B-134087, NOV. 12, 1957

B-134087, NOV. 12, 1957

TO MR. C. L. HARRIS, AUTHORIZED CERTIFYING OFFICER, BUREAU OF RECLAMATION:

YOUR LETTER OF AUGUST 20, 1957, FILE 5-360, FORWARDED HERE BY LETTER DATED OCTOBER 11, 1957, FILE 370, FROM THE CHIEF, DIVISION OF PROGRAM COORDINATION AND FINANCE, REQUESTS OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER IN THE AMOUNT OF $1,860 IN FAVOR OF THE AIR SURVEY CORPORATION REPRESENTING LIQUIDATED DAMAGES DEDUCTED FROM RETAINED PERCENTAGES UNDER MAPPING CONTRACT NO. 14-06-500-230, DATED MARCH 23, 1956.

UNDER THE TERMS OF THE ABOVE CONTRACT THE CONTRACTOR AGREED TO FURNISH AERIAL PHOTOGRAPHS AND TOPOGRAPHIC MAPS (SCHEDULE I OF INVITATION) FOR A TOTAL CONSIDERATION OF $25,000. UNDER THE PROVISIONS OF ARTICLE B-6 (B) OF THE CONTRACT THE FINAL DATE FOR COMPLETION OF THE CONTRACT WAS FIXED AT 120 DAYS AFTER THE DATE OF RECEIPT OF NOTICE TO PROCEED, OR JULY 23, 1956. THE COMPLETION DATE SUBSEQUENTLY WAS EXTENDED TO AUGUST 22, 1956, DUE TO CONDITIONS BEYOND THE CONTROL OF THE CONTRACTOR OR HIS SUBCONTRACTOR. DELIVERY OF THE MATERIAL WAS MADE BETWEEN SEPTEMBER 27 AND OCTOBER 31, 1956, AND THE CONTRACTOR WAS CHARGED LIQUIDATED DAMAGES AT THE RATE OF $20 PER DAY OR $1,380 PURSUANT TO THE PROVISIONS OF PARAGRAPH B-7 OF THE CONTRACT, WHICH CHARGE THE CONTRACTOR CONCEDES WAS PROPER. IT WAS LATER DISCOVERED THAT, BECAUSE OF DEFECTIVE WORK, IT WAS NECESSARY TO RETURN PART OF THE MATERIAL TO THE CONTRACTOR FOR CORRECTIONS. SO FAR AS THE RECORD SHOWS THE CONTRACTOR WAS NOT NOTIFIED OF THE DEFECTS UNTIL FEBRUARY 28, 1957, WHEN IT RECEIVED THE DEFECTIVE MATERIAL. THE MATERIAL WAS RETURNED BY THE CONTRACTOR ON MAY 9, 1957, OR 70 DAYS AFTER ITS RECEIPT. UPON EXAMINATION OF THE CORRECTED MATERIAL, PART WAS FOUND DEFICIENT AND RETURNED TO THE CONTRACTOR ON MAY 18, 1957. THIS MATERIAL WAS RETURNED BY THE CONTRACTOR ON JUNE 10, 1957, REPRESENTING AN ADDITIONAL 23 DAYS DELAY. THE AMOUNT CLAIMED ON THE VOUCHER IS ITEMIZED, AS FOLLOWS:

TABLE

"LIQUIDATED DAMAGES (MARCH 1 THRU MAY 9, 1957---

70 DAYS) $ 1,400.00

"THREE SHEETS OF TOPOGRAPHIC MAPS WERE RETURNED FOR

CORRECTION, AND RECEIVED BY

AIR SURVEY CORPORATION MAY 18, 1957

RETURNED TO U.S.B.R. JUNE 10, 1957 "LIQUIDATED DAMAGES (MAY

19 THRU JUNE 10, 1957---

23 DAYS) $ 460.00

$ 1,860.00"

IN THE CONTRACTOR'S LETTER OF JULY 2, 1957, PROTESTING THE ASSESSMENT OF LIQUIDATED DAMAGES IN THE AMOUNT OF $1,860 IT IS POINTED OUT THAT IT WAS FIVE MONTHS AFTER THE FIRST SHEETS WERE DELIVERED AND APPROXIMATELY FOUR MONTHS AFTER THE LAST SHEETS WERE DELIVERED BEFORE THEY WERE RETURNED FOR CORRECTION. IT IS STATED THAT BY THAT TIME THE CONTRACTOR'S FIELD FORCES HAD BEEN COMPLETELY DISBANDED; THAT OF THE THREE EMPLOYEES PRIMARILY CONCERNED WITH SUPERVISION OF THE PREPARATION OF THE MAPS, TWO HAD BEEN ASSIGNED TO WORK IN OTHER PARTS OF THE COUNTRY AND ONE HAD LEFT THE CONTRACTOR; THAT THE CONTRACTOR'S TECHNICIANS HAD LOST FAMILIARITY WITH THE PROJECT; AND THAT BECAUSE OF THESE CIRCUMSTANCES IT WAS DIFFICULT AND TIME CONSUMING FOR THE CONTRACTOR TO GET ITS FACILITIES REASSEMBLED, THE PERSONNEL REINSTRUCTED IN THE REQUIREMENTS OF THE CONTRACT AND THE NECESSARY WORK SCHEDULED AND OPERATIONS CORRECTLY PERFORMED. IN ADDITION TO THE FOREGOING IT IS STATED THAT THE LONG DELAY IN RECEIVING THE SHEETS FOR CORRECTION WAS THE DIRECT AND IMMEDIATE CAUSE OF EXCESSIVE COSTS SUFFERED BY THE CONTRACTOR IN MAKING REVISIONS. IT IS POINTED OUT THAT PARAGRAPH C-20 OF THE CONTRACT PROVIDES THAT "ALL INSPECTIONS AND CHECKING OF THE WORK BY THE GOVERNMENT WILL BE PERFORMED IN SUCH A MANNER AS NOT TO UNNECESSARILY DELAY THE WORK OR INTERFERE WITH THE CONTRACTOR'S OPERATIONS.' IN CONCLUSION IT IS STATED THAT THE EXCESSIVE COSTS WOULD NOT HAVE BEEN INCURRED BY THE CONTRACTOR IF THE SHEETS HAD BEEN RETURNED WITHIN A REASONABLE PERIOD OF TIME.

IN THE FIELD SOLICITOR'S LETTER OF AUGUST 20, 1957, REFERRED TO IN YOUR LETTER IT IS INDICATED THAT HE IS OF THE VIEW THAT SINCE ALL OF THE ESSENTIAL MATERIAL REQUIRED TO BE DELIVERED UNDER THE CONTRACT HAD BEEN RECEIVED ON OR BEFORE OCTOBER 31, 1956, LIQUIDATED DAMAGES ARE NOT CHARGEABLE FOR ANY PERIOD THEREAFTER. IN THAT CONNECTION IT IS SUFFICIENT TO STATE THAT THERE IS NO SHOWING THAT THE DEFICIENCIES IN THE WORK WERE OF A MINOR NATURE SO THAT IT MIGHT BE CONCLUDED THAT THE CONTRACT WORK HAD BEEN SUBSTANTIALLY COMPLETED ON OCTOBER 31, 1956. CF. 35 COMP. GEN. 43.

AS TO THE ABOVE CONTENTIONS AND REPRESENTATIONS OF THE CONTRACTOR IT MAY BE STATED THAT THE NUMBER OF DAYS OF DELAY IN PERFORMANCE OF THE WORK WHICH MAY HAVE BEEN CAUSED BY THE GOVERNMENT'S DELAY AND FOR WHICH THE CONTRACTOR IS EXCUSED UNDER PARAGRAPH B-7 OF THE SPECIAL CONDITIONS OF THE CONTRACT IS NECESSARILY A QUESTION OF FACT TO BE DECIDED BY THE CONTRACTING OFFICER UNDER THE PROVISIONS OF THE CITED PARAGRAPH, SUBJECT TO APPEAL BY THE CONTRACTOR TO THE HEAD OF THE DEPARTMENT OR HIS DULY AUTHORIZED REPRESENTATIVE IN THE EVENT OF AN ADVERSE FINDING OF FACT. THE RECORD DOES NOT SHOW THAT THE CONTRACTOR WAS FURNISHED WITH A FINDING OF FACT BY THE CONTRACTING OFFICER WITH REGARD TO THE DELAY OF 93 DAYS AND IF THIS WAS NOT DONE, THE CONTRACTOR SHOULD BE FURNISHED WITH SUCH A FINDING. IF UPON FINAL DETERMINATION IT SHOULD BE FOUND THAT ANY OR ALL DELAYS WERE DUE TO EXCUSABLE CAUSES LIQUIDATED DAMAGES MAY BE REFUNDED IN ACCORDANCE WITH SUCH FINDING.

FOR THE FOREGOING REASONS THE VOUCHER, WHICH IS RETURNED HEREWITH TOGETHER WITH RELATED PAPERS, MAY NOT BE CERTIFIED FOR PAYMENT.