A-59111, DECEMBER 14, 1934, 14 COMP. GEN. 466

A-59111: Dec 14, 1934

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ACTUAL SUBSURFACE CONDITIONS KNOWN TO EXIST BY THE AWARDING AUTHORITY ARE NOT REVEALED. WHICH IS SIMILAR IN LANGUAGE AND PURPOSE TO SECTION 3709. THERE IS NOT AUTHORITY IN THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO EMPLOY THE ORIGINAL CONTRACTOR TO DO NECESSARY ADDITIONAL WORK WITHOUT ADVERTISING AND COMPETITIVE BIDDING AS PROVIDED BY SAID STATUTE. WHERE THE ORIGINAL CONTRACTOR IS EMPLOYED TO DO ADDITIONAL WORK WITHOUT COMPLIANCE WITH THE LAW. THERE IS NO CONTRACT BINDING ON THE GOVERNMENT. SOME TIME BEFORE THE PLANS WERE COMPLETED TEST PITS WERE DUG TO DETERMINE THE NATURE OF THE GROUND AND ITS SAFE BEARING CAPACITY. SMALL QUANTITIES OF WATER WERE FOUND. IT DEVELOPED THAT THERE WERE A NUMBER OF SMALL SPRINGS ON THE SITE.

A-59111, DECEMBER 14, 1934, 14 COMP. GEN. 466

CONTRACTS - DISTRICT OF COLUMBIA - CONCEALMENT OF FACTS KNOWN TO AWARDING AUTHORITY - AWARD TO ORIGINAL CONTRACTOR WITHOUT COMPETITION FOR ADDITIONAL WORK WHEN, IN ADVERTISING FOR BIDS FOR CONSTRUCTION OF PUBLIC BUILDINGS, ACTUAL SUBSURFACE CONDITIONS KNOWN TO EXIST BY THE AWARDING AUTHORITY ARE NOT REVEALED, THE CONTRACTOR CANNOT UNDER HIS CONTRACT BE REQUIRED TO PERFORM ADDITIONAL WORK RENDERED NECESSARY BY SUCH SUBSURFACE CONDITION. UNDER THE PROVISIONS OF TITLE 20, SECTION 51, OF THE CODE OF THE DISTRICT OF COLUMBIA, WHICH IS SIMILAR IN LANGUAGE AND PURPOSE TO SECTION 3709, REVISED STATUTES, THERE IS NOT AUTHORITY IN THE BOARD OF COMMISSIONERS OF THE DISTRICT OF COLUMBIA TO EMPLOY THE ORIGINAL CONTRACTOR TO DO NECESSARY ADDITIONAL WORK WITHOUT ADVERTISING AND COMPETITIVE BIDDING AS PROVIDED BY SAID STATUTE, AND WHERE THE ORIGINAL CONTRACTOR IS EMPLOYED TO DO ADDITIONAL WORK WITHOUT COMPLIANCE WITH THE LAW, THERE IS NO CONTRACT BINDING ON THE GOVERNMENT. THE CONTRACTOR MAY BE PAID FOR WORK ACTUALLY PERFORMED AND OF BENEFIT TO THE DISTRICT OF COLUMBIA ONLY UPON A QUANTUM MERUIT BASIS, THE REASONABLE VALUE OF THE WORK, NOT TO EXCEED THE AMOUNT DETERMINED UPON THE BASIS SET FORTH IN THE CONTRACT FOR DETERMINATION OF SUCH VALUE AND NOT TO EXCEED THE AMOUNT FIXED IN THE NONCOMPETITIVE PROPOSAL OF THE CONTRACTOR.

COMPTROLLER GENERAL MCCARL TO THE PRESIDENT, BOARD OF COMMISSIONERS, DISTRICT OF COLUMBIA, DECEMBER 14, 1934:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 4, 1934, AS FOLLOWS:

THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA ON APRIL 6, 1934, ENTERED INTO A CONTRACT WITH MCCLOSKEY AND COMPANY OF PHILADELPHIA, PA., CONTRACT NO. 11890, FOR THE CONSTRUCTION OF THE WOODROW WILSON HIGH SCHOOL FOR THE SUM OF $1,043,000 UNDER AUTHORITY OF THE APPROPRIATIONS CONTAINED IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDED JUNE 30, 1934, APPROVED JUNE 16, 1933, AND IN THE DISTRICT OF COLUMBIA APPROPRIATION ACT FOR THE FISCAL YEAR ENDING JUNE 30, 1935, APPROVED JUNE 4, 1934. SOME TIME BEFORE THE PLANS WERE COMPLETED TEST PITS WERE DUG TO DETERMINE THE NATURE OF THE GROUND AND ITS SAFE BEARING CAPACITY. IN TWO PITS, SMALL QUANTITIES OF WATER WERE FOUND. FROM FURTHER STUDY, IT DEVELOPED THAT THERE WERE A NUMBER OF SMALL SPRINGS ON THE SITE. THE DISTRICT HAS THREE COURSES TO FOLLOW:

1. MAKE AN EXTENSIVE STUDY OF THE SITE IN ORDER TO FIND ALL THE SPRINGS THAT MIGHT AFFECT THE PROPOSED STRUCTURE.

2. PROVIDE A VERY EXTENSIVE AND EXPENSIVE SUBSOIL DRAINAGE SYSTEM.

3. WAIT UNTIL THE CONTRACT WAS LET AND EXCAVATION COMPLETED AND THEN FIND THE REAL UNDERGROUND CONDITIONS.

THE FIRST TWO COURSES WERE DISCARDED FOR THE FOLLOWING REASONS:

A. AN EXTENSIVE STUDY OF THE SITE WOULD NOT HAVE DISCLOSED THE TRUE CONDITION AND THE MUNICIPAL ARCHITECT'S OFFICE STILL WOULD NOT KNOW THE EXTENT OF THE SUBSOIL SYSTEM TO BE PROVIDED.

B. PROVIDING A SUBSOIL DRAINAGE SYSTEM WOULD HAVE BURDENED THE DISTRICT OF COLUMBIA WITH AN ADDITIONAL EXPENSE OF FROM $10,000 TO $15,000, WHICH MAY NOT HAVE BEEN REQUIRED HAD THE TRUE CONDITION, AS EXCAVATED, BEEN KNOWN.

THEREFORE, THE THIRD COURSE WAS FOLLOWED. THE PRINCIPAL REASON WHY THE EXISTENCE OF WATER WAS NOT MADE KNOWN TO BIDDERS WAS THAT THE MUNICIPAL ARCHITECT'S OFFICE HAD REASON TO BELIEVE THAT THE AMOUNT OF WATER FOUND WOULD BE NEGLIGIBLE AND NOT MORE THAN THAT GENERALLY FOUND UNDER SIMILAR GROUND CONDITIONS.

WHEN THE CONTRACT WAS LET AND THE CONTRACTOR PROCEEDED WITH THE EXCAVATION, IT WAS FOUND THAT ALL THE SPRINGS ENCOUNTERED, EXCEPT ONE, WERE NEGLIGIBLE AND WERE EASILY DAMMED BY THE CONTRACTOR AT HIS OWN EXPENSE. ONLY ONE SPRING, THAT AT THE SITE OF THE HEATING PLANT, COULD NOT BE DAMMED. THE MUNICIPAL ARCHITECT'S OFFICE DEEMED IT ADVISABLE TO PROVIDE FOR A SMALL SUBSOIL DRAINAGE SYSTEM AT AN ADDITIONAL COST OF $1,035 BEFORE PERMITTING THE CONTRACTOR TO PLACE THE PUMP-ROOM SLAB. ALTHOUGH THE CONTRACTOR COULD HAVE COMPLETED HIS PART OF THE WORK WITHOUT PROVIDING A SUBSOIL DRAINAGE SYSTEM, GOOD ENGINEERING JUDGMENT DICTATED THAT EVERY PRECAUTION SHOULD BE TAKEN BEFORE THE SLAB WAS POURED TO PREVENT ANY POSSIBLE DAMAGE TO THE PUMP ROOM AFTER THE BUILDING HAD BEEN ACCEPTED, BY THE INSTALLATION, IN ADVANCE, OF THE SUBSOIL DRAINAGE SYSTEM. THE DRAINAGE SYSTEM HAS BEEN INSTALLED BY THE CONTRACTOR AT AN ADDITIONAL COST OF $1,035.

BEARING IN MIND THAT THE CONTRACTOR, UNDER HIS CONTRACT, WAS IN NO SENSE OBLIGATED OR REQUIRED TO INSTALL THIS DRAINAGE SYSTEM AND THAT THE PRECAUTION TAKEN TO PREVENT ANY POSSIBLE DAMAGE TO THE PUMP ROOM WAS IN THE PUBLIC INTEREST AND WAS THE PROPER COURSE FOR THE DISTRICT OF COLUMBIA TO TAKE FROM AN ENGINEERING AND ECONOMIC STANDPOINT, THE COMMISSIONERS OF THE DISTRICT OF COLUMBIA DESIRE TO BE INFORMED WHETHER OR NOT THERE WILL BE ANY OBJECTION ON THE PART OF YOUR OFFICE TO THE PAYMENT OF THE ADDITIONAL SUM OF $1,035 TO MCCLOSKEY AND COMPANY FOR THE INSTALLATION OF THE SUBSOIL DRAINAGE SYSTEM AT THE WILSON HIGH SCHOOL.

IT IS CLEAR FROM YOUR SUBMISSION THAT THE FACT THAT UNDERGROUND SPRINGS WERE TO BE ENCOUNTERED DURING THE WORK OF EXCAVATION WAS KNOWN TO THE DISTRICT OFFICIALS AND WAS WITHHELD FROM BIDDERS. SINCE THE ACTUAL SUBSURFACE CONDITIONS WERE NOT DISCLOSED, THE CONTRACTOR COULD NOT BE HELD BOUND TO COMPLETE THE NECESSARY SUBSOIL DRAINAGE SYSTEM OUTLINED IN YOUR LETTER UNDER ITS BID. ATLANTIC DREDGING CO. V. UNITED STATES, 253 U.S. 1.

IN VIEW OF THE STATEMENT THAT THE CONTRACTOR COULD HAVE COMPLETED HIS CONTRACT WITHOUT PROVIDING A SUBSOIL DRAINAGE SYSTEM, IT IS APPARENT THAT THE WORK WAS NOT "EXTRA WORK" UNDER THE CONTRACT, BUT WAS A SEPARATE AND DISTINCT UNDERTAKING, DETERMINED BY THE DISTRICT ENGINEERSTO BE DICTATED BY GOOD ENGINEERING JUDGMENT TO PREVENT POSSIBLE DAMAGE TO THE PUMP ROOM AFTER THE BUILDING WAS ACCEPTED.

YOU WERE INFORMED IN MY DECISION A-47848, APRIL 10, 1933, THAT THE GENERAL RULE IS THAT AN ORIGINAL CONTRACT MAY NOT BE EXPANDED BY SUPPLEMENTAL AGREEMENTS ENTERED INTO WITHOUT ADVERTISING,PROVIDING FOR SUBSTANTIAL ADDITIONS TO AND NOT A PART OF THE WORK COVERED BY THE CONTRACT. SEE ALSO, 5 COMP. GEN. 508; ID. 642.

IT WOULD APPEAR THAT THE COURSE FOLLOWED BY THE DISTRICT OFFICERS IN EMPLOYING THE GENERAL CONTRACTOR TO INSTALL THE SUBSOIL DRAINAGE SYSTEM WITHOUT COMPETITION WAS CONTRARY TO LAW AND, THEREFORE, HAD NO BINDING EFFECT ON THE GOVERNMENT. THE PRACTICE IN THIS RESPECT SHOULD BE CORRECTED. HOWEVER, THE WORK HAS BEEN PERFORMED BY THE CONTRACTOR AND THE DISTRICT OF COLUMBIA HAS RECEIVED THE BENEFIT. THE CONTRACTOR IS ENTITLED TO BE PAID THE REASONABLE VALUE OF THE WORK UPON A QUANTUM MERUIT BASIS. THE PROVISION OF PARAGRAPH 20 OF THE GENERAL STIPULATIONS OF THE SPECIFICATIONS THAT THE CONTRACTOR WILL BE PAID ACTUAL COST PLUS 15 PERCENT FOR EXTRA WORK MAY BE ACCEPTED AS EVIDENTIAL OF THE REASONABLE VALUE OF THE WORK PERFORMED IN VIEW OF THE APPARENCY THAT SUCH WORK WAS CONSIDERED AND TREATED AS EXTRA WORK BY THE DISTRICT OFFICERS.

ACCORDINGLY, YOU ARE ADVISED THAT THIS OFFICE WILL MAKE NO OBJECTION TO THE PAYMENT TO THE CONTRACTOR OF THE ACTUAL, NECESSARY COST OF THE WORK PLUS 15 PERCENT THEREOF, IN NO EVENT TO EXCEED THE AMOUNT OF $1,035. THE RECORD SUPPORTING ANY SUCH PAYMENT SHOULD CONTAIN A CLEAR SHOWING OF THE ACTUAL COST OF PERFORMANCE BY THE CONTRACTOR AND THAT THE PRICE PAID THE CONTRACTOR IS NOT IN EXCESS OF CURRENT PRICES FOR WORK OF A SIMILAR CHARACTER.