B-131566, OCT. 9, 1957

B-131566, OCT. 9, 1957

TO KENMORE WINDOW CLEANING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 22, 1957, RELATIVE TO YOUR CLAIM FOR $18,260, ALLEGED TO BE DUE AS COMPENSATION FOR CUSTODIAL SERVICES STATED TO HAVE BEEN PERFORMED IN EXCESS OF THE REQUIREMENTS CONTEMPLATED BY THE TERMS OF CONTRACTS NOS. DA 19-128-AI 360 AND DA 19-128 -AI-421. YOU STATE THAT AS A RESULT OF A MEETING BETWEEN YOUR MR. IRVING B. BURROUGHS, AND THE CONTRACTING OFFICER, MR. HAROLD A. CURTIS, IT WAS DECIDED THAT IF WE WERE TO AUTHORIZE THE CONTRACTING OFFICER TO ISSUE A SUPPLEMENTAL AGREEMENT TO THE CONTRACTS INVOLVED TO COVER, PRESUMABLY, THE EXTRA WORK CLAIMED, A SETTLEMENT SATISFACTORY TO BOTH PARTIES WOULD BE NEGOTIATED.

THERE IS NO AUTHORITY VESTED BY LAW IN THE GENERAL ACCOUNTING OFFICE TO CONFER UPON ANY CONTRACTING OFFICIAL OF THE UNITED STATES THE RIGHT OR PERMISSION TO ISSUE A SUPPLEMENTAL AGREEMENT TO A CONTRACT. THAT RIGHT, AND THE CORRESPONDING DUTY IN PROPER CASES, TO EXECUTE A CHANGE ORDER OR A SUPPLEMENTAL AGREEMENT TO AN EXISTING CONTRACT FOLLOWS THE BASIC AUTHORITY CUSTOMARILY DELEGATED TO PROCUREMENT OFFICIALS CONTRACTING IN THE NAME OF THE UNITED STATES, AND IS GENERALLY PROVIDED IN THE GOVERNMENT'S CONTRACTS. HENCE, SUCH GENERAL AUTHORITY, SUBJECT TO ANY EXISTING LIMITATIONS OR QUALIFICATIONS PRESCRIBED BY APPLICABLE ADMINISTRATIVE OFFICE REGULATIONS, NORMALLY COULD HAVE BEEN EXERCISED BY THE CONTRACTING OFFICER IN THE INSTANT CASE, IF THE INTERESTS OF THE GOVERNMENT SO REQUIRED, AS IT APPARENTLY WAS EXERCISED BY HIM IN THE SUPPLEMENTAL AGREEMENT OF JULY 1, 1955, TO CONTRACT NO. DA 19-128-AI-421, WITH RESPECT TO THE SECOND, THIRD, FOURTH, AND FIFTH FLOORS OF THE BUILDING.

HOWEVER, BECAUSE OF HIS DOUBT AS TO WHETHER THE DEPARTMENT OF THE ARMY WAS LIABLE TO YOU FOR ANY AMOUNT IN ADDITION TO THE CONSIDERATION FIXED BY THE TERMS OF YOUR PRIOR CONTRACT, THE CONTRACTING OFFICER FORWARDED YOUR CLAIMS FOR A TOTAL OF $18,260 ARISING FROM CHANGES ON THE SIXTH AND SEVENTH FLOOR MADE PRIOR TO JUNE 1955, FOR ADJUDICATION BY OUR OFFICE AS AUTHORIZED BY LAW. SEE 31 U.S.C. 71.

BY SETTLEMENTS DATED DECEMBER 3 AND 19, 1956, YOUR SAID CLAIMS WERE DISALLOWED FOR THE REASONS STATED THEREIN, AND UPON RECONSIDERATION OF THE MATTER SUCH ACTION WAS AFFIRMED BY OUR DECISION OF MAY 24, 1957, B 131566. THAT DECISION BECAME BINDING UPON THE ADMINISTRATIVE OFFICE BY OPERATION OF LAW, WITH THE RESULT THAT NO OFFICER OR EMPLOYEE OF THE DEPARTMENT OF THE ARMY MAY TAKE ANY ACTION WHICH WOULD CREATE AN OBLIGATION ON THE PART OF THE UNITED STATES FOR THE PAYMENT OF ANY AMOUNT ON SUCH CLAIMS.