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TO THE SECRETARY OF STATE: REFERENCE IS MADE TO A REQUEST FOR RECONSIDERATION OF OUR DECISION OF NOVEMBER 21. THE CONTRACT WAS ENTERED INTO ON JULY 14. THE CONTRACTOR WAS GRANTED AN EXTENSION OF 139 DAYS ON ITS COMPLETION DATE. THE CONTRACT COMPLETION DATE WAS SUBSEQUENTLY EXTENDED TO DECEMBER 31. A DETERMINATION HAS BEEN MADE BY THE OFFICE OF FOREIGN BUILDINGS "SUPERVISOR OF CONSTRUCTION" FOR THE PROJECT THAT 133 DAYS OF UNREASONABLE DELAY ON THE PROJECT WERE ATTRIBUTABLE TO THE GOVERNMENT AND IT WAS CALCULATED THAT APPROXIMATELY $51. 600 IN OVERHEAD COSTS IS ATTRIBUTABLE TO THIS PERIOD OF DELAY. IF ACCOUNTING SUPPORT FOR THE AMOUNT CLAIMED WERE FURNISHED. IT IS RECOGNIZED THAT THE GOVERNMENT MAY BE HELD LIABLE FOR DAMAGES.

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B-147297, MAR. 29, 1962

TO THE SECRETARY OF STATE:

REFERENCE IS MADE TO A REQUEST FOR RECONSIDERATION OF OUR DECISION OF NOVEMBER 21, 1961, (B-147297), RELATIVE TO A CLAIM BY COMPAGNIE INDUSTRIELLE DE TRAVAUX, FOR $45,000 AS FULL PAYMENT FOR DAMAGES RESULTING FROM DELAYS UNDER CONTRACT NO. S-456-FBO-37.

BRIEFLY, THE CONTRACT WAS ENTERED INTO ON JULY 14, 1958, BETWEEN THE DEPARTMENT OF STATE AND COMPAGNIE INDUSTRIELLE DE TRAVAUX, FOR THE CONSTRUCTION OF THE EMBASSY OFFICE BUILDING AND AMBASSADOR'S RESIDENCE IN RABAT, MOROCCO. IT CALLED FOR COMPLETION OF THE PROJECT WITHIN 540 CALENDAR DAYS. THE CONTRACT ALSO CONTAINED PROVISION FOR CHANGES IN THE DRAWINGS AND SPECIFICATIONS WITHIN THE GENERAL SCOPE OF THE WORK. STRIKE, LASTING FROM OCTOBER 1958 THROUGH MARCH 1959, AFFECTED SOME OF THE WORK ON THE CONSTRUCTION, AND THE CONTRACTOR WAS GRANTED AN EXTENSION OF 139 DAYS ON ITS COMPLETION DATE. ON AUGUST 19, 1959, THE DEPARTMENT ISSUED A STOP ORDER ON THE CONSTRUCTION OF WALLS AND PARTITIONS IN THE OFFICE BUILDING AND ON THE WALLS OF THE AMBASSADOR'S RESIDENCE, DUE TO A REPROGRAMMING OF SPACE IN THE OFFICE BUILDING AND A RECONSIDERATION OF THE FENESTRATION SOLUTION OF THE TWO BUILDINGS. THE CONTRACT COMPLETION DATE WAS SUBSEQUENTLY EXTENDED TO DECEMBER 31, 1960.

A DETERMINATION HAS BEEN MADE BY THE OFFICE OF FOREIGN BUILDINGS "SUPERVISOR OF CONSTRUCTION" FOR THE PROJECT THAT 133 DAYS OF UNREASONABLE DELAY ON THE PROJECT WERE ATTRIBUTABLE TO THE GOVERNMENT AND IT WAS CALCULATED THAT APPROXIMATELY $51,600 IN OVERHEAD COSTS IS ATTRIBUTABLE TO THIS PERIOD OF DELAY. THE CONTRACTOR HAS AGREED TO ACCEPT $45,000 IN COMPLETE SETTLEMENT OF THE EXTRA OVERHEAD EXPENSES INCURRED BY IT DURING THE AFOREMENTIONED PERIOD OF 133 DAYS.

WE CONCLUDED IN OUR PRIOR DECISION THAT, IF ACCOUNTING SUPPORT FOR THE AMOUNT CLAIMED WERE FURNISHED, WE WOULD RECONSIDER THE MATTER.

IT IS RECOGNIZED THAT THE GOVERNMENT MAY BE HELD LIABLE FOR DAMAGES, UNDER A BREACH OF CONTRACT, WHEN IT UNREASONABLY DELAYS THE CONTRACTOR'S PERFORMANCE. GEORGE A. FULLER CO. V. UNITED STATES, 108 CT. CL. 70; JAMES STEWART AND COMPANY, INC. V. UNITED STATES, 105 CT. CL. 284. THE RECORD BEFORE US CONTAINS EVIDENCE SHOWING THAT THE GOVERNMENT DID CAUSE AN UNREASONABLE DELAY OF 133 DAYS. IT APPEARS, THEREFORE, THAT THE CONTRACTOR IS ENTITLED TO DELAY DAMAGES FOR THIS PERIOD.

A CALCULATION OF ACTUAL DAMAGES WAS COMPUTED FOR THE PERIOD ON THE BASIS THAT 25 PERCENT OF THE CONTRACTOR'S TOTAL ACTUAL COSTS ARE ATTRIBUTABLE TO OVERHEAD (EXCLUDING PROFIT). IT WAS DETERMINED THAT $51,600 REPRESENTED AN APPROXIMATION OF ACTUAL OVERHEAD EXPENSES FOR THE PERIOD OF UNREASONABLE DELAY. WE ARE ADVISED THAT AN ACTUAL RECONSTRUCTION OF THE COST ITEMS ON THE PROJECT AT THIS TIME WOULD BE EXTREMELY DIFFICULT DUE TO UNAVAILABILITY OF COST RECORDS. YOUR DEPARTMENT ADVISES US THAT THE LIQUIDATED FIGURE OF $45,000 FOR THE OVERHEAD REPRESENTS A FAIR ESTIMATE OF THE ACTUAL DAMAGES CAUSED THE CONTRACTOR BY THE GOVERNMENT. UNDER THESE CIRCUMSTANCES AND THE FACTS OF THIS PARTICULAR CASE, WE WOULD HAVE NO OBJECTION TO PAYMENT OF THE AMOUNT OF $45,000, AS FULL AND FINAL SETTLEMENT OF ALL CLAIMS ARISING OUT OF THE PERFORMANCE OF THIS CONTRACT.

OUR DECISION IS REQUESTED AS TO WHETHER YOUR DEPARTMENT MAY PAY THE CONTRACTOR IN DOLLARS IF IT WILL NOT ACCEPT PAYMENT INMOROCCAN DIRHAMS (THE NEW MOROCCAN CURRENCY, CREATED AFTER THE EXECUTION OF CONTRACT NO. S- 456-FBO-37). YOU ARE ADVISED THAT WE WOULD NOT OBJECT TO THE PAYMENT OF THE CLAIM IN DOLLARS, PROVIDED, OF COURSE, THAT THE APPROPRIATION INVOLVED (APPROPRIATION 19X0535) CONTAINS A SUFFICIENT AMOUNT IN DOLLARS TO COVER THE PAYMENT.

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