DAMAGES OR ADDITIONAL COSTS BASED ON AN ALLEGED BREACH OF THE GOVERNMENT'S CONTRACTUAL OBLIGATIONS, A BASIC PREREQUISITE TO THE ALLOWANCE OF ANY PART OF SUCH A CLAIM IS THE CLEAR ESTABLISHMENT OF THE GOVERNMENT'S LEGAL LIABILITY IN THE MATTER.

THE CONTRACTOR WAS FULLY AWARE THAT THE USED PLATES MIGHT CAUSE DIFFICULTY IN ASSEMBLY AND INSTALLATION. IN FACT, THE CONTRACTOR WAS SPECIFICALLY ADVISED AT A PREBID CONFERENCE OF ,POSSIBLE ASSEMBLY DIFFICULTIES WITH THE USED MULTI-PLATE CULVERT * * *.' FROM THE RECORD, IT MAY BE REASONABLY CONCLUDED THAT THE CONTRACTING PARTIES CONTEMPLATED THAT SOME DELAY WOULD RESULT IN ASSEMBLING THE CULVERT FROM USED PLATES.

WHILE IT HAS SOMETIMES BEEN BROADLY STATED THAT THERE IS IN EVERY CONTRACT AN IMPLIED PROMISE THAT NEITHER PARTY TO THE CONTRACT WILL DO ANYTHING TO PREVENT, HINDER OR DELAY PERFORMANCE THEREOF BY THE OTHER PARTY, THE NATURE AND SCOPE OF SUCH PROMISE MUST BE GATHERED FROM THE PARTICULAR CONTRACT, ITS CONTENT, AND THE SURROUNDING CIRCUMSTANCES. SEE COMMERCE INTERNATIONAL COMPANY, INC. V UNITED STATES, 338 F.2D 81. HOWEVER, THE RECORD HERE NEGATES ANY SUGGESTION OF FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT OR THAT THE DELAY WAS OCCASIONED BY A VIOLATION OF ANY AFFIRMATIVE DUTY OR WARRANTY RESPECTING THE USED PLATES TO BE USED FOR THE CULVERT. WHILE THE CONTRACT CONTAINED A CHANGED CONDITIONS CLAUSE, WE DO NOT BELIEVE THAT SUCH CLAUSE IS APPLICABLE TO A DELAY CAUSED BY THE UNAVAILABILITY OF SUITABLE PLATES FOR THE CULVERT SINCE THE CLAUSE REFERS TO CHANGES IN "PHYSICAL CONDITIONS.' CLEARLY, THE CHANGES CLAUSE IS INAPPLICABLE SINCE THE DELAY DID NOT RESULT FROM A CHANGE "IN THE DRAWINGS AND/OR SPECIFICATIONS * * *.'

SINCE THE CONTRACTOR WAS WARNED IN THE CONTRACT AND AT A PREBID CONFERENCE THAT IT MIGHT EXPERIENCE DIFFICULTIES IN THE USE OF USED PLATES IN ASSEMBLING THE CULVERT, AND SINCE THE DELAYS WERE NOT OCCASIONED THROUGH ANY FAULT OR NEGLIGENCE ON THE PART OF THE GOVERNMENT, WE DO NOT BELIEVE THAT THE DELAY FOR WHICH COMPENSATION IS CLAIMED WAS SUCH AS COULD BE CONSIDERED AS A BREACH BY THE GOVERNMENT OF THE CONTRACT UNDER APPLICABLE LEGAL PRINCIPLES ESTABLISHED BY THE COURTS. SEE COMMERCE INTERNATIONAL COMPANY, INC. V UNITED STATES, SUPRA; UNITED STATES V HOWARD P. FOLEY CO., INC., 329 U.S. 64; UNITED STATES V RICE ET AL., 317 U.S. 61; GILBANE BUILDING COMPANY V UNITED STATES, 333 F.2D 867; 47 COMP. GEN. 95; ID. 475.

ACCORDINGLY, THE VOUCHER, WHICH IS BEING RETAINED HERE, MAY NOT BE CERTIFIED FOR PAYMENT.