A-60814, OCTOBER 10, 1935, 15 COMP. GEN. 288

A-60814: Oct 10, 1935

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CONTRACTS - WITHHOLDING OF UNPAID AMOUNTS - JURISDICTION OF GENERAL ACCOUNTING OFFICE WHERE IT IS ALLEGED THAT AN ARCHITECT CONTRACTOR FAILED TO EXERCISE THE REQUISITE CARE AND SKILL ORDINARILY POSSESSED BY ARCHITECTS IN THE PREPARATION OF DRAWINGS FOR A GOVERNMENT BUILDING AND THE BUILDING CONTRACTOR PRESENTS A CLAIM FOR REIMBURSEMENT FOR THE COST OF CORRECTING ERRORS IN CONTRACT DRAWINGS. THE WITHHOLDING OF CONTRACT PAYMENTS TO THE ARCHITECT TO COVER THE AMOUNT OF SUCH CLAIM BY THE BUILDING CONTRACTOR IS FOR THE DETERMINATION OF THE GENERAL ACCOUNTING OFFICE UNDER THE PROVISIONS OF THE ACT OF MARCH 3. 1935: THERE WAS RECEIVED YOUR LETTER OF AUGUST 12. THERE WAS SUBMITTED TO YOU BY FLEISHER ENGINEERING AND CONSTRUCTION COMPANY.

A-60814, OCTOBER 10, 1935, 15 COMP. GEN. 288

CONTRACTS - WITHHOLDING OF UNPAID AMOUNTS - JURISDICTION OF GENERAL ACCOUNTING OFFICE WHERE IT IS ALLEGED THAT AN ARCHITECT CONTRACTOR FAILED TO EXERCISE THE REQUISITE CARE AND SKILL ORDINARILY POSSESSED BY ARCHITECTS IN THE PREPARATION OF DRAWINGS FOR A GOVERNMENT BUILDING AND THE BUILDING CONTRACTOR PRESENTS A CLAIM FOR REIMBURSEMENT FOR THE COST OF CORRECTING ERRORS IN CONTRACT DRAWINGS, THE WITHHOLDING OF CONTRACT PAYMENTS TO THE ARCHITECT TO COVER THE AMOUNT OF SUCH CLAIM BY THE BUILDING CONTRACTOR IS FOR THE DETERMINATION OF THE GENERAL ACCOUNTING OFFICE UNDER THE PROVISIONS OF THE ACT OF MARCH 3, 1933, 47 STAT. 1516, AMENDING THE ACT OF MARCH 3, 1875, 18 STAT. 481, AND ANY CLAIM BY THE ARCHITECT FOR SAID UNPAID AMOUNTS SHOULD BE SUBMITTED TO THE GENERAL ACCOUNTING OFFICE FOR FINAL SETTLEMENT.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF THE TREASURY, OCTOBER 10, 1935:

THERE WAS RECEIVED YOUR LETTER OF AUGUST 12, 1935, AS FOLLOWS:

UNDER DATE OF AUGUST 7, 1934, THERE WAS SUBMITTED TO YOU BY FLEISHER ENGINEERING AND CONSTRUCTION COMPANY, ST. PAUL, MINNESOTA, THE CONTRACTOR FOR CONSTRUCTION OF THE ST. PAUL, MINNESOTA, POST OFFICE, CLAIM NO. 0243187, IN THE AMOUNT OF $8,082.91, FOR REIMBURSEMENT OF THE COST OF CORRECTING ERRORS IN THE CONTRACT DRAWINGS. BY LETTER OF SEPTEMBER 13, 1934 (DEV-0243187-JMCC), FROM THE RECORDS DIVISION OF THE GENERAL ACCOUNTING OFFICE, THIS CLAIM WAS TRANSMITTED TO THE PROCUREMENT DIVISION FOR ADMINISTRATIVE EXAMINATION AND REPORT.

WHILE THIS CLAIM WAS PENDING IN YOUR OFFICE THIS DEPARTMENT WITHHELD FURTHER PAYMENTS UNDER CONTRACT T1SA-1496, WITH LAMBERT BASSINDALE, THE PRIVATE ARCHITECT WHO PREPARED THE DRAWINGS IN QUESTION, WITH A VIEW TO SECURING PARTIAL REIMBURSEMENT OF THE AMOUNT OF THE FLEISHER COMPANY'S CLAIM, IF ALLOWED BY YOUR OFFICE. THE ADMINISTRATIVE REPORT OF THE PROCUREMENT DIVISION IN REGARD TO THE FLEISHER COMPANY'S CLAIM CONCEDED THAT THE DRAWINGS PREPARED BY MR. BASSINDALE WERE SO FULL OF ERRORS IN DIMENSION BETWEEN THE STRUCTURAL AND ARCHITECTURAL DRAWINGS THAT THE CONSTRUCTION ENGINEER WAS FORCED TO DETAIL AN ASSISTANT TO SPEND HIS ENTIRE TIME FINDING AND CORRECTING THEM.

UNDER DATE OF MARCH 29, 1935, THE FLEISHER COMPANY'S CLAIM WAS REJECTED BY YOUR OFFICE AS A CLAIM NOT PAYABLE UNDER THE CONTRACT, NO QUESTION BEING RAISED AS TO THE CORRECTNESS OF THE PROCUREMENT DIVISION'S FINDING THAT THE DRAWINGS WERE FULL OF ERRORS. SHORTLY THEREAFTER A LETTER DATED MAY 17, 1935, WAS RECEIVED FROM MR. BASSINDALE IN WHICH HE REQUESTED A PARTIAL PAYMENT OF THE BALANCE DUE HIM, AND UNDER DATE OF JUNE 13, 1935, A LETTER WAS ADDRESSED TO THE FLEISHER COMPANY INQUIRING WHETHER ITS CLAIM WOULD BE FURTHER PROSECUTED AND SUGGESTING THAT IF SUCH WAS NOT INTENDED THE EXECUTION OF A RELEASE TO THE GOVERNMENT WOULD BE APPRECIATED. REPLY, UNDER DATE OF JUNE 15, 1935, THE FLEISHER COMPANY ADVISED THAT IT INTENDED TO PRESS ITS CLAIM FOR PAYMENT, PRESUMABLY BY FILING SUIT THEREON, AND THAT IT THEREFORE COULD NOT EXECUTE SUCH A RELEASE.

IN VIEW OF THE FOREGOING, AND OF THE DETAILED FACTS SUPPORTING THE FLEISHER COMPANY'S CLAIM, WHICH WILL APPEAR FROM THE PAPERS IN YOUR FILE RELATIVE THERETO, THIS DEPARTMENT FEELS THAT THE GOVERNMENT WILL HAVE A PRIMA FACIE RIGHT OF ACTION AGAINST MR. BASSINDALE FOR NEGLIGENCE IN THE PREPARATION OF THE DRAWINGS IN QUESTION, IN THE EVENT THAT DAMAGE IS SUSTAINED THROUGH AN ADJUDICATION IN FAVOR OF THE FLEISHER COMPANY AT SOME FUTURE TIME. THE MATTER IS THEREFORE SUBMITTED FOR YOUR CONSIDERATION AND DECISION WHETHER, WITH PARTICULAR REFERENCE TO THE AMENDMENT OF THE ACT OF MARCH 3, 1875, CH. 149, BY ACT OF MARCH 3, 1933, CH. 212 (47 STAT. 1516), THIS DEPARTMENT MAY LAWFULLY WITHHOLD THE BALANCE DUE MR. BASSINDALE, PENDING LIQUIDATION OF THE GOVERNMENT'S CLAIM AGAINST HIM OR THE NECESSARY ABANDONMENT THEREOF.

THERE IS FORWARDED HEREWITH A STATEMENT OF ACCOUNT WITH MR. BASSINDALE, SHOWING A BALANCE DUE OF $2,615.00, TOGETHER WITH A COMPLETE CITATION TO VOUCHERS PAID UNDER HIS CONTRACT; LIKEWISE ORIGINALS OF MR. BASSINDALE'S LETTER OF MAY 17, 1935, TO THE DIRECTOR OF PROCUREMENT, AND OF THE FLEISHER COMPANY'S LETTER OF JUNE 15, 1935, AND COPY OF THE LETTER FROM THE ASSISTANT DIRECTOR OF PROCUREMENT TO THE FLEISHER COMPANY, UNDER DATE OF JUNE 13, 1935.

UNDER SECTION 3 OF THE ACT OF MARCH 3, 1817, 3 STAT. 366, WHICH WAS CONTINUED, ULTIMATELY, AS SECTION 305 OF THE BUDGET AND ACCOUNTING ACT OF JUNE 10, 1921, 42 STAT. 23, 27, THE JURISDICTION AND AUTHORITY TO SETTLE AND ADJUST CLAIMS FOR AND AGAINST THE UNITED STATES IS IN THIS OFFICE. SEE IN RE REFERENCE, 59 CT.CLS. 813, CASE ON THE MERITS REPORTED AS ANDERSON V. UNITED STATES, 61 CT.CLS. 201. THE REFERRED TO ACT OF MARCH 3, 1933, 47 STAT. 1516, AMENDED THE PRIOR ACT OF MARCH 3, 1875, 18 STAT. 481, IN CONSONANCE WITH THE CITED SECTION 305 OF THE ACT OF JUNE 10, 1921, BY PROVIDING THAT THIS OFFICE MAKE WITHHOLDINGS IN EVENT OF INDEBTEDNESS TO THE UNITED STATES, THOUGH THE COURTS HAD HELD PRIOR THERETO THAT BY VIRTUE OF SAID ACT OF JUNE 10, 1921, SUCH AUTHORITY WAS IN THE ACCOUNTING OFFICERS OF THE UNITED STATES RATHER THAN IN THE SECRETARY OF THE TREASURY. SEE UNITED STATES V. LAGRANGE GROCERY CO., 31 FED./2D) 297, AND RICHMOND, FREDERICKSBURG AND POTOMAC R.R. COMPANY, V. MCCARL, 61 APP. D.C. 290, 62 FED./2D) 203, CERTIORARI DENIED, 288 U.S. 615. CONSEQUENTLY, IT FOLLOWS THAT THE TREASURY DEPARTMENT IS WITHOUT AUTHORITY TO MAKE WITHHOLDINGS FROM CLAIMANTS BY REASON OF THEIR INDEBTEDNESS TO THE UNITED STATES AND THAT ALL SUCH CLAIMS SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT IN ACCORDANCE WITH LAW. IN THIS PARTICULAR CASE, THE QUESTION APPEARS TO BE ONE WHETHER THE ARCHITECT POSSESSED AND EXERCISED IN THE PREPARATION OF THE PLANS AND SPECIFICATIONS THE REASONABLE SKILL AND KNOWLEDGE WHICH HE IS PRESUMED TO HAVE HAD BY HIS HOLDING HIMSELF OUT AND CONTRACTING WITH THE UNITED STATES AS AN ARCHITECT TO PREPARE SUCH PLANS AND SPECIFICATIONS. THIS OFFICE HAD OCCASION TO CONSIDER SUCH A QUESTION IN A DECISION OF MAY 12, 1933, A-48737, TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, WHEREIN IT WAS STATED THAT:

THE DUTY OWED BY AN ARCHITECT TO HIS EMPLOYER IS THAT HE WILL EXERCISE AND APPLY HIS SKILL AND ABILITY, JUDGMENT AND FAITH REASONABLY AND WITHOUT NEGLECT. IT WAS STATED IN COMBS V. BEEDE, 89 MAINE 187, THAT:

"THE RESPONSIBILITY RESTING ON AN ARCHITECT IS ESSENTIALLY THE SAME AS THAT WHICH RESTS UPON THE LAWYER TO HIS CLIENT, OR UPON THE PHYSICIAN TO HIS PATIENT, OR WHICH RESTS UPON ANY ONE TO ANOTHER, WHERE SUCH PERSON PRETENDS TO POSSESS SOME SKILL AND ABILITY IN SOME SPECIAL EMPLOYMENT, AND OFFERS HIS SERVICES TO THE PUBLIC ON ACCOUNT OF HIS FITNESS TO ACT IN THE LINE OF BUSINESS FOR WHICH HE MAY BE EMPLOYED.'

THUS, IN HUBERT V. AICKEN, 125 NEW YORK 655, THE ARCHITECT SUED FOR SERVICES IN THE CONSTRUCTION OF AN APARTMENT HOUSE DESIGNED BY HIM TO BE HEATED BY STEAM AND THE OWNER COUNTERCLAIMED FOR DAMAGES DUE TO THE FACT THAT THE CHIMNEY FLUES AS PLANNED AND BUILT WERE INSUFFICIENT TO CARRY SMOKE AND GASES FROM THE BOILER FIRE. IT WAS SAID BY THE COURT IN UPHOLDING THE CONTENTION OF THE OWNER THAT:

"IT IS AS NECESSARY THAT THE ARCHITECT SHOULD KNOW WHAT IS NEEDED TO MAKE THE STEAM-HEATING APPARATUS SERVICEABLE AS IT IS THAT HE SHOULD KNOW HOW SEWER GAS IS TO BE KEPT OUT OF THE HOUSE. NO ONE WOULD CONTENT THAT AT THIS DAY AN ARCHITECT COULD SHELTER HIMSELF BEHIND THE PLUMBER AND EXCUSE HIS IGNORANCE OF THE ORDINARY APPLIANCE FOR SANITARY VENTILATION BY SAYING THAT HE WAS NOT AN EXPERT IN THE TRADE OF PLUMBING. HE IS AN EXPERT IN CARPENTRY, IN CEMENT, IN MORTAR, IN THE STRENGTH OF MATERIAL, IN THE ART OF CONSTRUCTING THE WALLS, THE FLOOR, THE STAIRCASES, THE ROOFS, AND IS IN DUTY BOUND TO POSSESS REASONABLE SKILL AND KNOWLEDGE AS TO ALL THESE THINGS.'

IT IS STATED IN 5 C.J. 270 THAT WHERE AN ARCHITECT DOES NOT POSSESS AND EXERCISE THE REQUISITE CARE AND SKILL HE WILL NOT ONLY BE LIABLE IN DAMAGES FOR DEFECTS IN HIS PLANS, BUT CANNOT RECOVER COMPENSATION FOR THEM. SEE SCHREINER V. MILLER, 67 IOWA 91; LARRIMORE V. COMANCHE CO., 32 S.W. 367; PIERSON V. TYNDALL, 28 S.W. 232; NIVER V. NASH, 7 WASH. 558; AND SHIPMAN V. STATE, 43 WIS. 377; COLUMBUS CO. V. CLOWES (1903) 1 K.B. 244; CAUCHON V. MACCOSHAM, 19 DOMINION LAW REPORTS 708; SEE ALSO ERSKINE V. JOHNSON, 23 NEB. 261, AND DICK V. JULLIAN, 279 FED. 993.

NO FURTHER PAYMENT SHOULD BE MADE TO LAMBERT BASSINDALE IN THIS CASE AND ANY CLAIM THEREFOR SHOULD BE FORWARDED TO THIS OFFICE FOR SETTLEMENT IN ACCORDANCE WITH LAW ACCOMPANIED BY A DETAILED REPORT OF THE DEFECTS IN THE PLANS AND SPECIFICATIONS DRAFTED BY HIM UNDER THE CONTRACT TOGETHER WITH A STATEMENT SIGNED BY A NUMBER OF THE ARCHITECTS EMPLOYED IN THE TREASURY DEPARTMENTS AS TO WHETHER IN THEIR OPINION AN ARCHITECT MAKING SUCH MISTAKES IN A SET OF PLANS AND SPECIFICATIONS MAY BE CONSIDERED AS HAVING EXERCISED A REASONABLE DEGREE OF CARE AND POSSESSES THE REASONABLE DEGREE OF SKILL ORDINARILY POSSESSED BY ARCHITECTS. THEREUPON THE CLAIM WILL BE CONSIDERED HERE AND SETTLED IN ACCORDANCE WITH THE LAW AND THE FACTS.