B-161578, AUG. 21, 1967

B-161578, AUG. 21, 1967

CONTRACTS - LOSS AND DAMAGE TO CONTRACTOR'S PROPERTY DECISION TO CERTIFYING OFFICER, FOREST SERVICE, RE CLAIM FOR MATERIALS AND EQUIPMENT LOST IN ,CHRISTMAS 1964" FLOOD BY CONTRACTOR BUILDING BRIDGE AT MT. HOOD NATIONAL FOREST. CLAIM OF CONTRACTOR FOR LOSS OF BRIDGE CONSTRUCTION MATERIALS WHICH CLAIM WAS ALLOWED BY CONTRACTING OFFICER ON BASIS OF (1) CONTRACT PROVISION AND (2) AS AGREED DAMAGES FOR BREACH DUE TO GOVT.'S DELAY IN AUTHORIZING REMOVAL OF FALSEWORK AROUND BRIDGE MAY NOT BE ALLOWED SINCE THE PARTICULAR PROVISION DOES NOT IMPOSE ANY LIABILITY ON GOVT. FOR LOSS OF CONTRACTOR'S PROPERTY. ALSO SINCE GOVT. PAID CONTRACTOR FOR EXTRA WORK IN REPAIRING DAMAGE HE MUST STAND LOSS OF MATERIALS. WITH RESPECT TO ACTION FOR BREACH CONTRACT RECOGNIZED THAT COLD WEATHER MIGHT DELAY REMOVAL OF FALSEWORK THEREFORE, DELAY MAY NOT BE CONSIDERED UNREASONABLE.

TO MR. REED H. JENSEN:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1967, WITH ENCLOSURE, REQUESTING A DECISION AS TO WHETHER YOU MAY PROPERLY CERTIFY A VOUCHER IN FAVOR OF WORKMAN CONSTRUCTION COMPANY IN THE AMOUNT OF $4,280.80, CONSISTING OF $200 WITHHELD UNDER CONTRACT NO. 06-467, DATED JUNE 16, 1964, AND $4,080.80 FOR MATERIALS AND EQUIPMENT USED IN CONNECTION WITH THE CITED CONTRACT AND LOST IN THE ,CHRISTMAS 1964" FLOOD, CONSISTING OF PLYFORM AND TIMBERS USED IN THE FALSEWORK FOR THE CONCRETE BRIDGE DECK, 34 SHORING JACKS AND 1 DROP HAMMER. WE ALSO REQUESTED AND RECEIVED FROM THE FOREST SERVICE ON JULY 17, 1967, COPIES OF THE NOTICE TO PROCEED AND THE CONTRACTING OFFICER'S EXTENSIONS OF PERFORMANCE TIME.

THE ABOVE CONTRACT WAS FOR CONSTRUCTION OF MUDDY FORK SANDY RIVER BRIDGE NO. S25-0.6 AND APPROACHES, MT. HOOD NATIONAL FOREST, CLACKAMAS COUNTY, OREGON. NOTICE TO PROCEED WAS RECEIVED BY THE CONTRACTOR ON JULY 17, 1964, AND THE CONTRACT PROVIDES THAT WORK SHALL BE STARTED WITHIN 10 CALENDAR DAYS AND COMPLETED WITHIN 120 CALENDAR DAYS AFTER THE DATE OF RECEIPT BY CONTRACTOR OF NOTICE TO PROCEED, THEREBY ESTABLISHING NOVEMBER 14, 1964, AS THE REQUIRED COMPLETION DATE OF THE CONTRACT. SPECIAL CONDITION NO. 2 OF THE SPECIFICATIONS PROVIDES THAT "NO LIQUIDATED DAMAGES WILL BE CHARGED BUT STRICT ADHERENCE TO THE APPROVED SCHEDULE OF PROPOSED PROGRESS WILL BE REQUIRED.' THE CONTRACT FURTHER AUTHORIZES THE GOVERNMENT TO TERMINATE THE CONTRACTOR'S RIGHT TO PROCEED IF THERE IS DELAY IN THE PROSECUTION OR COMPLETION OF THE WORK, UNLESS THE DELAY ARISES FROM UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR.

PARAGRAPH 203-1.2 OF THE CONSTRUCTION SPECIFICATIONS REQUIRES THAT THE CONCRETE SHALL HAVE A MINIMUM COMPRESSIVE STRENGTH OF 3,000 POUNDS PER SQUARE INCH (PSI) AT 28 DAYS UNLESS OTHERWISE SPECIFIED ON THE PLANS AND THERE IS NO INDICATION THAT THE PLANS SPECIFIED OTHERWISE. PARAGRAPH 203- 4.11 PROVIDES THAT FALSEWORK SHALL BE REMOVED ONLY UPON WRITTEN CONSENT OF THE CONTRACTING OFFICER'S REPRESENTATIVE (COR), THAT THE MINIMUM PERIOD BEFORE REMOVAL OF FALSEWORK SHALL BE 14 DAYS, AND THAT IN COLD WEATHER THE MINIMUM TIME INTERVALS MAY BE EXTENDED BY THE COR.

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

THE BASIS OF THE CONTRACTING OFFICER'S "FINDING," WHEREBY HE PURPORTS TO ALLOW THE CLAIM FOR $4,080.80 IS NOT ENTIRELY CLEAR, BUT IT APPEARS TO BE A DETERMINATION THAT THE CONTRACTOR IS ENTITLED TO PAYMENT ON DUAL GROUNDS, NAMELY, (1) UNDER SECTION 5.10 OF THE GENERAL REQUIREMENTS OF THE SPECIFICATIONS, AND (2) AS AGREED DAMAGES FOR BREACH OF CONTRACT DUE TO THE GOVERNMENT'S DELAY IN AUTHORIZING STRIKING OF THE FALSEWORK, THE CONTRACTOR'S RELEASE APPARENTLY CONSTITUTING HIS PART OF THE AGREEMENT. THE ABOVE SECTION 5.10 PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"CONTRACTOR'S RESPONSIBILITY FOR WORK - UNTIL THE FINAL ACCEPTANCE OF THE WORK BY THE CONTRACTING OFFICER, AS EVIDENCED IN WRITING, THE CONTRACTOR SHALL HAVE THE CHARGE AND CARE THEREOF AND SHALL TAKE EVERY PRECAUTION AGAINST INJURY OR DAMAGE TO ANY PART THEREOF BY THE ACTION OF THE ELEMENTS, OR FROM ANY OTHER CAUSE, WHETHER ARISING FROM THE EXECUTION OR FROM THE NONEXECUTION OF THE WORK. THE CONTRACTOR SHALL REBUILD, REPAIR, RESTORE, AND MAKE GOOD ALL INJURIES OR DAMAGES TO ANY PORTION OF THE WORK OCCASIONED BY ANY OF THE ABOVE CAUSES BEFORE FINAL ACCEPTANCE AND SHALL BEAR THE EXPENSE THEREOF, EXCEPT DAMAGES TO THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL OF AND WITHOUT FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING BUT NOT RESTRICTED TO ACTS OF GOD OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FLOODS AND CLOUDBURSTS, SLIDES FOUND BY THE ENGINEER TO HAVE BEEN UNAVOIDABLE AND ORDINARY WEAR AND TEAR ON ANY SECTION OF THE ROAD OPENED TO TRAFFIC BY ORDER OF THE ENGINEER.

"THE CONTRACTOR SHALL BE RESPONSIBLE FOR ALL MATERIALS, AND SHALL PROPERLY STORE THEM, IF NECESSARY, AND SHALL PROVIDE SUITABLE DRAINAGE OF THE ROADWAY AND ERECT NECESSARY TEMPORARY STRUCTURE AT HIS EXPENSE.' HIS "FINDING" THE CONTRACTING OFFICER POINTS OUT THAT SECTION 5.10 RELIEVES THE CONTRACTOR OF RESPONSIBILITY FOR LOSSES DUE TO ACTS OF THE GOVERNMENT OR ACTS OF GOD, INCLUDING FLOODS, AND DETERMINES THAT SUCH, SEPARATELY OR IN COMBINATION, WERE THE CAUSES OF THE LOSSES IN QUESTION AND THAT THE INVOLVED MATERIALS AND EQUIPMENT WERE REASONABLY REQUIRED IN THE PERFORMANCE OF THE CONTRACT. HOWEVER, THE FACT THAT THEY WERE REQUIRED IN THE PERFORMANCE OF THE CONTRACT WOULD NOT BRING THEM WITHIN SECTION 5.10, WHICH REFERS ALL THE WAY THROUGH TO THE ,WORK," AND IS CLEARLY INTENDED TO PROTECT THE GOVERNMENT IN THE EVENT OF DAMAGE TO THE WORK--THAT IS, THE SUBJECT MATTER OF THE CONTRACT--EITHER IN PROGRESS OR AFTER COMPLETION AND PRIOR TO FINAL ACCEPTANCE. THE REFERENCE TO MATERIALS IN THE SECOND PARAGRAPH OF 5.10 IN NO WAY SUGGESTS THAT ANY MORE WAS INTENDED THAN THOSE ITEMS WHICH ACTUALLY ARE TO ENTER INTO AND BECOME A PART OF THE COMPLETED JOB, SUCH AS THE CONCRETE. THE CONTRACTING OFFICER'S INTERPRETATION WOULD OPERATE TO SHIFT LIABILITY FOR LOSS OF THE CONTRACTOR'S PROPERTY TO THE GOVERNMENT, WHICH CLEARLY WAS NOT INTENDED. THE PROVISIONS OF SECTION 5.10 IMPOSE UPON THE CONTRACTOR ALL RISKS OF LOSS OR DAMAGE TO THE GOVERNMENT WORK FROM OTHER THAN THE EXCEPTED CAUSES; NOTHING THEREIN CAN PROPERLY BE CONSTRUED TO IMPOSE UPON THE GOVERNMENT ANY RISKS OR RESPONSIBILITY FOR LOSS OF OR DAMAGE TO THE CONTRACTOR'S PROPERTY OR EQUIPMENT FROM ANY CAUSE. THE RISK OF LOSS OR DAMAGE DUE TO ANY OF THE EXCEPTED CAUSES MUST REST WHERE IT FALLS--THAT IS, ON THE OWNER OF THE PROPERTY LOST OR DAMAGED. THE GOVERNMENT HAS BORNE THE COST OF FLOOD DAMAGE TO THE WORK BY PAYING THE CONTRACTOR IN EXCESS OF $7,000 FOR EXTRA WORK IN REPAIRING SAID DAMAGE; THE CONTRACTOR, BY THE SAME TOKEN, MUST STAND THE LOSS OF ITS MATERIALS AND EQUIPMENT, UNLESS ANOTHER BASIS FOR PAYMENT CAN BE FOUND.

AS TO HIS SECOND POSSIBLE GROUND FOR ALLOWANCE, THE CONTRACTING OFFICER STATES THAT IT IS A WELL ESTABLISHED CONCEPT THAT NEITHER PARTY WILL DO ANYTHING TO OBSTRUCT THE OTHER FROM PERFORMING ITS PART OF THE CONTRACT AND THAT IN THIS CASE IT CANNOT BE RULED THAT ADDITIONAL RISK CAN BE PLACED UPON THE CONTRACTOR DUE TO THE GOVERNMENT'S CHOICE TO MAKE SEVERAL TENTATIVE TESTS WITH THE IMPACT HAMMER TO VERIFY THE ADEQUACY OF THE DECK CONCRETE. REFERENCE IS ALSO MADE TO THE FACT THAT ONE STATED BASIS FOR THE TIME EXTENSION OF 34 DAYS GRANTED IN THE CONTRACTING OFFICER'S LETTER OF FEBRUARY 5, 1965, WAS DELAY IN PERMISSION TO STRIKE THE FALSEWORK BECAUSE OF THE DEVELOPMENT WITH RESPECT TO THE QUESTION OF STRENGTH IN THE CONCRETE, THE OTHER BASIS FOR THE EXTENSION BEING ADVERSE WEATHER CONDITIONS.

IN ORDER TO BE ALLOWABLE IN AN ACTION FOR BREACH OF CONTRACT, (ASSUMING THAT ANY OF THE GOVERNMENT'S ACTIONS WERE WRONGFUL), THE DAMAGES MUST BE THE DIRECT AND PROXIMATE RESULT OF THE INJURY COMPLAINED OF, AND DAMAGES REMOTELY OR CONSEQUENTIALLY RESULTING THEREFROM CAN NOT BE CLAIMED. WYANT V. UNITED STATES, 46 CT. CL. 205; DRISCOLL V. UNITED STATES, 34 CT. CL. 508; MYERLE V. UNITED STATES, 33 CT. CL. 1. THE LOSS IN THIS CASE DOES NOT MEET THIS TEST FOR RECOVERY, THE DAMAGE HAVING BEEN DIRECTLY AND PROXIMATELY CAUSED BY THE FLOOD AND THERE BEING NO INDICATION AS TO WHEN THE FALSEWORK WOULD HAVE BEEN REMOVED IF PERMISSION TO STRIKE HAD BEEN GRANTED EARLIER. IN FACT, FOR AUGHT THAT APPEARS IN THE RECORD, IT MIGHT HAVE BEEN POSSIBLE TO REMOVE IT BETWEEN DECEMBER 15, WHEN PERMISSION WAS GRANTED, AND DECEMBER 19, THE DATE WORK WAS STOPPED BECAUSE OF SNOW. FURTHERMORE, WHILE THERE IS AN IMPLIED PROVISION IN EVERY CONTRACT THAT NEITHER PARTY WILL HINDER OR DELAY THE PERFORMANCE OF THE OTHER (FULLER V. UNITED STATES, 108 CT. CL. 70), THE DELAY MUST BE UNREASONABLE (LABURNUM V. UNITED STATES, 163 CT. CL. 339), AND THERE IS NO LIABILITY FOR DELAYS UNLESS IT CAN BE FOUND THAT THE GOVERNMENT REPRESENTATIVES WERE AT FAULT (CHALENDER V. UNITED STATES, 127 CT. CL. 557), OR AS STATED IN KIEWIT, ET. AL., V. UNITED STATES, 138 CT. CL. 668, WHERE THERE IS NEGLIGENCE OR WILLFUL MISCONDUCT ON THE PART OF GOVERNMENT REPRESENTATIVES. UNREASONABLE DELAY OR NEGLIGENCE IS INDICATED HERE. WHILE THE CONTRACTING OFFICER AUTHORIZED A 19 DAY EXTENSION ON THE GROUND THAT THE CONTRACTOR MIGHT HAVE EXPECTED PERMISSION TO STRIKE THE FALSEWORK AT THE EXPIRATION OF THE 14 DAY MINIMUM CURING PERIOD, IT SHOULD BE NOTED THAT THE CONTRACT, AS STATED ABOVE, SPECIFICALLY RECOGNIZES THAT COLD WEATHER MAY DELAY CURING AND PROVIDES FOR APPROPRIATE EXTENSIONS OF THE TIME FOR STRIKING THE FALSEWORK, AND THE RECORD INDICATES THAT THE DELAY IN PERMITTING THE REMOVAL OF THE FALSEWORK WAS FULLY JUSTIFIED BY THIS PROVISION AND WAS IN NO WAY UNREASONABLE OR WRONGFUL.

FOR THE REASONS STATED WE FIND NO JUSTIFICATION EITHER WITHIN OR WITHOUT THE CONTRACT FOR ASSUMING THE CONTRACTOR'S LOSS. THE CLAIM FOR $4,080.80 MAY THEREFORE NOT BE ALLOWED. PAYMENT OF THE $200 RETAINED WOULD DEPEND ON CORRECTION OF THE DISCREPANCIES WHICH JUSTIFIED THE RETENTION. THE VOUCHER AND ATTACHED SUPPORTING PAPERS WILL BE RETAINED IN THIS OFFICE. THE NARRATIVE STATEMENT OF CLAIM AND THE COPY OF CONTRACT ARE RETURNED.