B-84428, APRIL 25, 1949, 28 COMP. GEN. 618

B-84428, APRIL 25, 1949, 28 COMP. GEN. 618

CONTRACTS - DAMAGES - LIQUIDATED - DELAYS DUE TO ADVERSE WEATHER CONDITIONS UNDER A DEMOLITION AND RESTORATION CONTRACT PROVIDING FOR THE ASSESSMENT OF LIQUIDATED DAMAGES FOR DELAY IN PERFORMANCE, BUT NOT CONTAINING ANY PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE FOR ANY CAUSE, ADVERSE AND INCLEMENT WEATHER CONDITIONS CAUSING DELAY IN PERFORMANCE--- BEING MERELY A PART OF THE GENERAL HAZARD ASSUMED BY THE CONTRACTOR IN CONNECTION WITH PERFORMANCE OF THE CONTRACT--- MAY NOT BE REGARDED AS SO ABNORMAL, EXTRAORDINARY, OR UNUSUAL AS TO CONSTITUTE AN "ACT OF GOD" SO AS TO RELIEVE THE CONTRACTOR FROM ITS CONTRACTUAL OBLIGATION TO PAY THE GOVERNMENT LIQUIDATED DAMAGES FOR THE DELAY IN PERFORMANCE.

COMPTROLLER GENERAL WARREN TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, APRIL 25, 1949:

I HAVE YOUR LETTER OF MARCH 9, 1949, WITH ENCLOSURES, WHEREIN YOU REQUEST A DECISION AS TO WHETHER W. R. ALDRICH AND COMPANY OF ALEXANDRIA, LOUISIANA, SHOULD BE ASSESSED LIQUIDATED DAMAGES ON ACCOUNT OF DELAY IN PERFORMANCE UNDER CONTRACT NO. VA-27H-1887, DATED SEPTEMBER 15, 1947.

UNDER THE TERMS OF THE CONTRACT W. R. ALDRICH AND COMPANY AGREED TO FURNISH ALL LABOR AND EQUIPMENT AND PERFORM ALL WORK REQUIRED TO COMPLETELY DEMOLISH AND RESTORE THE SITE OF CERTAIN N.Y.A. BUILDINGS LOCATED ON THE RESERVATION GROUNDS OF THE VETERANS' ADMINISTRATION HOSPITAL, ALEXANDRIA, LOUISIANA. IT WAS SPECIFIED THAT ALL SALVAGED MATERIAL AND DEBRIS RESULTING FROM THE WORK SHOULD BECOME THE PROPERTY OF THE CONTRACTOR AND SHOULD BE COMPLETELY REMOVED FROM THE SITE BY THE CONTRACTOR, AT HIS EXPENSE, UNLESS OTHERWISE PERMITTED BY THE CONTRACT SPECIFICATIONS. THE CONTRACTOR AGREED TO PAY TO THE GOVERNMENT THE SUM OF $4,555.52 FOR TITLE TO ALL SALVAGED MATERIAL ON AN "AS IS, WHERE IS," BASIS AND AGREED TO PERFORM THE DEMOLITION AND RESTORATION OF SITE WORK REQUIRED BY THE CONTRACT, AS SPECIFIED THEREIN, FOR THE CONSIDERATION OF $1,500. PARAGRAPH 6 OF THE GENERAL CONDITIONS PROVIDED THAT THE CONTRACTOR WOULD PAY TO THE GOVERNMENT, BY WAY OF LIQUIDATED AND ASCERTAINED DAMAGES, AND NOT AS A PENALTY, THE SUM OF $10 FOR EACH CALENDAR DAY BEYOND THE PERFORMANCE LIMIT OF 180 CALENDAR DAYS WHICH MIGHT BE REQUIRED TO COMPLETE THE CONTRACT, TO COMPENSATE THE GOVERNMENT FOR ITS DELAYED POSSESSION OF THE SITE.

IN YOUR LETTER IT IS STATED THAT ALTHOUGH, UNDER THE TERMS OF THE CONTRACT, THE WORK WAS TO BE COMPLETED BY MARCH 9, 1948, IT ACTUALLY WAS NOT COMPLETED UNTIL MAY 3, 1948, THUS RESULTING IN A DELAY OF 55 DAYS BEYOND THE PERFORMANCE TIME SPECIFIED IN THE CONTRACT. IT IS STATED FURTHER THAT BY LETTER DATED JANUARY 23, 1948, THE CONTRACTOR ADVISED THAT, UP TO THAT TIME, IT HAD USED ITS FORCES TO REMOVE THE BUILDINGS AT INTERVALS BETWEEN OTHER JOBS AND EXPRESSED THE OPINION THAT THE WORK WOULD BE COMPLETED PRIOR TO MARCH 25, 1948, UNLESS DELAYED AS A RESULT OF WET WEATHER. ALSO, IT IS STATED THAT 20 DAYS AFTER THE EXPIRATION OF THE CONTRACT PERFORMANCE PERIOD THE CONTRACTOR REQUESTED ADDITIONAL TIME TO COMPENSATE FOR DELAY DUE TO UNUSUALLY SEVERE WEATHER "FOR THE PAST FOUR MONTHS.' THERE WAS FORWARDED WITH YOUR LETTER A COPY OF A MEMORANDUM DATED FEBRUARY 15, 1949, WHEREIN THE SUPPLY OFFICER AT THE ALEXANDRIA HOSPITAL, THE CONTRACTING OFFICER, RECOMMENDED THAT THE CONTRACTOR BE RELIEVED FROM THE ASSESSMENT OF ANY LIQUIDATED DAMAGES FOR THE REASON THAT THE DELAY IN COMPLETION OF PERFORMANCE OF THE WORK WAS DUE TO WEATHER CONDITIONS, IT BEING STATED THAT THERE WERE 67 DAYS OF ADVERSE AND INCLEMENT WEATHER DURING PERFORMANCE WHEREAS THE DELAY IN COMPLETION OF PERFORMANCE WAS ONLY 55 DAYS.

PARAGRAPH 6 OF THE INSTRUCTIONS TO BIDDERS ON THE REVERSE OF THE BID FORM USED IN REQUESTING BIDS ( STANDARD FORM 33, REVISED) PROVIDED THAT IN THE EVENT THE CONTRACT CONTAINED A STIPULATION FOR LIQUIDATED DAMAGES, PARAGRAPH 4 OF THE CONDITIONS, ALSO ON THE REVERSE OF THE BID FORM, SHOULD BE DELETED AND THERE SHOULD BE SUBSTITUTED THEREFOR THE ARTICLE ENTITLED " DELAYS--- LIQUIDATED DAMAGES," QUOTED IN PARAGRAPH 5 OF THE DIRECTIONS ON PAGE 6, U.S. STANDARD FORM NO. 32. WHILE THERE IS NOTHING OF RECORD TO SHOW THAT THE SAID PARAGRAPH 4 OF THE CONDITIONS WAS DELETED AND THE REFERRED-TO ARTICLE SUBSTITUTED THEREFOR, IT MAY BE POINTED OUT THAT THE SAID PARAGRAPH HAS TO DO GENERALLY WITH PURCHASES AGAINST THE CONTRACTOR'S ACCOUNT AND THE COLLECTION OF SUCH EXCESS COSTS AS MIGHT RESULT THEREFROM. SINCE THE CONTRACTOR WAS NOT DECLARED IN DEFAULT OF ITS CONTRACT, PARAGRAPH 4 OF THE CONDITIONS CLEARLY HAS NO APPLICATION TO THE SITUATION HERE PRESENT. THUS, THE CONTRACT AS EXECUTED CONTAINS NO PROVISION FOR EXCUSING THE CONTRACTOR FOR DELAYS IN PERFORMANCE FOR ANY CAUSE. THEREFORE, THE QUESTION PRESENTED IS WHETHER PERFORMANCE WAS RENDERED IMPOSSIBLE FOR THE PERIOD OF DELAY, OR ANY PART THEREOF, BY "ACTS OF GOD," BY THE LAW, OR BY THE GOVERNMENT. SEE COLUMBUS RY. AND POWER CO. V. COLUMBUS, 249 U.S. 399, 412. NONE OF THE DELAY IS SHOWN, OR EVEN ALLEGED, TO HAVE BEEN CAUSED BY THE LAW OR THE GOVERNMENT. ON THE CONTRARY, THE ENTIRE DELAY IS REPORTED TO HAVE BEEN DUE TO ADVERSE AND INCLEMENT WEATHER CONDITIONS. HOWEVER, SUCH WEATHER CONDITIONS ARE A PART OF THE GENERAL HAZARD ASSUMED BY THE CONTRACTOR IN CONNECTION WITH THE PERFORMANCE OF THE CONTRACT AND RAINY WEATHER IS NOT CLASSED AS AN "ACT OF GOD," UNLESS SO ABNORMAL, EXTRAORDINARY, OR UNUSUAL AND OF SUCH SEVERITY THAT IT COULD NOT HAVE BEEN CONSIDERED AS FORESEEABLE SO AS TO BE PROVIDED AGAINST IN THE CONTRACT. SEE VOLUME 2, WORDS AND PHRASES, PERM. USED., " ACT OF GOD" 188; ALSO, SEE 5 COMP. GEN. 595 AND 10 ID. 186.

WHILE THE RECORD IN THE PRESENT CASE SHOWS THAT THE PRECIPITATION DURING THE PERIOD OF PERFORMANCE OF THE CONTRACT WORK WAS HIGH, IT WAS NOT SO UNUSUAL OR EXTRAORDINARY AS TO CONSTITUTE AN "ACT OF GOD" SO AS TO RELIEVE THE CONTRACTOR FROM ITS CONTRACTUAL OBLIGATION TO PAY TO THE GOVERNMENT LIQUIDATED DAMAGES FOR THE DELAY IN PERFORMANCE. THE RIGHT HAVING VESTED IN THE GOVERNMENT TO HAVE PERFORMANCE STRICTLY IN ACCORDANCE WITH THE CONTRACT TERMS, NO OFFICER OR OFFICIAL OF THE GOVERNMENT HAS AUTHORITY TO MODIFY SUCH TERMS UNLESS IN THE INTEREST OF THE GOVERNMENT. SEE CHRISTIE V. UNITED STATES, 237 U.S. 234; SHIPMAN V. DISTRICT OF COLUMBIA, 18 C.1CLS. 291; BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 C.1CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645.

ACCORDINGLY, I HAVE TO ADVISE THAT ON THE RECORD NOW BEFORE THIS OFFICE THERE IS NO AUTHORITY TO EXTEND THE TIME FOR PERFORMANCE AND IT NECESSARILY FOLLOWS THAT LIQUIDATED DAMAGES SHOULD BE ASSESSED AGAINST THE CONTRACTOR IN ACCORDANCE WITH THE EXPRESS TERMS OF THE CONTRACT.