B-120698, OCT 18, 1954

B-120698, OCT 18, 1954

PRECIS-UNAVAILABLE

H.B. SHERMAN, UNITED STATES COAST GUARD (F):

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 14, 1954, TRANSMITTED HERE BY THE COMMANDANT, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT A VOUCHER IN FAVOR OF LAKESHORE HARDWARE, HEATING AND PLUMBING COMPANY, P.O. BOX 248, ALGOMA, WISCONSIN, IN THE AMOUNT OF $140, REPRESENTING THE AMOUNT RETAINED TO COVER LIQUIDATED DAMAGES IF DETERMINED TO BE PROPERLY CHARGEABLE UNDER CONTRACT NO. T09CG-1932, DATED AUGUST 28, 1953, AS AMENDED BY CHANGE ORDERS "A" AND "B."

BY THE TERMS OF THE CONTRACT, THE CONTRACTOR AGREED TO FURNISH THE MATERIALS AND PERFORM THE WORK FOR CONVERTING THE COAL-FIRED HEATING SYSTEM TO AN AUTOMATIC OIL-FIRED SYSTEM AND INSTALLING TWO FUEL TANKS AND A FUEL TRANSFER PUMP AT ALGOMA PIERHEAD LIGHT STATION, ALGOMA, WISCONSIN, FOR THE CONSIDERATION OF $2,314. ARTICLE 1 OF THE CONTRACT CONTAINED THE FOLLOWING PROVISION:

"THE WORK SHALL BE COMMENCED WITHIN TEN (10) CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED AND SHALL BE COMPLETED WITHIN THIRTY (30) CALENDAR DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED. IN THE EVENT OF FAILURE BY THE CONTRACTOR TO COMPLETE THE WORK ON OR BEFORE THE DATE FOR COMPLETION THUS ESTABLISHED, LIQUIDATED DAMAGES AT THE RATE OF TEN DOLLARS ($10.00) PER CALENDAR DAY WILL BE ASSESSED FOR THE 31ST DAY AND EACH CALENDAR DAY THEREON TO COMPLETION OF THE CONTRACT."

THE FILE INDICATES THAT RECEIPT OF NOTICE TO PROCEED WAS ACKNOWLEDGED SEPTEMBER 8, 1953, AND THAT THE WORK WAS STARTED ON THAT DATE. BY CHANGE ORDER "A," DATED SEPTEMBER 24, 1953, THE PERFORMANCE TIME WAS EXTENDED 15 DAYS BECAUSE OF DELAY IN COMPLETING PLASTERING, WHICH EXTENSION IS NOT QUESTIONED. YOUR DOUBT IN THE MATTER APPARENTLY ARISES FROM THE PROVISIONS OF CHANGE ORDER "B," DATED OCTOBER 22, 1953, WHEREBY THE PERFORMANCE TIME WAS EXTENDED AN ADDITIONAL 15 DAYS FOR THE STATED REASON THAT "AS THE RESULT OF FAILURE ON THE PART OF THE SUB CONTRACTOR TO FURNISH IN THE TIME ALLOTTED A BLACKMOOR PUMP, AS SPECIFIED IN THE CONTRACT, OR APPROVED EQUAL, THAT THE CONTRACTOR HAS PROCEEDED UNDER THE TERMS OF THE CONTRACT TO THE SATISFACTION OF THE CONTRACTING OFFICER AND FAILURE TO GRANT THIS EXTENSION WOULD NOT BE CONSIDERED JUST OR EQUITABLE." IT APPEARS THAT THE WORK WAS CONCLUDED SATISFACTORILY WITHIN THE CONTRACT PERIOD AS EXTENDED.

ARTICLE 9 OF THE CONTRACT PROVIDES THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH LIQUIDATED DAMAGES BECAUSE OF ANY DELAYS IN THE COMPLETION OF THE WORK DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING CERTAIN CAUSES SPECIFIED THEREIN, OR DELAYS OF SUBCONTRACTORS DUE TO SUCH CAUSES, IF THE CONTRACTOR SHALL GIVE TIMELY NOTICE OF SUCH DELAY. THE FILE DOES NOT SHOW ANY REASON FOR THE SUBCONTRACTOR'S DELAY IN FURNISHING THE PUMP TO THE CONTRACTOR OR WHETHER THE CONTRACTOR HAD TAKEN APPROPRIATE STEPS TO AVOID SUCH DELAY. IT IS TO BE NOTED, ALSO, THAT THE CONTRACT PROVIDED THAT "THE PUMP SHALL BE A BLACKMER ROTARY PUMP FIGURE 3111, NO. 20, OR APPROVED EQUAL ***."

THE RESPONSIBILITY FOR PERFORMANCE OF THE WORK IN ACCORDANCE WITH THE SPECIFICATIONS WAS ON THE CONTRACTOR AND IF COMPLETION WAS DELAYED THROUGH ITS FAILURE TO OBTAIN TIMELY COMMITMENTS OR TO ASCERTAIN THE AVAILABILITY OF NECESSARY ITEMS PRIOR TO SUBMISSION OF ITS BID, SUCH A CAUSE COULD NOT BE VIEWED AS UNFORSEEABLE OR BEYOND THE CONTRACTOR'S CONTROL AND WITHOUT HIS FAULT OR NEGLIGENCE.

THE PRESENT RECORD THUS FAILS TO ESTABLISH THAT THE EXECUTION OF CHANGE ORDER "B" EXTENDING THE TIME FOR PERFORMANCE WAS AUTHORIZED. IT FOLLOWS THAT THE VOUCHER PROPERLY MAY NOT BE CERTIFIED FOR PAYMENT. THE VOUCHER AND ACCOMPANYING PAPERS ARE ENCLOSED.