B-123740, AUG. 2, 1955

B-123740, AUG. 2, 1955

TO SCHURR AND FINLAY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1955, RELATIVE TO YOUR CLAIM FOR APPROXIMATELY $8,800, REPRESENTING ALLEGED AMOUNTS WITHHELD, INCLUDING INTEREST THEREON, FROM PAYMENTS MADE TO YOU UNDER CONTRACT NO. NOY-78604, DATED DECEMBER 4, 1953.

UNDER ARTICLE 1 OF THE CONTRACT YOU AGREED TO FURNISH THE MATERIALS AND TO PERFORM THE WORK REQUIRED IN THE INSTALLATION OF CERTAIN TELEPHONE CABLE AT THE NAVAL AMMUNITION DEPOT, FALLBROOK, CALIFORNIA, FOR A TOTAL CONSIDERATION OF $55,400. WORK WAS TO BE COMMENCED DECEMBER 13, 1953, AND COMPLETED ON OR BEFORE JUNE 10, 1954. UNDER ARTICLE 11 PROVISION WAS MADE FOR THE ASSESSMENT OF LIQUIDATED DAMAGES AT THE RATE OF $40 FOR EACH CALENDAR DAY OF UNEXCUSABLE DELAY IN COMPLETION OF THE WORK. FURTHER, THE CONTRACT PRICE WAS SUBJECT TO ADJUSTMENT BECAUSE OF ANY CHANGES OR EXTRAS AUTHORIZED PURSUANT TO ARTICLE 10.

THE ADMINISTRATIVE REPORT DISCLOSES THAT WHILE AT THE OUTSET OF THE WORK YOU EXPERIENCED VARIOUS DELAYS IN OBTAINING THE CONTRACT MATERIAL FROM YOUR SOURCES OF SUPPLY, AND THAT THE INITIAL DELIVERY OF MATERIAL WAS NOT MADE UNTIL JULY 8, 1954, YOU WAITED UNTIL JULY 27, 1954, TO PRESENT YOUR REQUEST FOR AN EXTENSION OF THE CONTRACT TIME FROM JUNE 10 TO OCTOBER 1, 1954, FOR COMPLETION OF THE WORK. FOLLOWING AN EXCHANGE OF CONSIDERABLE CORRESPONDENCE BETWEEN THE CONTRACTING OFFICIALS AND YOU REGARDING THE CAUSES OF DELAY FOR WHICH YOU ORIGINALLY REQUESTED AN EXTENSION OF TIME OF 112 DAYS, AND IN CONSIDERATION OF YOUR INTERIM REQUEST FOR A FURTHER EXTENSION OF TIME TO NOVEMBER 15, 1954 (A TOTAL OF 158 DAYS) AS WELL AS ACCEPTANCE BY THE GOVERNMENT OF THE SUBSTITUTED CABLES ACTUALLY DELIVERED BY YOUR SUPPLIER, THERE WAS ISSUED UNDER DATE OF OCTOBER 13, 1954, CHANGE ORDER "A" (RECEIVED AND ACCEPTED BY YOU ON OCTOBER 21, 1954), AUTHORIZING AN EXTENSION OF 158 DAYS IN THE CONTRACT TIME, OR UNTIL NOVEMBER 15, 1954. BY LETTER DATED NOVEMBER 18, 1954, YOU WERE OFFICIALLY NOTIFIED THAT THE USE OF SUBSTITUTED MATERIAL WAS APPROVED,"SUBJECT TO CONTRACT REQUIREMENTS AT NO CHANGE IN CONTRACT PRICE OR TIME.'

THE RECORD ALSO SHOWS THAT BY LETTER DATED NOVEMBER 17, 1954, YOU REQUESTED A FURTHER EXTENSION OF 90 DAYS FROM NOVEMBER 15, 1954, TO FEBRUARY 13, 1955, FOR COMPLETION OF THE ENTIRE WORK. THE EVIDENCE OF RECORD ESTABLISHES THAT THIS REQUEST DIRECTLY CONCERNED THE DELAY IN THE DELIVERY OF THE MATERIAL COVERED BY YOUR PURCHASE ORDER NO. F 12635, RECEIPT OF WHICH WAS ACKNOWLEDGED BY YOUR SUPPLIER IN HIS LETTER OF OCTOBER 20, 1954. YOU WERE OFFICIALLY ADVISED ON DECEMBER 1, 1954, THAT FURTHER EXTENSION OF THE CONTRACT TIME FOR REASONS IDENTICAL TO THOSE CONSIDERED UNDER CHANGE ORDER "A" WAS NOT POSSIBLE. THEREAFTER, AS A RESULT OF A FURTHER EXCHANGE OF CORRESPONDENCE, INCLUDING YOUR LETTER OF JANUARY 5, 1955, WHEREIN YOU REDUCED THE EXTENSION TIME REQUESTED TO 81 DAYS, YOU WERE AGAIN ADVISED THAT FURTHER EXTENSION COULD NOT BE GRANTED FOR DELAYS SIMILAR TO THOSE PREVIOUSLY CONSIDERED UNDER THE CHANGE ORDER, BUT THAT CONSIDERATION WOULD BE GIVEN YOUR REQUEST MADE FOLLOWING THE DELIVERY OF THE MATERIAL ON PURCHASE ORDER NO. F-12635 FOR SUCH DELAY AS MAY BE DETERMINED DUE TO CAUSES OTHER THAN THOSE PREVIOUSLY CONSIDERED. YOUR FINAL REQUEST OF JANUARY 31, 1955, FOR THE ADDITIONAL 81-DAY EXTENSION, WAS DENIED FOR THE REASONS STATED IN THE CONTRACTING OFFICER'S LETTER DATED FEBRUARY 14, 1955, TO YOU. IT WILL BE OBSERVED FROM THE FOREGOING THAT THE MATTER OF DELAY CONCERNED SOLELY THE DELIVERY OF THE 2,000 FEET OF CABLE UNDER YOUR PURCHASE ORDER NO. F 12635, NOTWITHSTANDING YOUR FINAL REQUEST WAS ACCOMPANIED BY A COPY OF YOUR ORDER F-12530 OF DECEMBER 1953, COVERING THE MATERIAL DELIVERED BY YOUR SUPPLIER DURING JULY 1954. IT WAS EXPLAINED TO YOU THAT THE CABLE LENGTHS COVERED IN THIS ORDER WERE APPROXIMATELY 2,000 FEET SHORT OF THE QUANTITIES NEEDED AND THAT SAID SHORTAGE CONSTITUTED THE MATERIAL COVERED BY YOUR ORDER F- 12635. FURTHER, YOU WERE ADVISED THAT THE DELIVERY DELAY ON YOUR SECONDARY ORDER WAS OCCASIONED PRIMARILY BECAUSE OF NEGLIGENCE ON PART OF YOUR FIRM IN INADVERTENTLY ESTIMATING THE ORIGINAL QUANTITY NECESSARY FOR THE INSTALLATION, PARTICULAR ATTENTION BEING INVITED TO THE LIQUIDATED DAMAGES PROVISION CONTAINED IN SECTION 1-07 OF THE CONTRACT SPECIFICATIONS.

WITH RESPECT TO THE CONTRACTING OFFICER'S DETERMINATION REGARDING THE TOTAL NET DEDUCTIVE AMOUNT OF $220, THE DIFFERENCE BETWEEN THE DEDUCTIVE ITEM $697 AND THE ADDITIVE ITEM OF $477, AS EXPLAINED TO YOU IN THE CONTRACTING OFFICER'S LETTER DATED APRIL 13, 1955, IT ALSO WAS DETERMINED THAT YOU WERE ENTITLED TO AN EXTENSION OF SEVEN DAYS TO COMPLETE THE WORK COVERED BY SAID ITEMS. THUS, IN CONSIDERATION OF THE EXTENSION OF THESE SEVEN DAYS--- FROM NOVEMBER 15, 1954, TO NOVEMBER 22, 1954--- THERE WOULD REMAIN A BALANCE OF 74 CALENDAR DAYS FOR WHICH LIQUIDATED DAMAGES AT THE RATE OF $40 PER DAY PROPERLY WERE ASSESSED UNDER THE CONTRACT. UNDER THE CITED PROVISIONS OF THE CONTRACT THE FINDINGS OF THE CONTRACTING OFFICER AS TO THE AMOUNTS TO BE ALLOWED FOR CHARGES AND EXTRAS UNDER ARTICLE 10 AND AS TO EXCUSABLE CAUSES OF DELAY UNDER ARTICLE 11 ARE FINAL AND CONCLUSIVE IN THE ABSENCE OF AN APPEAL TO THE SECRETARY OF THE NAVY UNDER ARTICLE 16. THERE IS NO SHOWING THAT ANY SUCH APPEAL WAS TAKEN BY YOU.

THE REPORT OF THE ADMINISTRATIVE OFFICE SHOWS THAT A TOTAL AMOUNT OF $48,802.50 HAS BEEN PAID TO YOU TO DATE. THIS AMOUNT INCLUDES YOUR INVOICE DATED MARCH 30, 1955, IN THE SUM OF $2,984.50, AS PROCESSED ON APRIL 8, 1955. HOWEVER, THERE WAS WITHHELD THE AMOUNT OF $5,422.50, FROM WHICH, ON THE BASIS OF THE PRESENT RECORD, THERE IS PROPER FOR DEDUCTION THE AMOUNTS OF $2,960 AND $220, REPRESENTING LIQUIDATED DAMAGES AND THE DEDUCTIVE CHANGE ORDER, RESPECTIVELY, LEAVING A BALANCE DUE YOU IN THE AMOUNT OF $2,242.50 FOR WORK PERFORMED FOR WHICH AN INVOICE HAS NOT BEEN PRESENTED TO THE ADMINISTRATIVE OFFICE CONCERNED. THE COURTS ARE CONSISTENT IN HOLDING THAT THE UNITED STATES IS NOT LIABLE FOR INTEREST ON AMOUNTS CLAIMED IN CIRCUMSTANCES SUCH AS HERE IN QUESTION.

ACCORDINGLY, FOR THE REASONS HEREINABOVE STATED, YOUR CLAIM FOR REMISSION OF THE AMOUNT DEDUCTED AS LIQUIDATED DAMAGES AND THE SUM REFLECTED IN THE DEDUCTIVE CHANGE ORDER MUST BE DENIED. PAYMENT OF THE AMOUNT OF $2,242.50, IS BEING WITHHELD BY THE ADMINISTRATIVE OFFICE PENDING RECEIPT BY THAT OFFICE OF YOUR INVOICE COVERING THIS AMOUNT.