B-147612, MAR. 22, 1962

B-147612, MAR. 22, 1962

TO THE SECRETARY OF STATE:

WE REFER TO A LETTER OF NOVEMBER 13, 1961, FROM YOUR ASSISTANT SECRETARY, RELATING TO A CLAIM BY AUTOMATIC ELECTRIC INTERNATIONAL, INCORPORATED, A CONTRACTOR, IN THE AMOUNT OF $1050, ARISING FROM A CONTRACT FOR THE INSTALLATION OF TELEPHONE EQUIPMENT IN THE EMBASSY OFFICE BUILDING AT ATHENS, GREECE.

THE FACTS GIVING RISE TO THE CLAIM MAY BE SUMMARIZED AS FOLLOWS:

CONTRACT NO. S-23FBO-153 WAS EXECUTED, EFFECTIVE MARCH 28, 1960, BY THE DEPARTMENT OF STATE AND AUTOMATIC ELECTRIC INTERNATIONAL, INCORPORATED (AUTELCO), FOR THE INSTALLATION OF A 400-LINE PRIVATE AUTOMATIC BRANCH EXCHANGE IN A NEW OFFICE BUILDING FOR THE AMERICAN EMBASSY,ATHENS, GREECE. THE OFFICE BUILDING IN QUESTION WAS SCHEDULED FOR COMPLETION BY APRIL 14, 1961, UNDER A CONTRACT BETWEEN THE DEPARTMENT AND A CONTRACTOR UNRELATED TO AUTELCO.

THE CONTRACT WITH AUTELCO PROVIDED FOR PAYMENT OF A FIXED AMOUNT, PAYABLE IN ITALIAN LIRE. WITH REGARD TO THE TIME OF PERFORMANCE, FAILURE TO PERFORM AND CHANGES IN THE WORK, THE CONTRACT CONTAINED THE FOLLOWING CLAUSES:

"ARTICLE 1. SCOPE OF THIS CONTRACT:

"B. DELIVERY DATE

THE CONTRACTOR UNDERTAKES THE RESPONSIBILITY TO HAVE THE PRIVATE AUTOMATIC BRANCH EXCHANGE, PURCHASED HEREUNDER, DELIVERED AND INSTALLED WITHIN 12 MONTHS FROM THE EFFECTIVE DATE OF THE CONTRACT.

"F. LIQUIDATED DAMAGES

IN CASE THE CONTRACTOR FAILS TO COMPLETE THE WORK UNDER THIS CONTRACT WITHIN THE SPECIFIED TIME LIMIT AND THE DELAY IS HIS RESPONSIBILITY, THEN THE CONTRACTOR WILL PAY 0.5 PERCENT OF THE TOTAL CONSIDERATION PAYABLE FOR EACH WEEK OF DELAY UP TO A MAXIMUM OF 5 PERCENT.

"ARTICLE 2. CHANGES

* * * THE CONTRACTING OFFICER MAY, AT ANY TIME, BY WRITTEN ORDER, MAKE CHANGES IN THE DRAWINGS OR SPECIFICATIONS. CHANGES AS TO SHIPMENT AND PACKING OF ALL SUPPLIES MAY ALSO BE MADE AS ABOVE PROVIDED. IF SUCH CHANGES CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THIS CONTRACT, OR IN THE TIME REQUIRED FOR ITS PERFORMANCE AN EQUITABLE ADJUSTMENT SHALL BE MADE * * *.

"ARTICLE 5. DELAYS--- DAMAGES

IF THE CONTRACTOR REFUSES OR FAILS TO MAKE DELIVERIES OF THE MATERIALS OR SUPPLIES WITHIN THE TIME SPECIFIED IN ARTICLE 1, OR ANY EXTENSION THEREOF, THE U.S. GOVERNMENT MAY, BY WRITTEN NOTICE, TERMINATE THE RIGHT OF THE CONTRACTOR TO PROCEED WITH DELIVERIES OR SUCH PART OR PARTS THEREOF AS TO WHICH THERE HAS BEEN DELAY. IN SUCH EVENT, THE U.S. GOVERNMENT MAY PURCHASE SIMILAR MATERIALS OR SUPPLIES IN THE OPEN MARKET OR SECURE THE MANUFACTURE AND DELIVERY OF MATERIALS AND SUPPLIES BY CONTRACT OR OTHERWISE, AND THE CONTRACTOR SHALL BE LIABLE TO THE U.S. GOVERNMENT FOR ANY EXCESS COST OCCASIONED THE U.S. GOVERNMENT HEREBY. PROVIDED, THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH ANY EXCESS COST * * * WHEN THE DELAY OF THE CONTRACTOR IN MAKING DELIVERIES IS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR,

IT IS REPORTED THAT PRIMARILY THROUGH THE FAILURE OF A SUBCONTRACTOR TO SUPPLY MATERIALS TO THE CONTRACTOR UNDER THE NEW EMBASSY OFFICE BUILDING CONSTRUCTION CONTRACT, BUT PARTLY THROUGH A CHANGE IN THE PLANS FOR THE OFFICE BUILDING ON THE PART OF THE UNITED STATES, THE CONSTRUCTION COMPANY WAS UNABLE TO COMPLETE ITS CONTRACT WITH THE DEPARTMENT ON SCHEDULE. REQUESTED AND RECEIVED A 61-DAY EXTENSION. AS A RESULT OF THAT EXTENSION, AUTELCO WAS UNABLE TO MEET THE MARCH 28, 1961, COMPLETION DATE, AS IT WAS IMPOSSIBLE TO COMPLETE THE TELEPHONE INSTALLATION WHEN THE BUILDING WAS NOT COMPLETED. AUTELCO WAS REQUIRED TO EMPLOY THE SERVICES OF A TECHNICIAN FOR THREE MONTHS OF ADDITIONAL WORK WHICH IT ESTIMATES GAVE RISE TO ADDITIONAL COSTS OF $1,050. THIS INCLUDES A SALARY OF $300 PER MONTH FOR THE TECHNICIAN AND $50 PER MONTH FOR OVERHEAD.

UNDER THE FEDERAL SUBSTANTIVE LAW THE GOVERNMENT IS NOT LIABLE IN DELAY DAMAGES TO A CONTRACTOR FOR FAILURE TO MAKE A SITE AVAILABLE FOR PURPOSES OF WORK AT A PARTICULAR TIME, UNLESS THE GOVERNMENT HAS EXPRESSLY COVENANTED TO MAKE THE SITE AVAILABLE AT SUCH TIME, OR IT IS ESTABLISHED THAT THE GOVERNMENT WAS IN SOME WAY AT FAULT FOR THE DELAY. UNITED STATES V. HOWARD P. FOLEY CO., 329 U.S. 64. THE CONTRACT TERMS, QUOTED ABOVE, DO NOT CONTAIN ANY EXPRESS OBLIGATION ON THE PART OF THE GOVERNMENT TO HAVE THE NEW OFFICE BUILDING READY FOR AUTELCO AT A PARTICULAR DATE.

IN THE CASE OF GEORGE A. FULLER COMPANY V. UNITED STATES, 108 CT.CL. 70, IT WAS HELD THAT WHEN THE GOVERNMENT AGREED TO FURNISH CERTAIN MODELS WITHOUT CONDITION IT WAS BOUND TO DO SO AS MUCH AS IF AN EXPRESS PROVISION TO THIS EFFECT HAD BEEN INCORPORATED IN THE CONTRACT. MORE RECENTLY THE COURT OF CLAIMS HELD THAT DELAY IN THE AVAILABILITY OF OF THE SITE OF THE PLAINTIFF'S WORK RESULTING FROM THE DELAYS BY ANOTHER CONTRACTOR IN PREPARING THE SITE WAS NOT THE FAULT OF THE GOVERNMENT AND, CONSEQUENTLY, THE GOVERNMENT WAS NOT LIABLE IN DELAY DAMAGES. BEN C. GERWICK, INC. V. UNITED STATES, 285 F.2D 432, 436, 437.

IN THIS CASE IT IS REPORTED THAT THE BUILDING WORK WAS DELAYED DUE LARGELY TO AN INABILITY ON THE PART OF A BUILDING SUBCONTRACTOR TO OBTAIN NECESSARY SUPPLIES, AND PARTLY BECAUSE OF A CHANGE BY THE GOVERNMENT IN THE BUILDING SPECIFICATIONS. UNDER THESE CIRCUMSTANCES WE ARE NOT PERSUADED THAT AUTELCO COULD PROVE FAULT ON THE PART OF THE GOVERNMENT UNDER FEDERAL SUBSTANTIVE LAW.

IT IS INDICATED BY YOUR DEPARTMENT THAT UNDER THE LAW OF GREECE, THE COUNTRY WHERE THE CONTRACT WAS ENTERED INTO AND PERFORMED, THE CONTRACTOR COULD NOT RECOVER ON THIS CLAIM.

ACCORDINGLY, THERE IS NO BASIS PRESENTED BY THE PRESENT RECORD UPON WHICH WE MAY APPROVE THIS CLAIM FOR PAYMENT.