B-141493, JAN. 11, 1960

B-141493, JAN. 11, 1960

TO MR. ELMER A. ROMAN:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 1, 1959, REQUESTING A REVIEW OF OUR SETTLEMENT DATED NOVEMBER 25, 1958, DISALLOWING YOUR CLAIM FOR $1,721 UNDER DEPARTMENT OF THE INTERIOR CONTRACT NO. 14-10- 028-456, DATED JULY 19, 1954.

UNDER THE CONTRACT YOU AGREED TO CONSTRUCT, FOR THE NATIONAL PARK SERVICE, THREE COMFORT STATIONS IN ROCK CREEK, FORT DUPONT AND EAST POTOMAC PARKS FOR AN ORIGINAL CONSIDERATION OF $54,599. IN ACCORDANCE WITH APPLICABLE TERMS OF THE CONTRACT, THE COMPLETION DATE, AS AMENDED BY CHANGE ORDERS NOS. 1 AND 2, WAS ESTABLISHED AS DECEMBER 11, 1954. DUE TO VARIOUS DELAYS, WORK UNDER THE CONTRACT WAS NOT COMPLETED UNTIL MAY 23, 1955. HOWEVER, BY LETTER DATED OCTOBER 10, 1955, THE CONTRACTING OFFICER GRANTED AN EXTENSION OF 110 CALENDAR DAYS TO THE CONTRACT TIME UPON DETERMINATION THAT THE DELAY IN OBTAINING CERTAIN TOILET FIXTURES WAS DUE TO A PROLONGED STRIKE. THE EXTENSION RESULTED IN AN ADJUSTED CONTRACT COMPLETION DATE OF MARCH 31, 1955. SUBSEQUENTLY, YOU APPEALED THE CONTRACTING OFFICER'S FINDING AND THE DEPARTMENT OF THE INTERIOR BOARD OF CONTRACT APPEALS DETERMINED THAT MAY 2, 1955, INSTEAD OF MAY 23, 1955, PROPERLY SHOULD HAVE BEEN ACCEPTED AS THE DATE OF COMPLETION OF THE WORK UNDER THE CONTRACT, FOR THE PURPOSE OF COMPUTING LIQUIDATED DAMAGES. APPEARS THAT SUCH DAMAGES WERE ASSESSED YOU UNDER PARAGRAPH 3-2, SEC. 3, OF THE GENERAL CONDITIONS OF THE CONTRACT ON THE BASIS OF 32 CALENDAR DAYS OF INEXCUSABLE DELAY--- MARCH 31, 1955, TO MAY 2, 1955--- AT $25 A DAY, OR A TOTAL OF $800.

WHILE YOUR LETTER OF NOVEMBER 1, 1959, PRESENTS NO CONTENTIONS IN SUPPORT OF YOUR REQUEST FOR REVIEW, IT APPEARS THAT YOU ARE SEEKING A REFUND OF $527, WHICH IS THE AMOUNT OF LIQUIDATED DAMAGES YOU CLAIM HAS BEEN WITHHELD, ALTHOUGH OUR RECORDS SHOW $800 DAMAGES WERE DEDUCTED, AND $1,194 FOR EXTRAS ALLEGED BY YOU TO BE DUE UNDER THE CONTRACT.

CONCERNING THE ASSESSMENT OF LIQUIDATED DAMAGES, YOUR ATTENTION AGAIN IS INVITED TO THE FACT THAT BOTH THE CONTRACTING OFFICER AND THE BOARD OF CONTRACT APPEALS, ACTING AS THE AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF THE DEPARTMENT ON APPEAL UNDER ARTICLE 6, DISPUTES, OF THE GENERAL PROVISIONS OF CONTRACT NO. 14-10-028-456, HAVE FOUND AND DETERMINED THAT THE DELAY FOR WHICH THE LIQUIDATED DAMAGES WERE ASSESSED AGAINST YOU WAS NOT DUE TO ANY OF THE EXCUSABLE CAUSES OF DELAY SET FORTH IN ARTICLE 5 OF THE SAID GENERAL PROVISIONS OF THE CONTRACT. THEREFORE, AS YOU WERE ADVISED IN OUR SETTLEMENT DATED NOVEMBER 25, 1958, SUCH DECISION MUST BE ACCORDED FINALITY BY OUR OFFICE UNLESS IT IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. SEE PUBLIC LAW 356, APPROVED MAY 11, 1954; B-W CONSTRUCTION COMPANY V. UNITED STATES, 97 C.CLS. 92. NONE OF THESE ELEMENTS ARE FOUND TO EXIST HERE.

WITH RESPECT TO YOUR CLAIM FOR EXTRAS IN THE AMOUNT OF $1,194, YOU ARE ADVISED THAT THERE ARE NO DETAILS REGARDING THIS ITEM BEFORE OUR OFFICE FROM WHICH WE MAY ASCERTAIN THE BASIS OF THE CLAIM. IT APPEARS, HOWEVER, THAT SUCH A CLAIM WAS ADMINISTRATIVELY DISALLOWED BY LETTER DATED DECEMBER 27, 1957, TO YOU, WITH NO FURTHER ACTION HAVING BEEN TAKEN BY YOU IN THE MATTER AT THAT TIME. THEREFORE, IN THE ABSENCE OF THE SUBMISSION BY YOU OF A DETAILED CLAIM IN THIS CONNECTION WHICH WILL SHOW CLEARLY THE NATURE OF THE ALLEGED ADDITIONAL WORK THAT WAS PERFORMED, OR THE EXTRAS THAT WERE FURNISHED, TOGETHER WITH EVIDENCE TO SUPPORT ALL ATTENDANT EXPENSES INCURRED BY YOU BY REASON THEREOF, OUR OFFICE CANNOT GIVE FURTHER CONSIDERATION TO THIS PART OF YOUR CLAIM.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD, OUR SETTLEMENT OF NOVEMBER 25, 1958, MUST BE SUSTAINED.