B-99875, JANUARY 3, 1951, 30 COMP. GEN. 264

B-99875, JANUARY 3, 1951, 30 COMP. GEN. 264

CONTRACTS - REPAIRS AND IMPROVEMENTS OF PUBLIC BUILDINGS - LIABILITY FOR DAMAGES PRIOR TO COMPLETION WHERE A PROVISION IN A CONTRACT FOR THE REPAIR AND REHABILITATION OF AN EXISTING BUILDING MAKES THE CONTRACTOR RESPONSIBLE FOR THE PROTECTION OF THE WORK UNTIL FINAL ACCEPTANCE AND DELIVERY OF THE BUILDING "COMPLETE AND UNDAMAGED," THE CONTRACTOR MAY NOT BE RELIEVED OF THE RESPONSIBILITY FOR REPLACING THERMOPANE GLASS WHICH HE REINSTALLED AND WHICH DEVELOPED CRACKS DURING THE PROGRESS OF THE WORK, EVEN THOUGH IT MAY BE A COMMON TRADE PRACTICE TO MAKE NO WARRANTY ON THE LIFE OF SUCH GLASS AFTER IT IS RESET.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE AIR FORCE, JANUARY 3, 1951:

THERE HAS BEEN CONSIDERED LETTER DATED DECEMBER 1, 1950, WITH ENCLOSURES, FROM THE DIRECTOR OF MATERIAL, HEADQUARTERS, LONG RANGE PROVING GROUND DIVISION, UNITED STATES AIR FORCE, COCOA, FLORIDA, REQUESTING A DECISION AS TO WHETHER THE FIRM OF CARL W. HOPPS AND ASSOCIATES SHOULD BE REQUIRED TO RESTORE CERTAIN THERMOPANE UNITS REINSTALLED IN THE CONTROL TOWER OF BUILDING NO. 800, JOINT LONG RANGE PROVING GROUND BASE, COCOA, FLORIDA, UNDER CONTRACT NO. AF 108 (169/ 54, DATED MAY 19, 1950, COVERING THE REPAIR AND REHABILITATION OF SAID BUILDING.

IT IS REPORTED THAT THE CONTRACT IN THE AMOUNT OF $14,760 WAS EXECUTED ON A STANDARD FORM OF CONTRACT WHICH INCLUDES ARTICLES 10 AND 16 (C) RELATIVE TO THE RESPONSIBILITY OF THE CONTRACTOR FOR THE PROTECTION OF THE WORK UNTIL FINAL ACCEPTANCE AND THE DELIVERY THEREOF "COMPLETE AND DAMAGED.' IT IS FURTHER REPORTED THAT SOME OF THE THERMOPANE UNITS REINSTALLED BY THE CONTRACTOR DEVELOPED CRACKS APPROXIMATELY 30 DAYS AFTER REINSTALLATION, AND THAT, WITHOUT CONSIDERATION OF THE POSSIBLE REPLACEMENT OF SAID UNITS, THE CONTRACT IS APPROXIMATELY 98 PERCENT COMPLETE.

IN A LETTER DATED OCTOBER 23, 1950, TO THE CONTRACTING OFFICER, THE CONTRACTOR CONTENDED THAT IT SHOULD BE ASSIGNED NO RESPONSIBILITY OR ACCOUNTABILITY FOR THE DAMAGED WORK, IT BEING STATED THAT THERMOPANE GLASS IS UNUSUALLY SUSCEPTIBLE TO BREAKAGE AS EACH PANE ABSORBS DIFFERENT HEAT RATIONS WHICH CAUSES EXPANSIONS; THAT THERE IS NO PRACTICAL WAY TO PREDETERMINE THE INHERENT STRESS IN A PIECE OF GLASS BY OBSERVATION; AND THAT THIS HAS LED TO THE COMMON PRACTICE IN THE TRADE TO MAKE NO WARRANTY ON THE LIFE OF THE GLASS AFTER IT IS RESET. A LETTER DATED OCTOBER 20, 1950, FROM THE PITTSBURG PRODUCTS AGENCY, ORLANDO, FLORIDA, SUBSTANTIATES THE CONTRACTOR'S STATEMENTS IN THE MATTER AND FURTHER SUGGESTS THAT THE BREAKAGE HERE INVOLVED MAY HAVE BEEN DUE TO STRUCTURAL CHANGES IN THE BUILDING.

SINCE THE CONTRACT IS FOR REPAIRS OF AN EXISTING BUILDING AND SINCE THERE IS HERE INVOLVED A STANDARD TRADE PRACTICE WITH RESPECT TO THE RESETTING OF GLASS, THE QUESTION IS RAISED IN THE REQUEST FOR DECISION AS TO WHETHER THE RULE ADOPTED IN 16 COMP. GEN. 975 MAY BE APPLIED. THAT DECISION HELD, QUOTING FROM THE SYLLABUS:

WHERE BY CONTRACT PROVISION A CONTRACTOR IS MADE RESPONSIBLE FOR THE PROPER PROTECTION OF THE WORK UNTIL COMPLETION AND FINAL ACCEPTANCE, AND THE DELIVERY OF THE BUILDING AT THAT TIME ,COMPLETE AND UNDAMAGED," THE FACT THAT DAMAGE TO THE BUILDING RESULTED FROM AN "UNPRECEDENTED" FLOOD DOES NOT ABSOLVE THE CONTRACTOR FROM THE RESPONSIBILITY FOR RESTORATION AND DELIVERY OF THE BUILDING AS CONTEMPLATED BY THE CONTRACT, THE BUILDING, ALTHOUGH SUBSTANTIALLY COMPLETED AND OCCUPIED, PROPERLY NOT HAVING BEEN ACCEPTED BY THE UNITED STATES AT THE TIME OF THE FLOOD.

IT IS WELL SETTLED THAT ONE WHO CONTRACTS TO CONSTRUCT A FINISHED STRUCTURE FOR A FIXED PRICE PAYABLE ON COMPLETION MUST BEAR THE RISK OF ACCIDENTAL DAMAGE TO OR TOTAL DESTRUCTION OF THE BUILDING DURING THE PROGRESS OF THE WORK. HOWEVER, IN THE CASE OF REPAIR WORK TO BE DONE ON AN EXISTING STRUCTURE, THE GENERAL RULE IN THIS COUNTRY IS THAT THE AGREEMENT FOR THE WORK IS UPON THE IMPLIED CONDITION THAT THE BUILDING SHALL REMAIN IN EXISTENCE AND THAT ITS DAMAGE OR DESTRUCTION WITHOUT FAULT OF EITHER PARTY ENTITLES THE CONTRACTOR TO RECOVER THE REASONABLE VALUE OF THE PART PERFORMANCE ALREADY EFFECTED. SEE 28 COMP. GEN. 540; 29 ID. 336. THAT RULE WOULD APPEAR TO HAVE NO APPLICATION TO THE FACTS OF THE PRESENT CASE SINCE THE BUILDING IS STILL IN EXISTENCE AND THERE HAS BEEN PRESENTED NO EVIDENCE TO SHOW THAT IT SUSTAINED ANY DAMAGE WHATEVER DURING THE PROGRESS OF THE REPAIR WORK. NOR IS IT CONSIDERED THAT ANY TRADE PRACTICE MAY BE RESORTED TO FOR THE PURPOSE OF RELIEVING THE CONTRACTOR FROM ITS RESPONSIBILITY, UPON COMPLETION OF THE CONTRACT, TO DELIVER THE WORK "COMPLETE AND UNDAMAGED," AS SPECIFICALLY REQUIRED BY THE PROVISIONS OF ARTICLE 10 OF THE CONTRACT. BRAWLEY V. UNITED STATES, 96 U.S. 168, 1073, 174; SIMPSON V. UNITED STATES, 172 U.S. 372, 379.

IT IS A FUNDAMENTAL RULE THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT UNFORESEEN DIFFICULTIES ARE ENCOUNTERED WHICH RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE THAN CONTEMPLATED, OR EVEN OCCASION A PECUNIARY LOSS, WILL NEITHER EXCUSE A PARTY FROM THE PERFORMANCE OF AN ABSOLUTE UNDERTAKING TO DO A THING THAT IS POSSIBLE AND LAWFUL, NOR ENTITLE HIM TO ADDITIONAL COMPENSATION, UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE CONTRACT. COLUMBUS RAILWAY, POWER AND LIGHT COMPANY V. COLUMBUS, 249 U.S. 399; BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C.1CLS. 503; PENN BRIDGE COMPANY V. UNITED STATES, 59 C.1CLS. 992.

ACCORDINGLY, IT IS THE VIEW OF THIS OFFICE THAT THE CONTRACTOR SHOULD BE REQUIRED TO REPLACE THE DAMAGED THERMOPANE GLASS PANELS.