A-87407, SEPTEMBER 24, 1937, 17 COMP. GEN. 279

A-87407, SEPTEMBER 24, 1937, 17 COMP. GEN. 279

LEASES - SUPPLEMENTAL RETROACTIVE AGREEMENT FOR INCREASED RENT - GOVERNMENT LIABILITY WHERE LESSOR FURNISHED HEAT DURING THE HOURS THE LEASED QUARTERS WERE OCCUPIED BY A NIGHT SHIFT OF GOVERNMENT EMPLOYEES UNDER A CONTRACT NOT LIMITING OR RESTRICTING THE HOURS OF WORK PER DAY AND SPECIFICALLY PROVIDING FOR THE FURNISHING OF HEAT, WITHOUT ANY CURRENT CONTRACT OR UNDERTAKING ON THE PART OF THE GOVERNMENT TO PAY ANY ADDITIONAL AMOUNT, PAYMENT OF ADDITIONAL RENTAL UNDER A SO-CALLED SUPPLEMENTARY AGREEMENT, RETROACTIVELY EFFECTIVE, AND APPARENTLY BASED ON WHAT WAS ADMINISTRATIVELY CONSIDERED AN EQUITABLE ADJUSTMENT OF THE MATTER, IS UNAUTHORIZED, NOTWITHSTANDING THE REQUIREMENT FOR A NIGHT SHIFT WAS NOT EXPLAINED TO THE LESSOR AT THE TIME OF EXECUTION OF THE LEASE. 17 COMP. GEN. 59, AMPLIFIED AND AFFIRMED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF AGRICULTURE, SEPTEMBER 24, 1937:

YOUR LETTER DATED SEPTEMBER 8, 1937, WITH ENCLOSURES, REQUESTS RECONSIDERATION OF DECISION OF JULY 26, 1937, HOLDING THAT THERE IS NO AUTHORITY OF LAW FOR PAYMENT ON BUREAU VOUCHER NO. 209495 COVERING THE CLAIM OF A. W. WALSH CO. FOR $100 AS INCREASED RENTAL AT THE RATE OF $20 PER MONTH FOR HEAT FURNISHED BETWEEN THE HOURS OF 6 P.M. AND 12 MIDNIGHT FROM NOVEMBER 1, 1936, TO MARCH 31, 1937, UNDER A SO-CALLED SUPPLEMENTAL AGREEMENT DATED MARCH 5, 1937, FOR THE QUARTERS OCCUPIED BY THE AGRICULTURAL ADJUSTMENT ADMINISTRATION AT LANSING, MICH., UNDER LEASE ALS- 13384 ENTERED INTO ON SEPTEMBER 12, 1936, BETWEEN THE UNITED STATES, BY THE ACTING SECRETARY OF AGRICULTURE, AND THE CLAIMANT.

IT IS NOW ATTEMPTED TO SHOW THAT A NIGHT SHIFT PERFORMING SERVICES FROM 6 P.M. TO 12 MIDNIGHT WAS NOT CONTEMPLATED BY THE LEASING PARTIES WHEN THE ORIGINAL LEASE WAS EXECUTED, AND, AS EVIDENCE THAT SUCH WAS NOT THEIR INTENTION, THERE IS SUBMITTED LETTER DATED DECEMBER 3, 1936, FROM THE CLAIMANT TO THE MICHIGAN AGRICULTURAL CONSERVATION COMMITTEE AT LANSING TO THE EFFECT THAT THE NECESSITY OF A NIGHT SHIFT FROM 6 P.M. TO 12 MIDNIGHT WAS NOT EXPLAINED TO IT AT THE TIME OF THE SIGNING OF THE ORIGINAL LEASE AND STATING THAT IT "SHOULD BE COMPENSATED FOR THIS EXPENSE AT THE RATE OF $20 PER MONTH.' ALSO, THERE ARE SUBMITTED MEMORANDUMS DATED DECEMBER 9 AND DECEMBER 17, 1936, BY THE CHAIRMAN OF THE MICHIGAN AGRICULTURAL CONSERVATION COMMITTEE AND THE ACTING DIRECTOR, NORTH CENTRAL DIVISION OF THE AGRICULTURAL ADJUSTMENT ADMINISTRATION, RESPECTIVELY, CORROBORATING THE CLAIMANT'S STATEMENT IN THE LETTER OF DECEMBER 3, 1936, REFERRED TO ABOVE, TO THE EFFECT THAT IT WAS NOT EXPLAINED TO THE LESSOR BEFORE THE LEASE WAS ENTERED INTO THAT A NIGHT SHIFT WOULD BE REQUIRED.

CLAIMS AGAINST THE UNITED STATES ARE FOR SETTLEMENT AND ADJUSTMENT ON THE BASIS OF LAW AND THE WRITTEN RECORD AND NOT ON THE EQUITIES THAT MAY BE INVOLVED.

WHILE IT MAY BE, AS INDICATED BY THE EVIDENCE NOW SUBMITTED, THAT THE PARTIES TO THE ORIGINAL LEASE AGREEMENT HAD NO EXPECTATION AT THE TIME OF ITS EXECUTION THAT THE LEASED PREMISES WOULD BE USED BY A NIGHT SHIFT OF EMPLOYEES DURING THE HOURS FROM 6 P.M. TO 12 MIDNIGHT OR THAT HEAT WOULD BE REQUIRED BY THE LESSEE DURING THOSE HOURS, NEVERTHELESS, PARAGRAPH 6 OF THE LEASE SPECIFICALLY PROVIDES THAT THE LESSOR SHALL FURNISH "HEAT" AS PART OF THE RENTAL CONSIDERATION STIPULATED AS $2,580 PER ANNUM, AND THERE IS NOTHING IN THE LEASE TO RESTRICT OR LIMIT THE HOURS PER DAY THAT WORK WOULD BE PERFORMED OR HEAT REQUIRED IN THE PREMISES. APPARENTLY, BOTH PARTIES TO THE LEASE RECOGNIZED THE RIGHT OF THE GOVERNMENT TO WORK THE NIGHT SHIFT IN THE PREMISES AND THE OBLIGATION OF THE LESSOR TO FURNISH HEAT THEREFOR, AS SUCH RIGHT WAS EXERCISED AND SUCH OBLIGATION PERFORMED WITHOUT ANY CONTRACT OR UNDERTAKING ON THE PART OF THE GOVERNMENT TO PAY ANY AMOUNT IN ADDITION TO THE RENTAL STIPULATED IN THE LEASE BECAUSE THEREOF.

ON THE PRESENT RECORD, THE SO-CALLED SUPPLEMENTARY AGREEMENT APPEARS TO BE NOTHING MORE NOR LESS THAN AN ATTEMPT TO MAKE WHAT WAS ADMINISTRATIVELY CONSIDERED AN EQUITABLE ADJUSTMENT BY PURPORTING TO AMEND THE LEASE RETROACTIVELY. SINCE THE GOVERNMENT RECEIVED NOTHING UNDER THE ATTEMPTED AMENDMENT OF MARCH 5, 1937, THAT IT HAD NOT THERETOFORE RECEIVED UNDER THE LEASE OF SEPTEMBER 12, 1936, THE PROPOSED INCREASE IN THE RENT FOR THE PERIOD FROM NOVEMBER 1, 1936, TO MARCH 31, 1937, WAS WITHOUT CONSIDERATION AND VOID.