A-21628, FEBRUARY 20, 1928, 7 COMP. GEN. 503

A-21628: Feb 20, 1928

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CONTRACTS - SPECIFICATIONS - INCREASED COSTS UNDER ARTICLE 2 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT A CONTRACTOR IS NOT ENTITLED TO EXTRA PAYMENT FOR THE INSTALLATION OF WORK SHOWN ON THE DRAWINGS AND OMITTED FROM THE SPECIFICATIONS. NO FLY-SCREEN HARDWARE APPEARS TO HAVE BEEN SPECIFIED OR SCHEDULED. IT IS ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE DRAWINGS. - WHICH HAVE NOT BEEN FURNISHED THIS OFFICE. THERE IS CLEARLY NO OBLIGATION ON THE UNITED STATES TO PAY $75 EXTRA THEREFOR. I HAVE NOT OVERLOOKED PARAGRAPH 7 OF THE SPECIFICATIONS. WHICH PURPORT TO PROVIDE THAT: THIS SPECIFICATION IS INTENDED TO SUPPLEMENT THE DRAWINGS. IT WILL NOT BE THE PROVINCE OF THIS SPECIFICATION TO MENTION ANY PORTION OF THE CONSTRUCTION WHICH THE DRAWINGS ARE COMPETENT TO EXPLAIN.

A-21628, FEBRUARY 20, 1928, 7 COMP. GEN. 503

CONTRACTS - SPECIFICATIONS - INCREASED COSTS UNDER ARTICLE 2 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT A CONTRACTOR IS NOT ENTITLED TO EXTRA PAYMENT FOR THE INSTALLATION OF WORK SHOWN ON THE DRAWINGS AND OMITTED FROM THE SPECIFICATIONS.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, FEBRUARY 20, 1928:

THERE HAS COME TO MY ATTENTION A LETTER DATED OCTOBER 5, 1927, FROM ASSISTANT SECRETARY CARL T. SCHUNEMAN TO A. M. LUNDBERG, PURPORTING TO INCREASE BY THE SUM OF $75, FOR THE INSTALLATION OF FLY SCREENS, THE COMPENSATION OF $72,600 STIPULATED IN STANDARD GOVERNMENT CONSTRUCTION CONTRACT DATED APRIL 27, 1927, WITH ALBERT M. LUNDBERG, FOR THE CONSTRUCTION OF A POST OFFICE AT MCKEES ROCKS, PA. THE QUESTION ARISES WHETHER THE SAID LETTER OF OCTOBER 5, 1927, IMPOSES ANY LEGAL OBLIGATION ON THE UNITED STATES.

ARTICLE 2 OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT, PROVIDED:

THE CONTRACTOR SHALL KEEP ON THE WORK A COPY OF THE DRAWINGS AND SPECIFICATIONS AND SHALL AT ALL TIMES GIVE THE CONTRACTING OFFICER ACCESS THERETO. ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS, OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH. IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN. IN ANY CASE OF DISCREPANCY IN THE FIGURES OR DRAWINGS, THE MATTER SHALL BE IMMEDIATELY SUBMITTED TO THE CONTRACTING OFFICER, WITHOUT WHOSE DECISION SAID DISCREPANCY SHALL NOT BE ADJUSTED BY THE CONTRACTOR, SAVE ONLY AT HIS OWN RISK AND EXPENSE. THE CONTRACTING OFFICER SHALL FURNISH, FROM TIME TO TIME, SUCH DETAIL DRAWINGS AND OTHER INFORMATION AS HE MAY CONSIDER NECESSARY, UNLESS OTHERWISE PROVIDED. UPON COMPLETION OF THE CONTRACT THE WORK SHALL BE DELIVERED COMPLETE AND UNDAMAGED.

AS STATED IN LETTER DATED DECEMBER 13, 1927, TO THIS OFFICE, FROM THE SUPERVISING ARCHITECT, NO FLY-SCREEN HARDWARE APPEARS TO HAVE BEEN SPECIFIED OR SCHEDULED,"IT HAVING BEEN INADVERTENTLY OMITTED.' BUT PARAGRAPH 406 OF THE SPECIFICATIONS PROVIDED THAT "ALL INSECT SCREENS INDICATED BY DIAGRAMS AND SCHEDULES THEREFOR ON DRAWING NO. 1040 SHALL BE SUPPLIED IN PLACE COMPLETE.' IT IS ASSUMED FOR THE PURPOSE OF THIS DECISION THAT THE DRAWINGS--- WHICH HAVE NOT BEEN FURNISHED THIS OFFICE--- SHOW THE FLY SCREENS, AND IF THIS BE TRUE, THERE IS CLEARLY NO OBLIGATION ON THE UNITED STATES TO PAY $75 EXTRA THEREFOR, THE CONTRACT PROVIDING IN ARTICLE 2, SUPRA, THAT ANYTHING "SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS SHALL BE OF LIKE EFFECT AS IF SHOWN OR MENTIONED IN BOTH.'

IN REACHING THIS CONCLUSION, I HAVE NOT OVERLOOKED PARAGRAPH 7 OF THE SPECIFICATIONS, WHICH PURPORT TO PROVIDE THAT:

THIS SPECIFICATION IS INTENDED TO SUPPLEMENT THE DRAWINGS, AND THEREFORE, IT WILL NOT BE THE PROVINCE OF THIS SPECIFICATION TO MENTION ANY PORTION OF THE CONSTRUCTION WHICH THE DRAWINGS ARE COMPETENT TO EXPLAIN, AND SUCH OMISSION IS NOT TO RELIEVE THE CONTRACTOR FROM CARRYING OUT SUCH PORTIONS ONLY INDICATED ON THE DRAWINGS, AND SHOULD ITEMS BE REQUIRED BY THE SPECIFICATION NOT INDICATED ON THE DRAWINGS THEY ARE TO BE SUPPLIED, EVEN IF OF SUCH NATURE THAT THEY COULD HAVE BEEN INDICATED THEREON. ANY ITEMS WHICH ARE NOT INDICATED ON THE DRAWINGS OR MENTIONED HEREIN, BUT ARE NECESSARY TO COMPLETE THE ENTIRE WORK, MUST BE SUPPLIED IN PLACE. THE DECISION OF THE SUPERVISING ARCHITECT AS TO THE PROPER INTERPRETATION OF THE DRAWINGS AND SPECIFICATIONS SHALL BE FINAL.

THE DIRECTIONS FOR PREPARATION OF THE STANDARD GOVERNMENT CONSTRUCTION CONTRACT PROVIDE IN PARAGRAPH 2, THAT:

THERE SHALL BE NO DEVIATION FROM THIS STANDARD CONTRACT FORM, EXCEPT AS PROVIDED FOR IN THESE DIRECTIONS, WITHOUT PRIOR APPROVAL OF THE DIRECTOR OF THE BUREAU OF THE BUDGET OBTAINED THROUGH THE INTERDEPARTMENTAL BOARD OF CONTRACTS AND ADJUSTMENTS. * * *

PARAGRAPH 7 OF THE SPECIFICATIONS IS NOT IN HARMONY WITH ARTICLE 2 OF THE CONTRACT AND IN SO FAR AS INCONSISTENT THEREWITH, IT CAN NOT BE RECOGNIZED AS IMPOSING ANY LEGAL OBLIGATION ON THE UNITED STATES. FURTHERMORE, ARTICLE 15 OF THE CONTRACT PROVIDES FOR THE DETERMINATION OF DISPUTES "CONCERNING QUESTIONS OF FACT ARISING UNDER THIS CONTRACT.' THE QUESTION WHETHER THE CONTRACTOR IS LEGALLY OBLIGATED UNDER THE SPECIFICATIONS AND DRAWINGS TO INSTALL THE FLY SCREENS WITHOUT ADDITIONAL COMPENSATION IS NOT A QUESTION OF FACT FOR DETERMINATION, EVEN IN ACCORDANCE WITH ARTICLE 15 OF THE CONTRACT AND, HENCE, IF THE PROVISION IN THE SPECIFICATIONS THAT THE "DECISION OF THE SUPERVISING ARCHITECT AS TO THE PROPER INTERPRETATION OF THE DRAWINGS AND SPECIFICATIONS SHALL BE FINAL" IS TO BE INTERPRETED AS AUTHORIZING THE SUPERVISING ARCHITECT TO DETERMINE THE LEGAL LIABILITY OF THE UNITED STATES FOR THE EXTRA COST OF THE SCREENS, IT TRANSCENDS THE AUTHORITY DELEGATED TO THE ADMINISTRATIVE OFFICERS IN THE PREPARATION OF THE CONTRACT AND IS OF NO EFFECT.

IF THE ASSUMPTION THAT THE DRAWINGS SPECIFIED THE FLY SCREENS BE NOT CORRECT, YOU ARE REQUESTED TO FORWARD A COPY OF THE DRAWINGS TO THIS OFFICE. IF THIS ASSUMPTION BE CORRECT, THE CONTRACTOR MAY NOT BE PAID THE SUM OF $75 IN ADDITION TO THE CONTRACT PRICE FOR THE INSTALLATION OF THE SCREENS.