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to accomplish the job except for the application of the waterproofing membrane and the electrical work which were to be subcontracted.

According to the Appellant, prior to bid, it had made inquiries of the supplier of the electric heating cables as to their delivery dates. Appellant was assured that delivery would be made in 8-10 days after placing the order with the Washington, D. C. area's manufacturer's representative. Immediately after being awarded the contract, Appellant placed the order for the cables. However, the cables did not arrive at the job within the 8-10 days that had been anticipated by Appellant. Time passed and as contract completion date approached, GSA and Appellant became more and more concerned about the prospect of completing the contract on time with each passing day. Appellant, however, continued to assure GSA that delivery of the cables would be made any day and that he would expedite completion of all work as soon as the cables were received.

The cables were finally delivered on August 31, 1972, 24 days after the contract completion date. Appellant started demolition of the ramp on September 6, 1972. On October 25, 1972, GSA wrote Appellant of its slow progress and that it was considering the advisability of terminating the contract for default unless all work was completed as quickly as possible. Following more conversations and meetings and promises by Appellant of completion of all work, the first of two ramps was finally completed on November 10, 1972. This rate of progress did not satisfy GSA and by letter dated November 17, 1972, GSA terminated the contract for default.

Thereupon Appellant consulted his attorney and through the latter's efforts, negotiated an understanding with GSA to permit Appellant to complete the balance of the work upon the following conditions:

"1. Completion of the work no later than December 18, 1972, which is 30 days after receipt of your termination letter.

2. Pending the completion effort, you will 'reconsider' your default termina

tion.

3. If he satisfactorily completes the work by the agreed date, you will withdraw your default termination but will assess the $1,900 in liquidated damages described in your November 19 letter and will also assess liquidated damages from November 27 to the date of actual completion. This assessment of these liquidated damages will not be disputed or appealed.

4. In the event Mr. Linkous does not complete the work in a satisfactory and timely manner you will have the option to reconfirm or re-impose your default termination and impose liquidated damages as above set forth, and Mr. Linkous agrees that he will not dispute or appeal either the default termination or the assessment.

5. In order to complete this work in a satisfactory manner by December 18, it will be essential that Mr. Linkous be allowed to work overtime and on weekends, and I understand that permission will be given for all of this overtime and weekend work."

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This "understanding", which GSA claims constitutes a supplemental agreement, appears in the form of a letter dated November 22, 1972, sent by Appellant's attorney to GSA. Appellant himself then signed the letter before the contracting officer on November 27, 1972.

Appellant was permitted to continue his work and as we already indicated, completed the second ramp and all remaining work on December 20, 1972. On December 29, 1972, the contracting officer rescinded the default termination of November 17, 1972, and assessed Appellant $2,700 in liquidated damages. Appellant has appealed the assessment of liquidated damages contending that the November 22, 1972 letter did not constitute a supplemental agreement authorizing the assessment of liquidated damages and that 89 of the 135 days overrun in performance time were excusable.

Specifically, Appellant claims, with respect to "excusability", the following

four reasons:

First: Six weeks excusable delay because its cable supplier simply failed to deliver the cables within the 8 to 10-day delivery period as promised.

Second: One month excusable delay because Appellant's subcontractor(s) could
not or would not appear for work even though the subcontractor had promised
to show.

Third: Ten days excusable delay because rain prevented either the pouring of concrete or the installing of waterproofing material.

Fourth: Seven days excusable delay because contractor was prevented from immediately beginning demolition of the rampway after arrival of the heating cables on August 31, 1972.

These alleged excusable delays total 89 days and all occurred prior to the abovediscussed negotiation which led to the letter of November 22, 1972. In addition, Appellant testified that notices of these four delay-causing events were orally given to GSA with the exception of the 10-day delay caused by the rains. In the "rain" situation Appellant alleges that a written memorandum reflecting a breakdown of the days of delay was given to GSA but that no specific facts or causes relating to the delay were included in this memorandum. The Government denies ever receiving such a memorandum.

Discussion

Clause 2, General Provisions, titled TERMINATION FOR DEFAULT--DAMAGES FOR DELAY-TIME EXTENSION, states:

"

(b) The Contractor's right to proceed shall not be terminated nor the Contractor charged with actual or liquidated damages ... because of any

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"delays in completion of the work due to causes other than normal weather
beyond his control and without his fault or negligence ... or delays of sub-
contractors and suppliers due to causes beyond their control and without their
fault or negligence: Provided, That the Contractor shall within 10 days from
the beginning of any such delay, unless the Contracting Officer shall grant
a further period of time prior to the date of final payment under the contract,
notify the Contracting Officer in writing of the causes of delay and the facts
relating thereto."

As we have already indicated, Appellant did not, with the exception of any delay relative to that which might have been caused by the rains, give GSA any written notice thereof as required under Clause 2, General Provisions. Then, with respect to any delay that might have been caused by rains, Appellant admits that it did not, in its notice to the Government, relate any facts or circumstances surrounding the delay as also required under Clause 2, General Provisions. We find therefore, that Appellant is not entitled to any time extension for the reason that it failed to give such proper notice as required by the terms of the contract. See National Radio Company, ASBCA 14707, 72-2 BCA 9486.

Having determined that the overrun in performance time has been correctly computed at 135 days and that the delay-causing events are not "excusable", we need not determine whether the November 22, 1972 letter from Appellant's attorney to GSA should not be, as Appellant contends, recognized as a supplemental agreement authorizing the assessment of liquidated damages for even if we do not recognize the letter as such and do not view the contracting officer's actions in light of the letter, Appellant would not be entitled to any extension in the performance period.

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