B-140883, MAY 26, 1964

B-140883, MAY 26, 1964

TO MRS. GRACE S. BARNES:

REFERENCE IS MADE TO YOUR LETTERS OF SEPTEMBER 5 AND SEPTEMBER 23, 1963, CLAIMING $1,521.69 UNDER AIR FORCE CONTRACT NO. AF 08/606/-2224, DATED AUGUST 30, 1957.

CLAIMS FROM YOUR COMPANY FOR VARYING AMOUNTS UNDER THE ABOVE-CITED CONTRACT WERE FULLY CONSIDERED AND DISALLOWED BY OUR OFFICE UNDER DATES OF AUGUST 26, 1959, OCTOBER 29, 1959, DECEMBER 8, 1959, JANUARY 15, 1960, AND JANUARY 21, 1961, BASED ON THE RECORD BEFORE US FURNISHED BY THE DEPARTMENT OF THE AIR FORCE. WITH YOUR CURRENT REQUEST FOR REVIEW, YOU SUBMITTED A COPY OF A ,SUPPLEMENTAL AGREEMENT NO. 15," EFFECTIVE JUNE 3, 1963, AND DATED AUGUST 15, 1963, ISSUED BY THE AIR FORCE MISSILE TEST CENTER, PROCUREMENT OFFICE (MTK), PATRICK AIR FORCE BASE, FLORIDA, WHICH APPEARED TO MODIFY PREVIOUS SUPPLEMENTAL AGREEMENTS ISSUED TO THE CONTRACT PERTAINING TO THE WORK AREAS INVOLVED. IN VIEW OF INCONSISTENCIES OF THIS AGREEMENT WITH PRIOR AGREEMENTS AND THE BASIC CONTRACT, WE REQUESTED AN ADMINISTRATIVE REPORT IN REGARD TO THIS "AGREEMENT," ISSUED ALMOST SIX YEARS AFTER THE CONTRACT IN QUESTION WAS EXECUTED, TO FIND THE BASIS FOR SUCH ISSUANCE.

IT APPEARS THAT THE SUPPLEMENTAL AGREEMENT WAS BASED UPON INFORMATION FURNISHED SOLELY BY YOU AND IS NOT SUPPORTED BY ANY INFORMATION OF RECORD AT THE BASE. THE DEPARTMENT OF THE AIR FORCE HAS ADVISED US THAT THE CONTRACTING OFFICER WHO ISSUED THE SUPPLEMENTAL AGREEMENT ACKNOWLEDGES THAT THE DRAFTING AND EXECUTING OF SUPPLEMENTAL AGREEMENT NO. 15 WAS A MISTAKE, AND YOUR CLAIM FOR $1,521.69 UNDER SUCH AGREEMENT WAS ADMINISTRATIVELY DISALLOWED. THIS IS CONSISTENT WITH EARLIER REPORTS GIVEN US BY THE DEPARTMENT OF THE AIR FORCE, WHEREIN WE WERE ADVISED THAT DUE TO THE MANY CHANGES BY ADDITIONS AND DELETIONS OF BUILDINGS THAT RECEIVED CUSTODIAL SERVICES DURING THE PERIOD OF THE CONTRACT, IT WOULD BE ALMOST IMPOSSIBLE TO RECOMPUTE, AT THIS LATE DATE, THE SQUARE FOOTAGE OF FLOOR SPACE CLEANED DURING A GIVEN MONTHLY PERIOD AND THAT SOME OF THE BUILDINGS INVOLVED HAVE BEEN DEMOLISHED. IN ADDITION TO THE REPORT THAT THE ISSUANCE OF SUPPLEMENTAL AGREEMENT NO. 15 WAS A MISTAKE ON THE PART OF THE CONTRACTING OFFICER, IT SHOULD BE POINTED OUT THAT NO AGENT OF THE GOVERNMENT HAS THE AUTHORITY TO MODIFY OR AMEND A GOVERNMENT CONTRACT EXCEPT ON THE BASIS OF ADDITIONAL CONSIDERATION AND IN THE INTEREST OF THE UNITED STATES. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE CO. V. UNITED STATES, 49 CT.CL. 327, 335; BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 CT.CL. 584, 607. IN VIEW OF THE FOREGOING, THE MATTER OF YOUR CLAIM RESOLVES ITSELF INTO A QUESTION OF AN EXTREMELY DOUBTFUL NATURE, AND IN SUCH A SITUATION, IT HAS BEEN DECLARED BY THE COURT OF CLAIMS TO BE THE DUTY OF THE ACCOUNTING OFFICERS TO REJECT THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. SEE LONGWILL V. UNITED STATES, 17 CT.CL. 288, AND CHARLES V. UNITED STATES, 19 ID. 316.

FOR THE REASONS ABOVE INDICATED, OUR PRIOR DECISIONS DISALLOWING YOUR CLAIM, MUST BE AND ARE AFFIRMED.