B-150093, DEC. 1, 1964

B-150093, DEC. 1, 1964

TO MR. HAROLD P. DANZ, AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF THE INTERIOR:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1964, WITH ENCLOSURES, REQUESTING OUR DECISION AS TO THE PROPRIETY FOR PAYMENT OF A VOUCHER IN THE AMOUNT OF $4,081.35, IN FAVOR OF MCLINN CONSTRUCTION COMPANY, UNDER CONTRACT NO. 14-10-0434-869.

IN OUR DECISION OF NOVEMBER 19, 1962, TO MR. C. E. PERSONS, AUTHORIZED CERTIFYING OFFICER FOR THE DEPARTMENT OF INTERIOR, THE VOUCHER WAS HELD TO BE NOT PROPERLY PAYABLE FOR THE REASONS STATED THEREIN. NEVERTHELESS, IN THE LAST PARAGRAPH OF THE DECISION IT WAS STATED:

"* * * HOWEVER, IF THE FACTS ARE THAT THE GOVERNMENT DID DIRECT THE WORK REVISION, THIS CLAIM MAY BE RESUBMITTED FOR FURTHER CONSIDERATION * * *.'

IT APPEARS FROM THE RECORD IN THE CASE, AS FURNISHED TO US WITH YOUR LETTER, THAT THE CONTRACTOR--- HAVING BEEN SUPPLIED BY THE CONTRACTING OFFICER WITH A COPY OF OUR DECISION OF NOVEMBER 19, 1962--- WROTE THE CONTRACTING OFFICER UNDER DATE OF DECEMBER 13, 1962, IN PERTINENT PART AS FOLLOWS:

"WHEN I RECEIVED THE WRITTEN STOP ORDER ON THE VISITORS CENTER ON APRIL 13, 1962, IT EXPLAINED THAT THE STOP ORDER CALLED FOR THE VISITORS CENTER ONLY. I ASKED IF I SHOULD START THE RESIDENCE AND UTILITIES BUILDINGS AT THE TIME AND YOU SAID THAT YOU SAW NO REASON WHY I SHOULD NOT COMMENCE WORK.

"AT OUR PRE-CONSTRUCTION MEETING CONCERNING FORT CLATSOP NATIONAL MEMORIAL WITH YOU AND MR. WOOLSEY MARCH 19 IN YOUR OFFICE AT THE POST OFFICE AT ASTORIA, OREGON, YOU ASKED FOR MY CONSTRUCTION SCHEDULE ON THE ABOVE NAMED JOB. I GAVE IT TO YOU AS THIS: START VISITORS CENTER IMMEDIATELY AND WORK UNTIL DONE TO BUILD THE RESIDENCE AND UTILITIES BUILDING AND UTILITIES IN THE DRY SEASON. I LATER OUTLINED THIS BY LETTER TO YOU. AT THIS TIME, I BELIEVE, I ASKED YOU HOW YOU WOULD PREFER TO HAVE THE CONSTRUCTION DONE AND YOU TOLD ME YOU WOULD LIKE TO HAVE THE UTILITIES AND UTILITIES BUILDING BUILT FIRST TO HOUSE YOUR EQUIPMENT VEHICLES ETC. AND I IMMEDIATELY TOLD YOU THE COST OF CONSTRUCTION WOULD BE TERRIFIC WORKING ON THAT SEGMENT OF CONSTRUCTION THAT TIME OF YEAR AS IT ULTIMATELY PROVED TO BE TRUE.

"THIRD: LAST PARAGRAPH ON PAGE 4. WE DID INDICATE A CHANGE IN OUR SCHEDULE TO YOU.'

THE "LAST PARAGRAPH ON PAGE," MENTIONED IN THE ABOVE QUOTE, REFERS TO THAT PART OF OUR DECISION OF NOVEMBER 19, 1962, WHICH STATES:

"AS STATED ABOVE, THE RECORD INDICATES THAT THE CONTRACTOR UNDERTOOK TO REVISE HIS PERFORMANCE SCHEDULE WITHOUT PRIOR DIRECTION FROM THE GOVERNMENT AND WITHOUT NOTICE TO THE GOVERNMENT OF HIS INTENTION TO CLAIM ADDITIONAL COMPENSATION THEREFOR. WE DO NOT REGARD SUCH VOLUNTARY ACT BY THE CONTRACTOR AS PROPERLY CONSTITUTING THE SUBJECT OF A CHANGE ORDER WITHIN THE "CHANGES" CLAUSE OF THE CONTRACT.'

BY MEMORANDUM OF DECEMBER 27, 1962, THE CONTRACTING OFFICER TRANSMITTED TO THE REGIONAL DIRECTOR, WESTERN REGION, NATIONAL PARK SERVICE, THE CONTRACTOR'S ABOVE-QUOTED LETTER OF DECEMBER 13, 1962, STATING IN MATERIAL PART THAT THE CONVERSATIONS REFERRED TO IN THE LETTER TOOK PLACE AS CONTENDED BY MR. VIRGIL MCLINN (WHO HAD SIGNED THE LETTER ON BEHALF OF MCLINN CONSTRUCTION COMPANY); THAT MR MCLINN AND HE, WITH THE CONCURRENCE OF THE "WODC PROJECT SUPERVISOR," HAD AGREED UPON A CHANGE IN WORK SCHEDULE WHICH WOULD PERMIT WORK ON THE UTILITY BUILDING AND RESIDENCE TO PROCEED PENDING DECISION ON THE FALLOUT SHELTER FOR THE VISITOR CENTER; AND THAT HE BELIEVED THAT MCLINN CONSTRUCTION COMPANY WAS ENTITLED TO A RECONSIDERATION OF ITS CLAIM. BY MEMORANDUM OF JANUARY 2, 1963, THE ASSISTANT REGIONAL DIRECTOR, WESTERN REGION, REQUESTED THE CONTRACTING OFFICER TO COME TO HIS OFFICE ON JANUARY 21, 1963, IN ORDER "TO BRING TO SOME SORT OF CONCLUSION THE CLAIM OF THE MCLINN COMPANY WHICH WAS REJECTED BY THE GENERAL ACCOUNTING OFFICE.'

IN A LETTER DATED JANUARY 29, 1963, WHICH STATED THAT IT WAS CONFIRMATORY OF A CONVERSATION HELD BETWEEN THE CONTRACTING OFFICER AND MR. VIRGIL MCLINN ON THE EVENING OF JANUARY 22, THE CONTRACTING OFFICER INFORMED MCLINN CONSTRUCTION COMPANY THAT ITS RESTATED CLAIM FOR $4,081.35, WHICH WAS THE SUBJECT OF OUR DECISION, WAS NOT ACCEPTABLE FOR PAYMENT FOR THE REASON THAT DATA HAD NOT BEEN SUBMITTED WHEREBY THE CERTIFYING OFFICER COULD CONCLUDE THAT THE CLAIM WAS OTHER THAN ONE FOR DAMAGES ALLEGEDLY EMANATING FROM A CHANGE IN THE WORK SCHEDULE, AND THAT OFFICIAL HAD NO AUTHORITY TO CERTIFY DAMAGE CLAIMS FOR PAYMENT, AS INDICATED IN OUR DECISION.

BY LETTER OF FEBRUARY 24, 1963, WHICH REFERRED TO ITS CLAIM AS HAVING BEEN DISALLOWED BY OUR DECISION, THE CONTRACTOR APPEALED TO INTERIOR'S BOARD OF CONTRACT APPEALS FOR RELIEF IN THE MATTER. IN ITS DECISION IBCA- 369, DATED JULY 24, 1963, THE BOARD HELD, INSOFAR AS MATERIAL HERE, THAT THE CONTRACTING OFFICER'S LETTER OF JANUARY 29, 1963, REFERRED TO ABOVE, DID NOT MEET THE REQUIREMENTS OF A FORMAL FINDING OF FACT AND DECISION BY THE CONTRACTING OFFICER AS CONTEMPLATED BY THE "DISPUTES" CLAUSE OF THE CONTRACT AND, HENCE, THE BOARD LACKED JURISDICTION TO DECIDE THE APPEAL. HOWEVER, THE BOARD STATED IN ITS OPINION AND DECISION:

"* * * IN CASES SUCH AS THIS, WHEN THE BOARD DISCOVERS THAT A FAULTY OR AN ERRONEOUS ADMINISTRATIVE ACTION OR NO ACTION HAS BEEN TAKEN BY A CONTRACTING OFFICER, THE BOARD, IN THE INTEREST OF JUSTICE AND PROPER CONTRACT ADMINISTRATION, WILL REMAND THE MATTER TO THE CONTRACTING OFFICER FOR THE TAKING OF THE APPROPRIATE ACTION.

"HENCE, THE MATTER IS REMANDED TO THE CONTRACTING OFFICER FOR THE ISSUANCE OF AN APPROPRIATE FINDINGS OF FACT AND DECISION ON THE CLAIM OF $4,081.35, WITH APPEAL RIGHTS PRESERVED FOR THE CONTRACTOR. IN SUCH FINDINGS OF FACT, THE CONTRACTING OFFICER SHOULD SPECIFICALLY AND FACTUALLY DISPOSE OF THE ISSUES AND QUESTIONS RAISED BY THE COMPTROLLER GENERAL AS DISCUSSED ABOVE.'

IN THAT PART OF ITS OPINION WHICH SETS FORTH ITS REASONS FOR REMANDING THE MATTER TO THE CONTRACTING OFFICER, THE BOARD STATES THAT "THE APPEAL FILED DOES NOT CONTAIN COPIES OF ALL DOCUMENTS SUBMITTED TO THE COMPTROLLER GENERAL.' THE FOLLOWING FOOTNOTE APPEARS IN THE OPINION IN EXPLANATION OF THIS STATEMENT:

"2)THE EX PARTE SUBMISSION TO THE COMPTROLLER GENERAL BY THE CERTIFYING OFFICER IS DATED OCTOBER 10, 1962. A COPY OF IT APPEARS IN THE FILES, BUT OF THE 6 ENUMERATED COPIES OF SUPPORTING DOCUMENTS THE CRUCIAL "FINDINGS OF FACT, DATED AUGUST 1, 1962" IS NOT IN THE APPEAL FILE.'

BY LETTER OF AUGUST 24, 1963, MCLINN CONSTRUCTION COMPANY FILED A CLAIM WITH OUR OFFICE FOR THE AMOUNT INVOLVED AND WAS ADVISED BY OUR DECISION OF DECEMBER 4, 1963, THAT WE FOUND NO LEGAL BASIS FOR ALLOWANCE OF ANY PART OF THE CLAIM. A COPY OF THAT DECISION IS ENCLOSED FOR YOUR INFORMATION. AT THE TIME, WE WERE UNAWARE THAT ANY FURTHER ACTION REGARDING THE CLAIM WAS BEING TAKEN BY THE DEPARTMENT OF INTERIOR. HOWEVER, IT APPEARS FROM A MEMORANDUM FROM THE ACTING REGIONAL DIRECTOR, WESTERN REGION, NATIONAL PARK SERVICE, TO THE CONTRACTING OFFICER, DATED NOVEMBER 15, 1963, THAT UNDER DATE OF NOVEMBER 4, 1963, THE CONTRACTING OFFICER SUBMITTED TO THE REGIONAL DIRECTOR OF THE WESTERN REGION A LETTER WHICH THE CONTRACTING OFFICER PROPOSED TO SEND TO THE CONTRACTOR REQUESTING THAT IT SUPPLY CERTAIN INFORMATION REGARDING ITS CLAIM IN ORDER THAT THE CONTRACTING OFFICER WOULD BE IN A POSITION TO TAKE PROPER ACTION IN REGARD THERETO PURSUANT TO THE INSTRUCTIONS OF THE BOARD OF CONTRACT APPEALS. IN HIS MEMORANDUM OF NOVEMBER 15, 1963, THE ACTING REGIONAL DIRECTOR SUGGESTED CERTAIN REVISIONS IN THE PROPOSED LETTER, AND UNDER DATE OF NOVEMBER 18, 1963, THE CONTRACTING OFFICER WROTE THE CONTRACTOR REQUESTING THAT IT SUBMIT SUCH EVIDENCE AS IT HAD IN SUPPORT OF THE CONCLUSION THAT THE "CHANGE IN ROUTINE (REVERSAL OF THE ORDER IN WHICH THE WORK WAS TO BE PERFORMED) WAS BY MUTUAL AGREEMENT," AND THAT IT SUPPLY FURTHER DETAIL REGARDING THE EXTRA COSTS CLAIMED TO HAVE BEEN INCURRED, AS SET FORTH IN CHANGE ORDER NO. 4.

PURSUANT TO THE ABOVE REQUEST OF THE CONTRACTING OFFICER, THE CONTRACTOR, BY LETTER OF FEBRUARY 14, 1964, SUBMITTED TO THAT OFFICIAL THE BASIS FOR ITS POSITION THAT IT IS ENTITLED TO PAYMENT OF THE CLAIM, AS WELL AS A BREAKDOWN AND SUPPORTING DATA FOR THE ITEMS OF COST ALLEGED TO HAVE BEEN INCURRED. ALSO, IN ITS LETTERS OF FEBRUARY 25, 1964, AND MARCH 30, 1964, TO THE CONTRACTING OFFICER, THE CONTRACTOR SUPPLIED ADDITIONAL, BUT NOT SUBSTANTIVE, DETAILS RELATING TO THE CLAIM. THE REFERRED-TO LETTERS, TOGETHER WITH SUPPORTING EXHIBITS, WERE TRANSMITTED TO THE REGIONAL DIRECTOR OF THE WESTERN REGION BY THE CONTRACTING OFFICER'S MEMORANDUM OF APRIL 16, 1964. IN REFERRING TO THE STATEMENT IN OUR DECISION OF NOVEMBER 19, 1962, THAT "IF THE FACTS ARE THAT THE GOVERNMENT DID DIRECT THE WORK REVISION," AS SUGGESTED IN CHANGE ORDER NO. 4, THE CLAIM MIGHT BE RESUBMITTED FOR FURTHER CONSIDERATION, THE MEMORANDUM STATES:

"* * * THIS ACTION WAS TAKEN, AFTER THE FACT, WHEN INVESTIGATION OF THE CONTRACTOR'S CLAIM INDICATED THE 33 DAY DELAY WHILE WAITING FOR A DECISION REGARDING A FALLOUT SHELTER AND 7 DAY DELAY WHILE ANOTHER FIRM RELOCATED UTILITIES WARRANTED THE POSITIVE ACTION TAKEN BY THE CONTRACTOR TO KEEP OTHER PHASES OF THE WORK GOING DESPITE ADVERSE WORKING CONDITIONS.

"UNTIL RECEIPT OF THE CLAIM IT WAS NOT KNOWN THAT THE CONTRACTOR INTENDED TO CLAIM ADDITIONAL COMPENSATION * * *.

"THE EARLIER PRESENTATION OF THIS CLAIM ESTABLISHED THAT WHILE ADVERSE CONSTRUCTION CONDITIONS EXISTED AT THE RESIDENCE-UTILITY BUILDING SITES DURING THE PERIOD IN QUESTION, THE SITE CONDITIONS AT THE VISITOR CENTER WERE SUITABLE FOR PROCEEDING WITH THE WORK. THUS, REVERSAL OF THE APPROVED WORK SCHEDULE ADMITTEDLY WORKED TO THE DISADVANTAGE OF THE CONTRACTOR.'

IN HIS MEMORANDUM OF APRIL 29, 1964, TO THE CHIEF, DIVISION OF PROPERTY MANAGEMENT AND GENERAL SERVICES, WESTERN REGION, WITH REFERENCE TO THE MATTER, THE FIELD SOLICITOR, SAN FRANCISCO FIELD OFFICE, OFFICE OF THE SOLICITOR, DEPARTMENT OF THE INTERIOR, STATED:

"MY EXAMINATION OF THE APRIL 16, 1964, MEMORANDUM OF THE CONTRACTING OFFICER, THE FEBRUARY 14, 1964, CLAIM OF MCLINN, AS WELL AS LETTERS TO THE CONTRACTING OFFICER BY MCLINN ON MAY 30, 1962, AND DECEMBER 13, 1962, REVEALS THAT:

"1. WHILE A WRITTEN CHANGE ORDER WAS ISSUED JULY 17, 1962, REVISING THE ORDER OF CONSTRUCTION AND PROVIDING FOR ADDITIONAL COMPENSATION RESULTING THEREFROM THE ORDER ACTUALLY WAS ISSUED ABOUT A MONTH AFTER THE FOUNDATIONS WOULD HAVE BEEN INSTALLED IN THE RESIDENCE AND UTILITY BUILDING IN NORMAL COURSE UNDER THE ORIGINAL CONSTRUCTION SCHEDULE AND ABOUT TWO MONTHS AFTER THESE FOUNDATIONS ON THE RESIDENCE AND UTILITY BUILDING WERE COMPLETED BY THE CONTRACTOR. THE EXTRA COSTS WERE, THEREFORE, INCURRED BEFORE ANY WRITTEN CHANGE ORDER WAS ISSUED.

"2. THE ORIGINAL CLAIM, AS CONSIDERED BY THE COMPTROLLER, CONTAINS A LETTER DATED MAY 30, 1962, BY MCLINN WHICH STATES, IN PART,

TO KEEP THE PROJECT IN MOTION WE ELECTED TO PROCEED WITH THE CONSTRUCTION OF THE RESIDENCE AND UTILITIES BUILDING.

"3. ON DECEMBER 13, 1962, IN A LETTER REFERRING TO THE COMPTROLLER'S REMARKS ON THE APPARENT VOLUNTARY RESCHEDULING, MCLINN SAID,

I ASKED IF I SHOULD START THE RESIDENCE AND UTILITIES BUILDING AT THE TIME AND YOU SAID THAT YOU SAW NO REASON WHY I SHOULD NOT COMMENCE WORK.

"4. THE CLAIM DATED FEBRUARY 14, 1964, WHICH IS THE MOST RECENT SUMMATION BY THE CLAIMANT DOES NOT ALLEGE THAT THE CONTRACTOR WAS EXPLICITLY ORDERED OR DIRECTED TO REVISE HIS SCHEDULE OF CONSTRUCTION BY THE CONTRACTING OFFICER. THE ABSENCE OF ANY SUCH AN ASSERTION BY THE CLAIMANT WOULD APPEAR TO BE VERY SIGNIFICANT. THE CLAIMANT SEEMINGLY RELIES UPON THE LEGAL ARGUMENT THAT THE FACTS AND CHANGE OF CIRCUMSTANCES CREATED BY THE GOVERNMENT'S STOP ORDER REASONABLY COMPELLED SUCH RESCHEDULING. THE CLAIM ATTEMPTS TO EQUATE THE STOP ORDER ON THE ONE PHASE AS BEING TANTAMOUNT TO AN ORDERED ACCELERATION OF WORK ON REMAINING PHASES AND FACED WITH THIS PROBLEM "THE CONTRACTOR TOOK A REASONABLE AND MORE PROVIDENT ALTERNATIVE OF ACCOMPLISHING THE LATE WORK RLY.'

"WHILE THERE MAY BE A BASIS FOR SYMPATHY FOR THE CONTRACTOR IN THAT HE TOOK THE ONLY REASONABLE COURSE SEEMINGLY OPEN TO HIM WHEN HE RESCHEDULED THE PHASES OF THE WORK SO HE COULD KEEP HIS WORK CREWS BUSY WHILE AWAITING ORDERS TO PROCEED WITH THE VISITORS' CENTER, THERE IS NO EVIDENCE OF RECORD THAT SUCH COURSE WAS ANYTHING BUT VOLUNTARY, IN THE LEGAL SENSE OF THAT WORD, AND IN FACT, THE CONTRACTOR HIMSELF IN VARIOUS SIGNED STATEMENTS, AS SHOWN ABOVE, HAS ADMITTED THAT HE HAD A CHOICE. "IN THE CIRCUMSTANCES NOTED ABOVE, IT IS MY VIEW THAT NO ADDITIONAL EVIDENCE HAS BEEN SUBMITTED NEGATING THE LACK OF VOLITION WHICH WAS THE PRIMARY FACTOR INFLUENCING THE COMPTROLLER'S REFUSAL TO CONSIDER THE CLAIM AS ALLOWABLE. * * * IT COULD BE THAT MCLINN MIGHT HAVE AN ACTION FOR DAMAGES FOR BREACH OF THE CONTRACT. THIS IS A DIFFERENT LEGAL PROBLEM, HOWEVER. WE ARE HERE ONLY CONCERNED WITH HIS RIGHTS UNDER THE CONTRACT AND ASSUMING THE ABSENCE OF BREACH BY THE GOVERNMENT. THE PRESENT APPROACH BY THE CLAIMANT IS THAT THE GOVERNMENT IN EFFECT ORDERED A ,CHANGE BY ACCELERATION" OF ONE PART OF THE CONTRACT BY EXERCISING ITS RIGHT TO STOP WORK ON ANOTHER PART. PRECEDENT IS URGED FOR THIS PROPOSITION OF A "CHANGE BY INFERENCE" EXCEPT BY ANALOGY, AND I KNOW OF NONE. THE ADDED COSTS WERE INCURRED BY THE CONTRACTOR VOLUNTARILY AND NOT ACTUALLY AS A DIRECT RESULT OF THE CHANGE ORDER ALTHOUGH IT MAY HAVE SEEMED OTHERWISE TO HIM. IN THESE CIRCUMSTANCES THE CLAIM, IF ANY, IS FOR DAMAGES FOR BREACH OF CONTRACT AND NOT SUBJECT TO EQUITABLE ADJUSTMENT UNDER THE "CHANGES" CLAUSE OF THE CONTRACT.'

BY LETTER OF MAY 5, 1964, THE CONTRACTING OFFICER ADVISED THE CONTRACTOR THAT ITS CLAIM, AS RESUBMITTED, HAD BEEN CAREFULLY CHECKED IN HIS OFFICE, IN THE DEPARTMENT'S SAN FRANCISCO REGIONAL OFFICE, AND BY THE FIELD SOLICITOR AT SAN FRANCISCO, AND THE CONTRACTOR WOULD NOTE FROM THE ABOVE- QUOTED MEMORANDUM OF APRIL 29, 1964, A COPY OF WHICH WAS ENCLOSED, THAT THE FIELD SOLICITOR "CONTENDS NOTHING IN YOUR RESUBMITTAL REVEALS THAT YOU WERE, IN FACT, DIRECTED TO REVISE YOUR WORK SCHEDULE.' IN CONCLUSION, THE CONTRACTING OFFICER STATED THAT "WITHOUT A FIRM LEGAL BASIS FOR THE RESUBMITTAL OF THIS CLAIM TO WASHINGTON, IT WOULD BE A WASTE OF TIME FOR ALL INVOLVED.'

IF THE RECORD NOW BEFORE US INDICATED THAT AN ACTUAL DISPUTE BETWEEN THE PARTIES EXISTED AS TO WHETHER THE GOVERNMENT DIRECTED THE CONTRACTOR (IN ADVANCE) TO PROCEED WITH THE PERFORMANCE OF THE WORK IN ACCORDANCE WITH THE REVISED WORK SCHEDULE REFERRED TO HEREIN, WE MIGHT HAVE FOUND IT ADVISABLE, IN THE INTERESTS OF ACCORDING THE CONTRACTOR ITS FULL RIGHTS UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT, TO REFER THE MATTER BACK TO THE DEPARTMENT OF INTERIOR WITH THE REQUEST THAT THE CONTRACTING OFFICER BE REQUESTED TO FURNISH HIS DECISION ON THE FACTUAL ISSUE INVOLVED DIRECTLY TO THE CONTRACTOR, AND THAT THE LATTER BE AFFORDED AN OPPORTUNITY TO APPEAL FROM ANY ADVERSE DECISION OF THE CONTRACTING OFFICER TO THE BOARD OF CONTRACT APPEALS. HOWEVER, AS POINTED OUT IN THE ABOVE-QUOTED MEMORANDUM, MCLINN CONSTRUCTION COMPANY APPARENTLY DOES NOT CONTEND THAT IT WAS DIRECTED IN ADVANCE TO PROCEED WITH THE WORK IN ACCORDANCE WITH THE REVISED SCHEDULE, AND THE RECORD IN THE CASE COMPLETELY REFUTES ANY SUGGESTION THAT THE CONTRACTOR WAS SO DIRECTED OR THAT HE GAVE NOTICE OF ANY CLAIM FOR INCREASED COMPENSATION AS A RESULT THEREOF UNTIL AFTER COMPLETION OF THE WORK. FURTHER PROCEEDINGS UNDER THE PROVISIONS OF THE "DISPUTES" CLAUSE UNDER THESE CIRCUMSTANCES ARE NOT REQUIRED.

UPON OUR PRESENT RECONSIDERATION OF THE MATTER, WE OBSERVE FROM AN EXAMINATION OF THE "FINDING OF FACT, DATED AUGUST 1, 1962," REFERRED TO IN THE ABOVE-QUOTED DECISION OF THE BOARD OF CONTRACT APPEALS THAT, IN STATING IN OUR PREVIOUS DECISIONS IN THIS MATTER THE GOVERNMENT DECIDED AGAINST REVISING THE SPECIFICATIONS TO PROVIDE FOR A BASEMENT FALLOUT SHELTER IN THE VISITOR CENTER, WE FAILED TO MENTION AN IMPORTANT LINK IN THE CHAIN OF FACTS. IT IS STATED AT PAGE 3 OF THE FINDING OF FACT THAT THE FIRST STOP WORK ORDER, DATED APRIL 13, 1962, WAS ISSUED "DUE TO REVISION OF FALLOUT SHELTER IN VISITOR CENTER" AND THAT CHANGE ORDER NO. 1 TO THE CONTRACT, DATED APRIL 27, 1962, WAS "FOR EXCAVATION FOR FALLOUT SHELTER.' IT WAS ALSO STATED THAT CHANGE ORDER NO. 2, DATED MAY 16, 1962,"DELETED EXCAVATION FOR FALLOUT SHELTER.' CHANGE ORDER NO. 1, WHICH RECITES THAT IT WAS ISSUED IN ACCORDANCE WITH PROVISIONS OF CLAUSE 3 OF THE GENERAL PROVISIONS OF THE CONTRACT, PROVIDED THAT THE CONTRACTOR WAS TO FURNISH ALL NECESSARY LABOR, EQUIPMENT AND MATERIALS, AND EXCAVATE FOR AN 8 FEET 8 INCHES BASEMENT OF VISITOR CENTER "AS SHOWN ON SHEETS 2, 3, 4 AND 5 OF DRAWING NO. NMEM-FC-3000C," AND THAT SINCE THE WORK INVOLVED WAS NOT INCLUDED IN THE BID SCHEDULE THE CONTRACTOR WOULD BE COMPENSATED FOR IT IN ACCORDANCE WITH CLAUSE 41, PARAGRAPH (A) (1), OF THE GENERAL PROVISIONS (CONTINUED). SUCH PARAGRAPH PROVIDES THAT, IN CONFORMANCE WITH CLAUSE 3 OF THE GENERAL PROVISIONS, ANY CHANGE ORDERED IN WRITING BY THE CONTRACTING OFFICER WHICH RESULTS IN AN INCREASE IN THE CONTRACT PRICE WILL BE DETERMINED BY ONE OR THE OTHER OF THE FOLLOWING METHODS, AT THE ELECTION OF THE CONTRACTING OFFICER:

"/1) ON THE BASIS OF A STATED LUMP SUM PRICE, OR OTHER CONSIDERATION FIXED AND AGREED UPON BY NEGOTIATION BETWEEN THE CONTRACTING OFFICER AND THE CONTRACTOR IN ADVANCE * * *.'

THE CHANGE ORDER PROVIDED FOR PAYMENT TO THE CONTRACTOR UNDER THE ABOVE PROVISION OF THE LUMP SUM OF $783 FOR THE WORK, AND FOR AN EXTENSION IN CONTRACT TIME AMOUNTING TO 10 DAYS ON ACCOUNT THEREOF. AT THE BOTTOM OF THE COPY OF THE CHANGE ORDER WHICH WAS RETURNED BY THE CONTRACTOR TO THE CONTRACTING OFFICER APPEARS A LETTER DATED APRIL 30, 1962, FROM MCLINN CONSTRUCTION COMPANY (SIGNED ON ITS BEHALF BY VIRGIL MCLINN) TO THE CONTRACTING OFFICER, WHICH READS AS FOLLOWS:

"ADJUSTMENT OF THE AMOUNT OF COMPENSATION UNDER CONTRACT NO. 14-10 0434- 869 AND IN THE TIME REQUIRED FOR ITS PERFORMANCE BY REASON OF CHANGE ORDER NO. 1 IS SATISFACTORY AND IS HEREBY ACCEPTED.'

HOWEVER, AS INDICATED IN THE FINDING OF FACT, CHANGE ORDER NO. 2, DATED MAY 16, 1962, DELETED THE WORK AUTHORIZED TO BE PERFORMED BY CHANGE ORDER NO. 1. THE CHANGE ORDER READS IN PERTINENT PART AS FOLLOWS:

"DUE TO CHANGED PLANNING NONE OF THE WORK CONTEMPLATED IN CHANGE ORDER NO. 1, DATED APRIL 27, 1962, WILL BE PERFORMED, AND THE $783.00 LUMP SUM AUTHORIZED AS AN ADDITION TO THE CONTRACT BY REASON OF ISSUANCE OF CHANGE ORDER NO. 1 IS HEREBY DISALLOWED.

"INASMUCH AS NONE OF THE EXTRA WORK WAS OR WILL BE PERFORMED PURSUANT TO CHANGE ORDER NO. 1, THE 10 DAY TIME EXTENSION IS ALSO DISALLOWED AND YOUR CONTRACT COMPLETION DATE REMAINS AS OCTOBER 16, 1962.'

ATTACHED TO THE COPY OF THE CHANGE ORDER WHICH WAS RETURNED BY THE CONTRACTOR TO THE CONTRACTING OFFICER IS A LETTER DATED MAY 17, 1962, FROM MCLINN CONSTRUCTION COMPANY (ALSO SIGNED ON ITS BEHALF BY VIRGIL MCLINN) TO THE CONTRACTING OFFICER, WHICH READS AS FOLLOWS:

"ADJUSTMENT OF THE AMOUNT OF COMPENSATION UNDER CONTRACT NO. 14-10-0434 869 AND IN THE TIME REQUIRED FOR ITS PERFORMANCE BY REASON OF CHANGE ORDER NO. 2 IS SATISFACTORY AND IS HEREBY ACCEPTED.'

BY "ORDER TO RESUME WORK" DATED MAY 17, 1962, THE CONTRACTING OFFICER DIRECTED THE CONTRACTOR TO RESUME OPERATIONS ON THE VISITOR CENTER ON THAT DATE, THE ORDER STATING:

"UNDER DATE OF APRIL 13, 1962, YOU WERE DIRECTED TO STOP WORK ON THE VISITOR CENTER AT THE CLOSE OF BUSINESS APRIL 13, 1962,UNTIL FURTHER NOTICE. IN VIEW OF THE FACT THAT YOU WERE DIRECTED BY THE CONTRACTING OFFICER TO DISCONTINUE WORK FOR A PERIOD OF THIRTY-THREE DAYS, WHICH IS THE TIME FROM APRIL 14, 1962 THROUGH MAY 16, 1962, BOTH DATES INCLUSIVE, YOUR CONTRACT TIME IS ACCORDINGLY EXTENDED AND THE FINAL COMPLETION DATE OF YOUR CONTRACT IS RECORDED AS NOVEMBER 18, 1962.'

BY CHANGE ORDER NO. 3, DATED MAY 18, 1962, THE CONTRACTOR WAS DIRECTED TO PERFORM CERTAIN EXTRA WORK IN CONNECTION WITH THE CONTRACT FOR THE LUMP- SUM PRICE OF $240, THE CHANGE ORDER STATING THAT NO ALLOWANCE OF ADDITIONAL TIME WOULD BE MADE ON ACCOUNT OF THE EXTRA WORK INVOLVED AND THAT ,YOUR COMPLETION DATE REMAINS AT NOVEMBER 18, 1962.' ATTACHED TO THE COPY OF THE CHANGE ORDER WHICH WAS RETURNED BY THE CONTRACTOR TO THE CONTRACTING OFFICER IS A LETTER DATED MAY 18, 1962, FROM MCLINN CONSTRUCTION COMPANY (ALSO INDICATED TO HAVE BEEN SIGNED ON ITS BEHALF BY VIRGIL MCLINN) TO THE CONTRACTING OFFICER, WHICH STATES:

"ADJUSTMENT OF THE AMOUNT OF COMPENSATION DUE UNDER CONTRACT NO. 14 10- 0434-869 AND IN THE TIME REQUIRED FOR ITS PERFORMANCE BY REASON OF CHANGE ORDER NO. 3 IS SATISFACTORY AND IS HEREBY ACCEPTED.'

THE CONTRACTOR WAS AGAIN DIRECTED TO SUSPEND ALL WORK ON THE VISITOR CENTER BY "PARTIAL STOP WORK ORDER" DATED MAY 21, 1962, IN ORDER TO ALLOW TIME FOR ANOTHER CONTRACTOR TO REMOVE A WATER LINE WHICH MCLINN CONSTRUCTION COMPANY HAD DISCOVERED UNDER THE BUILDING IN THE COURSE OF ITS PERFORMANCE OF THE CONTRACT. BY "ORDER TO RESUME WORK" DATED MAY 28, 1962, THE CONTRACTOR WAS DIRECTED TO RESUME OPERATIONS ON THE VISITOR CENTER AS OF MAY 29, 1962, THE ORDER STATING:

"* * * IN VIEW OF THE FACT THAT YOU WERE DIRECTED BY THE CONTRACTING OFFICER TO DISCONTINUE WORK FOR A PERIOD OF SEVEN DAYS, WHICH IS THE TIME FROM MAY 22, 1962 THROUGH MAY 28, 1962, BOTH DATES INCLUSIVE, YOUR CONTRACT TIME IS ACCORDINGLY EXTENDED AND THE FINAL COMPLETION DATE OF YOUR CONTRACT IS RECORDED AS NOVEMBER 25, 1962.'

IN A LETTER TO THE CONTRACTING OFFICER DATED MAY 30, 1962, WHICH IS QUOTED IN THE FINDING OF FACT OF AUGUST 1, 1962, AND REFERRED TO IN OUR PREVIOUS DECISIONS IN THIS MATTER, THE CONTRACTOR REQUESTED PAYMENT OF THE AMOUNT HERE INVOLVED. HOWEVER, BY ITS WRITTEN ACCEPTANCE ON MAY 18, 1962, OF THE TERMS OF CHANGE ORDER NO. 3, WHICH PROVIDED FOR AN INCREASE IN THE CONTRACT PRICE AMOUNTING TO $240 FOR THE EXTRA WORK DESCRIBED THEREIN, THAT NO ALLOWANCE OF ADDITIONAL TIME WOULD BE MADE, AND THAT "YOUR COMPLETION DATE REMAINS AT NOVEMBER 18, 1962," THE CONTRACTOR MUST BE HELD TO HAVE AGREED TO THE 33-DAY EXTENSION OF TIME PROVIDED FOR IN THE ORDER TO RESUME WORK DATED MAY 17, 1962, SUPRA, AND TO HAVE WAIVED WHATEVER RIGHT IT MIGHT OTHERWISE HAVE HAD TO ASSERT A CLAIM AGAINST THE GOVERNMENT FOR EXTRA COMPENSATION, OR DAMAGES, AS A RESULT OF THE DELAY INCIDENT TO THE ISSUANCE OF THE STOP ORDER OF APRIL 13, 1962. SEE H. E. CROOK CO. V. UNITED STATES (1924), 59 CT.CLS. 593, AFFIRMED ON OTHER GROUNDS IN (1926) 270 U.S. 4.

THAT LEAVES FOR CONSIDERATION THAT PART OF THE CLAIM WHICH REPRESENTS EXTRA COSTS ALLEGED TO HAVE BEEN INCURRED BY THE CONTRACTOR DURING THE 7- DAY PERIOD THAT WORK ON THE VISITOR CENTER WAS FURTHER DELAYED BY THE STOP ORDER OF MAY 21, 1962, TO ALLOW TIME FOR ANOTHER CONTRACTOR TO REMOVE THE WATER LINE REFERRED TO ABOVE. THIS WAS AN OBSTACLE DISCOVERED BY MCLINN CONSTRUCTION COMPANY DURING THE PERFORMANCE OF THE WORK. AS INDICATED IN OUR DECISION OF NOVEMBER 19, 1962, THE UNCOVERED (WATER) UTILITY LINE COULD CLEARLY CONSTITUTE A CHANGED CONDITION WITHIN THE PURVIEW OF THE "CHANGED CONDITIONS" CLAUSE OF THE CONTRACT, BUT, UNDER THE CLAUSE, A CONTRACTOR IS ONLY ENTITLED TO RECOVER THE COST OF PERFORMING THE WORK NECESSARY TO OVERCOME THE CONDITION ITSELF, AND FOR WORK REQUIRED BY CHANGES IN SPECIFICATIONS MADE TO OVERCOME THE CONDITION. DELAY COST AND INCREASED COST OF PERFORMING UNCHANGED WORK ARISING AS A CONSEQUENCE OF THE CONDITION ARE NOT COMPENSABLE THEREUNDER. UNITED STATES V. RICE (1942), 317 U.S. 61; MOUNT VERNON CONTRACTING CORPORATION, ET AL. V. UNITED STATES (1957), 139 CT.CLS. 688, 153 F.SUPP. 469. THE CONTRACTOR DOES NOT CONTEND, NOR DOES ANYTHING IN THE RECORD SUGGEST, THAT 7 DAYS WAS AN UNREASONABLE LENGTH OF TIME TO SUSPEND THE WORK FOR THE PURPOSE INVOLVED. HOWEVER, IN THE CONTRACTING OFFICER'S MEMORANDUM OF APRIL 16, 1964, TO THE REGIONAL DIRECTOR OF THE WESTERN REGION, QUOTED IN PART ABOVE, IT IS STATED:

"* * * IT IS TRUE SOME OF THE WORK ACCOMPLISHED ON THE VISITOR CENTER FOUNDATION LAYOUT WAS DESTROYED WHEN ANOTHER CONTRACTOR WAS EMPLOYED TO RELOCATE UTILITIES DISCOVERED DURING MCLINN'S FOUNDATION EXCAVATIONS. THE WORK DESTROYED INVOLVED 8 HOURS TIME OF A CARPENTER APPRENTICE AT $3.20 PER HOUR, 8 HOURS TIME OF MR. MCLINN AT $4.375 PER HOUR AND 8 HOURS USE OF A DIGGER AT $9.00 PER HOUR--- TOTAL--- $132.60.'

ACCORDINGLY, THE VOUCHER, TOGETHER WITH SUPPORTING PAPERS, FORWARDED WITH YOUR LETTER OF JULY 29, 1964, IS RETURNED HEREWITH AND YOU ARE ADVISED THAT PAYMENT ON THE VOUCHER IN THE AMOUNT OF $132.60 ONLY IS AUTHORIZED, IF OTHERWISE CORRECT.