Frank Murphy

“ We are asked to decide whether the proviso to Article 9 of the Standard Form of Government Construction Contract [1] which provides that a contractor shall not be charged with liquidated damages because of delays due to unforeseeable causes beyond the control and without the fault of the contractor, including floods, requires the remission of liquidated damages for delay caused by high water found to have been customary and foreseeable by the contracting officer. ”

“ A strike may be an old and chronic one whose settlement within an early period is not expected. In any of these situations there could be no possible reason why the contractor, who of course anticipated these obstacles in his estimate of time and cost, should have his time extended because of them.
'The same is true of high water or 'floods'. The normally expected high water in a stream over the course of a year, being foreseeable, is not an 'unforeseeable' cause of delay. ”

“ Respondent protested, and upon consideration the contracting officer found that respondent had been delayed a total of 278 days by high water, 183 days of which were due to conditions normally to be expected and 95 of which were unforeseeable. He recommended that liquidated damages in the amount of $1,900 (representing 95 days of unforeseeable delay at $20 per day) be remitted and that the balance of $3,900 be retained. ”