B-134415, JAN. 15, 1958

B-134415, JAN. 15, 1958

TO THE HONORABLE FRANKLIN G. FLOETE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

YOUR LETTER OF NOVEMBER 5, 1957, WITH ENCLOSURES, REQUESTS OUR VIEWS ON THE PROPOSED REVISION OF GSA REGULATION NO. 13.

OUR ONLY COMMENTS RELATE TO THE FORMS PRESCRIBED FOR USE IN CONSTRUCTION CONTRACTS BY THE PROPOSED REGULATION, DESIGNATED FOR REVIEW PURPOSES AS STANDARD FORMS OOO AND OOOA. THE FORMER WOULD BE USED FOR CONTRACTS NOT EXCEEDING $2,000, WHILE BOTH FORMS WOULD BE USED FOR CONTRACTS IN EXCESS OF $2,000 BUT NOT EXCEEDING $10,000.

CLAUSE NO. 1, ON THE REVERSE OF STANDARD FORM 000 COMBINES PROVISIONS RELATING TO CHANGES AND CHANGED CONDITIONS. CLAUSE NO. 3 OF STANDARD FORM 23A, MARCH 1953, REQUIRES THAT THE CONTRACTOR SUBMIT ANY CLAIM FOR ADJUSTMENT UNDER THE CLAUSE IN WRITING WITHIN 30 DAYS FROM THE RECEIPT OF THE CHANGE NOTICE CONCERNED. CLAUSE NO. 1 OF SF 000 WOULD ELIMINATE THIS REQUIREMENT ENTIRELY. WE RECOGNIZE THAT SUCH PROVISION WOULD APPLY ONLY TO SMALL CONSTRUCTION CONTRACTS MANY OF WHICH WILL BE SUCCESSFULLY COMPLETED WITHIN A COMPARATIVELY SHORT TIME. NEVERTHELESS, IT IS POSSIBLE THAT SOME OF THESE CONTRACTS MAY REQUIRE A RATHER EXTENSIVE PERIOD FOR COMPLETION. IF, AS APPEARS TO BE THE CASE, A CLAIM FOR ADJUSTMENT CAN BE MADE UNDER THE CLAUSE AT ANY TIME PRIOR TO FINAL SETTLEMENT, UNDUE DELAY IN THE ASSERTION OF A CLAIM MAY NOT ONLY POSTPONE FINAL SETTLEMENT BUT MAY ALSO RENDER THE DETERMINATION OF A PROPER ADJUSTMENT MORE DIFFICULT. WHILE WE ARE NOT WEDDED TO THE 30 DAY PERIOD WE THINK IT ADVISABLE TO PROVIDE SOME TIME LIMIT WITHIN WHICH A CLAIM FOR ADJUSTMENT MUST BE MADE AFTER A CHANGE IS DIRECTED. ANY NECESSARY FLEXIBILITY COULD BE OBTAINED BY ADOPTING THE PROVISO IN CLAUSE NO. 3 OF SF 23A WHICH PERMITS THE CONTRACTING OFFICER UPON A PROPER DETERMINATION TO CONSIDER CLAIMS MADE AFTER EXPIRATION OF THE TIME LIMIT. IN ANY EVENT, WE FEEL THAT EVERY EFFORT BE MADE TO INSURE THAT CONTRACTING OFFICERS TAKE IMMEDIATE COGNIZANCE OF THE EFFECT OF ANY CHANGES OR CHANGED CONDITIONS SO THAT ALL INFORMATION NECESSARY FOR A PROPER ADJUSTMENT MAY BE ASCERTAINED AND RECORDED WHILE IT IS MOST LIKELY TO BE COMPLETE AND ACCURATE.

CLAUSE NO. 2 (A) OF SF 000 DOES NOT APPEAR TO CONTEMPLATE THE EXISTENCE OF A SURETY. WHILE NOT NECESSARY TO IMPOSE LIABILITY, IT IS RECOMMENDED FOR PURPOSES OF CLARIFICATION THAT THE CLAUSE BE AMENDED BY INSERTING IN THE SECOND SENTENCE AFTER THE WORD "CONTRACTOR," THE EXPRESSION "AND/OR SURETY, IF ANY," AND BY ADDING IN THE FOLLOWING SENTENCE AFTER THE WORD "AND," THE EXPRESSION "THE CONTRACTOR AND/OR SURETY.'

CLAUSE NO. 2 (B) DEALING WITH EXCUSABILITY OF DELAY IS SUBSTANTIALLY SIMILAR TO CLAUSE NO. 5 (C) IN SF 23A. THE WORDS,"OR DELAYS OF SUBCONTRACTORS OR SUPPLIERS DUE TO SUCH CAUSES" HAVE CREATED CONSIDERABLE DIFFICULTY BECAUSE OF AMBIGUITY AS TO WHETHER A DELAY IS EXCUSABLE IF BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR BUT NOT OF THE SUBCONTRACTOR. IT IS TRUE THAT IN THE CASE OF JOHN ANDRESEN AND COMPANY, INC., ASBCA NO. 633, DECIDED DECEMBER 13, 1950, AND IN OUR DECISION B-120505, JUNE 19, 1956, IT WAS DECIDED THAT THE DELAY NEED ONLY BE BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, WITHOUT REGARD TO THE FAULT OR NEGLIGENCE OF THE SUBCONTRACTOR. NEVERTHELESS, WE REGARD IT AS DESIRABLE FROM THE STANDPOINT OF BOTH THE GOVERNMENT AND THE CONTRACTOR TO MAKE THE EFFECT OF THE PROVISION AS CLEAR ON ITS FACE AS POSSIBLE, AND WE THEREFORE RECOMMEND THAT THE PROVISION IN QUESTION BE REWRITTEN TO PROVIDE CLEARLY FOR EXCUSABILITY ON WHICHEVER BASIS IS CONSIDERED MORE DESIRABLE, THUS ELIMINATING, TO THE EXTENT POSSIBLE, THE CONFUSION CREATED BY THE PRESENT CLAUSE.

TO AVOID ANY POSSIBLE MISINTERPRETATION, IT IS RECOMMENDED THAT COMMAS BE PLACED BEFORE AND AFTER THE PHRASE,"OTHER THAN NORMAL WEATHER," WHICH APPEARS IN CLAUSE NO. 2 (B) AND 4.