B-128644, SEP. 17, 1956

B-128644, SEP. 17, 1956

TO BRUNS OIL AND SERVICE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 6, 1956, RELATIVE TO YOUR CLAIM IN THE AMOUNT OF $150.70, REPRESENTING AN AMOUNT ALLEGED TO BE DUE BY REASON OF AN INCREASE IN THE PRICE OF FUEL OIL DELIVERED BY YOU UNDER CONTRACT NO. ASP-10850, DATED OCTOBER 13, 1954. A LETTER DATED AUGUST 24, 1956, HAS BEEN RECEIVED FROM THE HONORABLE ROBERT MALE, REQUESTING RECONSIDERATION OF OUR DECISION OF AUGUST 20, 1956, DENYING YOUR CLAIM.

AS WE NOTED IN OUR PREVIOUS DECISION TO YOU, ESCALATION CLAUSES SUCH AS THAT CONTAINED IN THE SUBJECT CONTRACT HAVE CONSISTENTLY BEEN HELD BY OUR OFFICE TO ESTABLISH CONDITIONS PRECEDENT TO THE CONSIDERATION OF CLAIMS ASSERTED THEREUNDER. SEE 22 COMP. GEN. 13; 17 ID. 744. SUCH CONDITIONS MUST BE EXACTLY FULFILLED OR NO LIABILITY CAN ARISE ON THE PROMISE WHICH THE CONDITIONS QUALIFY. SHEKETOFF V. PREVEDINE, (CONN.), 51 A.2D 922; 171 A.D.R. 1009. PERFORMANCE OF A CONDITION MAY NOT BE EXCUSED EVEN THOUGH PERFORMANCE BECOMES IMPOSSIBLE BECAUSE OF AN ACT OF GOD OR ANY OTHER REASON AND EVEN THOUGH SUCH IMPOSSIBILITY AROSE WITHOUT ANY FAULT ON THE PART OF THE PARTY REQUIRED TO PERFORM THE CONDITION, MIZELL V. BURNETT, (N.C.), 69 AM. DEC. 744; OAKLEY V. MORTON, (N.Y.), 62 AM. DEC. 49; 12 AM. JUR. 884. IN THE ABSENCE OF THE PRESCRIBED NOTICE, REGARDLESS OF THE REASON THEREFOR, THE CONTRACT VESTED IN THE GOVERNMENT THE RIGHT TO OBTAIN THE FUEL OIL AT THE PRICE FIXED BY THE CONTRACT OR AS LAST MODIFIED IN ACCORDANCE WITH THE ESCALATION CONDITIONS. NO OFFICER OR AGENT OF THE GOVERNMENT HAS THE AUTHORITY TO WAIVE SUCH VESTED RIGHT WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584; PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 C.CLS. 327.

ACCORDINGLY, WE MUST ADVISE YOU THAT THERE IS NO AUTHORITY IN OUR OFFICE TO ALLOW PAYMENT OF THE REQUESTED INCREASE IN PRICE, AND OUR PRIOR DECISION MUST THEREFOR BE SUSTAINED.