B-169674, SEP. 10, 1970

B-169674, SEP. 10, 1970

CONTRACTS - ADDITIONAL FEE SUSTAINING DECISION OF JUNE 30, 1970, DENYING CLAIM FOR FEE OR PROFIT FOR PERFORMANCE OF CONTRACT. CONTRACTOR WHO UNDERTOOK CONTRACT WITH HOPE OF OBTAINING AN AMENDMENT TO ALLOW FOR A FEE OR PROFIT UNDER A CONTRACT WHICH DID NOT PROVIDE FOR SUCH FEE OR PROFIT DOES NOT HAVE A CLAIM CONTAINING SUCH ELEMENTS OF EQUITY TO JUSTIFY REPORTING MATTER TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928. THEREFORE, CLAIM MUST BE LEFT TO THE COURTS.

TO ASSOCIATE CONTROL, RESEARCH AND ANALYSIS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 26, 1970, WHEREIN YOU REQUEST RECONSIDERATION OF OUR DECISION OF JUNE 30, 1970, WHICH DENIED YOUR COMPANY'S REQUEST FOR A FEE YOU FELT WAS DUE FOR PERFORMANCE OF SERVICES UNDER CONTRACT NO. RA-9004-09 AWARDED YOUR FIRM BY THE MANPOWER ADMINISTRATION OF THE DEPARTMENT OF LABOR.

YOUR PRESENT LETTER DOES NOT TAKE ISSUE WITH OUR FINDING THAT THE CONTRACT IN QUESTION MADE NO PROVISION FOR A FEE OR PROFIT TO YOUR FIRM, AND CONSEQUENTLY THERE WAS NO LEGAL JUSTIFICATION SHOWN FOR MODIFICATION OF THE CONTRACT PRICE. HOWEVER, YOU ADVISE THAT YOU UNDERTOOK PERFORMANCE IN THE HOPE THAT YOUR CONTRACT WOULD ULTIMATELY BE AMENDED TO PROVIDE FOR PAYMENT OF A FEE, AND THAT YOU FULFILLED YOUR OBLIGATION AND DISCHARGED YOUR RESPONSIBILITIES IN A MANNER WHICH YOU BELIEVED WOULD RESULT IN SUCH AN AMENDMENT.

WHILE IT IS DIFFICULT TO PREDICT HOW A COURT MIGHT TREAT YOUR REQUEST FOR EQUITABLE RELIEF UNDER THE SUBJECT CONTRACT, THIS OFFICE EXERCISES JURISDICTION ON EQUITABLE GROUNDS ONLY WHERE SUCH JURISDICTION IS SPECIFICALLY GRANTED BY STATUTE, SUCH AS THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 235, CITED IN OUR JUNE 30 DECISION. HERE THERE HAS BEEN NO SHOWING THAT THE GOVERNMENT RECEIVED ANY MORE THAN IT WAS ENTITLED TO RECEIVE UNDER THE CONTRACT, SINCE ALL OF THE SERVICES PERFORMED AND FURNISHED WERE WITHIN THE "FOUR CORNERS" OF THE CONTRACT. WE THEREFORE, DO NOT VIEW YOUR CLAIM AS ONE WHICH CONTAINS SUCH ELEMENTS OF EQUITY AS TO JUSTIFY ITS SUBMISSION TO THE CONGRESS PURSUANT TO THAT ACT.

IN VIEW THEREOF, AND SINCE THERE HAS BEEN NO SHOWING IN YOUR RECENT CORRESPONDENCE THAT OUR PRIOR DECISION INVOLVED ANY MISTAKE OF FACT OR ERROR OF LAW, IT IS OUR OPINION THAT ANY FURTHER CONSIDERATION OF THE EQUITABLE MERITS OF YOUR CLAIM SHOULD PROPERLY BE LEFT TO THE COURTS. OUR DECISION OF JUNE 30, 1970, IS THEREFORE AFFIRMED.