express provision in the contract, to do any act so that work contracted for should at all events be completed within the contract time, or so that it can be carried on in the most efficient and least costly manner; (2) that where a contractor performs within the time specified only the work contracted for, no claim for damages because of alleged extra work may be administratively considered; (3) that even where a contractor shows that he has in fact performed extra work under a contract with the Government, recovery therefor cannot be had unless such work was ordered in the manner prescribed by the contract; (4) that a claim for additional compensation, calculated after the completion of the work under a contract, cannot be allowed in any event, since it is in form a claim for unliquidated damages which administrative officers of the Government Wm. are without authority to consider. Cramp & Sons v. United States, 216 U.S. 494, 500. 58-313

Where a contractor fails to comply with a time limit prescribed in the contract for the filing of a written protest against a requirement that the contractor perform work which it believes to be outside the scope of the contract, the contractor cannot thereafter claim additional compensation, over and above that stipulated in the contract, for such work. 61-63, 136

A contractor employed to repair turbine runners of a power project of the Bureau of Reclamation may not be allowed additional compensation by reason of the installation of excess quantities of units of welding, in view of the inclusion in the contract of an "approximate quantities" clause providing that the estimated quantities are approximations for comparing bids. 61-427

Insofar as the claim for additional compensation based on increased costs in executing additional units of welding could be considered as an inept expression of a timely claim based upon the discovery of latent conditions which magnified the difficulties of the work, the claim is barred by provisions of the specifications requiring all necessary welding to be done, and requiring bidders to make their own estimates concerning the difficulty of the work.

61-427

Such a claim is not barred by the failure to except both units of the work in making settlement, since the work was divided into related ranges, and one of these ranges was excepted in making settlement. But the contractor may not alter the nature of the claim on appeal by basing it upon alleged defects in the specifications and a change in the welding procedure. Such a claim is barred by the failure to make timely protest. 61-427

IV. ADVERTISING

Services and supplies may be procured on behalf of an establishment of the United States Government without competitive bidding in instances where special skill and experience are more important than a low price and it is believed these cannot be assured by competitive bidding. 54-408 In the carriage of freight by use of railway lines, the provisions of Section 3709 of the Revised Statutes of the United States, requiring advertisement for competitive bidding, have not been held applicable to purchases and other contracts made or entered into by Federal officials. 54-489

V. APPEALS

Where a contract with an agency of the Department contains a provision stating that "On all questions regarding * the interpretation of these specifications, the decision of the contracting officer shall be final," this office is without authority to review an interpretation of a specification that has been made by a contracting officer. 60-480

An appeal lies to the head of the Department by a contractor who has made a proper and timely protest from a decision of the contracting officer under a paragraph in the specifications which reads: "Except for such protests or objections as are made of record in the manner herein specified and within the time limit stated, the records, rulings, instructions, or decisions of the contracting officer shall be final and conclusive." 60-499

Appeals which involve mixed questions of fact and law are not subject to the 30day limit prescribed in article 15 (Disputes) of the standard Government construction contract, as that article relates

only to "disputes concerning questions of fact." 61-68

A written decision of the contracting officer which is sufficiently informative to indicate that a request of the contractor has been considered and denied becomes final and conclusive upon the failure of the contractor to appeal to the head of the Department within the 30-day period prescribed by the contract. 61-237

For the purposes of a contract appeal, the motives of a contracting officer in taking any action in regard to a contract are immaterial, if the grounds for the action are proper. 61-237

When the privilege of appeal is lost by failure to take a timely appeal, it may not be revised by a request for reconsideration, even if reconsideration is given. 61-237

Failure of a contractor to file a timely appeal precludes a review of the findings of fact of a contracting officer, who assessed liquidated damages for delivery in the completion of a construction contract on Standard Form No. 23.

VI. ASSIGNMENT OF CLAIMS

61-383

An assignee is bound by the practical interpretation of the assigned contract concurred in by his assignor. 57-500

VII. AUTHORITY TO MAKE

The act of June 12, 1906 (34 Stat, 255), provides that no contract or purchase on behalf of the United States shall be made

“unless the same is authorized by law or is under an appropriation adequate to its fulfillment, except in the War and Navy Departments, for clothing, subsistence, forage, fuel, quarters, transportation, or medical and hospital supplies, which, however, shall not exceed the necessities of the current year 54-282

VIII. BIDS

Generally

If acceptance of a bid is made by officers of the Government, on its behalf, within the period stated in the bid, a binding contract is completed and the bidder will be required to furnish the supplies at the price stated in his bid; but if a condition arises whereby the time period stated in the bid has expired, the acceptance of the

bid thereafter does not make a binding contract unless the bidder subsequently executes a formal contract. 54-271

There is no authority of law to require the successful bidder on a contract for the supply of material to the Federal Government to assume, in the performance of the engagement he has entered into, additional and more onerous conditions which would entail increased expense not contemplated when the advertisement was issued and the bid accepted. 54-279

E.O. No. 6246 of Aug. 10, 1933, in pursuance of the National Industrial Recovery Act, required that bidders, in the execution of contracts, shall comply with all provisions of the applicable approved code * ** for the trade or industry concerned, or, in the absence of such a code, with the provisions of the blanket code, covering all industries, promulgated under authority of section 4(A) of the National Industrial Recovery Act. Held, that where specifications were issued prior to the Executive order, and the accepted bidder is unwilling to execute a contract under the added conditions named in the codes, all bids should be rejected and readvertisement made, with a definite statement in the advertisement relative to the provisions of the Executive order named. 54-280

In view of the requirements of the Executive orders issued to give effect to the National Industrial Recovery Act, Federal administrative officers are without authority to accept bids or to execute formal contracts on behalf of the United States unless provision is made therein for compliance with said orders. 54-280

The authority to reject bids is reserved to the United States; objections by other bidders could not properly be made because the provisions of E.O. No. 6246, Aug. 10, 1933, when included in the contract would increase the burden imposed upon the low bidder. 54-280

Services and supplies may be procured on behalf of an establishment of the United States Government without competitive bidding in instances where special skill and experience are more important than a low price and it is believed these cannot be assured by competitive bidding.

54-408

Paragraphs 64 and 65 of Bulletin No. 51 of Federal Emergency Administration of Public Works contain no inhibition against more than two surety companies signing the same performance bond, and, in doing so, each company executing the bond may lawfully limit its liability to a stated sum less than the full amount of the bond, the sole interest of the United States being to secure a good and sufficient bond for a definite total amount designated. 54-472

Paragraphs 64 and 65 of Bulletin 51 of Federal Emergency Administration of Public Works permit two or more individuals to execute a bond as security for the faithful performance of a contract between the United States and construction companies, and in such bond limit their liability; but each such individual must justify for double the amount of his stipulated liability. 54-472

Regulations of the Federal Emergency Administration of Public Works regarding sufficiency of guarantors and sureties, adopted to give effect to provisions of the Federal Emergency Relief Act, contained the declaration that "the bond ** of two responsible individual sureties will be accepted as security for any bid or contract." Held, that by this declaration it is not intended to limit to two the number of individual sureties, but to require that their number shall not be less than two.

54-472

X. BREACH

Where a contract has been loosely construed by both parties for many years, the contractor seeking to establish a breach must bear the burden of showing that the interpretation put upon the contract by the Government was unreasonable. 57-501

Where a contract provides for its termination if the contractor fails to perform any of its obligations thereunder, it would be proper as a matter of law to terminate the contract for any breach of contract; but the exercise of sound administrative discretion requires that a contract be terminated only for a substantial breach and not for a partial and immaterial breach. 61-238

XI. CHANGED CONDITIONS

During excavation in a borrow pit the contractor under a contract for the construction of a dam encountered rhyolite, a substance which, after extended examination by the Government engineers, was rejected as unsuitable for the earthfill required by the contract specifications, thereby necessitating the utilization of borrow pits farther removed from the construction site, with resultant increased costs. Geological data available prior to the execution of the contract had indicated with certainty to both the Government and the contractor that the area in question would yield adequate suitable material. Held, that the occurrence of rhyolite constituted an "unknown" condition "of an unusual nature materially differing from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications," within the meaning of article 4 of the contract, and that the contract therefore should be modified to provide for payment of the increased costs to the contractor. 57-396

The purpose of article 4 (Standard Form No. 23) of the respective contracts is to provide a procedure under which the Government may alter the contracts in order to meet unanticipated physical conditions. Since no such conditions were involved here, article 4 does not permit the Department to grant any administrative relief to the contractors. 60-113

During excavation in a borrow pit the contractor under a contract for the construction of a dam encountered rhyolite, a substance which, after extended examination by the Government engineers, was rejected as unsuitable for the earthfill required by the contract specifications, thereby necessitating the utilization of borrow pits farther removed from the construction site, with resultant increased costs. Geological data available prior to the execution of the contract had indicated with certainty to both the Government and the contractor that the area in question would yield adequate suitable material. Held, that the occurrence of rhyolite constituted an "unknown" condition "of an unusual nature materially differing from those ordinarily encountered and generally recognized as inhering in work of the character provided for in the plans and specifications," within the meaning of article 4 of the contract, and that the contract therefore should be modified to provide for payment of the increased costs to the contractor. 57-396

The contracting officer under a contract for the construction of a dam ordered excavation stopped at a point sooner than allegedly anticipated by the contractor in making its bid, and additional compensation is claimed on the ground that the bid thereby was thrown out of balance. Held, (1) that the decrease in the amount of excavation by the contracting officer did not constitute a change in the specifications calling for an adjustment under either Article 3 of the contract, which covered actual changes in the plans or specifications,

or under Article 4, which covered changes in subsurface conditions encountered or discovered during the course of the work, (2) that the contracting officer acted properly under the contract in terminating excavation when, in his opinion, a suitable foundation had been reached, (3) that the estimate of the amount of excavation was not an actionable representation or guarantee, but was for the purpose of comparing bids only, and that the contractor was charged with the responsibility of confirming estimates by an examination of all available data and material furnished to it by the Government, together with an examination of the locus, and (4) that regardless of increase or decrease in the amount of excavation, payment should be made at the unit bid price. 57-539

When the terms of a change order have not been followed, so that the payment of the stated lump sum for the work specified in the order, based on unit prices listed therein, would result in an overpayment to the contractor for the work actually performed by it, an appraisal of the entire work under the change order should be made and a new change order issued which will result in an equitable adjustment being made for the type and amount of work actually done under the order.

61-191

A statement in the specifications of a Government contract that material to be excavated is "assumed to be primarily gravel" constitutes a representation upon which the contractor may rely, and, accordingly, if the soil proves to be deficient in gravel, the contractor is entitled to an equitable adjustment under article 4 for the extra work required of it by the contracting officer. 61-412

The contractor is entitled to an equitable adjustment when items of the work calling for the installation of insert plates were entirely eliminated, since such deletions cannot be regarded as mere variations from estimated quantities, and the work deleted was an integral part of a composite job. Such an equitable adjustment is not barred by the "ranges" clause of the specifications dividing each unit of work into two ranges in the first of which fixed costs were included. The contractor is entitled to payment not only of its fixed costs but

A contracting officer, if circumstances otherwise warrant such action, properly may proceed to a determination to assess liquidated damages, to remit such damages if already deducted from payment, or to extend the time for performance under a divisible contract providing for the assessment of liquidated damages for delays in delivery of stenographic transcripts at specified times. 58-444

Where a contract with an agency of the Department contains a provision stating that "On all questions regarding * the interpretation of these specifications, the decision of the contracting officer shall be final," this office is without authority to review an interpretation of a specification that has been made by a contracting officer.

60-480

Decisions of contracting officers concerning disputes arising under article 15 (Disputes) of the standard Government construction contract are final and conclusive only as to questions of fact. 61-68

XIV. COST-PLUS

The Federal Government is not exempt from the payment of the cost of State sales and use taxes levied upon purchases made by its contractors under a cost-plus-fixedfee contract although the goods purchased become the property of the Government upon shipment or delivery. In the absence of authorizing legislation, the use of purchase order forms by a Government contractor designating him as an agent for the Government is not a suitable means of avoiding the application of State sales and use taxes to purchases by the contractor under the contract. 58-411

XV. DAMAGES

Liquidated Damages

In the computation of damages as a penalty or forfeiture for breach of contract in the delivery of goods where a day, a week, or a month, or any other definite period is the agreed standard of measurement, every intervening Sunday must be included and counted, unless specifically excepted, but when the last day for per

formance falls on Sunday or a holiday and performance is on the next succeeding secular day, said Sunday or holiday is to be excluded. 54-78

A contract for materials provided for delivery by a certain date and for the assessment of liquidated damages at the rate of $5 per day for delay in performance. All of the materials except certain bolts, having a value of 6 percent of the total contract price and not essential in the use of the remaining materials, were delivered by the date fixed. Held, that there was substantial performance of the contract within the time set and that liquidated damages accordingly should not be assessed. 57-329

When there is a delay in furnishing materials beyond the date set by the contract for delivery and the materials could not sooner have been procured in the open market, it is proper to assess the liquidated damages prescribed in the contract, notwithstanding the fact that the total damages thus assessed exceed the purchase price of the materials furnished. Distinguishing 11 Comp. Gen. 384, and 16 Comp. Gen. 344. 57-412

A contract for the furnishing of brass screws having a value of $17.26 provided for the assessment of liquidated damages at the rate of $5 per day for delay in performance. The contracting officer assessed liquidated damages in the amount of $45 for nine days' delay in making delivery. Held, that the liquidated damages stipulated bore no reasonable relation to the probable actual damages and that the damages imposed therefore should be remitted. Citing 16 Comp. Gen. 344. 57-531

Liquidated damages are properly assessable for delays occurring between the time of delivery to an intermediate agent for subsequent delivery to a shipper and the time of actual movement from the shipping point, such intermediate action not constituting "shipment." 57-535

Relief from payment of liquidated damages assessed for delay in delivery may be granted where contract provisions permit finding as excusable thereunder delays caused by required filling of Government national defense orders, and where needed materials cannot be procured in the open market. 57-535