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Reporter's Statement of the Case be at the following rates,
all as subject to the provisions of paragraph on "Delays-Damages" in this specification.
Item I. Two Hundred Dollars ($200.00) per calendar day.
Paragraph 9 of the contract provides, in part, that the "findings of fact" made by the contracting officer respecting the causes and extent of delays shall be final and conclusive on the parties, "subject only to appeal, within 30 days, by the contractor to the head of the Department concerned, whose decision on such appeal as to the facts of delay shall be final and conclusive on the parties hereto."
The contractor requested a time extension of seventy-six days to apply to the whole contract work on account of the deferred notice to start work on building No. 10. During the progress of the work the contractor requested time extensions in excess of four hundred and twenty days.
All the work was completed and accepted in approximately four hundred forty-two calendar days. The buildings provided for by the contract were finished and completed as stated in Finding 3.
8. At the time of settlement, the contracting officer assessed and deducted from the balance due the contractor the sum of $5,372.57 on account of liquidated damages, namely:
Deduction for twenty-eight days overdue on
all works except buildings 1, 5, and 10, at
$3, 382. 68
1, 989. 89 The sum of $740.00 was thereafter refunded to the contractor as stated in Finding 6, supra. The total amount actually deducted on account of liquidated damages was $4,632.57.
9. Practically all of the work was performed through subcontractors of the Murch Brothers Construction Company.
The work of excavating the foundations of the separate units, except building No. 10, was completed late in September 1929. A steam shovel was employed in the work. Rock was encountered in the foundations of buildings Nos. 1 and Reporter's Statement of the Case 14, and a larger steam shovel was used to facilitate its removal. These steam shovels were removed from the site late in September 1929.
Only a small area in the center of building No. 10 was excavated, namely: A space about 40' x 40' and 3' deep. This part of the work was done by hand labor and completed in about three days, shortly after the contractor received notice to start work on that building, namely, September 26, 1929.
The work covered by the contract included, among other things, the construction of nine separate buildings of various dimensions. The working force employed by the contractor did not permit it to proceed with the construction of all separate units at the same time. Work was started on the larger units and carried forward to an advanced stage. Actual construction work on several of the smaller units, including building No. 10, was deferred for several months after work was started on the larger units. The contractor was notified by the defendant to defer work on building No. 10.
The most important units from the standpoint of early completion, were the medical buildings, particularly Buildings Nos. 1, 2, and 4, the Dining Hall No. 3, and the Boiler House No. 14. It was understood that building No. 10 would not be delivered until after the completion of the other buildings. The value of building No. 10 was approximately $90,000, or about 71/2 percent of the entire project.
10. The larger units were Main Building No. 1, Acute Building No. 2, Dining Hall No. 3, Continued Treatment Building No. 4, and Recreation Building No. 5. Progress photographs taken in September and October 1929 show that at that time considerable progress had been made in the preliminary construction work on these units. Early in October 1929 the roof slab was in place on building No. 3. At the same time a considerable part of the concrete and framework was in place on buildings Nos. 1, 2, 4, and 5.
The smaller units were the Attendants' Quarters No. 10, Boiler House No. 14, Nurses' Quarters No. 16, and Gate House No. 20. The monthly progress photographs for the period from September 1929 to November 9, 1929, show that little or Reporter's Statement of the Case no progress was made on these structures beyond that relating to excavating and footings.
The photographs for December 1929 and January 1930 show no substantial progress was made during that period on Building No. 10. A considerable quantity of ice appears in the excavated area in the center of building No. 10 in the progress photograph dated January 6, 1930. The photographs for March 1930 show the form work for the foundations of this building and also the second floor slabs in place. In April 1930 the steel and concrete framework of this building was in place.
The photographs for December 1929 show the steel frame of building No. 14 in place. Little progress appears in this building until sometime during March 1930. The photographs dated April 1, 1930, show that brickwork on this building was started and the boilers for certain parts of the machinery are shown to have been in place. The roof is not in place and only a small part of the walls are enclosed.
The photographs for December 1929 show the form work for the foundation of building No. 16 in place. The photographs for February 1930 show that little progress was made on this structure during the period from December 1929 to February 2, 1930. The photographs taken in April 1930 show the steel and concrete framework of this building in place.
The photographs taken in December 1929 show that work on building No. 20 had not progressed beyond that relating to excavation. Photographs taken in March 1930 show that no further progress had been made on this unit. The photographs for April 1930 show that work on the foundation had begun. Form work is shown in place at the ground level.
11. The contractor's progress program contemplated the construction of the smaller buildings first and it had planned to have them inclosed by the winter season so as to avoid the delay and expense due to winter conditions. Thus the contractor would avoid the expense of furnishing temporary heat in winter to keep the cement from freezing and also any delay or losses that might result from that cause.
12. The work performed by the concrete subcontractor totaled $258,000.00, which was about twenty-five percent of the whole contract price. This subcontractor suffered great delay Reporter's Statement of the Case and losses in the performance of his contract, which he completed with the assistance of his surety. The primary cause of the delay and loss suffered by him was the lack of proper roads in and about the site during the winter of 1929 and 1930, which retarded the delivery of materials necessary to enable him to proceed with his work. The subcontractor considered the Murch Brothers Construction Company entirely responsible for the lack of proper roads, and that its failure to erect structural steel and do other essential work also contributed to the delays in performing his contract work. He was not delayed in any way on account of the deferred notice of the defendant to the prime contractor to begin work on building No. 10, but began work on building No. 10 as soon as it was convenient for him to do so and completed his work thereon promptly.
13. There is no satisfactory evidence to show the main cause of the delay in the work on buildings other than No. 10, but delays were caused in part by the financial difficulties experienced by the concrete subcontractor; lack of sufficient workmen; the difficulty in obtaining certain materials to comply with the contract requirements; the replacement of frozen concrete; the dispute between the prime contractor and the concrete subcontractor respecting the furnishing of temporary heat; and the withdrawal of the prime contractor's superintendent and the substitution of another in his place, effective January 14, 1930, following a protest made by defendant's superintendent.
14. Claim for $13,528.00 additional overhead expenses for seventy-six days' delay: Building No. 10, at $178.00 per day.-A period of seventy-six days elapsed between July 12, 1929 (the date on which the contractor received notice to proceed with the work, except on building No. 10), and September 26, 1929, the date it received notice to proceed with building No. 10.
During this period the contractor's forces were continuously engaged in performing work on units other than building No. 10. The contractor did not proceed with the construction of this unit, and also of buildings Nos. 14, 16, and 20, until several months after excavating work on these units Reporter's Statement of the Case had been completed (Finding 9, supra). No mechanical equipment was employed in performing the excavating work on building No. 10.
The contractor repeatedly protested in writing that it had been delayed seventy-six days on the entire project, and requested that such additional time should apply to the whole contract work.
In a letter dated July 1, 1931, addressed to the Comptroller General, in support of the claim filed by it with that official, the contractor stated its "contention that seventy-six (76) days' extension of time is technical only.” It further stated: “We are requesting this extension of contract time for the entire project since we understand from a recent ruling of the Comptroller General that it was ruled that contracts that were let as a whole could not be divided and time allowed for one particular building.”
Neither the excavating subcontractor nor the concrete subcontractor was delayed by reason of the deferred notice to begin work on building No. 10.
The evidence as to the extent and nature of delays on buildings other than No. 10 is contradictory and unsatisfactory but it is evident that both the contractor and the defendant contributed to hindrances in completing the work: the contractor through delays by its subcontractor for the cement work and by other matters; the defendant by requiring extra work, some of which was not provided for in the contract. Some of the delay was the fault of defendant's own subcontractor, and other matters might be mentioned in this connection. The contractor was delayed and inconvenienced in the work on building No. 10 by not being able to carry on the work at the same time as on the other buildings.
15. Claim for three days' extension of time: Construction of extra steam pit in building No. 16.—On February 7, 1930, the contractor submitted to the defendant a written proposal for furnishing labor and material for the construction of a concrete pipe trench, including the pit to be installed in lieu of the open ditch below the first floor slab of Nurses' Building No. 16, for the sum of $2,114.18, and requested a time