B-142892, JUN. 15, 1960

B-142892: Jun 15, 1960

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NATIONAL PARK SERVICE: REFERENCE IS MADE TO YOUR LETTER DATED MAY 4. A VOUCHER COVERING THE CLAIM SHOULD HAVE BEEN FORWARDED WITH YOUR LETTER. 21 COMP. 673 SPECIFIED IN THE PURCHASE ORDER WAS NEGOTIATED ON THE BASIS OF EXPECTED COST WITHOUT PROFIT. THE WORK WAS NOT COMPLETED UNTIL DECEMBER 5. DISPOSAL OF THE BRUSH BY BURNING WAS NOT SAFE PRIOR TO THE TIME THE WORK WAS COMPLETED. THERE APPEARS TO BE A DIFFERENCE OF OPINION BETWEEN REPRESENTATIVES OF THE CONTRACTOR AND OF THE NATIONAL PARK SERVICE AS TO WHETHER THE DISPOSAL OF BRUSH BY CHIPPING WAS DISCUSSED BEFORE THE PURCHASE ORDER WAS ISSUED. THAT AFTER PERMISSION TO BURN WAS DENIED BECAUSE OF THE HAZARD OF FIRE. WHILE THE SUPERINTENDENT COULD HAVE REQUIRED REMOVAL OF THE BRUSH.

B-142892, JUN. 15, 1960

TO MR. MANLEY W. ALLEN, AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 4, 1960 (FILE D5015-ABF) REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF CERTIFYING FOR PAYMENT A CLAIM FOR $772.55 SUBMITTED BY THE BLACK HILLS POWER AND LIGHT COMPANY AS ADDITIONAL COMPENSATION UNDER PURCHASE ORDER NO. MORU 59-3, DATED JULY 29, 1958. A VOUCHER COVERING THE CLAIM SHOULD HAVE BEEN FORWARDED WITH YOUR LETTER. 21 COMP. GEN. 1128; 26 ID. 797; 35 ID. 28.

THE CLAIM REPRESENTS INCREASED COSTS INCURRED BY THE POWER COMPANY IN CONNECTION WITH THE RELOCATION OF A POWERLINE. UNDER THE TERMS OF THE PURCHASE ORDER THE BLACK HILLS POWER AND LIGHT COMPANY AGREED TO FURNISH ALL LABOR AND MATERIALS TO RELOCATE AN EXISTING POWER LINE TO BY-PASS A RESIDENTIAL AREA AT MOUNT RUSHMORE NATIONAL MEMORIAL FOR THE LUMP SUM OF $1,673. THE PURCHASE ORDER SPECIFICALLY PROVIDED THAT---

"* * * ALL BRUSH AND TRIMMINGS SHALL BE REMOVED FROM THE MEMORIAL OR BURNED AS DIRECTED BY THE SUPERINTENDENT.'

THE CONTRACTOR, BY LETTER DATED MARCH 17, 1959, SUBMITTED AN INVOICE FOR THE PURCHASE ORDER PRICE OF $1,673, WHICH APPARENTLY HAS BEEN PAID, AND ANOTHER INVOICE IN THE AMOUNT OF $772.55 FOR THE CLAIM IN QUESTION, REPRESENTING THE INCREASED COST INCURRED BY THE CONTRACTOR FOR DISPOSING OF BRUSH BY SHIPPING RATHER THAN BY BURNING. IT APPEARS TO BE CONCEDED THAT THE AMOUNT OF $1,673 SPECIFIED IN THE PURCHASE ORDER WAS NEGOTIATED ON THE BASIS OF EXPECTED COST WITHOUT PROFIT.

WHILE THE PURCHASE ORDER CALLED FOR COMPLETION OF THE WORK BY SEPTEMBER 15, 1958, IT APPEARS THAT THE CONTRACTOR DID NOT BEGIN ACTUAL CONSTRUCTION OF THE POWER LINE IN THE NEW LOCATION UNTIL SEPTEMBER 24, 1958, AND THE WORK WAS NOT COMPLETED UNTIL DECEMBER 5, 1958. IT DOES NOT APPEAR TO BE DISPUTED BY THE CONTRACTOR THAT, BECAUSE OF DROUGHT CONDITIONS, DISPOSAL OF THE BRUSH BY BURNING WAS NOT SAFE PRIOR TO THE TIME THE WORK WAS COMPLETED.

THERE APPEARS TO BE A DIFFERENCE OF OPINION BETWEEN REPRESENTATIVES OF THE CONTRACTOR AND OF THE NATIONAL PARK SERVICE AS TO WHETHER THE DISPOSAL OF BRUSH BY CHIPPING WAS DISCUSSED BEFORE THE PURCHASE ORDER WAS ISSUED. THE CONTRACTOR CONTENDS THAT IT CONTEMPLATED DISPOSAL BY BURNING, AND THAT IT OVERLOOKED THE ALTERNATIVE REQUIREMENT OF REMOVAL SPECIFIED IN THE PURCHASE ORDER. IT APPEARS, FURTHER, THAT AFTER PERMISSION TO BURN WAS DENIED BECAUSE OF THE HAZARD OF FIRE, THE CONTRACTOR CHOSE TO DISPOSE OF THE BRUSH BY CHIPPING IN PREFERENCE TO THE MORE COSTLY PROCESS OF REMOVING IT. WHILE THE SUPERINTENDENT COULD HAVE REQUIRED REMOVAL OF THE BRUSH, HE ACQUIESCED IN THE CONTRACTOR'S ALTERNATIVE PROPOSAL FOR DISPOSAL BY CHIPPING. NO DISCUSSION APPEARS TO HAVE BEEN HAD PRIOR TO COMPLETION OF THE WORK AS TO ANY ADDITIONAL COMPENSATION FOR CHIPPING INSTEAD OF BURNING.

WHILE IT IS UNFORTUNATE THAT THE CONTRACTOR FAILED TO APPRECIATE THE EXTENT OF ITS OBLIGATION UNDER THE PURCHASE ORDER WITH REGARD TO THE DISPOSAL OF BRUSH, THE FACT REMAINS THAT IT DID ACCEPT THE ORDER. IN THE CIRCUMSTANCES, THE RIGHTS OF THE PARTIES MUST BE DETERMINED BY THE CLEAR TERMS OF THE ORDER, AND NO OFFICER OR AGENT OF THE GOVERNMENT HAS THE RIGHT TO MODIFY ITS TERMS TO THE PREJUDICE OF THE GOVERNMENT WITHOUT CONSIDERATION. AS WAS STATED IN THE CASE OF BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 607:

"* * * AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO GIVE AWAY THE MONEY OR PROPERTY OF THE UNITED STATES, EITHER DIRECTLY OR UNDER THE GUISE OF A CONTRACT THAT OBLIGATES THE GOVERNMENT TO PAY A CLAIM NOT OTHERWISE ENFORCEABLE AGAINST IT.'

FOR THE REASONS SET FORTH ABOVE, WE ARE OF THE VIEW THAT THE CONTRACTOR HAS NO CLAIM ENFORCEABLE AGAINST THE UNITED STATES AND, THEREFORE, THE SAME MAY NOT BE CERTIFIED FOR PAYMENT.