A-87387, JUNE 26, 1939, 18 COMP. GEN. 980

A-87387: Jun 26, 1939

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CLAIMS - AGAINST THE UNITED STATES - NECESSITY OF PROOF AND FINALITY OF ADMINISTRATIVE OFFICERS' CONTRACT FINDINGS OF FACT IT IS NOT THE DUTY OF THE GENERAL ACCOUNTING OFFICE TO REFUTE CLAIMS PRESENTED TO IT FOR SETTLEMENT. OR THE ALLEGATIONS ON WHICH SUCH CLAIMS ARE BASED. RATHER IT IS FOR THE CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. NOTWITHSTANDING THE CLAIMANT'S COMPLAINT THAT THE SETTLEMENT IS WITHOUT EQUITY AS IT IS BASED ON THE DECISIONS OF THE ADMINISTRATIVE OFFICERS WITH WHOM THE DISPUTE WAS HAD. 1939: YOU HAVE REQUESTED REVIEW OF SETTLEMENT NO. 0462907.

A-87387, JUNE 26, 1939, 18 COMP. GEN. 980

CLAIMS - AGAINST THE UNITED STATES - NECESSITY OF PROOF AND FINALITY OF ADMINISTRATIVE OFFICERS' CONTRACT FINDINGS OF FACT IT IS NOT THE DUTY OF THE GENERAL ACCOUNTING OFFICE TO REFUTE CLAIMS PRESENTED TO IT FOR SETTLEMENT, OR THE ALLEGATIONS ON WHICH SUCH CLAIMS ARE BASED, BUT RATHER IT IS FOR THE CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. WHERE CONTRACT PROVIDES THAT DISPUTES CONCERNING QUESTIONS OF FACT AS TO DELAYS INVOLVING LIQUIDATED DAMAGES, AND CHANGES IN WORK INVOLVING INCREASE OR DECREASE IN CONTRACT PRICE, SHOULD BE DECIDED BY THE ADMINISTRATIVE OFFICERS AS DESIGNATED THEREIN AND BE FINAL AND CONCLUSIVE ON THE PARTIES CONCERNED, SETTLEMENT OF A CLAIM PRESENTED TO THE GENERAL ACCOUNTING OFFICE, IN AMOUNT LESS THAT THAT CLAIMED, MUST BE SUSTAINED, NOTWITHSTANDING THE CLAIMANT'S COMPLAINT THAT THE SETTLEMENT IS WITHOUT EQUITY AS IT IS BASED ON THE DECISIONS OF THE ADMINISTRATIVE OFFICERS WITH WHOM THE DISPUTE WAS HAD, THE SETTLEMENT HAVING BEEN PURSUANT TO FINDINGS AND RECOMMENDATIONS OF THE PROPER ADMINISTRATIVE OFFICERS MADE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT.

COMPTROLLER GENERAL BROWN TO STEVENS BROS., JUNE 26, 1939:

YOU HAVE REQUESTED REVIEW OF SETTLEMENT NO. 0462907, DATED SEPTEMBER 21, 1937, BY WHICH THERE WAS ALLOWED $4,939.59 ON YOUR CLAIM FOR $19,201.92 AS REMISSION OF LIQUIDATED DAMAGES AND ADDITIONAL COMPENSATION FOR INCREASED COSTS RESULTING FROM CHANGED SUBSURFACE CONDITIONS ENCOUNTERED IN THE PERFORMANCE OF CONTRACT I-1P-2877, DATED MAY 31, 1934, FOR THE CONSTRUCTION OF A BRIDGE OVER PELICAN CREEK ON THE EAST ENTRANCE HIGHWAY, YELLOWSTONE NATIONAL PARK, WYO., THE BALANCE OF THE CLAIM BEING DISALLOWED PURSUANT TO THE FINDINGS OF THE CONTRACTING OFFICER'S DULY AUTHORIZED REPRESENTATIVE CONCERNING THE MATTERS INVOLVED.

IN YOUR REQUEST FOR A REVIEW YOU STATED THAT YOUR CLAIMS HAVE NOT BEEN REFUTED AND, RESPECTING THE SETTLEMENT, THAT---

THE DECISION IS MADE WITHOUT EQUITY AS IT IS BASED AND ALL REFERENCES MADE TO THE DECISIONS OF THE BUREAU OF PUBLIC ROADS AND ITS DISTRICT ENGINEER WITH WHOM THE DISPUTE WAS INCURRED.

THE BURDEN IS NOT ON THIS OFFICE TO "REFUTE" CLAIMS PRESENTED HERE FOR SETTLEMENT OR THE ALLEGATIONS ON WHICH SUCH CLAIMS ARE BASED. ON THE CONTRARY, THE BURDEN IS ON CLAIMANTS TO PROVE THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT UNDER THE APPROPRIATIONS INVOLVED. RESPECTING THE DETERMINATIONS MADE BY THE DISTRICT ENGINEER, IT APPEARS THAT THE CONTRACT WAS PERFORMED UNDER THE SUPERVISION OF THE BUREAU OF PUBLIC ROADS, DEPARTMENT OF AGRICULTURE, AND THAT BY PARAGRAPHS 4 AND 5, PAGE 1 OF THE CONTRACT SPECIFICATIONS, "FORM F.R. 50, REVISED 1932," THE DISTRICT ENGINEER FOR THAT BUREAU WAS DESIGNATED THE DULY AUTHORIZED REPRESENTATIVE OF THE CONTRACTING OFFICER; THAT BY ARTICLE 18 OF THE CONTRACT THE TERM "CONTRACTING OFFICER" WAS DEFINED AS INCLUDING HIS DULY AUTHORIZED REPRESENTATIVE; THAT ARTICLE 15 PROVIDED THAT, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED IN THE CONTRACT, ALL DISPUTES CONCERNING QUESTIONS OF FACT ARISING UNDER THE CONTRACT SHOULD BE DECIDED BY THE CONTRACTING OFFICER "OR HIS DULY AUTHORIZED REPRESENTATIVE" SUBJECT TO WRITTEN APPEAL WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT; THAT BY ARTICLE 9 IT WAS PROVIDED WITH RESPECT TO LIQUIDATED DAMAGES THAT THE CONTRACTING OFFICER SHOULD ASCERTAIN THE FACTS AND EXTENT OF THE DELAY, AND THAT HIS FINDINGS OF FACT THEREON SHOULD BE FINAL AND CONCLUSIVE ON THE PARTIES, SUBJECT ONLY TO APPEAL WITHIN 30 DAYS TO THE HEAD OF THE EPARTMENT; THAT BY ARTICLE 3 IT WAS PROVIDED THAT FOR CHANGES IN THE WORK CAUSING AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THE CONTRACT OR IN THE TIME REQUIRED FOR PERFORMANCE, AN EQUITABLE ADJUSTMENT SHOULD BE MADE AND IF THE PARTIES COULD NOT AGREE UPON THE ADJUSTMENT THE DISPUTE SHOULD BE DETERMINED AS PROVIDED IN ARTICLE 15, SUPRA--- THAT IS, BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE, SUBJECT TO APPEAL WITHIN 30 DAYS TO THE HEAD OF THE DEPARTMENT; AND THAT ARTICLE 4 PROVIDED THAT ANY INCREASE OR DECREASE OF COST OR DIFFERENCE IN TIME RESULTING FROM CHANGES DUE TO SUBSURFACE OR LATENT CONDITIONS AT THE SITE DIFFERING MATERIALLY FROM THOSE SHOWN ON THE DRAWINGS OR INDICATED IN THE SPECIFICATIONS SHOULD BE ADJUSTED AS PROVIDED IN SAID ARTICLE 3--- THAT IS, BY AN EQUITABLE ADJUSTMENT-- AND IF THE PARTIES COULD NOT AGREE THEREON, THE MATTER TO BE DETERMINED BY THE CONTRACTING OFFICER OR HIS DULY AUTHORIZED REPRESENTATIVE SUBJECT ONLY TO APPEAL TO THE HEAD OF THE DEPARTMENT. UNDER THESE STIPULATIONS THERE WOULD APPEAR TO BE NO QUESTION BUT THAT THE SAID DISTRICT ENGINEER, AS THE DULY AUTHORIZED REPRESENTATIVE OF THE CONTRACTING OFFICER, HAD AUTHORITY TO DETERMINE THE MATTERS IN DISPUTE, SUBJECT ONLY TO APPEAL TO THE HEAD OF THE DEPARTMENT AS PROVIDED THEREIN, AND THAT YOU AGREED TO SUCH METHOD OF DETERMINING SUCH DISPUTES AND ARE BOUND THEREBY. PENN BRIDGE CO. V. UNITED STATES, 59 CT.CLS. 892, AND CASES THEREIN CITED.

THE RECORD SHOWS THAT AFTER YOU COMMENCED WORK UNDER THE CONTRACT, IN JUNE 1934, IT WAS DISCOVERED THAT THE SUBSURFACE CONDITIONS WERE SUCH THAT THE FOUNDATIONS COULD NOT BE BUILT ON 25-FOOT PILES AS PLANNED, AND THE WORK WAS SUSPENDED UNDER DIRECTION OF THE DISTRICT ENGINEER FROM AUGUST 9 UNTIL OCTOBER 21, 1934, TO INVESTIGATE THE MATTER AND TO ARRANGE TO PROCEED WITH THE WORK WITH 50- AND 60-FOOT PILES REQUIRED IN PLACE OF A LARGE NUMBER OF 25-FOOT PILES, WHICH NOT ONLY INCREASED THE COST OF THE WORK BUT EXTENDED IT INTO THE NEXT YEAR, THE WORK BEING ORDERED DISCONTINUED FOR THE WINTER ON NOVEMBER 13, 1934, AND ORDERED RESUMED JUNE 5, 1935, INVOLVING SOME INCREASED COSTS FOR CARRYING THE PROJECT OVER THE WINTER AND SPRING.

IT APPEARS FURTHER THAT WHEN THE WORK WAS SUSPENDED BECAUSE OF THE UNEXPECTED SUBSURFACE CONDITIONS NEGOTIATIONS WERE CONDUCTED AS TO PAYMENT FOR THE EXTRA WORK REQUIRED, BUT NO AGREEMENT WAS REACHED AND YOU WERE ORDERED TO RESUME WORK APPARENTLY WITH THE UNDERSTANDING THAT THE MATTER WOULD BE SUBJECT TO AN EQUITABLE ADJUSTMENT PURSUANT TO THE TERMS OF ARTICLE 4 OF THE CONTRACT. THE DISTRICT ENGINEER REPORTED IN THIS CONNECTION THAT---

AS A BASIS FOR AN EQUITABLE ADJUSTMENT UPON COMPLETION, ACCURATE COSTS OF THE WORK WERE KEPT IN THE FIELD THROUGHOUT THE DURATION OF CONSTRUCTION.

WHEN THE WORK WAS COMPLETED YOU PRESENTED CLAIMS AGGREGATING $16,701.92 FOR YOUR ALLEGED INCREASED COSTS, INCLUDING SOME ITEMS OF ALLEGED EXTRA WORK NOT DIRECTLY CONNECTED WITH THE CHANGED SUBSURFACE CONDITIONS. THE DISTRICT ENGINEER MADE A COMPREHENSIVE ANALYSIS OF THE VARIOUS ITEMS CLAIMED AND FOUND THE SUM OF $3,889.59 PAYABLE THEREON AS AN EQUITABLE ADJUSTMENT UNDER ARTICLES 3 AND 4 OF THE CONTRACT COVERING YOUR ACTUAL INCREASED COSTS FOR WHICH THE GOVERNMENT WAS RESPONSIBLE, PLUS 15 PERCENT, AS PROVIDED IN SUB-PARAGRAPHS A AND B, PAGE 11, OF THE CONTRACT SPECIFICATIONS,"FORM F.R. 50.' RESPECTING LIQUIDATED DAMAGES FOR DELAY IN COMPLETING THE WORK, THE FINDINGS OF THE DISTRICT ENGINEER ESTABLISHED YOUR RESPONSIBILITY FOR ONLY 29 DAYS OF THE DELAY, AND HE RECOMMENDED THAT LIQUIDATED DAMAGES THERETOFORE CHARGED FOR THE REMAINDER OF THE DELAY, IN THE AMOUNT OF $1,050, BE REMITTED. SUCH FINDINGS AND RECOMMENDATIONS WERE APPROVED BY THE BUREAU OF PUBLIC ROADS AND BY THE NATIONAL PARK SERVICE, AND THE SETTLEMENT OF SEPTEMBER 21, 1937, BY THIS OFFICE WAS MADE PURSUANT THERETO.

ON THIS RECORD, NO FURTHER LEGAL LIABILITY OF THE UNITED STATES UNDER THE CONTRACT IS ESTABLISHED, AND ACCORDINGLY THE SAID SETTLEMENT OF SEPTEMBER 21, 1937, MUST BE, AND IS, SUSTAINED.