B-135399, MAR. 35, 1958

B-135399: Mar 31, 1958

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THE SUPPLEMENTAL BILLING IS FOR AN INCREASE IN DUES COVERING THE PERIOD JANUARY 1. ACTION WAS TAKEN TO INCREASE THE DUES. THE BY-LAWS WERE AMENDED. IF ADMINISTRATIVELY DETERMINED NECESSARY FOR ACCOMPLISHING THE PURPOSES FOR WHICH AN APPROPRIATION WAS MADE. WAS THE SUBJECT OF 24 COMP. 200 PER ANNUM SPECIFIED IN PART A OF PARAGRAPH 2 OF THE CONTRACT ARE SPECIFICALLY MADE SUBJECT TO THE RIGHT OF THE ASSOCIATION TO REVISE ITS BY-LAWS. INASMUCH AS THE RECORD SHOWS THAT THE BY-LAWS WERE DULY AMENDED DURING THE CONTRACT PERIOD WHEREBY AN INCREASE OF DUES WAS EFFECTED. THE ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION OR PRICE TO BE PAID.

B-135399, MAR. 35, 1958

TO MR. F. N. HEARN, AUTHORIZED CERTIFYING OFFICER, PUBLIC HEALTH SERVICE:

YOUR LETTER OF FEBRUARY 27, 1958, REFERENCE FIN:FO, WITH ENCLOSURES, REQUESTS AN ADVANCE DECISION ON THE PROPRIETY OF CERTIFYING FOR PAYMENT A SUPPLEMENTAL BILLING IN THE TOTAL AMOUNT OF $1,397.50, SUBMITTED BY THE AMERICAN HOSPITAL ASSOCIATION, 18 EAST DIVISION STREET, CHICAGO 10, ILLINOIS, COVERING TEMPORARY INCREASE IN DUES IN CONNECTION WITH MEMBERSHIP CONTRACT SAPH-67052 FOR VARIOUS PUBLIC HEALTH SERVICE HOSPITALS. THE SUPPLEMENTAL BILLING IS FOR AN INCREASE IN DUES COVERING THE PERIOD JANUARY 1, 1957 TO JUNE 30, 1957.

THE CONTRACT COVERS GROUP MEMBERSHIP OF THE PUBLIC HEALTH SERVICE HOSPITALS IN THE AMERICAN HOSPITAL ASSOCIATION FOR THE PERIOD JULY 1, 1956 THROUGH JUNE 30, 1957. PARAGRAPH 2 OF THE CONTRACT PRESCRIBES THE RATE OF DUES TO BE CHARGED AS FOLLOWS:

"2. DUES - A. DUES FOR THE LARGER HOSPITAL SHOWN ON THE ATTACHED LIST MARKED "EXHIBIT A" RECEIVING ACTIVE INSTITUTIONAL MEMBERSHIP UNDER THIS AGREEMENT, SHALL BE AT THE RATE OF $1200. PER ANNUM FOR THIS RENEWAL MEMBERSHIP PERIOD BEGINNING JULY 1, SUBJECT TO THE RIGHT OF THE ASSOCIATION TO REVISE ITS BY-LAWS.

"B. DUES FOR EACH OF THE OTHER HOSPITALS OF THE U.S. PUBLIC HEALTH SERVICE LISTED IN "EXHIBIT A" AND "EXHIBIT B" FOR SUCH SERVICE INSTITUTIONAL MEMBERSHIP SHALL BE AT THE RATE OF 90.00 PER ANNUM FOR THIS RENEWAL MEMBERSHIP PERIOD.

"C. ACTIVE INSTITUTIONAL MEMBERSHIP SHALL BE AVAILABLE TO ANY EXISTING HOSPITAL OF THE U.S. PUBLIC HEALTH SERVICE NOT LISTED IN "EXHIBIT A" OR "EXHIBIT B" OR TO ANY ADDITIONAL HOSPITAL WHICH MAY HEREAFTER BE OPENED OR ACQUIRED BY THE U.S. PUBLIC HEALTH SERVICE UPON PAYMENT OF DUES AT THE RATE OF 100.00 PER ANNUM FOR THE FIRST MEMBERSHIP PERIOD AND AT THE RATE OF 90.00 PER ANNUM FOR EACH SUCCEEDING MEMBERSHIP PERIOD.'

IN LETTER DATED JUNE 28, 1957, THE AMERICAN HOSPITAL ASSOCIATION ADVISED THE PUBLIC HEALTH SERVICE THAT FOLLOWING A RECOMMENDATION OF JANUARY 7, 1957, OF THE COMMITTEE ON FUND RAISING FOR THE ASSOCIATION, ACTION WAS TAKEN TO INCREASE THE DUES. ON MAY 18, 1957, THE BY-LAWS WERE AMENDED, EFFECTIVE FOR THE CALENDAR YEARS 1957, 1958, 1959, AND 1960, INCREASING THE MEMBERSHIP DUES BY 50 PERCENT. THE LETTER INCLUDES THE FOLLOWING STATEMENT IN REGARD TO REVISED RATES COVERING THE LAST SIX MONTHS OF THE CONTRACT:

"UNDER PARAGRAPH 2 OF YOUR CONTRACT SAPH67052 THE ASSOCIATION INDICATED THE AMOUNT OF DUES TO BE CHARGED PUBLIC HEALTH SERVICE HOSPITALS, SUBJECT TO THE RIGHT OF THE ASSOCIATION TO REVISE ITS BY LAWS.'

THE PROPRIETY OF PAYMENT OF DUES FOR SUCH MEMBERSHIPS, IF ADMINISTRATIVELY DETERMINED NECESSARY FOR ACCOMPLISHING THE PURPOSES FOR WHICH AN APPROPRIATION WAS MADE, WAS THE SUBJECT OF 24 COMP. GEN. 814 AND B-71670, DECEMBER 31, 1947. YOU REQUEST OUR DECISION AS TO THE PROPRIETY OF CERTIFYING THE SUPPLEMENTAL BILLING FOR PAYMENT IN VIEW OF THE REVISION IN THE BY-LAWS AND THE SUPPLEMENTAL BILLING ON A RETROACTIVE BASIS.

SINCE THE DUES AT THE RATE OF $1,200 PER ANNUM SPECIFIED IN PART A OF PARAGRAPH 2 OF THE CONTRACT ARE SPECIFICALLY MADE SUBJECT TO THE RIGHT OF THE ASSOCIATION TO REVISE ITS BY-LAWS, AND INASMUCH AS THE RECORD SHOWS THAT THE BY-LAWS WERE DULY AMENDED DURING THE CONTRACT PERIOD WHEREBY AN INCREASE OF DUES WAS EFFECTED, THE INCREASED DUES IN THE AMOUNT OF $300, FOR THE HOSPITAL COVERED BY PART A, PARAGRAPH 2 OF THE CONTRACT, AS SET FORTH IN THE SUPPLEMENTAL BILLING, CONSTITUTES A VALID OBLIGATION AGAINST THE APPROPRIATION FOR THE FISCAL YEAR COVERED BY THE CONTRACT AND MAY BE CERTIFIED FOR PAYMENT. HOWEVER, INASMUCH AS THE CONTRACT PROVISIONS RELATING TO THE HOSPITALS INCLUDED UNDER PARTS B AND C OF PARAGRAPH 2, DO NOT PROVIDE FOR AN ADJUSTMENT OF DUES, SUCH AS PROVIDED UNDER PART A, THERE APPEARS TO BE NO AUTHORITY OF LAW TO CHARGE THE APPROPRIATIONS WITH ANY SUMS REPRESENTING INCREASED DUES OVER THOSE STIPULATED IN PARTS B AND C OF PARAGRAPH 2 OF THE CONTRACT. THE ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION OR PRICE TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168, AND SIMPSON V. UNITED STATES, 172 U.S. 372.

IN ACCORDANCE WITH THE FOREGOING, CERTIFICATION OF THE SUPPLEMENTAL BILLING FOR PAYMENT IS AUTHORIZED ONLY TO THE EXTENT OF THE INCREASE IN DUES ($300) OVER THOSE PROVIDED FOR IN PART A, PARAGRAPH 2 OF THE CONTRACT. THE SUPPLEMENTAL BILLING AND SUPPORTING PAPERS ARE ATTACHED.