B-114171, JAN. 3, 1956

B-114171, JAN. 3, 1956

TO CENTEX PAVING COMPANY, FORMERLY DAILEY AND HOLIFIELD:

FURTHER REFERENCE IS MADE TO THE LETTER OF DECEMBER 10, 1951, FROM YOUR ATTORNEYS, ASSERTING CLAIM ON YOUR BEHALF FOR $1,863.02, ALLEGED TO BE DUE IN CONNECTION WITH PERFORMANCE UNDER FIXED-UNIT-PRICE CONTRACT NO. AF 41/290/-54, DATED DECEMBER 20, 1950.

THE CITED CONTRACT PROVIDES FOR THE CONTRACTOR TO FURNISH MATERIALS AND PERFORM WORK REQUIRED FOR CERTAIN SURFACE TREATMENT ON RUNWAYS, TAXI-WAYS AND PARKING APRON AT GOODFELLOW AIR FORCE BASE, TEXAS. PARAGRAPH 2 OF THE SPECIAL PROVISIONS OF THE CONTRACT PROVIDES THAT THE CONTRACTING OFFICER MAY ORDER CHANGES WITHIN THE GENERAL SCOPE OF THE CONTRACT; THAT AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE SHALL BE MADE IN THE EVENT SUCH CHANGE CAUSES AN INCREASE OR DECREASE IN THE COST OF, OR THE TIME REQUIRED FOR, PERFORMANCE OF THE CONTRACT; AND THAT FAILURE OF THE CONTRACTING OFFICER AND THE CONTRACTOR TO AGREE TO ANY ADJUSTMENT OF THE CONTRACT PRICE SHALL CONSTITUTE A DISPUTE CONCERNING A QUESTION OF FACT WITHIN THE MEANING OF THE DISPUTES CLAUSE OF THE CONTRACT. PARAGRAPH GC-12 OF THE GENERAL PROVISIONS PROVIDES THAT THE CONTRACTING OFFICER MAY SUSPEND ALL OR ANY PART OF THE WORK FOR SUCH PERIOD OF TIME AS MAY BE DETERMINED BY HIM TO BE NECESSARY OR DESIRABLE FOR THE CONVENIENCE OF THE GOVERNMENT; THAT UNLESS SUCH SUSPENSION UNREASONABLY DELAYS THE PROGRESS OF THE WORK AND CAUSES ADDITIONAL EXPENSE OR LOSS TO THE CONTRACTOR NO INCREASE IN THE CONTRACT PRICE WILL BE ALLOWED; AND THAT IF THE WORK IS SUSPENDED FOR AN UNREASONABLE LENGTH OF TIME CAUSING ADDITIONAL EXPENSE OR LOSS, NOT DUE TO THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, THE CONTRACTING OFFICER SHALL MAKE AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE AND MODIFY THE CONTRACT ACCORDINGLY. PARAGRAPH 11 OF THE SPECIAL PROVISIONS PROVIDES THAT DISPUTES AS TO QUESTIONS OF FACT ARISING UNDER THE CONTRACT SHALL BE DECIDED BY THE CONTRACTING OFFICER, WHOSE DECISION SHALL BE FINAL AND CONCLUSIVE, SUBJECT TO THE CONTRACTOR'S RIGHT TO APPEAL THEREFROM WITHIN 30 DAYS TO THE SECRETARY OF THE AIR FORCE, OR HIS DULY AUTHORIZED REPRESENTATIVE, WHOSE DECISION, IN TURN, IS MADE FINAL.

THE RECORD SHOWS THAT BY SUPPLEMENTAL AGREEMENT NO. 1, DATED APRIL 16, 1951, THE CONTRACT WAS AMENDED TO PROVIDE FOR THE USE OF TAR IN LIEU OF ASPHALT AS THE SURFACING MATERIAL, AT A NET INCREASE OF $1,627 IN THE CONTRACT PRICE; THAT TAR WAS RECEIVED AND YOU BEGAN WORK ON THE MORNING OF APRIL 18, 1951; THAT BECAUSE OF DIFFICULTY EXPERIENCED IN ROLLING THE TARRED SURFACE THE CONTRACTING OFFICER ORDERED A SUSPENSION OF WORK AT 3:45 P.M. ON APRIL 18, 1951, PENDING DETERMINATION AS TO WHETHER THE TAR WAS SUITABLE FOR SURFACING WORK; AND THAT YOU WERE AUTHORIZED TO RESUME WORK ON APRIL 23, 1951. THE CLAIM REPRESENTS ADDITIONAL WAGES AND EQUIPMENT STAND-BY TIME FOR APRIL 16 AND 17, 1951, COVERING THE DELAY OCCASIONED BY THE CHANGE IN MATERIAL, AND FOR REGULAR WORK HOURS DURING THE PERIOD FROM 3:45 P.M. APRIL 18, 1951, THROUGH APRIL 20, 1951, COVERING THE DELAY OCCASIONED BY THE ORDER TO SUSPEND WORK.

INASMUCH AS YOU HAD NOT BEEN FURNISHED A DECISION BY THE CONTRACTING OFFICER RELATIVE TO THE MERITS OF YOUR CLAIM, OR AFFORDED YOUR RIGHT OF APPEAL, AS CONTEMPLATED BY THE DISPUTED CLAUSE OF THE CONTRACT, THE CLAIM WAS REFERRED TO THE DEPARTMENT OF THE AIR FORCE FOR COMPLIANCE WITH THE CONTRACT PROVISIONS.

THE CONTRACTING OFFICER RENDERED A DECISION UNFAVORABLE TO YOUR CLAIM ON JANUARY 22, 1954, A COPY OF WHICH WAS FORWARDED TO YOU BY THE DEPARTMENT OF THE AIR FORCE UNDER DATE OF MAY 24, 1954. YOU DULY APPEALED TO THE SECRETARY OF THE AIR FORCE, AND WE HAVE BEEN FURNISHED WITH A COPY OF THE DECISION RENDERED BY THE AIR FORCE PANEL, ARMED SERVICES BOARD OF CONTRACT APPEALS, DESIGNATED ASBCA NO. 2559, DATED OCTOBER 11, 1955, WHEREIN YOUR APPEAL IS DENIED.

UNDER THE ACT OF MAY 11, 1954, 68 STAT. 81, THE DECISION RENDERED IN ACCORDANCE WITH THE CONTRACT BY THE BOARD, AS THE AUTHORIZED REPRESENTATIVE OF THE SECRETARY OF THE AIR FORCE, IS FINAL AND CONCLUSIVE "UNLESS THE SAME IS FRAUDULENT OR CAPRICIOUS OR ARBITRARY OR SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH, OR IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE.' UPON REVIEW OF THE RECORD WE FIND NONE OF THESE GROUNDS FOR REJECTION OF THE BOARD'S DECISION, AND ACCORDINGLY YOUR CLAIM MUST BE DENIED.