B-126482, FEB. 6, 1956

B-126482, FEB. 6, 1956

TO THE HONORABLE SECRETARY OF HEALTH, EDUCATION, AND WELFARE:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 28, 1955, FROM THE MEDICAL DIRECTOR, U.S. QUARANTINE STATION, ROSEBANK, STATEN ISLAND 5, NEW YORK (THE CONTRACTING OFFICER), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR OR MISUNDERSTANDING ALLEGED BY THE CADDELL DRY DOCK AND REPAIR COMPANY, INC., IN CONNECTION WITH ITS CONTRACT DATED NOVEMBER 1, 1955, FOR THE REPAIR OF THE QUARANTINE CUTTER "R. D. MURRAY.'

THE CONTRACT PROVIDED THAT THE WORK SHOULD BE COMMENCED WITHIN ONE CALENDAR DAY AFTER RECEIPT OF NOTICE TO PROCEED AND BE COMPLETED WITHIN THREE DAYS AFTER RECEIPT OF SUCH NOTICE, AND PROVIDED FOR PAYMENT OF $25 AS LIQUIDATED DAMAGES FOR EACH CALENDAR DAY OF DELAY. IT IS REPORTED THAT THE VESSEL WAS DELIVERED TO THE CONTRACTOR ON NOVEMBER 21, 1955, AND THAT WORK WAS STARTED ON THAT DATE BUT WAS NOT COMPLETED UNTIL NOVEMBER 25, 1955, NOVEMBER 24 BEING A HOLIDAY. THE CONTRACT PRICE FOR THE WORK UNDER ITEM NO. 2, WHICH REQUIRED THE REMOVAL OF THE OLD CANVAS DECK COVERING AND REPLACEMENT WITH NEW CANVAS, WAS $595. THE QUESTIONS PRESENTED FOR DECISION ARE WHETHER AN ADDITIONAL AMOUNT OF $171.06 PROPERLY MAY BE PAID TO THE CONTRACTOR FOR EXTRA LABOR AND MATERIAL ALLEGEDLY USED IN REPLACING THE CANVAS AND WHETHER THE CONTRACTOR SHOULD BE CHARGED WITH LIQUIDATED DAMAGES FOR TWO DAYS' DELAY.

ITEM NO. 2 OF THE SPECIFICATIONS PROVIDES IN PERTINENT PART:

"* * * CANVAS SHALL BE LAID IN SINGLE PIECE AS MUCH AS IS PRACTICABLE WITH NON-CORROSIVE FASTENERS. WHERE FOUND NECESSARY TO PIECE, IT SHALL BE OVERLAPPED WITH A MINIMUM OF 1 1/2 IN. .'

IN ITS LETTER OF NOVEMBER 25, 1955, THE CONTRACTOR STATED:

"IN SUBMITTING OUR ESTIMATE FOR REPAIRING THE CUTTER "R. D. MURRAY" WE FOLLOWED THE SPECIFICATIONS AND OBTAINED WIDE CANVAS THAT COULD BE LAID IN TWO PIECES ON THE CABIN ROOF MAKING ONLY ONE SEAM TO BE NAILED AND THE PILOT HOUSE CANVAS WAS ORDERED IN ONE PIECE. HOWEVER, SOMETIME AFTER THE MURRAY ARRIVED AT OUR PLANT, WE WERE TOLD YOU WANTED THE CANVAS LAID IN NARROW STRIPS, 22 IN., 24 IN. OR 30 IN. WIDE, NECESSITATING CONSIDERABLE MORE TIME AND LABOR IN COMPLETING THE JOB.'

IT IS STATED IN THE CONTRACTING OFFICER'S LETTER OF DECEMBER 28, 1955, THAT THE CONTRACTOR'S FOREMAN WAS INSTRUCTED TO LAY THE NEW CANVAS "EXACTLY AS THE OLD CANVAS BEING TAKEN UP WAS LAID, THAT IS, IN STRIPS.' ALSO, THE CONTRACTING OFFICER'S OPINION IS EXPRESSED THAT "IF THE CANVAS HAD BEEN LAID IN ONE AND TWO PIECES AS SUGGESTED IN THE CADDELL LETTER, IT WOULD HAVE TAKEN CONSIDERABLY MORE TIME AND WOULD HAVE BEEN MORE EXPENSIVE TO LAY BECAUSE THIS METHOD WOULD REQUIRE TAILORING TO THE LINES OF THE VESSEL AND CUTTING OUT FOR ALL THROUGH DECK FIXTURES, STACK, MAST, ETC.'

IT IS BELIEVED THAT THE ORDINARY MEANING OF THE SPECIFICATIONS IN QUESTION IS THAT ASCRIBED TO THEM BY THE CONTRACTOR; AND IF THEY ARE TO BE GIVEN THE INTERPRETATION INDICATED BY THE CONTRACTING OFFICER, THEY MUST BE REGARDED AS AMBIGUOUS AT BEST. HENCE, IT IS REASONABLE TO CONCLUDE THAT THE REQUIREMENT THAT THE CONTRACTOR LAY THE CANVAS IN STRIPS WAS NOT IN ACCORDANCE WITH THE CONTRACT TERMS. BUT, WHETHER SUCH CHANGE CAUSED AN INCREASE IN THE COST OF, AND THE TIME REQUIRED FOR, PERFORMANCE OF THE CONTRACT, IS A QUESTION OF FACT PRIMARILY FOR DETERMINATION BY THE CONTRACTING OFFICER UNDER THE CONTRACT. SEE PARAGRAPHS 2 AND 12 OF GENERAL PROVISIONS. IF THE CONTRACTING OFFICER DETERMINES THAT THE METHOD EMPLOYED BY THE CONTRACTOR IN LAYING THE CANVAS RESULTED IN EXTRA EXPENSE AND REQUIRED ADDITIONAL TIME FOR PERFORMANCE AS CONTENDED BY THE CONTRACTOR, WE WOULD OFFER NO OBJECTION TO PAYMENT OF THE ADDITIONAL AMOUNT CLAIMED AND THE WAIVER OF LIQUIDATED DAMAGES.