B-3380, MAY 18, 1939, 18 COMP. GEN. 870

B-3380: May 18, 1939

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THE CONTRACTOR IS ENTITLED TO HAVE SUCH JUDGMENT EXERCISED BY THE OFFICER NOMINATED. AS FOLLOWS: ATTACHED IS A PROTEST RECEIVED FROM THE CONTRACTOR. THE FACTS SUBMITTED BY THE PROTESTANT ARE BASICALLY CORRECT IN DETAIL. THE INITIAL COMPLETION DAY WAS THUS JUNE 23. THE WORK WAS SUSPENDED BY ORDER OF THE ENGINEER COMMISSIONER BY REASON OF FAILURE OF THE TILE TO ADHERE TO THE CEILING. THERE FOLLOWED A PERIOD OF TESTS AND INVESTIGATIONS WHICH PROVED TO THE SATISFACTION OF THE DISTRICT OF COLUMBIA THAT THE MATERIALS FURNISHED BY THE CONTRACTOR WERE ACCEPTABLE BUT THAT THE METHOD OF APPLICATION WAS NOT. THE CONTRACTOR WAS THEREFORE INSTRUCTED AS OF JULY 18. WHICH WAS GRANTED ON JULY 26. THE STATEMENTS OF THE PROTESTANT AS TO SUBSEQUENT EVENTS ARE SUBSTANTIALLY CORRECT EXCEPT AS TO THE ASSURANCES THAT NO PENALTIES WOULD BE INFLICTED.

B-3380, MAY 18, 1939, 18 COMP. GEN. 870

CONTRACTS - DAMAGES - LIQUIDATED - FINDINGS OF FACT AND EXTENSIONS OF TIME WHEN A CONTRACT PROVIDES FOR THE DECISION AS TO EXTENT OF DELAYS AND EXTENSIONS OF TIME FOR CONTRACT COMPLETION BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH JUDGMENT EXERCISED BY THE OFFICER NOMINATED, AND CANNOT BE BOUND BY THE OPINION OF ANOTHER OFFICER, BUT ANY EXTENSIONS OF TIME FOUND JUSTIFIABLE UNDER THE TERMS OF THE CONTRACT SHOULD BE SUPPORTED BY THE SPECIFIC FINDINGS OF FACT REGARDING THE CAUSES AND EXTENT OF DELAYS, ETC.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, MAY 18, 1939:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 27, 1939, AS FOLLOWS:

ATTACHED IS A PROTEST RECEIVED FROM THE CONTRACTOR, T. CALVIN OWENS, DATED APRIL 5, 1939, PETITIONING THE RETURN OF LIQUIDATED DAMAGES TO THE AMOUNT OF $3,800, DEDUCTED IN SETTLEMENT OF CONTRACT NO. 13161 FOR CERTAIN ACOUSTICAL TILE WORK, POLICE COURT BUILDING, JUDICIARY SQUARE, WASHINGTON, D.C. THE FACTS SUBMITTED BY THE PROTESTANT ARE BASICALLY CORRECT IN DETAIL, AS INDICATED IN THE CHRONOLOGICAL ACCOUNT ATTACHED HERETO.

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ENTERED INTO CONTRACT ON MAY 20, 1938, FOR ,FURNISHING THE MATERIALS AND PERFORMING THE WORK FOR THE ERECTION OF CERTAIN ACOUSTICAL TILE WORK ON THE CEILINGS OF THE OFFICES, ETC., IN THE NEW POLICE COURT" AT A CONSIDERATION OF $7,980, PROVIDING FOR COMPLETION WITHIN THIRTY (30) CALENDAR DAYS FROM THE DATE OF NOTICE TO PROCEED, MAY 24, 1938. THE INITIAL COMPLETION DAY WAS THUS JUNE 23, 1938. AFTER THE CONTRACTOR HAD WORKED THIRTEEN (13) DAYS, THE WORK WAS SUSPENDED BY ORDER OF THE ENGINEER COMMISSIONER BY REASON OF FAILURE OF THE TILE TO ADHERE TO THE CEILING. THERE FOLLOWED A PERIOD OF TESTS AND INVESTIGATIONS WHICH PROVED TO THE SATISFACTION OF THE DISTRICT OF COLUMBIA THAT THE MATERIALS FURNISHED BY THE CONTRACTOR WERE ACCEPTABLE BUT THAT THE METHOD OF APPLICATION WAS NOT. THE CONTRACTOR WAS THEREFORE INSTRUCTED AS OF JULY 18, 1938, TO AGAIN PROCEED WITH THE WORK IN ACCORDANCE WITH THE TERMS OF HIS CONTRACT AS OF JULY 20, 1938 (AFTER A PERIOD OF FORTY-FOUR (44) DAYS OF SUSPENSION).

THE CONTRACTOR ENTERED A PROTEST AGAINST THIS ORDER TO PROCEED AND REQUESTED A HEARING BEFORE THE COMMISSIONERS, WHICH WAS GRANTED ON JULY 26, 1938. THE STATEMENTS OF THE PROTESTANT AS TO SUBSEQUENT EVENTS ARE SUBSTANTIALLY CORRECT EXCEPT AS TO THE ASSURANCES THAT NO PENALTIES WOULD BE INFLICTED. THE NOTICE TO PROCEED WAS NOT RESCINDED. THE COMMISSIONERS DID, HOWEVER, AGREE TO FURTHER STUDIES AND INVESTIGATIONS AND APPOINTED A SPECIAL COMMITTEE FOR THE PURPOSE. THIS COMMITTEE REPORTED THAT THE WORK COULD BE CARRIED OUT AS SPECIFIED. THE ENGINEER COMMISSIONER, THEREFORE, UNDER DATE OF NOVEMBER 23, 1938, DIRECTED THE CONTRACTOR TO RESUME WORK OR ACTION WOULD BE TAKEN UNDER ARTICLE NINE (9) OF THE CONTRACT.

THE CONTRACTOR RESUMED WORK ON DECEMBER 10, 1938 (NOT DECEMBER 9, 1938, AS STATED BY HIM) AND COMPLETED WORK ON JANUARY 5, 1939, IN TWENTY-SIX (26) DAYS, WHICH WITH THE THIRTEEN (13) DAYS PREVIOUSLY CONSUMED, MADE A TOTAL OF THIRTY-NINE (39) DAYS, OR NINE (9) DAYS IN EXCESS OF CONTRACT TIME ALLOWED.

MEANWHILE ON DECEMBER 16, 1938, THE COMMISSIONERS BY ORDER NO. 369699 EXTENDED THE CONTRACTOR'S COMPLETION DATE BY FORTY-FOUR (44) DAYS BY REASON OF SUSPENSION OF WORK FROM JUNE 6 TO JULY 20, 1938, MAKING THE NEW COMPLETION DATE AUGUST 6, 1938.

NO EXTENSION OF TIME WAS GRANTED TO COVER THE ADDITIONAL PERIOD JULY 20, TO DECEMBER 10, 1938, A PERIOD OF ONE HUNDRED FORTY-THREE (143) DAYS DURING WHICH THE CONTRACTOR DID NOT WORK. IF THIS TIME HAD BEEN GRANTED THE NEW CONTRACT COMPLETION DATE WOULD HAVE BEEN DECEMBER 27, 1938.

THE WORK WAS ACCEPTED AS BEING SATISFACTORILY COMPLETED WITHIN THE TERMS OF CONTRACT AS OF JANUARY 5, 1939, AND THE CONTRACTOR PENALIZED ONE HUNDRED AND FIFTY-TWO (152) DAYS AT TWENTY-FIVE DOLLARS A DAY, OR $3,800. A VOUCHER FOR THE DIFFERENCE BETWEEN THE CONTRACT PRICE AND THE LIQUIDATED DAMAGES, OR $4,180, HAS BEEN SIGNED UNDER PROTEST BY THE CONTRACTOR.

UNDER THESE ORDERS OF SUSPENSION AND RESUMPTION OF WORK, AS ISSUED AND RECORDED, THE CONTRACTOR WILL BE CHARGED WITH 152 DAYS' DELAY, AND LIQUIDATED DAMAGES AT THE RATE OF $25 A DAY, WHILE IN FACT THE DISTRICT OF COLUMBIA HAS NOT SUFFERED ANY ACTUAL DAMAGES. THIS WORK WAS DELAYED DURING THE PERIOD JULY 21 TO NOVEMBER 23, 1938, INCLUSIVE, WITH THE TACIT OR ORAL CONSENT OF THE COMMISSIONERS, DURING WHICH PERIOD FURTHER TESTS AND CONFERENCES WERE HAD REGARDING THE METHODS OF PROCEDURE TO BE FOLLOWED. FOR THESE REASONS THE COMMISSIONERS BELIEVE THAT THE CONTRACT COMPLETION DATE SHOULD BE FURTHER EXTENDED 126 DAYS, OR TO DECEMBER 10, 1938, AND THAT LIQUIDATED DAMAGES BE IMPOSED ONLY FOR THE PERIOD DECEMBER 10, 1938, TO JANUARY 5, 1939, AT THE RATE STATED, OR $650.

THE COMMISSIONERS THEREFORE REQUEST ADVICE AS TO WHETHER IN YOUR OPINION THE FACTS JUSTIFY FURTHER EXTENSION OF THE CONTRACT TIME.

THE CONTRACT IN QUESTION PROVIDES, UNDER PARAGRAPH 17 OF THE GENERAL CONDITIONS AND PARAGRAPH 3 OF THE SPECIAL STIPULATIONS, THAT THE CONTRACTOR SHALL BE CHARGED $25 PER DAY AS LIQUIDATED DAMAGES FOR EACH DAY'S DELAY IN THE COMPLETION OF THE WORK, SUBJECT TO THE PROVISIONS OF ARTICLE 9 OF THE CONTRACT, WHICH ARE, IN PERTINENT PART, AS FOLLOWS:

DELAYS-DAMAGES. * * * IF THE DISTRICT DOES NOT TERMINATE THE RIGHT OF THE CONTRACTOR TO PROCEED, THE CONTRACTOR SHALL CONTINUE THE WORK, IN WHICH EVENT, THE ACTUAL DAMAGES FOR THE DELAY WILL BE IMPOSSIBLE TO DETERMINE AND IN LIEU THEREOF THE CONTRACTOR SHALL PAY TO THE DISTRICT, AS FIXED, AGREED, AND LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY UNTIL THE WORK IS COMPLETED OR ACCEPTED, THE AMOUNT AS SET FORTH IN THE SPECIFICATIONS OR ACCOMPANYING PAPERS, AND THE CONTRACTOR AND HIS SURETIES SHALL BE LIABLE FOR THE AMOUNT THEREOF: PROVIDED, THAT THE RIGHT OF THE CONTRACTOR TO PROCEED SHALL NOT BE TERMINATED OR THE CONTRACTOR CHARGED WITH LIQUIDATED DAMAGES BECAUSE OF ANY DELAYS IN THE COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD, OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT OR THE DISTRICT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER OR DELAYS OF SUBCONTRACTORS DUE TO SUCH CAUSES: PROVIDED FURTHER, THAT THE CONTRACTOR SHALL WITHIN 10 DAYS FROM THE BEGINNING OF ANY SUCH DELAY NOTIFY THE COMMISSIONERS IN WRITING OF THE CAUSES OF DELAY, WHO SHALL ASCERTAIN THE FACTS AND THE EXTENT OF THE DELAY AND EXTEND THE TIME FOR COMPLETING THE WORK WHEN IN THEIR JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION, AND THEIR FINDINGS OF FACTS THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO.

IT APPEARS THAT THE CONTRACTOR WAS GIVEN NOTICE TO PROCEED WITH THE WORK ON MAY 24, 1938, ESTABLISHING THE COMPLETION DATE AS JUNE 23, 1938, BUT THAT WORK SUSPENDED ON JUNE 6, 1938, FOR A PERIOD OF 44 DAYS, OR THROUGH JULY 19, 1938, WHILE CERTAIN TESTS WERE BEING MADE. THE THE CONTRACTOR WAS AGAIN ORDERED TO PROCEED WITH THE WORK ON JULY 20, 1938, BUT PROTESTED THE ORDER AND WAS ALLOWED TO SUSPEND WORK WITH THE TACIT OR ORAL CONSENT OF THE COMMISSIONERS, UNTIL NOVEMBER 23, 1938, WHEN HE WAS ORDERED TO PROCEED WITH THE WORK. THE CONTRACTOR BEGAN WORK ON DECEMBER 10, 1938, AND COMPLETED ON JANUARY 5, 1939, OR AFTER A TOTAL DELAY OF 152 DAYS, EXCLUSIVE OF THE 44-DAY PERIOD WHEN WORK WAS SUSPENDED BY ORDER OF THE ENGINEER COMMISSIONER.

IN VOUCHERING PAYMENT UNDER THE CONTRACT, THERE WAS DEDUCTED AN AMOUNT OF $3,800 FOR 152 DAYS' DELAY AT $25 PER DAY. YOU INDICATE, HOWEVER, THAT THE WORK WAS SUSPENDED DURING THE PERIOD JULY 21 TO NOVEMBER 23, 1938, INCLUSIVE, WITH THE TACIT OR ORAL CONSENT OF THE COMMISSIONERS, AND SUGGEST THAT THE CONTRACT PERIOD SHOULD BE EXTENDED 126 DAYS TO COVER THAT TIME, MAKING DECEMBER 10, 1938, THE COMPLETION DATE.

ARTICLE 9 OF THE CONTRACT, QUOTED ABOVE, PROVIDES THAT LIQUIDATED DAMAGES SHALL NOT BE CHARGEABLE FOR DELAYS OF SPECIFIED CATEGORIES; THAT THE COMMISSIONERS SHALL ASCERTAIN THE FACTS AND EXTENT OF THE DELAY AND EXTEND THE TIME "WHEN IN THEIR JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION; " AND THAT THEIR FINDINGS OF FACTS SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES.

IT MAY BE NOTED THAT WHEN A CONTRACT PROVIDES FOR THE DECISION OF SPECIFIED MATTERS BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH JUDGMENT EXERCISED BY THE OFFICER NOMINATED, AND CANNOT BE BOUND BY THE OPINION OF ANOTHER OFFICER. SEE PHOENIX BRIDGE COMPANY V. UNITED STATES, 85 CT.CLS. 603, 629; UNITED STATES V. NORTH AMERICAN COMMERCIAL COMPANY, 74 F. 145; ALSO SAMUEL PLATO V. UNITED STATES, 86 CT.CLS. 665, 667.

YOUR SUBMISSION STATES THAT THE CONTRACTOR'S METHOD OF APPLICATION OF THE ACOUSTICAL MATERIAL WAS NOT SATISFACTORY, AND IT APPEARS THAT THE DELAY RESULTED WHILE TESTS AND INVESTIGATIONS WERE BEING CONDUCTED IN ORDER TO EVOLVE A SATISFACTORY METHOD OF PROCEDURE. IT DOES NOT APPEAR THAT THE COMMISSIONERS HAVE FOUND AS A FACT WHETHER THE DELAY WAS CAUSED BY FAILURE OF THE CONTRACTOR TO FOLLOW SPECIFICATIONS, OR WHETHER IT WAS CAUSED BY INADEQUATE SPECIFICATIONS, MAKING IT NECESSARY TO SUSPEND WORK UNTIL A DIFFERENT METHOD COULD BE WORKED OUT FOR THE CONTRACTOR TO FOLLOW. THAT IS TO SAY, IT WAS THE CONTRACTOR'S OBLIGATION TO INSTALL THE ACOUSTICAL MATERIAL IF IT COULD BE DONE BY FOLLOWING THE SPECIFICATIONS. HENCE, IF IT BECAME NECESSARY FOR WORK TO BE SUSPENDED SO THAT A DIFFERENT PROCEDURE COULD BE WORKED OUT, ANY DELAY INCIDENT THERETO WOULD APPEAR TO HAVE BEEN CAUSED BY AN ACT OF THE DISTRICT OF COLUMBIA.

A DEFINITE ANSWER MAY NOT BE MADE AT THIS TIME TO THE QUESTION PRESENTED IN THE LAST PARAGRAPH OF YOUR SUBMISSION SINCE THE PRESENT RECORD DOES NOT CONTAIN A SPECIFIC FINDING OF FACT IN THE MATTER BY THE COMMISSIONERS AS REQUIRED BY THE TERMS OF THE CONTRACT. HOWEVER, YOU ARE ADVISED THAT IF IT BE FOUND BY THE COMMISSIONERS AS A FACT THAT THERE WAS A DELAY OF 126 DAYS DUE TO ACTS OF THE DISTRICT OF COLUMBIA, OR OTHER EXCUSABLE CAUSES UNDER THE CONTRACT WHICH IN THE JUDGMENT OF THE COMMISSIONERS JUSTIFY AN EXTENSION, THIS OFFICE WILL NOT OBJECT TO AN EXTENSION OF THE CONTRACT TIME FOR SUCH PERIOD OF DELAY, OR TO DECEMBER 10, 1938, PROVIDED SUCH EXTENSION OF TIME IS SUPPORTED BY SUCH SPECIFIC FINDINGS OF FACT MADE PURSUANT TO ARTICLE 9 OF THE CONTRACT, DETAILING THE CAUSES AND EXTENT OF DELAY ATTRIBUTABLE TO EACH.