B-3049, APRIL 24, 1939, 18 COMP. GEN. 812

B-3049: Apr 24, 1939

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CONSTRUCTION OF DELIVERY TIME PROVISION GENERAL RULE WITH RESPECT TO COMPUTING DELIVERY TIME AND DELAYS IN DELIVERY FOR LIQUIDATED DAMAGE PURPOSES UNDER A CONTRACT IS THAT INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE COUNTED UNLESS SPECIFICALLY EXCLUDED BY THE TERMS OF THE CONTRACT. PERFORMANCE IS RENDERED ON THE NEXT SECULAR DAY. THE PERFORMANCE WILL BE REGARDED AS WITHIN THE REQUIRED TIME. THEN ALL INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE INCLUDED. " THERE IS NO BASIS FOR CONSTRUING THE PROVISION TO MEAN THAT DELIVERY IS TO BE MADE WITHIN THE SPECIFIED NUMBER OF DAYS AFTER THE CLOSE OF A HEARING. AS FOLLOWS: REFERENCE IS MADE TO CONTRACT CAA-100. EACH ORDER SPECIFIES THE ITEM UNDER WHICH DELIVERIES ARE TO BE MADE.

B-3049, APRIL 24, 1939, 18 COMP. GEN. 812

CONTRACTS - DAMAGES - LIQUIDATED - INCLUSION OF SUNDAYS AND HOLIDAYS IN DELIVERY TIME COMPUTATION, AND CONSTRUCTION OF DELIVERY TIME PROVISION GENERAL RULE WITH RESPECT TO COMPUTING DELIVERY TIME AND DELAYS IN DELIVERY FOR LIQUIDATED DAMAGE PURPOSES UNDER A CONTRACT IS THAT INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE COUNTED UNLESS SPECIFICALLY EXCLUDED BY THE TERMS OF THE CONTRACT, EXCEPT THAT IF THE LAST DAY FOR PERFORMANCE FALLS ON A SUNDAY OR HOLIDAY, AND PERFORMANCE IS RENDERED ON THE NEXT SECULAR DAY, THE PERFORMANCE WILL BE REGARDED AS WITHIN THE REQUIRED TIME, BUT IF THE PERFORMANCE BE NOT RENDERED ON THE NEXT SECULAR DAY, THEN ALL INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE INCLUDED. WHERE A CONTRACT PROVIDES, IN CONNECTION WITH ITS LIQUIDATED-DAMAGE CLAUSE, FOR DELIVERY OF TRANSCRIPTS, AND COPIES, OF HEARINGS WITHIN A SPECIFIED TIME "AFTER THE CLOSE OF EACH DAY'S PROCEEDINGS," THERE IS NO BASIS FOR CONSTRUING THE PROVISION TO MEAN THAT DELIVERY IS TO BE MADE WITHIN THE SPECIFIED NUMBER OF DAYS AFTER THE CLOSE OF A HEARING--- INSTEAD OF AFTER THE CLOSE OF EACH DAY'S PROCEEDINGS--- WHERE THE HEARING EXTENDS MORE THAN 1 DAY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHAIRMAN, CIVIL AERONAUTICS AUTHORITY, APRIL 24, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 12, 1939, AS FOLLOWS:

REFERENCE IS MADE TO CONTRACT CAA-100, COVERING THE STENOGRAPHIC REPORTING OF HEARINGS HELD BY THE CIVIL AERONAUTICS AUTHORITY DURING THE PRESENT FISCAL YEAR.

THE CONTRACT PROVIDES, UNDER ITEM 1 OF SCHEDULE A AND ITEM 1 OF SCHEDULE B, FOR DELIVERY OF THE MANUSCRIPT AND COPIES OF EACH DAY'S PROCEEDINGS WITHIN FIVE DAYS THEREAFTER. UNDER ITEM 2 OF SCHEDULE A AND ITEM 2 OF SCHEDULE B, THE CONTRACT PROVIDES FOR DELIVERY OF THE MANUSCRIPT AND COPIES OF EACH DAY'S PROCEEDINGS BY 9:00 A.M. ON THE FOLLOWING DAY. EACH ORDER SPECIFIES THE ITEM UNDER WHICH DELIVERIES ARE TO BE MADE. THE CONTRACT ALSO PROVIDES FOR CHARGING THE CONTRACTOR LIQUIDATED DAMAGES AT THE RATE OF $10.00 PER DAY FOR EACH DAY OF DELAY IN MAKING DELIVERIES.

THERE HAS BEEN SUBMITTED FOR PAYMENT A VOUCHER IN THE AMOUNT OF $66.60 FOR REPORTING THE PROCEEDINGS OF A HEARING STARTED DECEMBER 28 AND COMPLETED ON DECEMBER 29, 1938, ON ORDER NO. 39-1254. THE MANUSCRIPT AND COPIES WERE DELIVERED ON JANUARY 6, 1939. STRICTLY SPEAKING, IT WOULD SEEM THAT THE CONTRACT REQUIRED THAT THE REPORT OF THE PROCEEDINGS OF DECEMBER 28 BE DELIVERED ON JANUARY 2, AND THAT THE REPORT OF THE PROCEEDINGS OF DECEMBER 29 BE DELIVERED ON JANUARY 3, AS THE ORDER SPECIFIED DELIVERY WITHIN FIVE DAYS. THERE WAS NO CAUSE OF DELAY KNOWN TO THIS OFFICE ON THE BASIS OF WHICH AN EXTENSION OF TIME COULD BE GRANTED, AND IF THE CONTRACT TIME IS TO BE COMPUTED IN CALENDAR DAYS THERE WAS A DELAY OF FOUR DAYS IN DELIVERING THE REPORT FOR DECEMBER 28, AND A DELAY OF THREE DAYS IN DELIVERING THE REPORT FOR DECEMBER 29. LIQUIDATED DAMAGES WOULD AMOUNT TO $70.00.

THERE HAS BEEN SUBMITTED FOR PAYMENT ANOTHER VOUCHER IN THE SUM OF $125.85 COVERING SEVERAL ORDERS AS FOLLOWS:

TABLE

ORDER NO. DATE OF DELIVERY OF DELAY LIQUIDATED

HEARING TRANSCRIPT DAMAGES 39-811 ------------- DEC. 1, 1938 DEC. 9, 1938 3 DAYS --- $30.00 39 811 ------------- DEC. 2, 1938 DEC. 9, 1938 2 DAYS -- - 20.00 39-811 -- ---------- DEC. 19, 1938 DEC. 21, 1938 NONE ----- ------ - 39-736 ----- ------- DEC. 5, 1938 DEC. 10, 1938 ... DO ... ------ 39-971 --------- --- DEC. 8, 1938 DEC. 13, 1938 ... DO ... ------ 39-972 -------- ----- DEC. 6, 1938 DEC. 12, 1938 1 DAY ---- 10.00 39-973 ------------- DEC. 13, 1938 DEC. 19, 1938 ... DO ... ------ 39-1042 ------------ DEC. 20, 1938 DEC. 23, 1938 NONE ----- ------- 39-1042 ------------ DEC. 21, 1938 ... DO ... DO ... ------ ------ 39-1042 ------------ ... DO ... DO ... ------------- ------ ------ 39-1042 ------------ JAN. 6, 1939 JAN. 9, 1939 ... DO ... ------ 39-1069 ------------ DEC. 15, 1938 DEC. 21, 1938 1 DAY ---- 10.00 39-1250 ------------ DEC. 28, 1938 JAN. 4, 1939 2 DAYS --- 20.00

TOTAL --------------------------------------------------- 100.00

LIQUIDATED DAMAGES AS TABULATED ABOVE ARE COMPUTED ON THE BASIS OF THE CONTRACT TIME BEING FIGURED IN CALENDAR DAYS AND THE ORDERS REQUIRING THE DELIVERY OF THE REPORT OF EACH DAY'S PROCEEDINGS WITHIN FIVE DAYS THEREAFTER, REGARDLESS OF WHETHER THE HEARING LASTED ONE DAY ONLY OR EXTENDED OVER A PERIOD OF SEVERAL DAYS. THE MATTER HAS BEEN DISCUSSED ORALLY WITH THE CONTRACTOR, WHO STATES THAT HE UNDERSTANDS THE CONTRACT TIME IS PROPERLY COMPUTED IN WORKING DAYS AND THAT, WHEN FIVE-DAY DELIVERIES ARE SPECIFIED, THE MANUSCRIPTS AND COPIES ARE TO BE DELIVERED WITHIN FIVE DAYS AFTER THE CLOSE OF THE HEARING, OR WHEN THE HEARING IS ADJOURNED FOR CONTINUANCE AT A LATER DATE, WITHIN FIVE DAYS AFTER THE LAST OF THE CONSECUTIVE SESSIONS.

THIS INTERPRETATION OF THE CONTRACT WOULD BE ENTIRELY SATISFACTORY TO THE AUTHORITY AND YOUR DECISION IS RESPECTFULLY REQUESTED AS TO WHETHER SETTLEMENT ON THESE VOUCHERS AND ON ALL FUTURE VOUCHERS MAY BE MADE ON THAT BASIS. WHERE FIVE DAY DELIVERIES ARE SPECIFIED IN THE ORDERS, IT WOULD BE EVEN MORE SATISFACTORY TO THIS OFFICE IF DELIVERIES WERE WITHHELD UNTIL THE CLOSE OF THE HEARINGS OR UNTIL THE LAST OF THE CONSECUTIVE SESSIONS, AS IN SUCH CASES THE TRANSCRIPTS AND CARBONS ARE NOT ACTUALLY NEEDED EARLIER THAN THAT. WHENEVER IT IS DESIRED THAT DELIVERIES BE MADE DAILY THE ORDERS WILL BE PLACED UNDER ITEM 2 OF SCHEDULE A OR ITEM 2 OF SCHEDULE B. PRESUMABLY, IF THE CONTRACT TIME IS COMPUTED IN WORKING DAYS IN ITEM 1, IT SHOULD BE CONSIDERED THAT DELIVERY BY 9:00 A.M. ON THE FOLLOWING DAY UNDER ITEM 2 MEANS ON THE FOLLOWING BUSINESS DAY.

YOUR IMMEDIATE DECISION IS REQUESTED, INASMUCH AS SEVERAL VOUCHERS UNDER THIS CONTRACT ARE BEING HELD PENDING CLARIFICATION OF THE POINTS IN QUESTION.

THE CONTRACT IN QUESTION DATED OCTOBER 19, 1938, CONTAINS THE FOLLOWING PROVISIONS RELATIVE TO DELIVERIES UNDER ITEMS 1 AND 2, SCHEDULES A AND B, AND WITH RESPECT TO THE ASSESSMENT OF LIQUIDATED DAMAGES FOR ANY DELAY IN DELIVERIES:

ITEM 1. ORDINARY COPY, WHICH CONTEMPLATES THE DELIVERY OF TRANSCRIPTS AND COPIES WITHIN NOT LESS THAN TWO DAYS NOR MORE THAN FIVE DAYS, AS ORDERED, AFTER THE CLOSE OF EACH DAY'S PROCEEDINGS.

ITEM 2. DAILY COPY, WHICH CONTEMPLATES DELIVERY OF TRANSCRIPT OF EACH DAY'S PROCEEDINGS AND COPIES AS ORDERED, NOT LATER THAN 9 A.M. ON THE FOLLOWING DAY:

FOR EACH DAY OF DELAY IN MAKING DELIVERY OF TRANSCRIPTS AND CARBON COPIES AFTER THE DUE DATE FOR DELIVERY THEREOF, TEN DOLLARS ($10.00) LIQUIDATED DAMAGES SHALL BE DEDUCTED FROM THE AMOUNT EARNED UNDER THIS CONTRACT, PROVIDED THAT LIQUIDATED DAMAGES SHALL NOT BE CHARGED THE CONTRACTOR WHEN, IN THE JUDGMENT OF THE SECRETARY OF THE CIVIL AERONAUTICS AUTHORITY, THE DELAY IS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.

THE GENERAL RULE WITH RESPECT TO COMPUTING DELIVERY TIME AND DELAYS IN DELIVERY UNDER A CONTRACT IS THAT INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE COUNTED UNLESS SPECIFICALLY EXCLUDED BY THE TERMS OF THE CONTRACT. OTHER WORDS, DELIVERY WITHIN NOT MORE THAN FIVE DAYS AFTER THE CLOSE OF EACH DAY'S PROCEEDINGS MEANS CONSECUTIVE CALENDAR DAYS THEREAFTER, EXCEPT THAT IF THE LAST DAY FOR PERFORMANCE FALLS ON A SUNDAY OR HOLIDAY AND PERFORMANCE IS RENDERED ON THE NEXT SECULAR DAY THE PERFORMANCE WILL BE REGARDED AS WITHIN THE REQUIRED TIME. HOWEVER, IF PERFORMANCE BE NOT RENDERED ON THE NEXT SECULAR DAY THEN ALL INTERVENING SUNDAYS AND HOLIDAYS ARE TO BE INCLUDED IN COMPUTING THE PERIOD REQUIRED BY THE CONTRACTOR FOR PERFORMANCE AND THE PERIOD FOR WHICH LIQUIDATED DAMAGES ACCRUE. SEE 9 COMP. GEN. 336 AND AUTHORITIES CITED THEREIN; ALSO, 16 COMP. GEN. 918.

THE ABOVE-STATED RULE IS FOR APPLICATION TO DELIVERIES UNDER ITEM 2 OF THE CONTRACT TO THE EXTENT THAT IF "THE FOLLOWING DAY" FALLS ON A SUNDAY OR A HOLIDAY, DELIVERY ON THE SUCCEEDING SECULAR DAY WILL MEET THE REQUIREMENTS. IF, HOWEVER, DELIVERY IS NOT MADE ON THE SUCCEEDING SECULAR DAY, THAT DAY IS TO BE INCLUDED AS A DAY OF DELAY IN THE COMPUTATION OF LIQUIDATED DAMAGES.

THE LANGUAGE OF THE CONTRACT AS STATED UNDER ITEM 1 OF THE SCHEDULES IS CLEAR AND UNAMBIGUOUS IN ITS REQUIREMENT THAT DELIVERY BE MADE OF EACH DAY'S REPORT NOT LESS THAN 2 DAYS NOR MORE THAN 5 DAYS, AS ORDERED, AFTER THE CLOSE OF EACH DAY'S PROCEEDINGS. SINCE THAT INTENT IS CLEARLY EXPRESSED, THERE IS NO BASIS FOR CONSTRUING THE PROVISION TO MEAN THAT DELIVERY IS TO BE MADE WITHIN THE NUMBER OF DAYS--- NOT EXCEEDING 5 DAYS-- - AS ORDERED, AFTER THE CLOSE OF A HEARING WHERE THAT HEARING EXTENDS MORE THAN 1 DAY.

IT APPEARS THAT THE DEDUCTIONS FOR LIQUIDATED DAMAGES AS STATED IN THE THIRD AND FOURTH PARAGRAPHS OF YOUR LETTER ARE CORRECT WITH THE EXCEPTION OF THE DEDUCTIONS MADE ON ORDERS NO. 39-972 AND 39-973. AS TO THESE ORDERS THE DELIVERY DATES FALL RESPECTIVELY ON DECEMBER 11 AND 18, 1938, WHICH WERE SUNDAYS, AND DELIVERY WAS MADE ON THE FOLLOWING SECULAR DAY IN EACH CASE. THEREFORE, THERE WAS NO DELAY UNDER THOSE ORDERS AND LIQUIDATED DAMAGES DID NOT ACCRUE.