A-66922, A-81332, JULY 15, 1937, 17 COMP. GEN. 31

A-66922,A-81332: Jul 15, 1937

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PREAUDIT APPROVAL DELAYS AND QUESTIONABLE PERSONAL SERVICE AGREEMENTS EXPEDITED ACTION GENERALLY AVAILABLE IN THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH THE PREAUDIT OF CLAIM VOUCHERS IS NECESSARILY IMPOSSIBLE WHERE THE DOCUMENTS AND EVIDENCE NECESSARY TO ESTABLISH THE VALIDITY OF THE CLAIM AS A MATTER OF LAW. OR THAT IT IS AUTHORIZED TO BE PAID FROM APPROPRIATED PUBLIC MONEYS. ARE NOT FURNISHED. WHEREAS THE SERVICES WERE RENDERED BUT ONCE. NO FURTHER PAYMENTS MAY BE APPROVED FROM APPROPRIATED FUNDS UNTIL THERE HAVE BEEN ESTABLISHED BY COMPETENT RECORD DATA THE GOOD FAITH AND VALIDITY OF THE ENTIRE TRANSACTION FROM ITS INCEPTION. HAVING TO DO WITH YOUR TO HAVE BEEN RENDERED IN CONNECTION WITH THE NEW CHEMISTRY BUILDING AT HOWARD UNIVERSITY AND OF PHOTOSTATIC COPIES OF DOCUMENTS DATED JUNE 3.

A-66922, A-81332, JULY 15, 1937, 17 COMP. GEN. 31

PREAUDIT APPROVAL DELAYS AND QUESTIONABLE PERSONAL SERVICE AGREEMENTS EXPEDITED ACTION GENERALLY AVAILABLE IN THE GENERAL ACCOUNTING OFFICE IN CONNECTION WITH THE PREAUDIT OF CLAIM VOUCHERS IS NECESSARILY IMPOSSIBLE WHERE THE DOCUMENTS AND EVIDENCE NECESSARY TO ESTABLISH THE VALIDITY OF THE CLAIM AS A MATTER OF LAW, OR THAT IT IS AUTHORIZED TO BE PAID FROM APPROPRIATED PUBLIC MONEYS, ARE NOT FURNISHED. PERSONAL-SERVICE AGREEMENTS FOR ARCHITECTURAL SERVICES, MADE WITHOUT ADVERTISING OR COMPETITION, REQUIRE A SHOWING OF UTMOST GOOD FAITH IN THEIR NEGOTIATION AND ADMINISTRATION, AND WHERE IT APPEARS PAYMENT FOR IDENTICAL SERVICES HAS BEEN REPEATEDLY PROVIDED FOR UNDER SUCCEEDING AGREEMENTS WITH THE SAME PARTY, WHEREAS THE SERVICES WERE RENDERED BUT ONCE, AND WHERE THE RECORD INDICATES THE SAID PARTY HAS ISSUED ORDERS TO HIMSELF FOR SO-CALLED "EXTRA" SERVICES APPARENTLY REQUIRED OF HIM UNDER THE TERMS OF HIS NEGOTIATED AGREEMENT, AND OTHERWISE APPARENTLY HAS MADE UNAUTHORIZED USE OF PUBLIC PROPERTY AND EQUIPMENT WITHOUT COMPENSATORY CONSIDERATION, NO FURTHER PAYMENTS MAY BE APPROVED FROM APPROPRIATED FUNDS UNTIL THERE HAVE BEEN ESTABLISHED BY COMPETENT RECORD DATA THE GOOD FAITH AND VALIDITY OF THE ENTIRE TRANSACTION FROM ITS INCEPTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO ALBERT I. CASSELL, JULY 15, 1937:

MR. JAMES ROOSEVELT, BY MEMORANDUM DATED JUNE 28, 1937, AT THE WHITE HOUSE, HAS REFERRED HERE FOR CONSIDERATION YOUR LETTER TO HIM OF JUNE 23, 1937, WITH ENCLOSURES, IN WHICH YOU COMPLAIN OF DELAY IN THIS OFFICE IN THE SETTLEMENT OF YOUR CLAIMS UNDER CERTAIN CONTRACTS FOR ARCHITECTURAL AND ENGINEERING SERVICES IN CONNECTION WITH THE CONSTRUCTION OF CERTAIN BUILDINGS AT HOWARD UNIVERSITY.

THE PAPERS ATTACHED TO YOUR LETTER TO MR. ROOSEVELT AND FORWARDED BY HIM TO THIS OFFICE CONSIST OF A PHOTOSTATIC COPY OF A SO-CALLED FINDING OF FACT DATED MARCH 10, 1937, HAVING TO DO WITH YOUR TO HAVE BEEN RENDERED IN CONNECTION WITH THE NEW CHEMISTRY BUILDING AT HOWARD UNIVERSITY AND OF PHOTOSTATIC COPIES OF DOCUMENTS DATED JUNE 3, JUNE 11, AND JUNE 14, 1937, RELATING TO YOUR CLAIMS FOR $1,697.12 AND $602.43 ALLEGED TO BE DUE YOU FOR ARCHITECTURAL SERVICES IN CONNECTION WITH THE NEW POWER PLANT AT HOWARD UNIVERSITY.

THE LETTER DATED JUNE 3, 1937, FROM ASSISTANT SECRETARY OF THE INTERIOR OSCAR L. CHAPMAN, PHOTOSTATIC COPY OF WHICH YOU ATTACHED TO YOUR LETTER TO MR. ROOSEVELT, SHOWS THAT THE CLAIM VOUCHER FOR $1,697.12 WAS THAT DATE RESUBMITTED TO THIS OFFICE FOR PREAUDIT ACCOMPANIED BY INFORMATION INTENDED TO ESTABLISH THE VALIDITY OF THE CLAIM AND THAT THE CLAIM VOUCHER FOR $602.43 WAS FOR THE FIRST TIME SUBMITTED TO THIS OFFICE FOR PREAUDIT ON JUNE 3, 1937. IT IS ONLY WHEN THE DOCUMENTS SUBMITTED IN SUPPORT OF A CLAIM CLEARLY ESTABLISH ITS VALIDITY AS A MATTER OF LAW AND THAT IT IS AUTHORIZED TO BE PAID FROM APPROPRIATED PUBLIC MONEYS THAT THIS OFFICE IS ABLE TO PREAUDIT APPROVE CLAIM VOUCHERS WITHIN FROM 48 HOURS TO 2 WEEKS AS YOU SUGGEST IS THE USUAL PRACTICE. SEE IN THIS CONNECTION LONGWILL V. UNITED STATES, 17 CT.CLS. 288, 291; CHARLES V. UNITED STATES, 19 ID. 316, 319. IN THE CASE OF YOUR VOUCHERS THE CIRCUMSTANCES WERE SUCH THAT IT WAS NOT CLEAR PAYMENTS IN THE AMOUNTS CLAIMED WERE DUE TO YOU. THE DEVELOPMENT AND SETTLEMENT OF YOUR CLAIMS IN CONNECTION WITH THE POWER PLANT IS BEING PROCEEDED WITH AND WILL BE COMPLETED AT THE EARLIEST PRACTICABLE DATE.

THE "FINDING OF FACT" OF MARCH 10, 1937, PURPORTING TO HAVE BEEN PREPARED BY ASSISTANT SECRETARY OF THE INTERIOR CHAPMAN AND PHOTOSTATIC COPY OF WHICH--- AS STATED ABOVE--- WAS ATTACHED TO YOUR LETTER TO MR. ROOSEVELT, HAS TO DO WITH YOUR CLAIM FOR FINAL PAYMENT OF $487.50 IN CONNECTION WITH THE NEW CHEMISTRY BUILDING AT HOWARD UNIVERSITY. A STENCIL COPY OF THAT FINDING, WITHOUT ORIGINAL SIGNATURE, WAS FORWARDED TO THIS OFFICE APRIL 1, 1937, FROM THE INTERIOR DEPARTMENT, IN REPLY TO MY LETTER OF NOVEMBER 19, 1936, ADDRESSED TO THE SECRETARY OF THE INTERIOR, CONCERNING MY DOUBTS AS TO THE VALIDITY OF YOUR CLAIM, AS FOLLOWS:

THERE IS BEFORE THIS OFFICE FOR PREAUDIT FINAL PAYMENT VOUCHER FOR $487.50 RETAINED PERCENTAGES UNDER CONTRACT IHU 587 OF SEPTEMBER 28, 1933, BETWEEN HOWARD UNIVERSITY AND ALBERT I. CASSELL, ARCHITECT FOR ARCHITECTURAL, ENGINEERING, ETC., SERVICES IN THE PLANNING, ERECTION, AND COMPLETION OF A CHEMISTRY BUILDING.

THERE ALSO IS PENDING FOR POST AUDIT AND SETTLEMENT UNDER THE SAME CONTRACT AN APPROVED VOUCHER FOR $1,100 PAID BY CHECK NO. 180632 OF JANUARY 28, 1936, AS FOR EXTRA SERVICES UNDER THE SAID CONTRACT WHICH ARE ENUMERATED BY THE ARCHITECT ON THE ORDER FOR PAYMENT AS FOLLOWS:

"CHEMISTRY BUILDING

"MY EXISTING ARCHITECTURAL CONTRACT FOR THE CHEMISTRY PROJECT WAS BASED ON THE ASSUMPTION THAT THIS CHEMISTRY PROJECT WOULD BE LET AS THE RESULT OF THE PROPOSALS RECEIVED BY THE DEPARTMENT OF THE INTERIOR UNDER DATE OF MAY 5, 1933. AT THE DATE OF THIS BIDDING THE COMPLETE ELECTRICAL INSTALLATION FOR THE CHEMISTRY PROJECT, INCLUDING ELECTRICAL INSTALLATION FOR EXPERIMENTAL EQUIPMENT, WAS DESIGNED FOR BASIC SERVICE FROM THE OLD D.C. POWER PLANT AT FREEDMAN'S HOSPITAL. HOWARD UNIVERSITY AT THAT TIME WAS SEEKING, BUT HAD NO POWER-PLANT APPROPRIATION.

"THE CHEMISTRY BUILDING PROJECT WAS NOT LET ON THE BASIS OF PROPOSALS RECEIVED MAY 5, 1933; THERE WAS CONSIDERABLE NEGOTIATIONS BY THE UNIVERSITY AND THE DEPARTMENT TO REDUCE THE COST OF THE PROJECT TO WITHIN THE $475,500 ALLOTMENT AVAILABLE TO DECEMBER 23, 1933. THESE NEGOTIATIONS WERE NOT SUCCESSFUL, WITH THE RESULT THAT ON DECEMBER 23, 1933, THE MAY 5, 1933, PROPOSALS FOR THE CHEMISTRY PROJECT WERE REJECTED.

"ON DECEMBER 23, 1933, THE CHEMISTRY PROJECT WAS ORDERED PREPARED FOR NEW PROPOSALS. THE CONTRACTS GOVERNING THE GENERAL CONSTRUCTION AND THE OFFICE AND CLASSROOM FURNITURE FOR THE CHEMISTRY BUILDINGS WERE NOT LET UNTIL THE MONTH OF MAY 1934. I DREW NO PAYMENT WHATEVER ON THIS PROJECT BETWEEN JULY 1, 1933, AND JULY 10, 1934. DURING THIS PERIOD I, NEVERTHELESS, DID A GREAT AMOUNT OF WORK ON THIS PROJECT, WHICH IS NOT CONTEMPLATED--- EXCEPT IN THE FORM OF EXTRA WORK WITH EXTRA COMPENSATION-- - BY THE ARCHITECTURAL CONTRACT I HOLD.

"DURING THIS PERIOD (JULY 1, 1933--- JULY 10, 1934) HOWARD UNIVERSITY GOT AN ALLOTMENT FOR THIS URGENTLY NEEDED POWER PLANT, THEREBY VOIDING THE OBSOLETE FREEDMEN'S HOSPITAL POWER PLANT, A D.C. SERVICE HOOK-UP AND LOW- TENSION ELECTRIC INSTALLATION LAYOUT WHICH WAS A PART OF THE PROPOSALS OF MAY 5, 1933, FOR THIS PROJECT.

"AS A RESULT OF THIS CHANGE IN POWER-PLANT SERVICE FROM LOW-TENSION TO HIGH-TENSION SERVICE TO BE FURNISHED BY HOWARD UNIVERSITY'S NEW POWER PLANT, AND, FURTHER AS A RESULT OF RE-ADVERTISING THE CHEMISTRY PROJECT, AND THE ATTEMPTS TO REDUCE THE COST, I MADE NUMEROUS DETAIL REPORTS, JUSTIFICATIONS, AND STUDIES; AND, IN THE END PREPARED A NEW ELECTRICAL LAYOUT FOR THE ENTIRE BUILDING; ALSO NEW PROPOSALS FOR LETTING THREE CONTRACTS FOR THE BUILDING AND ITS EQUIPMENT, AND ADDENDUM NUMBER 3, WHICH WAS USED AS A BASIS OF THE SECOND GROUP OF CHEMISTRY PROPOSALS RECEIVED BY THE DEPARTMENT APRIL 9, 1934.

"THE EXTRA WORK OUTLINED ABOVE BETWEEN THE PERIOD JULY 1, 1933, AND JULY 10, 1934, WAS PERFORMED AT AN EXPENSE OF $1,100.00 TO ME.'

THE TERMS OF THE CONTRACT IHU 587 OF SEPTEMBER 28, 1933, DO NOT SUPPORT BUT ARE IN DIRECT CONTRADICTION OF THE ARCHITECT'S OPENING PREMISE THAT SAID CONTRACT WAS BASED ON THE ASSUMPTION THAT THIS CHEMISTRY BUILDING PROJECT WOULD BE LET AS A RESULT OF THE PROPOSALS RECEIVED BY THE DEPARTMENT OF THE INTERIOR UNDER DATE OF MAY 5, 1933.

IT APPEARS THAT THE PROPOSALS OF MAY 5, 1933, WERE SUBMITTED UPON INVITATIONS ISSUED FEBRUARY 27, 1933, UPON PLANS, SPECIFICATIONS, ETC., PREPARED BY THE CLAIMANT ARCHITECT UNDER CONTRACTS NOS. 93, 143, AND 178, DATED JULY 1, 1928, JULY 1, 1929, AND JULY 1, 1930, RESPECTIVELY, FOR WHICH HE RECEIVED THE FULL COMPENSATION PROVIDED IN SAID CONTRACTS AT $416.66 PER MONTH OVER A THREE-YEAR PERIOD, ALTHOUGH SAID CONTRACTS PROVIDED FOR HIS SUPERINTENDING OF THE CONSTRUCTION WORK, ETC., OF THE CHEMISTRY BUILDING AND NO SUCH SERVICES WERE REQUIRED OR RENDERED BY REASON THAT NO CONTRACT WAS AWARDED FOR THE CONSTRUCTION.

THE CONTRACT IHU 587 OF SEPTEMBER 28, 1933, FOR A TOTAL LUMP SUM CONSIDERATION OF $9,750, RECITED THE INADEQUACY OF AVAILABLE FUNDS TO CONSTRUCT A CHEMISTRY BUILDING ACCORDING TO THE ADVERTISED SPECIFICATIONS AND DRAWINGS ON WHICH PROPOSALS WERE RECEIVED MAY 5, 1933, AND REQUIRED THE ARCHITECT, FOR THE CONSIDERATION NAMED, TO PREPARE PRELIMINARY AND OTHER SKETCHES, ESTIMATES, DESIGNS, TO REVISE WORKING DRAWINGS AND SPECIFICATIONS UNTIL FINAL APPROVAL, ETC.; TO FURNISH NECESSARY ENGINEERING SERVICES REQUIRED IN PREPARATION OF DRAWINGS AND SPECIFICATIONS, THE EXAMINATION AND TABULATION OF BIDS, AND AT THE TIME OF SUBMISSION OF PLANS AND SPECIFICATIONS FOR FINAL ACCEPTANCE BY THE UNIVERSITY AND BEFORE BIDS ARE ASKED FOR CONSTRUCTION, TO PROVIDE ONE COPY OF A DETAILED ESTIMATE OF THE COST OF THE ENTIRE PROJECT FOR THE GUIDANCE OF THE UNIVERSITY. (ARTS. 1, 2, 3, AND 5.)

IT THUS SEEMS PLAIN FROM THE RECITATIONS OF THE CONTRACT OF SEPTEMBER 28, 1933, THAT IT CONTEMPLATED REVISING AND MODIFYING THE DRAWINGS AND SPECIFICATIONS ALREADY PREPARED BY THE CLAIMANT UNDER THE PRIOR THREE CONTRACTS, A READVERTISING OF THE PROJECT ON THE BASIS OF THESE REVISED DRAWINGS AND SPECIFICATIONS, EXAMINATION, TABULATION, ETC., OF THE BIDS BY THE CLAIMANT, AND THE PERFORMANCE OF THE ENGINEERING AND SUPERINTENDING SERVICES PAID FOR BUT NOT PERFORMED UNDER PRIOR CONTRACTS.

INASMUCH AS THE VOUCHER FOR $1,100 PAID FOR EXTRA SERVICES EMBRACES SERVICES APPARENTLY REQUIRED TO BE PERFORMED UNDER THE PRECISE TERMS OF THE CONTRACT, WITHOUT EXTRA COMPENSATION, SETTLEMENT OF THE ACCOUNT IN WHICH THE VOUCHER APPEARS, AND PREAUDIT ACTION UPON THE FINAL PAYMENT VOUCHER FOR $487.50 WILL BE WITHHELD BY THIS OFFICE TO PERMIT A COMPLETE REEXAMINATION BY YOUR DEPARTMENT AND THE SUBMITTING OF FINDINGS AND RECOMMENDATIONS THEREON.

THERE IS CONSIDERABLE DOUBT WHETHER THE SUPPLEMENTAL AGREEMENTS OF JULY 1, 1929, JULY 1, 1930, AND SEPTEMBER 28, 1933, CONCERNING THE ARCHITECTURAL SERVICES FOR THE NEW CHEMISTRY BUILDING WHICH WERE THE SUBJECT OF THE ORIGINAL AGREEMENT OF JULY 1, 1928, WERE SUPPORTED BY ANY CONSIDERATION ADEQUATE TO ESTABLISH THEIR VALIDITY. (UNITED STATES V. AMERICAN SALES CORPORATION, 27 F./2D) 389, 32 F./2D) 141, CERTIORARI DENIED 280 U.S. 574.) AS, IN EFFECT, STATED IN MY LETTER OF NOVEMBER 19, 1936, TO THE SECRETARY OF THE INTERIOR, YOU APPEAR TO HAVE BEEN PAID OVER AND OVER AGAIN FOR ENGINEERING SERVICES AND FOR SUPERINTENDING CONSTRUCTION WORK, WHEREAS SUCH SERVICES WERE NOT RENDERED MORE THAN ONCE. NO OTHER ARCHITECT APPEARS TO HAVE BEEN AFFORDED AN OPPORTUNITY TO BID UPON THE REVISING OF THE SPECIFICATIONS OR UPON REVISING SPECIFICATIONS FOR OTHER HOWARD UNIVERSITY BUILDINGS AS TO WHICH A SIMILAR SITUATION APPEARS TO HAVE PREVAILED. IN FACT, YOU APPEAR TO HAVE BEEN GIVEN A MONOPOLY UPON ARCHITECTURAL SERVICES IN CONNECTION WITH THE NEW BUILDINGS AT SAID UNIVERSITY AND TO HAVE MAINTAINED YOUR PERMANENT OFFICE THERE FOR A PERIOD OF SEVERAL YEARS INCLUDING THE PRESENT TIME, PRESUMABLY WITHOUT COST TO YOU. IT APPEARS, MOREOVER, THAT YOU WERE PAID A SALARY AT $416.66 PER MONTH FOR APPROXIMATELY 3 YEARS FOR ARCHITECTURAL, ENGINEERING, AND SUPERVISING CONSTRUCTION OF THE CHEMISTRY BUILDING, AND ALREADY HAVE BEEN PAID IN ADDITION TO SAID SALARY MORE THAN $9,000 UNDER THE AGREEMENT OF SEPTEMBER 1933, AND YOUR OWN CHANGE ORDER FOR $1,100 ISSUED AFTER THE SERVICES FOR WHICH IT IS DRAWN ARE ALLEGED TO HAVE BEEN RENDERED. ASIDE FROM SALARY PAYMENTS IT APPEARS FROM A LETTER TO YOU DATED DECEMBER 15, 1934, FROM THE TREASURER OF HOWARD UNIVERSITY THAT UP TO THAT TIME YOU HAD BEEN PAID $9,831.50 ON ACCOUNT OF THE NEW CLASSROOM BUILDING, $22,500 ON ACCOUNT OF THE LIBRARY BUILDING, AND $18,972 ON ACCOUNT OF THE POWER PLANT FOR ARCHITECTURAL AND ENGINEERING SERVICES AND THAT THOUSANDS OF DOLLARS ADDITIONAL HAVE BEEN PAID TO YOU SINCE DECEMBER 1934, ON ACCOUNT OF SAID BUILDINGS. THESE MATTERS ARE MENTIONED AT THIS TIME MERELY AS INDICATING A LACK OF NECESSITY FOR ANY UNDUE HASTE IN THE SETTLEMENT OF THE COMPARATIVELY SMALL CLAIMS HERE UNDER CONSIDERATION.

THE VOUCHERS NOW BEFORE THIS OFFICE REPRESENT A FEW HUNDREDS OF DOLLARS CLAIMED IN FINAL PAYMENT AND BEFORE THIS OFFICE MAY CERTIFY THE AMOUNTS FOR PAYMENT, IT IS NECESSARY THAT THE FACTS BE SHOWN OF RECORD TO ESTABLISH VALIDITY OF WHAT HAS BEEN DONE AND THE AUTHORITY FOR THE PAYMENTS CLAIMED, PARTICULARLY IN REFERENCE TO PAYMENTS PREVIOUSLY MADE TO YOU ON CHANGE ORDERS ISSUED BY YOURSELF RESULTING IN INCREASING YOUR COMPENSATION, SUCH AS THE ITEM OF $1,100 CONCERNING WHICH THE ABOVE-QUOTED LETTER WAS ADDRESSED TO THE SECRETARY OF THE INTERIOR ON NOVEMBER 19, 1936.

THE REPLY TO THE LETTER OF NOVEMBER 19, WHICH SOUGHT FACTS WHICH WOULD ENABLE THIS OFFICE TO DETERMINE WHETHER PAYMENTS MADE TO YOU WERE VALID AND WHETHER YOUR CLAIM FOR FINAL PAYMENT IS ALLOWABLE, CONSISTS OF THE HEREINBEFORE DESIGNATED FINDING OF FACT OF MARCH 10, 1937, AS FOLLOWS:

M. 29017. MARCH 10, 1937.

ALBERT I. CASSELL.

COMPENSATION FOR EXTRA WORK.

CONTRACT NO. IHU-587, DATED SEPTEMBER 28, 1933.

ARCHITECTURAL SERVICES FOR CHEMISTRY BUILDING, HOWARD UNIVERSITY.

FINDING OF FACT

ON JULY 1, 1928, ALBERT I. CASSELL ENTERED INTO A CONTRACT WITH THE UNITED STATES (IHU-93) TO PERFORM ARCHITECTURAL SERVICES IN THE PREPARATION OF PLANS AND SPECIFICATIONS AND THE SUPERINTENDING OF ALL WORK RELATING TO THE CONSTRUCTION OF THE PROPOSED CHEMISTRY BUILDING AT HOWARD UNIVERSITY. FOR PERFORMING THESE SERVICES ALBERT I. CASSELL WAS TO RECEIVE $416.66 PER MONTH. THE CONTRACT WAS TO CONTINUE IN FORCE FOR ONE YEAR.

BY CONTRACTS DATED JULY 1, 1929 (IHU-143), AND JULY 1, 1930 (IHU 178), THE ORIGINAL CONTRACT WAS EXTENDED FOR 1-YEAR PERIODS. PURSUANT TO THE FOREGOING CONTRACTS, AFTER EXTENDED DELAY FOR WHICH THE ARCHITECT WAS IN NO WAY RESPONSIBLE, ALBERT I. CASSELL PREPARED DETAILED PRELIMINARY DRAWINGS WHICH WERE SUBMITTED TO THE UNIVERSITY OFFICIALS FOR EXAMINATION AND CRITICISM. AFTER FURTHER DELAY, NOT ATTRIBUTABLE TO THE ARCHITECT, FINAL DRAWINGS AND SPECIFICATIONS WERE SUBMITTED BY THE ARCHITECT AND APPROVED BY THE DEPARTMENT OF THE INTERIOR ON FEBRUARY 27, 1933.

BASED ON THESE DRAWINGS AND SPECIFICATIONS, THE PROJECT WAS ADVERTISED AND PROPOSALS WERE RECEIVED ON MAY 5, 1933.

ON SEPTEMBER 28, 1933, A FURTHER CONTRACT (IHU-587) WAS ENTERED INTO BETWEEN ALBERT I. CASSELL AND THE UNITED STATES PROVIDING FOR ARCHITECTURAL SERVICES TO BE PERFORMED BY THE ARCHITECT IN RETURN FOR COMPENSATION IN THE AMOUNT OF $9,750.

DECEMBER 23, 1933, THE DEPARTMENT OF THE INTERIOR REJECTED ALL OF THE HOWARD UNIVERSITY CHEMISTRY BUILDING PROPOSALS AND ORDERED THAT THE PROJECT BE READVERTISED.

IN PREPARING THE PROJECT FOR READVERTISEMENT, IT BECAME NECESSARY FOR THE ARCHITECT TO REVISE THE DRAWINGS AND PROPOSALS TO PROVIDE A NEW ELECTRICAL LAYOUT FOR THE BUILDING. THIS CHANGE RESULTED FROM THE ADDITION TO THE HOWARD UNIVERSITY BUILDING PROJECT OF A POWER PLANT TO PROVIDE THE ELECTRICAL SERVICE FORMERLY OBTAINED FROM THE POWER PLANT AT THE FREEDMEN'S HOSPITAL.

FOR THE PERFORMANCE BY THE ARCHITECT OF THE WORK MADE NECESSARY BY THE POWER PLANT CHANGE, AN ORDER APPROVED BY THE DEPARTMENT OF THE INTERIOR WAS ISSUED ON DECEMBER 26, 1935, WHICH AUTHORIZED AN ADDITION OF $1,100 TO THE COMPENSATION OF THE ARCHITECT, AS PROVIDED IN CONTRACT IHU-587 OF SEPTEMBER 28, 1933. A VOUCHER FOR THE $1,100 ADDITION WAS APPROVED AND THIS AMOUNT WAS PAID TO THE ARCHITECT BY CHECK NO. 180-632, DATED JANUARY 28, 1936.

THERE IS NOW PENDING BEFORE THE GENERAL ACCOUNTING OFFICE FOR PREAUDIT THE FINAL PAYMENT VOUCHER FOR $487.50 RETAINED PERCENTAGES UNDER CONTRACT IHU-587 AND POST AUDIT THE VOUCHER FOR $1,100 FOR ADDITIONAL WORK. IN A DECISION DATED NOVEMBER 19, 1936, THE COMPTROLLER GENERAL RAISED THE QUESTION WHETHER THE SERVICES PERFORMED BY THE ARCHITECT FOR WHICH HE WAS REIMBURSED AN ADDITIONAL $1,100 WERE NOT SERVICES WHICH WERE PROVIDED FOR IN THE CONTRACT OF SEPTEMBER 28, 1933, RENDERING IMPROPER THE ADDITIONAL PAYMENT, AND REQUESTED THAT A REEXAMINATION BE MADE AND FINDINGS AND RECOMMENDATIONS BE SUBMITTED.

PARAGRAPH 2 OF THE CONTRACT OF SEPTEMBER 28, 1933, PROVIDES AS FOLLOWS:

" "THE ARCHITECT" WILL REVISE THE PRELIMINARY AND CABINET SKETCHES UNTIL THEY MEET THE REQUIREMENTS OF "THE UNIVERSITY; " ALSO REVISE THE WORKING DRAWINGS AND SPECIFICATIONS UNTIL FINAL APPROVAL, ALL WITHOUT ADDITIONAL COMPENSATION, EXCEPT IF, AFTER APPROVAL OF THE FINAL SKETCHES A RADICAL CHANGE IN PLAN OR DESIGN IS DETERMINED UPON, REQUIRING NEW SKETCHES AND NEW WORKING DRAWINGS, ADDITIONAL COMPENSATION WILL BE DUE "THE ARCHITECT" IN AN AMOUNT TO BE MUTUALLY AGREED UPON; OR IN CASE OF DISAGREEMENT, THE ADDITIONAL COMPENSATION IS TO BE DETERMINED BY "THE UNIVERSITY" AFTER CONFERENCE WITH THE REPRESENTATIVE OF THE SECRETARY OF THE INTERIOR.'

THE ORIGINAL DRAWINGS WERE APPROVED BY THE DEPARTMENT ON FEBRUARY 27, 1933. FOLLOWING THIS APPROVAL A CHANGE IN THE PROJECT REQUIRED THE PREPARATION OF NEW DRAWINGS RELATING TO THE ELECTRICAL LAYOUT OF THE BUILDING. CLEARLY, THEN, THE UNDERSCORED PROVISION OF THE QUOTED PARAGRAPH OF THE CONTRACT COVERS THE ADDITIONAL WORK PERFORMED BY THE ARCHITECT AND DEMONSTRATES THE PROPRIETY OF THE $1,100 ADDITIONAL COMPENSATION PAID TO THE ARCHITECT FOR THE EXTRA SERVICES PERFORMED BY HIM.

NOR CAN IT BE SAID THAT THE CONTRACT OF SEPTEMBER 28, 1933, CONTEMPLATED SUCH EXTRA SERVICES.

IT IS TRUE THAT THE APPROVAL OF THE DRAWINGS ANTEDATED THIS CONTRACT AND THAT THE BROAD AND GENERAL TERMS OF THE CONTRACT CONSIDERED ALONE MIGHT INDICATE THAT SUCH SERVICES WERE CONTEMPLATED. BUT THE HISTORY OF THE PROJECT AND CONSIDERATION OF THE PRIOR THREE CONTRACTS BETWEEN THE ARCHITECT AND THE UNITED STATES NEGATIVES THIS CONCLUSION. THE CONTRACT OF SEPTEMBER 28, 1933, WAS MERELY A CONTINUATION OF THE THREE CONTRACTS CONTAINING EQUALLY GENERAL LANGUAGE EXECUTED PRIOR TO IT, WHICH CONTRACTS HAD EXPIRED. IT MUST, THEREFORE, BE CONSIDERED TO RECOGNIZE THE EXISTENCE OF THE WORK PERFORMED UNDER THOSE CONTRACTS AND THE ACTION OF THE DEPARTMENT THEREON. VIEWED IN THIS LIGHT, THE FACT THAT THE APPROVAL ANTEDATES THE CONTRACT BECOMES IMMATERIAL.

MOREOVER, IT DOES NOT APPEAR THAT REJECTION OF THE PROPOSALS RECEIVED MAY 5, 1933, WAS CONTEMPLATED AT THE TIME OF THE EXECUTION OF THE CONTRACT OF SEPTEMBER 28, 1933. THE PROPOSALS WERE NOT REJECTED UNTIL DECEMBER 23, 1933, APPROXIMATELY THREE MONTHS AFTER THE EXECUTION OF THE CONTRACT. THE CONTRACT OF SEPTEMBER 28, 1933, CONTAINED A RECITAL THAT SUFFICIENT FUNDS TO PROSECUTE THE PROJECT AS ADVERTISED WERE AVAILABLE (SEE SECOND PARAGRAPH ON PAGE 2 OF THE CONTRACT), AND ITS GENERAL TENOR INDICATES THAT THERE WAS CONTEMPLATED A PROMPT PROSECUTION OF THE PROJECT IN ACCORDANCE WITH THE PROPOSALS RECEIVED. WHILE SOME OF THE GENERAL PROVISIONS OF THE CONTRACT MAY AT FIRST GLANCE SEEM TO BE IN CONFLICT WITH THIS CONCLUSION, CONSIDERATION OF THE HISTORY OF THE PROJECT AND THE PRIOR THREE CONTRACTS WILL RESOLVE THIS APPARENT CONFLICT.

I FIND, THEREFORE, THAT UNDER THE CONTRACT OF SEPTEMBER 28, 1933, ALBERT I. CASSELL IS ENTITLED TO EXTRA COMPENSATION FOR THE WORK PERFORMED BY HIM AS A RESULT OF THE CHANGE IN DRAWINGS AND PLANS NECESSITATED BY THE INCLUSION IN THE HOWARD UNIVERSITY PROJECT OF A POWER PLANT.

IT IS RECOMMENDED THAT CREDIT BE ALLOWED ON ACCOUNT OF THE APPROVED VOUCHER FOR $1,100 PAID BY CHECK NO. 180632 OF JANUARY 28, 1936, AND THE FINAL PAYMENT VOUCHER FOR $487.50 RETAINED PERCENTAGES, BOTH UNDER CONTRACT IHU-587 OF SEPTEMBER 28, 1933.

(SGD.) OSCAR L. CHAPMAN,

ASSISTANT SECRETARY.

THE QUESTION OF THE VALUE OF THE SERVICES ACTUALLY RENDERED BY YOU IS A QUESTION OF FACT FOR ADMINISTRATIVE DETERMINATION, BUT THE QUESTION OF WHAT PAYMENTS ARE AUTHORIZED TO BE MADE TO YOU AS A MATTER OF LAW UNDER THE CONTRACT TERMS AND FROM APPROPRIATED MONEYS--- INSOFAR AS THE EXECUTIVE BRANCH OF THE GOVERNMENT IS CONCERNED--- IS FOR DETERMINATION IN THIS OFFICE IN THE SETTLEMENT OF THE ACCOUNTS AND CLAIMS PRESENTED. SECTIONS 304 AND 305, ACT JUNE 10, 1921, 42 STAT. 24; ST. LOUIS, BROWNVILLE AND M.RY.CO. V. UNITED STATES 268 U.S. 169, 173-174. NOTE 2, UNITED STATES EX REL. SKINNER AND EDDY CORP. V. MCCARL, ETC., 275 U.S. 1; 26 OP.ATTY.GEN. 609; 33 ID. 265, 268.

THE "FINDING OF FACT" PRESENTED CONTAINS NO FINDING AS TO THE VALUE OF ENGINEERING AND CONSTRUCTION SUPERVISING SERVICES YOU APPARENTLY WERE REPEATEDLY PAID TO RENDER, IN THE WAY OF MONTHLY SALARY PAYMENTS AND PAYMENTS UNDER SUPPLEMENTAL AGREEMENTS, BUT WHICH YOU DID NOT ACTUALLY RENDER BUT ONCE, AFTER FINAL AGREEMENT ON REVISED SPECIFICATIONS; IT CONTAINS NO FINDING AS TO THE VALUE OF PUBLIC OFFICE SPACE AND EQUIPMENT UTILIZED BY YOU AS YOUR ARCHITECT'S OFFICE, ETC.; AND IT DOES NOT SHOW HOW YOU COULD RENDER SERVICES SIMULTANEOUSLY ON THE SEVERAL BUILDINGS FOR WHICH YOU WERE PAID, THE BONA-FIDE SERVICES AS TO ANY ONE OF WHICH APPARENTLY WOULD HAVE REQUIRED YOUR FULL TIME AND ATTENTION.

THE PLAIN TERMS OF THE AGREEMENT OF SEPTEMBER 28, 1933, IF OTHERWISE VALID, AS WAS STATED IN MY LETTER OF NOVEMBER 19, 1936, SUPRA, DO NOT ADMIT OF A HOLDING THAT YOU WERE ENTITLED TO THE PAYMENT FOR EXTRA SERVICES IN THE AMOUNT OF $1,100 IN CONNECTION WITH THE CHEMISTRY BUILDING UNDER THE CHANGE ORDER ISSUED BY YOU IN FAVOR OF YOURSELF AND ADMINISTRATIVELY APPROVED, ALL AFTER THE ALLEGED EXTRA SERVICES WERE RENDERED. THERE IS NO AUTHORITY TO GO OUTSIDE THE PROVISIONS OF THE AGREEMENT TO DETERMINE YOUR RIGHTS IN THIS RESPECT, UNLESS THE AGREEMENT IS TREATED AS A NULLITY AND SETTLEMENT MADE ON A QUANTUM MERUIT BASIS, IN WHICH EVENT AN EVALUATION OF ALL YOUR ACTUAL SERVICES WOULD BE NECESSARY-- - EVEN SUCH AS WERE RENDERED UNDER THE ORIGINAL AGREEMENT. ACCORDINGLY, UPON THE BASIS OF THE PRESENT RECORD, THE AMOUNT OF $1,100 NECESSARILY WILL BE FOR CHARGING AGAINST YOUR ACCOUNT AND SETTING OFF AGAINST SUCH AMOUNTS, IF ANY, OTHERWISE FOUND TO BE DUE OR WHICH MAY BECOME DUE YOU. THE ASSEMBLY OF ALL THE PERTINENT DOCUMENTS IS BEING COMPLETED IN THIS OFFICE AS RAPIDLY AS POSSIBLE WITH A VIEW TO FINAL SETTLEMENT OF YOUR ACCOUNTS AND CLAIMS, BUT, IN THE MEANTIME, IT IS SUGGESTED YOU MAY CARE TO ASSEMBLE AND PRESENT DOCUMENTARY DATA ON THE MATTERS WHEREIN THE PRESENT RECORDS APPEAR DEFICIENT TO ESTABLISH YOUR RIGHT TO PAYMENT. A COPY OF THIS COMMUNICATION WILL BE FURNISHED TO THE SECRETARY OF THE INTERIOR, WITH THE PURPOSE OF AFFORDING OPPORTUNITY FOR THE MAKING OF SUPPLEMENTAL AND MORE COMPLETE ADMINISTRATIVE FINDINGS OF FACTS.

WHILE YOU HAVE SUGGESTED IN YOUR LETTER TO MR. JAMES ROOSEVELT THAT THE DELAYS IN MAKING FINAL PAYMENT TO YOU HAVE BEEN IN EXCESS OF A YEAR FROM THE DATES THE BUILDINGS INVOLVED WERE COMPLETED AND OCCUPIED, YOU WILL OBSERVE THAT MORE THAN 4 MONTHS ELAPSED BETWEEN THE LETTER OF NOVEMBER 19, 1936, AND THE RECEIPT BY THIS OFFICE OF THE LIMITED FINDING OF FACT OF MARCH 10, 1937, AND THAT THE OTHER CLAIM VOUCHERS REFERRED TO WERE NOT PRESENTED TO THIS OFFICE IN A FORM PERMITTING OF THEIR CONSIDERATION UNTIL JUNE 1937.