B-121416, OCT 20, 1954

B-121416: Oct 20, 1954

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PRECIS-UNAVAILABLE WETTLAUFER ENGINEERING CORPORATION: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18. ADDITIONAL WORK WAS FURNISHED IN THE AMOUNT OF $4. 572.20 NOW ALLEGED TO BE DUE IS BASED ON CERTAIN UNFORESEEN DIFFICULTIES ENCOUNTERED IN PERFORMANCE UNDER THE CONTRACT AND CERTAIN ADDITIONAL WORK YOU ALLEGE YOU WERE REQUIRED TO PERFORM. THE RECORD SHOWS THAT SUPPLEMENT NO. 1 WAS BASED ON FIVE MODIFICATIONS OF THE ORIGINAL DESIGN. YOU WERE ADVISED BY LETTER OF AUGUST 25. THAT THERE WOULD BE NO FURTHER MODIFICATIONS INASMUCH AS THE CONTRACT WAS OF A FIXED-PRICE TYPE AND NO ADDITIONAL CHANGES ON WHICH COSTS COULD BE PREDICATED HAD BEEN DIRECTED. NO PAYMENT FOR EXTRAS SHALL BE MADE UNLESS SUCH EXTRAS AND THE PRICE THEREFOR HAVE BEEN AUTHORIZED IN WRITING BY THE CONTRACTING OFFICER.".

B-121416, OCT 20, 1954

PRECIS-UNAVAILABLE

WETTLAUFER ENGINEERING CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 18, 1954, REQUESTING REVIEW OF SETTLEMENT DATED JULY 27, 1954, WHICH DISALLOWED YOUR CLAIM FOR $6,572.20, REPRESENTING ALLEGED LOSS FOR WORK PERFORMED UNDER CONTRACT NO. DA-20-089- ORD-35552.

UNDER THE PROVISIONS OF THE CONTRACT YOU AGREED TO DESIGN, DEVELOP AND MANUFACTURE A PILOT MODEL OF AN INDEX FEEDING MAGAZINE AND OTHER WORK SPECIFIED AMOUNTING TO $14,412.20. ADDITIONAL WORK WAS FURNISHED IN THE AMOUNT OF $4,006.95 UNDER SUPPLEMENT NO. 1 TO THE CONTRACT, MAKING THE TOTAL CONTRACT AMOUNT $18,419.15.

YOUR CLAIM FOR THE ADDITIONAL AMOUNT OF $6,572.20 NOW ALLEGED TO BE DUE IS BASED ON CERTAIN UNFORESEEN DIFFICULTIES ENCOUNTERED IN PERFORMANCE UNDER THE CONTRACT AND CERTAIN ADDITIONAL WORK YOU ALLEGE YOU WERE REQUIRED TO PERFORM.

THE RECORD SHOWS THAT SUPPLEMENT NO. 1 WAS BASED ON FIVE MODIFICATIONS OF THE ORIGINAL DESIGN, INCLUDING A DIVISION OF THE MAGAZINE INTO THREE SECTIONS RATHER THAN ONE. AT THE TIME OF YOUR REQUEST FOR FURTHER MODIFICATION DUE TO THE ABOVE-STATED REASONS, YOU WERE ADVISED BY LETTER OF AUGUST 25, 1953, FROM THE CONTRACTING OFFICE, THAT THERE WOULD BE NO FURTHER MODIFICATIONS INASMUCH AS THE CONTRACT WAS OF A FIXED-PRICE TYPE AND NO ADDITIONAL CHANGES ON WHICH COSTS COULD BE PREDICATED HAD BEEN DIRECTED.

THE GENERAL PROVISIONS OF THE CONTRACT PROVIDE THAT -

"EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, NO PAYMENT FOR EXTRAS SHALL BE MADE UNLESS SUCH EXTRAS AND THE PRICE THEREFOR HAVE BEEN AUTHORIZED IN WRITING BY THE CONTRACTING OFFICER."

THE COURTS HAVE REPEATEDLY HELD THAT WHEN A CONTRACT PROVISION SUCH AS THIS CONDITIONS PAYMENT BY THE GOVERNMENT UPON COMPLIANCE WITH A PRESCRIBED PROCEDURE, FAILURE TO FOLLOW SUCH PROCEDURE PRECLUDES RECOVERY. SEE YUHASZ V. UNITED STATES, 109 F. 2D 467; UNITED STATES V. CUNNINGHAM, 125 F. 2D 28; AND UNITED STATES V. BLAIR, 321 U.S. 730. IT IS ALSO A WELL-ESTABLISHED PRINCIPLE OF LAW THAT, UNLESS OTHERWISE PROVIDED, VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN AND THE FACT THAT SUPERVENING EVENTS OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE OR EVEN OCCASION A LOSS IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR TO ENTITLE A CONTRACTOR TO AN ADJUSTMENT IN THE CONTRACT PRICE. SEE COLUMBUS RV. POWER & LIGHT CO. V. COLUMBUS, 249 U.S. 399, 412; AND PENN. BRIDGE CO. V. UNITED STATES, 59 C. CLS. 892, 896.

YOU STATE THAT, WHILE YOU REALIZE YOU MAY HAVE NO LEGAL BASIS FOR YOUR CLAIM YOU DO FEEL THAT THE GOVERNMENT HAS A MORAL OBLIGATION TO PAY THE INCREASED COSTS INVOLVED. ALTHOUGH PRIVATE PARTIES MAY RECOGNIZE MORAL OR EQUITABLE OBLIGATIONS AND SURRENDER THEIR RIGHTS, ON SUCH BASIS, OFFICIALS REPRESENTING THE GOVERNMENT DO NOT HAVE THAT FREEDOM OF ACTION. CLAIMS AGAINST THE GOVERNMENT ARE REQUIRED TO BE SETTLED AND ADJUSTED IN ACCORDANCE WITH THE FACTS IN THE CASE AND THE LAW APPLICABLE THERETO. THE PRESENT CASE, YOU HAVE DONE ONLY THAT WHICH YOU EXPRESSLY AGREED TO DO IN YOUR CONTRACT AND HAVE BEEN PAID THE PRICE SPECIFIED IN THE CONTRACT. IN THESE CIRCUMSTANCES, THIS OFFICE HAS NO AUTHORITY TO ALLOW YOU ANY ADDITIONAL AMOUNT.

ACCORDINGLY, THE SETTLEMENT OF JULY 27, 1954, IS SUSTAINED.