B-88589, OCTOBER 3, 1949, 29 COMP. GEN. 149

B-88589, OCTOBER 3, 1949, 29 COMP. GEN. 149

CONTRACTS - DAMAGES - LIQUIDATED - DELAYS - EXTENSIONS OF TIME UNDER A CONSTRUCTION CONTRACT PROVIDING THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES FOR DELAYS CAUSED BY UNFORESEEABLE UNUSUALLY SEVERE WEATHER, THE CONTRACT TIME FOR PERFORMANCE ADMINISTRATIVELY MAY BE EXTENDED FOR A PERIOD OF DELAY CAUSED BY UNUSUALLY SEVERE WEATHER OCCURRING AFTER THE DATE FIXED FOR COMPLETION, BUT PRIOR TO COMPLETION OF THE WORK, PROVIDED SUCH EXTENSION OF TIME IS SUPPORTED BY A FINDING OF FACT MADE PURSUANT TO THE CONTRACT THAT THE CONTRACTOR WAS DELAYED DUE TO AN UNFORESEEABLE CAUSE OF DELAY RESULTING FROM UNUSUALLY SEVERE WEATHER.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF COMMERCE, OCTOBER 3, 1949:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 5, 1949, REQUESTING A DECISION AS TO WHETHER THE CONTRACTING OFFICER UNDER CONTRACT NO. C6CA 2949, DATED APRIL 28, 1948, WITH KASHNER-BENDER, INC., WAS CORRECT IN REFUSING TO CONSIDER ALLEGED UNUSUALLY SEVERE WEATHER AS AN EXCUSABLE CAUSE OF DELAY BECAUSE IT DID NOT OCCUR DURING THE ORIGINAL CONTRACT PERIOD.

UNDER THE TERMS OF THE CONTRACT IT WAS AGREED THAT THE CONTRACTOR WOULD FURNISH THE MATERIALS AND PERFORM THE WORK FOR CONSTRUCTING AN MOR RADIO RANGE FACILITY NEAR PESCADERO, CALIFORNIA, AT SPECIFIED UNIT PRICES. THE CONTRACT PROVIDED THAT THE WORK SHOULD BE COMMENCED WITHIN 10 CALENDAR DAYS AFTER THE EFFECTIVE DATE OF NOTICE TO PROCEED AND SHOULD BE COMPLETED WITHIN 100 CALENDAR DAYS FROM THAT DATE. PARAGRAPH G ON PAGE 4 OF PROPOSAL NO. 6-48-142, WHICH WAS MADE A PART OF THE CONTRACT, PROVIDED THAT THE CONTRACTOR WOULD BE CHARGED WITH LIQUIDATED DAMAGES AT THE RATE OF $30 PER CALENDAR DAY FOR EACH DAY OF DELAY IN COMPLETION OF THE CONTRACT OR PART THEREOF, SUBJECT TO THE PROVISIONS OF ARTICLE 9 OF THE CONTRACT PROPER. THE SAID ARTICLE 9 PROVIDED, IN PERTINENT PART, AS FOLLOWS:

* * * 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, ACTS OF ANOTHER CONTRACTOR IN THE PERFORMANCE OF A CONTRACT WITH THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, AND UNUSUALLY SEVERE WEATHER OR DELAYS OF SUBCONTRACTORS DUE TO SUCH CAUSES, IF THE CONTRACTOR SHALL WITHIN 10 DAYS FROM THE BEGINNING OF ANY SUCH DELAY (UNLESS THE CONTRACTING OFFICER, WITH THE APPROVAL OF THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE, SHALL GRANT A FURTHER PERIOD OF TIME PRIOR TO THE DATE OF FINAL SETTLEMENT OF THE CONTRACT) NOTIFY THE CONTRACTING OFFICER 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 HIS JUDGMENT THE FINDINGS OF FACT JUSTIFY SUCH AN EXTENSION, AND HIS FINDINGS OF FACT THEREON SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO, SUBJECT ONLY TO APPEAL, WITHIN 30 DAYS, BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT CONCERNED OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION ON SUCH APPEAL AS TO THE FACTS OF DELAY AND THE EXTENSION OF TIME FOR COMPLETING THE WORK SHALL BE FINAL AND CONCLUSIVE ON THE PARTIES HERETO.

IN YOUR LETTER IT IS STATED THAT THE TIME FOR PERFORMANCE WAS EXTENDED 32 CALENDAR DAYS, THEREBY ALLOWING THE CONTRACTOR 132 CALENDAR DAYS WITHIN WHICH TO PERFORM THE CONTRACT WORK; THAT THE WORK WAS NOT COMPLETED WITHIN 132 CALENDAR DAYS; THAT THE CONTRACTOR CONTENDS, AMONG OTHER THINGS, THAT IT ENCOUNTERED UNUSUALLY SEVERE WEATHER WHICH DELAYED IT AND ITS SUBCONTRACTOR IN THE ERECTION OF STEEL TOWERS; AND THAT THE ALLEGED UNUSUALLY SEVERE WEATHER DID NOT OCCUR DURING THE 132 DAY PERIOD. IT IS STATED FURTHER, IN EFFECT, THAT THE CONTRACTING OFFICER REFUSED TO GRANT THE CONTRACTOR AN EXTENSION OF TIME ON ACCOUNT OF UNUSUALLY SEVERE WEATHER FOR THE REASON THAT IT WOULD NOT HAVE ENCOUNTERED SUCH WEATHER IF IT HAD MADE NORMAL PROGRESS AND COMPLETED PERFORMANCE WITHIN THE TIME SPECIFIED IN THE CONTRACT AS EXTENDED.

IN YOUR LETTER YOU INQUIRE WHETHER, IN THE EVENT IT IS DETERMINED THAT THE CONTRACTING OFFICER'S INTERPRETATION WAS INCORRECT, YOU SHOULD, IN ACTING ON THE APPEAL, MAKE A DETERMINATION AS TO THE WEATHER WHICH WAS ENCOUNTERED AND, IF IT BE FOUND THAT IT WAS UNUSUALLY SEVERE, EXTEND THE CONTRACT TIME ACCORDINGLY EVEN THOUGH SUCH ADVERSE WEATHER OCCURRED AFTER THE TIME SPECIFIED FOR COMPLETION HAD EXPIRED.

THE QUESTION PRESENTED IN YOUR LETTER AS TO WHETHER THE CONTRACTING OFFICER WAS CORRECT IN REFUSING TO GRANT THE CONTRACTOR AN EXTENSION OF TIME FOR THE REASON ASSIGNED BY HIM IS SIMILAR TO THAT CONSIDERED IN OFFICE DECISION OF APRIL 6, 1929, 8 COMP. GEN. 530, WHEREIN IT WAS STATED, ON PAGE 533, THAT---

* * * CONSTRUCTION CONTRACTS ON THE STANDARD FORMS CONTINUE TO COMPLETION UNLESS THEY ARE TERMINATED BY THE ADMINISTRATIVE OFFICERS BECAUSE OF THE DELAY BY THE CONTRACTOR, AND, AS THE CONTRACTS SO CONTINUE, IT IS IMMATERIAL WHETHER THE DELAY RESULTED BEFORE OR AFTER THE DATE FIXED FOR COMPLETION. * * *

IN THE PRESENT CASE THE GOVERNMENT DID NOT TERMINATE THE CONTRACTOR'S RIGHT TO PROCEED BUT PERMITTED IT TO PROCEED WITH PERFORMANCE OF THE CONTRACT WORK BEYOND THE TIME FIXED FOR PERFORMANCE AS EXTENDED. ARTICLE 9 OF THE CONTRACT DOES NOT LIMIT EXCUSABLE CAUSES OF DELAY TO THOSE WHICH OCCUR PRIOR TO THE COMPLETION DATE. ON THE CONTRARY, IT IS EXPRESSLY PROVIDED BY SAID ARTICLE THAT THE CONTRACTOR SHALL NOT BE 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, THE CAUSES SPECIFIED THEREIN. THUS, REGARDLESS OF WHETHER THE CAUSE OF DELAY OCCURS BEFORE OR AFTER THE DATE FIXED FOR COMPLETION, THE DELAY IS EXCUSABLE AND THE CONTRACTOR IS NOT CHARGEABLE WITH LIQUIDATED DAMAGES IF THE DELAY IS DUE TO AN UNFORESEEABLE CAUSE BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR. AS TO WHAT CONSTITUTES AN UNFORESEEABLE CAUSE OF DELAY, SEE UNITED STATES V. BROOKS-CALL AWAY CO., 318 U.S. 120.

ACCORDINGLY, YOU ARE ADVISED THAT IF IT BE FOUND AS A FACT THAT THE CONTRACTOR WAS DELAYED DUE TO AN UNFORESEEABLE CAUSE OF DELAY ON ACCOUNT OF UNUSUALLY SEVERE WEATHER WHICH, IN THE JUDGMENT OF THE HEAD OF THE DEPARTMENT, OR HIS DULY AUTHORIZED REPRESENTATIVE, JUSTIFIES AN EXTENSION OF TIME, THIS OFFICE WILL NOT BE REQUIRED TO OBJECT TO A FURTHER EXTENSION OF THE CONTRACT TIME FOR SUCH PERIOD OF DELAY, PROVIDED SUCH EXTENSION OF TIME IS SUPPORTED BY A FINDING OF FACT MADE PURSUANT TO ARTICLE 9 OF THE CONTRACT.