B-140296, AUG. 13, 1959

B-140296: Aug 13, 1959

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E. CUTTER AND DAD DRILLING COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10. YOU WERE PAID THE SUM OF $1. 015.41 AND THE PREVIOUS PAYMENT WAS IN THE AMOUNT OF $1. REPORTED THAT YOU WERE ENTITLED TO BE PAID THE NET AMOUNT OF $3. SCHADE REPORTED FURTHER THAT THE GEOLOGICAL SURVEY FILLED IN 17 HOLES AT A COST OF $20 EACH AND THAT THE GOVERNMENT IS ENTITLED TO A DEDUCTION THEREFOR IN THE AMOUNT OF $340. THE RECORDS INDICATE THAT YOU WERE PAID THE LATTER AMOUNT BY CHECK DATED MARCH 9. THAT IS TO SAY. YOUR CLAIM IN THE AMOUNT OF $54.08 WAS PROPERLY DISALLOWED IN THE SETTLEMENT OF JUNE 19. FOR THE REASON THAT THE CONTRACT IN THIS CASE CLEARLY SHOWS THAT THE QUANTITY OF PIPE REQUIRED WAS ESTIMATED AND THAT PAYMENT WOULD BE MADE AT THE CONTRACT RATE FOR ONLY SUCH PIPE AS WAS ACTUALLY USED.

B-140296, AUG. 13, 1959

TO H. E. CUTTER AND DAD DRILLING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1959, IN EFFECT, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 19, 1959, BY WHICH OUR CLAIMS DIVISION DISALLOWED YOUR CLAIM FOR THE SUM OF $1,101.25, REPRESENTING ADDITIONAL COMPENSATION ALLEGED TO BE DUE YOU FOR WORK PERFORMED UNDER GEOLOGICAL SURVEY CONTRACT NO. 14-08-001 5810, DATED OCTOBER 28, 1958.

THE RECORD SHOWS THAT BY LETTER OF MARCH 27, 1959, YOU SUBMITTED TO THE GEOLOGICAL SURVEY A CLAIM IN THE NET AMOUNT OF $1,098.61, CONSISTING OF THE PRINCIPAL SUM OF $6,762.20, CLAIMED TO BE DUE YOU UNDER THE CONTRACT OF OCTOBER 28, 1958, LESS A CREDIT OF $293.40 FOR UNUSED PIPE, AND LESS PAYMENTS OF $1,436.85 AND $3,983.64, PLUS INTEREST CLAIMED IN THE AMOUNT OF $50.30. THE PRINCIPAL AMOUNT OF $6,762.20 CONSISTED OF THE SUM OF $5,384.70 FOR 5,790 FEET OF DRILLING AT $0.93 PER FOOT; THE SUM OF $730 FOR FURNISHING AND INSTALLING 1,008 FEET OF PIPE; AND THE SUM OF $647.50 FOR 70 HOURS OF STANDBY TIME OF $9.25 PER HOUR. BY CHECK DATED DECEMBER 12, 1958, YOU WERE PAID THE SUM OF $1,434.22--- NOT THE SUM OF $1,436.84 INDICATED IN YOUR LETTER OF MARCH 27, 1959--- COVERING THE FOLLOWING ITEMS:

CHART

FOR DRILLING 1,545 FEET (TEST HOLES NOS. 1

THROUGH 7) AT $0.93 PER FOOT $1,436.85

FOR FURNISHING AND INSTALLING 2-INCH PIPE AND

SANDPOINT IN TEST HOLE NO. 4--- 126 FEET AT

$0.73 PER FOOT 91.98

STANDBY TIME--- 7 HOURS AT $9.25 PER HOUR 64.75

TOTAL $1,593.58

LESS 10 PERCENT RETAINED 159.36

BALANCE $1,434.22

BY YOUR LETTER OF JANUARY 1, 1959, YOU SUBMITTED TO THE GEOLOGICAL SURVEY A FURTHER CLAIM IN THE NET AMOUNT OF $4,568.56, STATED AS COVERING THE FOLLOWING ITEMS:

FOR DRILLING 5,790 FEET (TEST HOLES NOS. 1

THROUGH 26) AT $0.93 PER FOOT $5,394.70

FOR FURNISHING AND INSTALLING 2-INCH PIPE---

527 FEET AT $0.73 PER FOOT 384.71

"LOGING AND WAITING TIME" 236.00

TOTAL $6,005.41

LESS PRIOR PAYMENTS 1,436.85

BALANCE $4,568.56

THERE APPEAR TO BE TWO ERRORS IN THE ABOVE CLAIM--- THE TOTAL OF THE FIRST THREE ITEMS SHOULD BE $6,015.41 AND THE PREVIOUS PAYMENT WAS IN THE AMOUNT OF $1,434.22.

IN HIS FINDINGS OF FACT CONCERNING YOUR CLAIM, THE PROCUREMENT OFFICER, MR. C. C. SCHADE, REPORTED THAT YOU WERE ENTITLED TO BE PAID THE NET AMOUNT OF $3,983.63 FOR THE WORK ACTUALLY PERFORMED ON WELLS NOS. 8 THROUGH 26, INCLUSIVE, AS SHOWN BY THE FOLLOWING COMPUTATION:

ITEM NO. 1 4,245 FEET OF DRILLING AT

$0.93 PER FOOT $3,947.85

ITEM NO. 2 398 FEET OF PIPE AT $0.73 PER FOOT 290.54

ITEM NO. 3 STANDBY TIME AT WELL NO. 10--- 3 HOURS

AT $9.25 PER HOUR 27.75

STANDBY TIME AT WELL NO. 13--- 2 1/2

HOURS AT $9.25 PER HOUR 23.13

TOTAL $4,289.27

MR. SCHADE REPORTED FURTHER THAT THE GEOLOGICAL SURVEY FILLED IN 17 HOLES AT A COST OF $20 EACH AND THAT THE GOVERNMENT IS ENTITLED TO A DEDUCTION THEREFOR IN THE AMOUNT OF $340; ALSO, THAT THE SURVEY DEVELOPED WELL NO. 23 AT A COST OF $125 AND THAT A DEDUCTION OF THAT AMOUNT SHOULD BE MADE. SUBTRACTING THE TOTAL OF THESE TWO ITEMS ($465) FROM THE AMOUNT OF $4,289.27, PAYABLE UNDER YOUR CONTRACT, LEAVES A BALANCE OF $3,824.27, AND ADDING THE AMOUNT OF $159.36, WITHHELD IN THE PRIOR PAYMENT, LEAVES THE SUM OF $3,983.63 AS DUE AND PAYABLE UNDER THE CONTRACT. THE RECORDS INDICATE THAT YOU WERE PAID THE LATTER AMOUNT BY CHECK DATED MARCH 9, 1959. THE CLAIM CONSIDERED IN THE SETTLEMENT OF JUNE 19, 1959, COVERED THE DIFFERENCES BETWEEN THE AMOUNTS PAID AND THE AMOUNTS CLAIMED BY YOU TO BE DUE UNDER THE CONTRACT, THAT IS TO SAY, THE SUM OF $54.08, REPRESENTING 15 PERCENT OF THE VALUE OF 473 FEET OF UNUSED GALVANIZED STEEL PIPE; THE AMOUNT OF $531.87 AS THE DIFFERENCE BETWEEN THE SUM OF $647.50 FOR 70 HOURS OF STANDBY TIME CLAIMED BY YOU AND THE AMOUNT OF $115.43 ($64.75 PLUS $27.75 PLUS $23.13) REPORTED BY THE PROCUREMENT OFFICER AS ALLOWABLE UNDER THE CONTRACT, TOGETHER WITH THE DEDUCTIONS AMOUNTING TO $465 MADE BY THE GOVERNMENT FOR UNFINISHED WORK REQUIRED BY THE CONTRACT.

YOUR CLAIM IN THE AMOUNT OF $54.08 WAS PROPERLY DISALLOWED IN THE SETTLEMENT OF JUNE 19, 1959, FOR THE REASON THAT THE CONTRACT IN THIS CASE CLEARLY SHOWS THAT THE QUANTITY OF PIPE REQUIRED WAS ESTIMATED AND THAT PAYMENT WOULD BE MADE AT THE CONTRACT RATE FOR ONLY SUCH PIPE AS WAS ACTUALLY USED. THE RECORD INDICATES THAT 524 FEET OF PIPE WERE ACTUALLY FURNISHED AND THAT PAYMENT WAS MADE THEREFOR AT THE AUTHORIZED RATE. RESPECTING THE AMOUNT OF $531.87, IT MAY BE SAID THAT IN THE SETTLEMENT OF CONTRACT CLAIMS IT IS OUR PRACTICE TO ACCEPT THE REPORT OF THE ADMINISTRATIVE OFFICE CONCERNING THE SERVICES RENDERED UNDER THE CONTRACT. THIS NECESSARILY MUST BE THE PRACTICE BECAUSE OUR OFFICE HAS NO FIRST-HAND INFORMATION REGARDING SUCH MATTER. IN THIS CASE THE GEOLOGICAL SURVEY REPORTED THAT YOU WERE ENTITLED TO BE PAID FOR 12 1/2 HOURS OF STANDBY TIME, AND THAT AMOUNT HAS BEEN PAID.

AS TO THE SUM OF $50.30, REPRESENTING YOUR CLAIM FOR INTEREST, IT HAS BEEN HELD IN NUMEROUS CASES THAT IN THE ABSENCE OF A STIPULATION TO PAY INTEREST OR STATUTE ALLOWING INTEREST, NONE CAN BE RECOVERED AGAINST THE UNITED STATES ON UNPAID ACCOUNTS OR CLAIMS. SEE THE OPINION RENDERED BY THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT IN THE CASE OF NEW YORK AND PORTO RICO S.S. COMPANY V. UNITED STATES, 29 F.2D 1014; ALSO, CONSOLIDATED ENGINEERING COMPANY V. UNITED STATES, 35 F.SUPP. 980, AND SMYTH V. UNITED STATES, 302 U.S. 329, 353.

THE REASONS FOR THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF SUMS AGGREGATING $465 DEDUCTED FROM AMOUNTS OTHERWISE PAYABLE TO YOU, ARE FULLY SET FORTH IN THE SETTLEMENT AND ADDITIONAL COMMENT THEREON APPEARS NOT TO BE REQUIRED EXCEPT TO SAY THAT THE RECORD SEEMS TO CLEARLY ESTABLISH THAT YOU FAILED TO COMPLETE CERTAIN WORK REQUIRED OF YOU UNDER THE CONTRACT, AND THAT THE GOVERNMENT WAS REQUIRED TO INCUR A COST AMOUNTING TO $465 FOR ITS COMPLETION.

THERE IS NOTHING IN YOUR LETTER OF JULY 10, 1959, WHICH WOULD JUSTIFY OUR OFFICE IN REVISING THE ACTION TAKEN IN THE SETTLEMENT OF JUNE 19, 1959, AND THE SAME IS SUSTAINED.