granting the contractor an extention of time in which to perform the contract.

Article 5(c) of Standard Form 23A provides, in pertinent part, as follows:

The right of the Contractor to proceed shall not be terminated *** nor the Contractor charged with liquidated or actual damages *** because of any delays in the completion of the work due to unforeseeable causes beyond the control and without the fault or negligence of the Contractor, including, but not restricted to, acts of God, or of the public enemy, acts of the Government ***, acts of another contractor ***, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather, or delays of subcontractors or supplies due to such causes: *

The purpose and application of the phrase "unforeseeable causes," as used in the above paragraph was explained as follows in February, 1943, by the Supreme Court, in the case of United States v. BrooksCalloway Co., 318 U.S. 120:

The purpose of the proviso is to remove uncertainty and needless litigation by defining with some particularity the otherwise hazy area of unforeseeable events which might excuse nonperformance within the contract period. Thus contractors know they are not to be penalized for unexpected impediments to prompt performance, and, since their bids can be based on foreseeable and probable, rather than possible hindrances, the Government secures the benefit of lower bids and an enlarged selection of bidders. ***

The purpose of the proviso, to protect the contractor against the unexpected, and its grammatical sense, both militate against holding that the listed events are always to be regarded as unforeseeable, no matter what the attendant circumstances are. Rather the adjective "unforeseeable" must modify each event set out in the "including" phrase. * *

Not every fire or quarantine or strike or freight embargo should be an excuse for delay under the proviso. *** A strike may be an old and chronic one whose settlement within an early period is not expected. In any of these situations there would 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 sense of the proviso requires it to be unforeseeable before remission of liquidated damages for delay is warranted.

In B-35485, July 14, 1943, 23 Comp. Gen. 25, after referring to the reasoning of the court as set out above, it was held, in pertinent part, as follows:

Hence there now can be no doubt that, in order for an act of the Government to be classed as an excusable cause for failure to perform properly under a contract such as here involved, it first must be established that the act was so abnormal, extraordinary, or unusual, that it reasonably could not have been foreseen and provided against in the contract. ***

Since it is thus readily apparent that any conditions brought about by the issuance of the said directive and order which may have affected the contractor's ability to perform the contract in accordance with its requirements, either were in existence or should have been anticipated at the time the contract was executed, it necessarily follows that such conditions properly may not be regarded as constituting "unforeseeable causes" within the meaning of that term as used in the contract.

If the cause

One principle seems quite apparent from these cases. If the of the delay was in existence at the time the contract was awarded and the contracting parties were aware of its existence, it is not an "unforeseeable cause" within the meaning of that term as used in

Standard Form 23A. See, in this connection, section 1–16.404(e) of the Federal Procurement Regulations, under which the Administrator, General Services Administration, may authorize a contracting agency to delete the word "unforeseeable" from Standard Form 23A under certain circumstances.

Concerning the reference in your letter to that portion of section 1933 of Williston on Contracts, which indicates that where the contracting parties know all the facts but erroneously believe known difficulties are not insuperable and can be removed there will be no liability if the difficulties prove to be insuperable, we do not believe such rule can be applied in instances where the applicable contract requires excusable causes to be "unforeseeable."

It is, therefore, our opinion that the facts you have presented in the first case to which you refer would not justify an extension of time for performance of the contract.

Your second question arises in connection with supply contracts awarded during the steel strike. These contracts incorporated the provisions of article 11(c) of Standard Form 32, which does not require the causes of delay to be "unforeseeable." You advise that under such a contract with a manufacturer of steel towers, the contractor informed you while the strike was in progress that he could not deliver because of lack of steel but, at your insistence, he located sources of warehouse steel and was able to make the earliest delivery required by the contract. However, he has again advised that steel is not obtainable, presumably because warehouse steel is exhausted, and he has asked for a 45-day extension on his delivery schedule. You request our opinion as to whether such extension, together with such other extensions as may be necessary to cover any remaining period the steel strike may cover, would be proper.

As indicated in our decision of February 16, 1956, 35 Comp. Gen. 460, the inclusion of article 11(c) of Standard Form 32 in a supply contract operates to relieve the contractor of liability for default arising from causes (including strikes) beyond his control and without his fault or negligence, and it is immaterial whether such causes are supervening or were in existence and known to the contracting parties at the time of contract award. In view thereof, we see no objection to your practice of administering contracts, which include article 11(c) of Standard Form 32 and were awarded after the date of commencement of the steel strike, in the same manner as those awarded prior to such date, and where your Agency is able to determine, in accordance with article 11(c), that the contractor's inability to perform is attributable to the steel strike, extensions of the time for performance, commensurate with the delay occasioned thereby, would be permissible.

[B-141131]

Military Personnel-Retired Pay-Survivor Annuity Option

Elections-Clarification

Survivor annuity option elections made by members of the uniformed services, which are not absolutely in contravention of the statute but which contain a patent ambiguity as to the type of annuity or annuities desired for a surviving wife and children, designated as potential beneficiaries may be regarded as valid elections and the member subsequently may clarify the election to express without ambiguity his original intention.

A member of the uniformed services who executed a timely election to provide an annuity or annuities for his wife and children, but who failed to indicate his wife's date of birth, may be permitted to furnish the information and to clarify the election to show the particular options for his wife and children; however, he may not be permitted to modify his original election to eliminate his wife as a potential beneficiary.

To R. A. Wilson, Department of the Navy, December 30, 1959:

Reference is made to your letter of September 25, 1959, with enclosures, forwarded here under Submission No. DO-N-462 (assigned by the Department of Defense Military Pay and Allowance Committee) requesting decision as to the validity of certain elections under the Uniformed Services Contingency Option Act of 1953, 67 Stat. 501, 10 U.S.C. 1431-1444, by members who had been awarded retired or retainer pay before November 1, 1953. You state that the administrative determinations concerning the validity of the elections are questionable in view of our decision of April 15, 1954, 33 Comp. Gen. 460.

The Uniformed Services Contingency Option Act of 1953 permits members of the uniformed services to elect to receive reduced retired pay in order to provide annuities at one-eighth, one-fourth, or one-half of such reduced retired pay to their surviving dependents. Section 4 of the act, 67 Stat. 502, 503, 10 U.S.C. 1432, 1433, provides in pertinent part that:

(a) Under the conditions set forth in section 3, an active or retired member may elect one or more of the following annuities, payable under this Act, in such amount, expressed as a percentage of the reduced amount of his retired pay, as he may specify at the time of election, in amounts equal to one-half, one-quarter or one-eighth of the reduced amount of his retired pay.

(1) An annuity payable to or on behalf of his widow, ***

(2) An annuity payable to or on behalf of his surviving child or children, ***

(3) An annuity payable to or on behalf of his widow and surviving children, ***

(4) An annuity payable under the same terms and conditions as specified in (1), (2), or (3), of this subsection, with the additional provision that no further deductions shall be made from the retired pay of the member commencing with the first day of the month following that in which there was no beneficiary who would have been eligible to receive, upon the death of the member, an annuity payable under the election made by him.

(b) Where an active or retired member desires to provide more than one annuity, he may elect (1) and (2) of subsection (a) of this section, with or without the provisions of (4) thereof, but in no case may the combined amounts of the annuities exceed 50 per centum of the amount of his reduced retired pay.

Section 3 (b) of the act, 67 Stat. 502, provides that:

A retired member who has heretofore been awarded retired pay by a uniformed service may, within one hundred and eighty days after the effective date of this Act, elect to receive a reduced amount of that retired pay in order to provide one or more of the annuities specified in section 4, payable after his death to his widow, child, or children. An election so made shall thereafter be irrevocable.

The information furnished by you on the five cases is as follows: a. Captain Olin C. HENDRIX, MC, USNR (Retired), 62826

On 1 April 1954 CAPT Hendrix executed an election of options 1 and 4 at onehalf reduced pay. In the space provided for names of children he entered the names and birth dates of two children under 18 years of age and he attached their birth certificates. See enclosure (1).

Since Form 591A stipulated that names of children were to be furnished if option 2 or option 3 was elected, the Navy Finance Center advised the member by letter dated 26 April 1954 that it was presumed he may have intended to elect options 3 and 4 for the benefit of his wife and children. He was further advised that it was considered he had not made an election and he was furnished a new set of election forms.

On 28 April 1954 the member executed an election of options 3 and 4 at onehalf reduced pay. The election was postmarked 28 April 1954. Enclosures (2) and (3) are copies of the member's new election and of his accompanying letter. The Navy Finance Center computed the monthly cost on the basis of the second election and deductions have been made from his retired pay since 1 April 1954. b. Charles Irvin PRICE, 812 72 27, TN, USN (Retired)

On 28 April 1954, Price elected options 1 and 4 at one-eighth reduced pay and listed 4 children under age 18, but did not furnish birth certificates for his wife or his children. See enclosure (4).

In reply to the Navy Finance Center's inquiry by telegram of 30 April 1954 as to his intentions, on 1 May 1954 he mailed an unsigned and undated note stating he wanted the option for his wife and children. See enclosure (5). On 29 September 1954 the Navy Finance Center wrote the member listing the costs for various options and fractional amounts and requested further clarification. The member replied by checking in ink on the carbon copy of the letter the figures pertaining to options 3 and 4 at one-eighth and by attaching thereto an unsigned notation, listing the figures applicable to options 3 and 4 at one-eighth. See enclosure (6).

The Navy Finance Center computed the monthly cost on the basis of an election of options 3 and 4 at one-eighth reduced pay and effected such deductions retroactive to 1 April 1954.

c. George BRAY, 274 01 19, RMNC, USN (Retired)

On 26 April 1954, Bray executed an election of option 1 at one-half reduced pay. In the space provided for names of children, if option 2 or option 3 is elected, the member listed two children under 18 years af age and he furnished the children's birth certificates, but substantiation of his wife's date of birth was not furnished. See enclosure (7).

In reply to the Navy Finance Center's inquiry by telegram of 30 April 1954, as to his intentions, Bray stated in a letter dated 4 May 1954 that he elected option 2 at one-half for his children only. See enclosure (8).

The Navy Finance Center computed the monthly cost of the election on the basis of option 2 at one-half and effected such deductions retroactive to 1 April 1954. d. Charles Wesley McNear McCLAIN, 133 41 99, SKGC, USN (Retired) By letter dated 15 April 1954 (enclosure (9)), McClain asked for forms on which to make an election for his wife at one-half reduced pay. On 26 April 1954 the Navy Finance Center wrote the member, furnishing election forms and information as to the cost of various options.

On 30 April 1954 the member executed enclosure (10), an election of option 1 at one-eighth, and mailed the election to the Navy Finance Center on that date with a check for $38.03 which was the cost of an election of option 1 at one-half rather than at one-eighth.

The Navy Finance Center sent a telegram to the member on 10 May 1954 asking for advice, over his signature, as to which fractional amount he desired to elect. In reply the member indicated in enclosures (11) and (12) that he intended to elect a fractional amount of one-half. Therefore, the Navy Finance Center has considered his election to be for that amount rather than one-eighth and has requested the member to forward monthly personal remittances for costs on that basis.

e. Walter Carl DOUGLAS, 217 74 94, ENDC, USN (Retired)

On 29 March 1954 Douglas executed an election of option 1 at one-eighth reduced pay and noted thereon "I wish to take $20.00 permanently out." In the space provided for names of children if option 2 or option 3 is elected, the member listed four children under 18 years of age. See enclosure (13). No birth certificates were furnished. The election was postmarked 5 April 1954. April 1954 the Navy Finance Center wrote the member advising him that, since his intentions were not clear, it was considered he had not made an election. He was furnished another set of election forms.

On 29 April 1954 the member executed an election of option 3 at one-eighth reduced pay. The election (enclosure (14)) was postmarked 3 May 1954. By letter dated 16 July 1954 the Navy Finance Center advised the member that, in accordance with reference (c), an election could not be modified, or revoked and the deductions would be based on his original election of option 1 at oneeighth. Accordingly, deductions were established at the monthly rate of $10.99 retroactive to 1 April 1954.

On 21 September 1954 the Navy Finance Center wrote the member, stating that his original election was not clear and requesting that he furnish information as to the option and fractional amount which he desired to elect. In reply, the member forwarded a new election of options 1 and 4 at one-eighth and 2 and 4 at one-eighth. The election was executed 21 October 1954 and postmarked the same date. In January 1955 the Navy Finance Center adjusted the monthly deducttons to $13.97, retroactive to 1 April 1954, on the basis of this election, and is currently deducting on that basis.

Under section 4 of the Uniformed Services Contingency Option Act of 1953, supra, options 1, 2, and 3 may be elected singly or in certain combinations with option 4. An attempted combination not authorized by the statute is no election. 34 Comp. Gen. 555. If an attempted election does not embody an unauthorized combination of options and is otherwise proper except that it is silent as to the amount (oneeighth, one-fourth, or one-half of reduced retired pay) of the desired annuity, it is nevertheless a valid election and may be clarified by the member. If he should die without taking such action, his intent in executing it-presumed or otherwise proved-will govern. 34 Comp. Gen. 63. Likewise, if an attempted election is otherwise proper except that it contains some patent ambiguity as to the amount of the desired annuity, it is a valid election and the member's presumed intent in executing it will govern should he die without clarifying the matter (34 Comp. Gen. 35), or should he refuse to clarify it and attempt to rescind (B-132012, June 17, 1957).

In consonance with the theory of the three decisions last cited, that is, that an attempted election, if not absolutely in contravention of the statute, should operate to effectuate the member's reasonably apparent intention, we think that if an attempted election is otherwise proper except that it contains a patent ambiguity as to the type of annuity or annuities desired for a surviving wife and children, designated as potential beneficiaries, that is, whether it was intended to