APRIL 28, 1923, 2 COMP. GEN. 698

APRIL 28, 1923, 2 COMP. GEN. 698

CONTRACTS - DELAYS FOR WHICH COST OF INSPECTION AND SUPERINTENDENCE ARE CHARGEABLE TO CONTRACTOR HIGH WATER OCCURRING ANNUALLY IN A RIVER ADJACENT TO WHICH A LEVEE IS TO BE CONSTRUCTED UNDER CONTRACT IS NOT AN "UNUSUAL FRESHET" OR AN "UNFORESEEABLE CAUSE OF DELAY" SUCH AS WOULD EXCUSE THE COMPLETION OF THE WORK WITHIN THE TIME SPECIFIED IN THE CONTRACT OR RELIEVE THE CONTRACTOR FROM PAYING THE COST OF SUPERINTENDENCE AND INSPECTION PROVIDED IN THE CONTRACT. DELAYS IN THE COMPLETION OF A CONTRACT FOR THE CONSTRUCTION OF A LEVEE DUE TO CHANGES IN THE ALIGNMENT OF THE LEVEE MADE BY THE CONTRACTING OFFICER ON BEHALF OF THE UNITED STATES, THEREBY INCREASING THE YARDAGE BEYOND THAT CONTEMPLATED WHEN THE CONTRACT WAS EXECUTED, ARE DELAYS FOR WHICH THE CONTRACTOR IS NOT RESPONSIBLE AND HE IS NOT LIABLE FOR THE ADDITIONAL COST OF SUPERINTENDENCE AND INSPECTION DUE TO SUCH CHANGES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF WAR, APRIL 28, 1923:

THERE HAS BEEN SUBMITTED, BY YOUR AUTHORITY, THE REQUEST OF THE CHIEF OF ENGINEERS, UNITED STATES ARMY, FOR DECISION OF THE QUESTION AS TO WHETHER THE ADDITIONAL COST OF INSPECTION CAUSED BY THE FAILURE OF D. B. HEARIN AND SON TO COMPLETE THE WORK TO BE PERFORMED BY THEM UNDER THEIR CONTRACT DATED JUNE, 1921, WITHIN THE TIME SPECIFIED IN THE CONTRACT, SHOULD BE CHARGED AGAINST THEM AND DEDUCTED FROM PAYMENTS TO BE MADE.

ARTICLE 1 OF THE CONTRACT PROVIDES THAT---

IN CONFORMITY WITH THE ADVERTISEMENT AND SPECIFICATIONS HEREUNTO ATTACHED, WHICH FORM A PART OF THIS CONTRACT, THE SAID CONTRACTOR SHALL FURNISH ALL THE LABOR, PLANT, AND MATERIALS AND DO ALL THE WORK NECESSARY AND INCIDENT TO THE CONSTRUCTION, IN ACCORDANCE WITH THE SPECIFICATIONS HERETO ATTACHED, OF PICAYUNEVILLE LEVEE, CONTAINING APPROXIMATELY SIX HUNDRED TWENTY THOUSAND CUBIC YARDS, SITUATED IN THE ATCHAFALAYA LEVEE DISTRICT, AND TO RECEIVE THEREFOR, AS FULL COMPENSATION, TWENTY-ONE AND FORTY-FIVE HUNDREDTHS CENTS PER CUBIC YARD, PLACE MEASUREMENT.

AND THE SAID PARTY OF THE FIRST PART OR HIS SUCCESSOR FOR AND ON BEHALF OF THE UNITED STATES, HEREBY AGREES TO PAY TO THE SAID PARTY OF THE SECOND PART, FOR THE ABOVE SPECIFIED WORK, AS INDICATED, TWENTY ONE AND FORTY- FIVE HUNDREDTHS CENTS PER CUBIC YARD, PLACE MEASUREMENT.

ARTICLE 4 AUTHORIZES THE CONTRACTING OFFICER TO TAKE THE WORK OUT OF THE HANDS OF THE CONTRACTOR IN THE EVENT OF DEFAULT AND TO PROCEED TO HAVE THE WORK COMPLETED BY OTHER MEANS.

ARTICLE 5 PROVIDES THAT---

IF THE CONTRACTOR SHALL FAIL TO DELIVER THE MATERIAL OR TO PROSECUTE THE WORK COVERED BY THIS CONTRACT SO AS TO COMPLETE THE SAME WITHIN THE TIME AGREED UPON, THEN IN LIEU OF TAKING THE WORK OUT OF THE HANDS OF THE CONTRACTOR AS PROVIDED IN ARTICLE 4 OF THIS AGREEMENT, THE CONTRACTING OFFICER, WITH THE PRIOR SANCTION OF THE CHIEF OF ENGINEERS, MAY WAIVE THE TIME LIMIT AND PERMIT THE CONTRACTOR TO FINISH THE WORK WITHIN A REASONABLE PERIOD, TO BE DETERMINED BY THE CONTRACTING OFFICER. SHOULD THE TIME LIMIT BE THUS WAIVED, ALL EXPENSES FOR INSPECTION AND SUPERINTENDENCE AFTER THE DATE FIXED FOR COMPLETION, INCLUDING ALL NECESSARY TRAVELING EXPENSES CONNECTED THEREWITH, AND ALL OTHER LOSSES AND DAMAGES TO THE UNITED STATES DUE TO THE DELAY BEYOND THE TIME ORIGINALLY SET FOR COMPLETION SHALL BE DETERMINED BY THE CONTRACTING OFFICER AND DEDUCTED FROM ANY PAYMENTS DUE OR TO BECOME DUE THE CONTRACTOR.

PROVIDED, HOWEVER, THAT NO CHARGE FOR INSPECTION AND SUPERINTENDENCE SHALL BE MADE FOR SUCH PERIOD AFTER THE DATE FIXED FOR COMPLETION OF THIS CONTRACT AS IN THE JUDGMENT OF THE CONTRACTING OFFICER, APPROVED BY THE CHIEF OF ENGINEERS, SHALL EQUAL THE TIME WHICH SHALL HAVE BEEN LOST THROUGH ANY CAUSE FOR WHICH THE UNITED STATES IS RESPONSIBLE, EITHER IN THE BEGINNING OR PROSECUTION OF THE WORK, OR IN THE PERFORMANCE OF EXTRA WORK ORDERED BY THE CONTRACTING OFFICER, OR ON ACCOUNT OF UNUSUAL FRESHETS, ICE, RAINFALL, OR OTHER ABNORMAL FORCE OR VIOLENCE OF THE ELEMENTS, OR BY STRIKES, EPIDEMICS, LOCAL OR STATE QUARANTINE RESTRICTIONS, OR OTHER UNFORESEEABLE CAUSE OF DELAY ARISING THROUGH NO FAULT OF THE CONTRACTOR AND WHICH ACTUALLY PREVENTED SUCH CONTRACTOR FROM DELIVERING THE MATERIAL, OR COMMENCING OR COMPLETING THE WORK WITHIN THE PERIOD REQUIRED BY THE CONTRACT. THE FINDINGS OF THE CONTRACTING OFFICER APPROVED BY THE CHIEF OF ENGINEERS, SHALL BE ACCEPTED BY THE PARTIES HERETO AS FINAL.

THE WORK TO BE PERFORMED IS DESCRIBED IN PARAGRAPH 48 OF THE ADVERTISEMENT, SPECIFICATIONS, AND PROPOSALS, AND THE DATE FOR THE COMPLETION OF EACH PART IS FIXED THEREIN.

FROM THE INFORMATION SUBMITTED IT APPEARS THAT ALL THE WORK WAS COMPLETED WITHIN THE SPECIFIED TIME EXCEPT THAT ON PICAYUNEVILLE LEVEE (794-96), WHICH WAS TO BE COMPLETED DECEMBER 31, 1922.

THE CONTRACTORS APPLIED DECEMBER 19, 1922, FOR A WAIVER OF THE TIME LIMIT ON THIS PORTION WITHOUT COST TO THEM, ALLEGING AS A REASON FOR THE DELAY THE HIGH WATER IN THE SPRING OF 1922 AND THE CHANGING OF THE LEVEE LINES BY WHICH ABOUT 100,000 CUBIC YARDS WERE ADDED TO THE AMOUNT NAMED IN THE ORIGINAL CONTRACT.

THE DISTRICT ENGINEER HAS FOUND AS A MATTER OF FACT THAT THE HIGH WATER COMPLAINED OF WAS AN ANNUAL OCCURRENCE AND SHOULD HAVE BEEN FORESEEN BY THE CONTRACTORS AT THE TIME OF ENTERING INTO THE CONTRACT.

HE HAS ALSO FOUND THAT DUE TO CHANGES IN THE ALIGNMENT IN CERTAIN PORTIONS OF THE NEW LEVEE WHICH WERE ORDERED BY THE CONTRACTING OFFICER THE AMOUNT OF YARDAGE WAS INCREASED OVER THAT CONTEMPLATED AT THE TIME THE CONTRACT WAS EXECUTED AND THAT THIS INCREASE WAS RESPONSIBLE FOR A DELAY OF ONE MONTH AND 15 DAYS.

THE CONTRACTORS SHOULD NOT BE HELD RESPONSIBLE FOR THE DELAY CAUSED BY THE CHANGE IN ALIGNMENT AND SHOULD BE RELIEVED OF THE COST OF INSPECTION AND SUPERINTENDENCE FOR THE PERIOD OF ONE MONTH AND 15 DAYS OR UNTIL FEBRUARY 15, 1923.

UPON THE FACTS AS THEY NOW APPEAR THE COST OF INSPECTION AND SUPERINTENDENCE ACCRUING AFTER THAT DATE SHOULD BE CHARGED TO THE CONTRACTORS.