B-131733, AUG. 30, 1957

B-131733, AUG. 30, 1957

TO NORTHEASTERN CONSTRUCTION COMPANY:

REFERENCE IS MADE TO LETTER OF AUGUST 7, 1957, WRITTEN ON YOUR BEHALF BY MR. JOHN J. ST. ANDRE, ATTORNEY, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR SETTLEMENT DATED SEPTEMBER 5, 1956, DISALLOWING YOUR CLAIM FOR $1,189.38, ALLEGED TO BE DUE AS ADDITIONAL EXPENSES INCURRED IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. O.I. 1922. IN THE ABOVE LETTER YOUR ATTORNEY SUBMITS THREE CONTENTIONS IN SUPPORT OF HIS CONCLUSION THAT THE CLAIM PROPERLY IS FOR ALLOWANCE. THERE WILL BE CONSIDERED HEREINAFTER THOSE CONTENTIONS IN THE SAME ORDER IN WHICH THEY APPEAR IN HIS REQUEST FOR REVIEW OF THE MATTER.

THE SUBJECT CONTRACT COVERED THE FURNISHING OF THE NECESSARY LABOR AND MATERIAL TO CONSTRUCT A STORM DRAIN LINE FROM A DESIGNATED GRAVEL PIT TO LAKE COCHITUATE FOR THE QUARTERMASTER RESEARCH AND DEVELOPMENT COMMAND, NATICK, MASSACHUSETTS. PURSUANT TO YOUR REQUEST OF JULY 19, 1955, THE COMPLETION DATE OF AUGUST 1, 1955, ESTABLISHED BY THE TERMS OF THE CONTRACT WAS EXTENDED 30 DAYS DUE TO A GENERAL TRUCK STRIKE. PRIOR TO INSPECTION AND ACCEPTANCE OF THE WORK SEVERE RAINFALL IN THE AREA DURING THE PERIOD AUGUST 19 THROUGH AUGUST 21, 1955, CREATED A FLOOD CONDITION AS A RESULT OF WHICH SURFACE COMPOSITION ON THE PROJECT SITE WAS WASHED INTO THE PIPE CLOGGING IT TO THE EXTENT OF 75 PERCENT OF ITS CAPACITY.

CLAIM IS MADE FOR REIMBURSEMENT OF THE AMOUNT OF $1,189.38 ALLEGED TO HAVE BEEN EXPENDED IN CLEARING THE PIPE OF SUCH DEPOSITS ON THE THEORY, FIRST, THAT BECAUSE THE DAMAGE RESULTED FROM AN ACT OF GOD THE GOVERNMENT IS CHARGEABLE WITH THE LOSS. IT IS ARGUED THAT PARAGRAPH GC-8 OF THE GENERAL PROVISIONS OF THE CONTRACT WHICH REQUIRED YOU TO PROTECT AND PRESERVE ALL OF THE WORK PERFORMED, LIMITED YOUR LIABILITY TO LOSSES WHICH YOU OTHERWISE COULD HAVE PREVENTED. THE COURTS HAVE NOT PLACED THAT NARROW A CONSTRUCTION ON THE ABOVE-CITED PROVISION. IT IS WELL SETTLED THAT WHERE A CONTRACTOR UNDERTAKES TO CONSTRUCT A PROJECT AND DURING THE PROGRESS OF THE WORK INJURY OR DESTRUCTION OCCURS WITHOUT THE FAULT OR NEGLIGENCE OF EITHER PARTY, THE CONTRACTOR IS STILL BOUND BY HIS UNDERTAKING TO COMPLETE THE PROJECT, AND IS LIABLE IN DAMAGES IF HE FAILS TO DO SO. SEE MITTRY ET AL. V. UNITED STATES, 73 C.CLS. 341, AND THE CASES CITED THEREIN. IN A SOMEWHAT SIMILAR CASE, DAY V. UNITED STATES, 245 U.S. 159, WHICH INVOLVED DAMAGE BY FLOOD IN CONNECTION WITH CONSTRUCTION OF A CANAL AND LOCKS, JUSTICE HOLMES, SPEAKING FOR THE SUPREME COURT OF THE UNITED STATES, STATED THAT--- "ONE WHO MAKES A CONTRACT NEVER CAN BE ABSOLUTELY CERTAIN THAT HE WILL BE ABLE TO PERFORM IT WHEN THE TIME COMES, AND THE VERY ESSENCE OF IT IS THAT HE TAKES THE RISK WITHIN THE LIMITS OF HIS UNDERSTANDING. * * * IF THE UNQUALIFIED AGREEMENT TO COMPLETE THE WORK WERE NOT ENOUGH BY ITSELF * * * THE PROVISIONS TO WHICH WE HAVE REFERRED WOULD MAKE IT PLAIN.'

A FURTHER CONTENTION OF YOUR ATTORNEY IS THAT THE WORK IS ALLEGED TO HAVE BEEN COMPLETED ON AUGUST 17, 1955; THAT THE CONTRACTOR WAS SO NOTIFIED ON THAT DATE; AND THAT SINCE INSPECTION WAS NOT COMPLETED AND FINAL ACCEPTANCE ACCOMPLISHED ALSO ON THAT DATE THE GOVERNMENT FAILED TO TIMELY INSPECT AND ACCEPT THE WORK, WHICH WOULD HAVE RELIEVED YOU OF ANY FURTHER LIABILITY UNDER THE CONTRACT. THAT CONTENTION IS NOT TENABLE. THE RECORD DOES NOT DISCLOSE AT WHAT TIME ON AUGUST 17 THE CONTRACTING OFFICER WAS NOTIFIED THAT THE CONTRACT WORK WAS COMPLETED IN ITS ENTIRETY, EVEN IF THE ALLEGATION BE TRUE AND THAT THERE REMAINED SUFFICIENT TIME FOR THE GOVERNMENT'S REPRESENTATIVE TO HAVE BEEN ABLE TO MAKE A PROPER INSPECTION. MOREOVER, THAT CONTENTION APPEARS IMMATERIAL SINCE THE TERMS OF THE CONTRACT DID NOT IMPOSE UPON THE CONTRACTING OFFICER THE DUTY TO IMMEDIATELY INSPECT AND ACCEPT THE WORK, BUT ON THE CONTRARY IT PROVIDED THAT SUCH DUTY WOULD BE UNDERTAKEN "AS SOON AS PRACTICABLE.' CERTAINLY, UNDER THAT PROVISION IT COULD NOT BE SERIOUSLY ARGUED THAT THE GOVERNMENT DID NOT HAVE A REASONABLE LENGTH OF TIME IN WHICH TO MAKE ITS INSPECTION BEFORE ACCEPTANCE, NOTWITHSTANDING THE FACT THAT THE STORM, INTERVENING ON THE FOLLOWING DAY, PREVENTED SUCH ACCOMPLISHMENT BEFORE THE DAMAGE WAS DONE.

THE THIRD CONTENTION MADE BY YOUR ATTORNEY IS THAT SINCE YOU COULD NOT LEGALLY BE REQUIRED TO REPAIR THE DAMAGES CAUSED BY THE STORM, AND SINCE THE GOVERNMENT BENEFITED BY THE EXTRA WORK YOU PERFORMED, IT WAS UNJUSTLY ENRICHED IN THE ABSENCE OF APPROPRIATE REIMBURSEMENT. THAT CONTENTION HAS SEVERAL MATERIAL DEFECTS. INITIALLY, THE UNJUST ENRICHMENT THEORY HAS NO APPLICATION IN LAW WHERE THERE IS INVOLVED A VALID AND BINDING CONTRACT. THIRD NATIONAL BANK AND TRUST CO. OF SCRANTON V. LEHIGH VALLEY COAL CO., 44 A.2D 571; STATE V. MARTIN ET UX, 130 P.2D 48. ALSO, AS HEREINBEFORE STATED, UNDER THE TERMS OF THE CONTRACT, AND THE INTERPRETATION OF SIMILAR PROVISIONS PLACED THEREON BY THE COURTS IN THE MITTRY AND DAY CASES, YOU WERE RESPONSIBLE FOR THE COMPLETION OF THE WORK IN A MANNER ACCEPTABLE TO THE GOVERNMENT REGARDLESS OF INTERVENING EVENTS, OR RESPOND IN DAMAGES FOR YOUR FAILURE TO DO SO. THERE IS NOTHING IN THE CONTRACT, EITHER EXPRESS OR BY IMPLICATION, WHEREBY THE GOVERNMENT ASSUMED THE RISK AS TO DAMAGES RESULTING FROM AN ACT OF GOD BEFORE ACCEPTANCE OF THE WORK. MOREOVER, IT IS CLEAR THAT ULTIMATELY THE GOVERNMENT RECEIVED ONLY THAT FOR WHICH IT BARGAINED AND FOR WHICH PAYMENT HAS BEEN MADE IN FULL.

IT IS REGRETTED THAT YOU WERE REQUIRED TO PERFORM ADDITIONAL SERVICES DUE TO THE DAMAGES TO THE PROJECT CAUSED BY THE STORM; HOWEVER, IN VIEW OF THE FOREGOING WE HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT THERE EXISTS NO LEGAL AUTHORITY TO CERTIFY FOR PAYMENT FROM APPROPRIATED MONIES ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE.