B-123186, SEP. 16, 1955

B-123186: Sep 16, 1955

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KING ASSOCIATES: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17. ALLEGED TO BE DUE FOR ADDITIONAL INSPECTION SERVICES CLAIMED TO HAVE BEEN FURNISHED UNDER CONTRACT NO. IN SUPPORT OF YOUR CLAIM THAT YOU WERE REQUIRED TO FURNISH FULL -TIME INSPECTION SERVICES. YOUR CLAIM WAS DISALLOWED GENERALLY ON THE GROUND THAT YOU WERE NOT IN FACT REQUIRED TO FURNISH FULL-TIME INSPECTION SERVICE. 000.00 CLUB-SHELTER BOQ WHICH IS TO BE LOCATED WITHIN THE PRESENT FBIS HOUSING AREA. * * *" THE CONTRACTING OFFICER REPORTED THAT THE DESIGNS PREPARED BY YOUR OFFICE WERE OVER-ELABORATE. THAT FROM THE TIME CONSTRUCTION WAS INITIATED ON JULY 10. THE INSPECTION SERVICE WAS HIGHLY UNSATISFACTORY. THAT AS A RESULT EXTREMELY POOR FOUNDATION AND CONCRETE WORK WAS PERFORMED BY THE CONTRACTOR.

B-123186, SEP. 16, 1955

TO JOHN W. KING ASSOCIATES:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 17, 1955, IN EFFECT REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN CLAIMS DIVISION SETTLEMENT DATED JANUARY 17, 1955, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $7,182.72, ALLEGED TO BE DUE FOR ADDITIONAL INSPECTION SERVICES CLAIMED TO HAVE BEEN FURNISHED UNDER CONTRACT NO. OKI-42-52, DATED MARCH 15, 1952. IN SUPPORT OF YOUR CLAIM THAT YOU WERE REQUIRED TO FURNISH FULL -TIME INSPECTION SERVICES, YOU TRANSMITTED WITH YOUR LETTER COPIES OF THREE CABLES BETWEEN YOUR OFFICE AND THE CONTRACTING OFFICER WHICH, YOU CLAIM, REQUIRED YOU TO FURNISH THE FULL-TIME INSPECTION SERVICES FOR WHICH YOU NOW ASK PAYMENT.

BY SETTLEMENT DATED JANUARY 17, 1955, YOUR CLAIM WAS DISALLOWED GENERALLY ON THE GROUND THAT YOU WERE NOT IN FACT REQUIRED TO FURNISH FULL-TIME INSPECTION SERVICE, OR INSPECTION SERVICES OTHERWISE IN EXCESS OF THOSE CALLED FOR UNDER THE CONTRACT INVOLVED, UNDER WHICH YOU AGREED TO FURNISH THE NECESSARY SERVICES TO PERFORM THE WORK FOR:

"/A) PREPARATION OF PRELIMINARY STUDIES, WORKING DRAWINGS, SPECIFICATIONS, LARGE SCALE AND FULL SIZE DETAIL DRAWINGS; DRAFTING FORMS OF PROPOSALS; AND INSPECTION, WHILE IN PROGRESS, OF THE CONSTRUCTION OF AN ESTIMATED $70,000.00 CLUB-SHELTER BOQ WHICH IS TO BE LOCATED WITHIN THE PRESENT FBIS HOUSING AREA. * * *"

THE CONTRACTING OFFICER REPORTED THAT THE DESIGNS PREPARED BY YOUR OFFICE WERE OVER-ELABORATE, RESULTING IN MUCH GREATER COSTS TO THE GOVERNMENT AND IN EXCESSIVE LENGTH OF TIME FOR COMPLETION OF THE STRUCTION; THAT FROM THE TIME CONSTRUCTION WAS INITIATED ON JULY 10, 1952, UNTIL THE ARRIVAL OF YOUR MR. JORGEN SCHIERBECK ON NOVEMBER 15, 1952, THE INSPECTION SERVICE WAS HIGHLY UNSATISFACTORY, AND THAT AS A RESULT EXTREMELY POOR FOUNDATION AND CONCRETE WORK WAS PERFORMED BY THE CONTRACTOR.

WITH RESPECT TO THE PHRASE "FULL TIME INSPECTOR," AS USED IN CABLE "A," THE CENTRAL INTELLIGENCE AGENCY REPORTS THAT THAT LANGUAGE SHOULD BE UNDERSTOOD AS REQUESTING THE ASSIGNMENT OF AN INDIVIDUAL WITH FULL TIME RESPONSIBILITY FOR PERFORMING SUCH INSPECTION SERVICES DURING THE COURSE OF CONSTRUCTION AS WOULD ASSURE THAT THE PLANS AND SPECIFICATIONS WERE BEING COMPLIED WITH AND THAT IT WAS NOT INTENDED, NOR SHOULD IT NOW BE CONSTRUED, AS A REQUEST THAT YOUR OFFICE PROVIDE DAILY, CONSTANT, DETAILED SURVEILLANCE OF THE CONSTRUCTION.

IN DEALING WITH THE INSPECTION SERVICES RENDERED IN THIS CASE, THE CONTRACTING OFFICER REPORTED, IN PART, AS FOLLOWS:

"C. FROM 15 NOV. 1952 TO 1 JUNE 1953 SCHIERBECK WAS A "FULL TIME" INSPECTOR ON THE FBIS PROJECT AND HIS WORK WAS GOOD. HOWEVER, FBIS DID NOT AT ANY TIME SPECIFY THAT SCHIERBECK MUST DEVOTE HIS ENTIRE WORKING TIME TO OUR PROJECT. I MOST ASSUREDLY INSISTED ON "REGULAR INSPECTIONS" AND FELT THAT SUCH SERVICE WAS TO BE PROVIDED UNDER THE TERMS OF OUR CONTRACT, PARTICULARLY SINCE SCHIERBECK FOUND IT NECESSARY TO ENFORCE CORRECTION OF THE NUMEROUS GROSS ERRORS AND DISCREPANCIES WHICH WERE PERMITTED TO OCCUR BEFORE HIS (SCHIERBECK-S) ARRIVAL.

"D. FROM 1 JUNE 1953 UNTIL COMPLETION OF THE PROJECT ON 1 DEC. 1953 SCHIERBECK CONTINUED TO PROVIDE "REGULAR INSPECTIONS.' HOWEVER, DURING THIS PERIOD HE WAS ALSO ENGAGED IN OTHER INSPECTION AND ARCHITECTURAL WORK FOR KING. I CAN PROVE THAT POINT IN COURT IF NECESSARY. I BELIEVE IT WOULD BE GENEROUS TO STATE THAT SCHIERBECK DEVOTED ABOUT ONE-THIRD OF HIS WORKING HOURS TO THE FBIS PROJECT DURING THE PERIOD 1 JUNE - 1 DEC. 1953.'

UNDER THE TERMS OF THE CONTRACT YOU WERE REQUIRED TO FURNISH INSPECTION SERVICE DURING THE PROGRESS OF CONSTRUCTION, AND SINCE THE INSPECTION SERVICES FURNISHED WERE, IN THE OPINION OF THE CONTRACTING OFFICER, ONLY SUCH AS WERE REQUIRED TO ASSURE THAT THE PLANS AND SPECIFICATIONS WERE BEING COMPLIED WITH, IT APPEARS THAT YOU ARE NOT ENTITLED TO ANY ADDITIONAL COMPENSATION ON ACCOUNT THEREOF.

CLAUSE 3 OF THE CONTRACT ENTITLED "EXTRAS," PROVIDES AS FOLLOWS:

"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.'

UNDER THIS CLAUSE IT SEEMS CLEAR THAT YOUR CLAIM FOR ADDITIONAL COMPENSATION MAY NOT BE ALLOWED, EVEN IF EXTRA SERVICES WERE PERFORMED, SINCE THEY WERE NOT AUTHORIZED IN WRITING BY THE CONTRACTING OFFICER. THE CASE OF KILMER V. UNITED STATES, 48 C.CLS. 180, 193, THE COURT SAID:

"IF IN SUCH CASE THE OFFICER OF THE GOVERNMENT DIRECTING THE WORK REFUSES TO ENTER INTO A WRITTEN AGREEMENT OR TO ORDER THE WORK IN WRITING AS THE CONTRACT MAY REQUIRE, ON THE GROUND THAT THE WORK IS EMBRACED WITHIN THE CONTRACT, THEN THE CONTRACTOR'S REMEDY IS BY APPEAL TO A HIGHER OFFICER, IF THE CONTRACT SO PROVIDES, IN WHICH CASE, UNDER THE RULING IN THE CASES CITED, IF THE DECISION IS AGAINST THE CONTRACTOR HE WOULD, IN THE ABSENCE OF FRAUD OR GROSS ERROR, BE EDILESS.'

SEE, ALSO, THE CASES OF PLUMLEY V. UNITED STATES, 226 U.S. 545, 547; POPE V. UNITED STATES, 76 C.CLS. 64, 97, AND LOUISE HARDWICK, ADMX. V. UNITED STATES, 95 C.CLS. 336, 342, IN THE LATTER OF WHICH THE COURT SAID:

"* * * IT HAS ALSO BEEN HELD THAT WHERE THE CONTRACT PROVIDES THAT NO PAYMENT SHOULD BE MADE FOR ANY EXTRA WORK OR MATERIAL UNLESS IT IS ORDERED IN THE MANNER PRESCRIBED BY THE CONTRACT, THAT THIS CLAUSE IS FATAL TO ANY RECOVERY BY THE CONTRACTOR FOR THE WORK NOT SO ORDERED.'

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF JANUARY 17, 1955, APPEARS TO HAVE BEEN CORRECT AND THE SAME IS HEREBY SUSTAINED.