B-144866, FEB. 10, 1961

B-144866: Feb 10, 1961

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REGION THREE: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17. WAS TO PERFORM CERTAIN ITEMS OF WORK IN CONNECTION WITH THE CONSTRUCTION OF WATER AND SEWER SYSTEMS. THE CONTRACT IS REPORTED TO HAVE INCORPORATED THEREIN CLAUSE 3 OF STANDARD FORM 23. IT IS STATED IN THE FINDING OF FACT MADE BY YOU IN YOUR CAPACITY AS CONTRACTING OFFICER THAT THE PROVISION FOR CHANGES CONTAINS THE FOLLOWING SENTENCE: "ANY CLAIM OF THE CONTRACTOR FOR ADJUSTMENT UNDER THIS CLAUSE MUST BE ASSERTED IN WRITING WITHIN 30 DAYS FROM THE DATE OF RECEIPT BY THE CONTRACTOR OF THE NOTIFICATION OF CHANGE: PROVIDED. DID NOT INCLUDE THE ITEM FOR WHICH CLAIM IS NOW MADE NOR WAS IT EXCEPTED FROM THE CONTRACTOR'S STATEMENT OF RELEASE DATED FEBRUARY 5.

B-144866, FEB. 10, 1961

TO AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE, REGION THREE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 17, 1961, FILE REFERENCE F5023, REQUESTING A DECISION AS TO WHETHER A VOUCHER IN THE AMOUNT OF $747.50 IN FAVOR OF METZ CONSTRUCTION, INC., MAY BE CERTIFIED FOR PAYMENT.

UNDER THE TERMS OF A CONTRACT NUMBERED 14-10-333-510 DATED JUNE 29, 1959, METZ CONSTRUCTION, INC., WAS TO PERFORM CERTAIN ITEMS OF WORK IN CONNECTION WITH THE CONSTRUCTION OF WATER AND SEWER SYSTEMS, CORONADO NATIONAL MEMORIAL, ARIZONA, FOR THE CONSIDERATION OF $41,753.38. THE CONTRACT IS REPORTED TO HAVE INCORPORATED THEREIN CLAUSE 3 OF STANDARD FORM 23, GENERAL PROVISIONS (CONSTRUCTION CONTRACT). THIS PROVISION AUTHORIZES THE CONTRACTING OFFICER TO ORDER IN WRITING CHANGES IN THE DRAWINGS AND/OR SPECIFICATIONS IN THE CONTRACT WITHIN THE GENERAL SCOPE THEREOF. IT THEN PROVIDES FOR AN EQUITABLE ADJUSTMENT IN MONEY OR TIME RESULTING FROM SUCH CHANGES. IT IS STATED IN THE FINDING OF FACT MADE BY YOU IN YOUR CAPACITY AS CONTRACTING OFFICER THAT THE PROVISION FOR CHANGES CONTAINS THE FOLLOWING SENTENCE:

"ANY CLAIM OF THE CONTRACTOR FOR ADJUSTMENT UNDER THIS CLAUSE MUST BE ASSERTED IN WRITING WITHIN 30 DAYS FROM THE DATE OF RECEIPT BY THE CONTRACTOR OF THE NOTIFICATION OF CHANGE: PROVIDED, HOWEVER, THAT THE CONTRACTING OFFICER, IF HE DETERMINES THAT THE FACTS JUSTIFY SUCH ACTION, MAY RECEIVE AND CONSIDER, AND ADJUST ANY SUCH CLAIM ASSERTED AT ANY TIME PRIOR TO THE DATE OF FINAL SETTLEMENT.'

THE CONTRACTOR'S FINAL INVOICE DATED JANUARY 20, 1960, DID NOT INCLUDE THE ITEM FOR WHICH CLAIM IS NOW MADE NOR WAS IT EXCEPTED FROM THE CONTRACTOR'S STATEMENT OF RELEASE DATED FEBRUARY 5, 1960. THE FINAL ESTIMATE WAS APPROVED ON MARCH 17, 1960, AND PAYMENT WAS MADE ON THE SAME DATE.

THE INSTANT CLAIM INVOLVES THE INSTALLATION OF A VALVE BOX AND ACCESSORIES PERFORMED WITHOUT ANY WRITTEN ORDER THEREFOR BY A SUBCONTRACTOR, SIERRA GENERAL CONTRACTORS, AT THE INSISTENCE OF THE PROJECT SUPERVISOR. IT HAS BEEN FOUND BY YOU AS CONTRACTING OFFICER THAT THE ITEM WAS NOT REQUIRED BY ANYTHING IN THE SPECIFICATIONS OR DRAWINGS. THE RECORD INDICATES THAT THE WORK WOULD HAVE BEEN COVERED BY A CHANGE ORDER IF PRESENTED IN DUE TIME. HOWEVER, THE CONTRACTOR FIRST RECEIVED NOTICE OF THE INSTALLATION OF THE ITEM BY LETTER OF MAY 20, 1960, FROM ITS SUBCONTRACTOR, SIERRA GENERAL CONTRACTORS. THE CONTRACTOR FORWARDED THE CLAIM BY A LETTER WHICH WAS RECEIVED BY YOU ON MAY 27, 1960.

THE CLAIM COVERS WORK WHICH WAS NOT ORDERED IN WRITING BY YOU AS THE CONTRACTING OFFICER, NOR WAS THE CLAIM PRESENTED TO YOU PRIOR TO THE DATE OF FINAL SETTLEMENT AS REQUIRED BY THE TERMS OF THE CONTRACT. MOREOVER, THE CONTRACTOR EXECUTED A RELEASE AND THE CLAIM WAS NOT EXCEPTED IN THE RELEASE. A SIMILAR CASE WAS CONSIDERED BY OUR OFFICE IN 23 COMP. GEN. 632, AND IT WAS HELD THAT, UPON FINAL SETTLEMENT UNDER A CONTRACT, THE EXECUTION OF A RELEASE BY THE CONTRACTOR WHICH DID NOT EXCEPT THEREFROM ANY CLAIMS THEREAFTER PRESENTED OPERATED AS A BAR TO PAYMENT FOR SUCH CLAIMS WHETHER SUCH CLAIMS WERE INCLUDED OR EXCLUDED IN THE FINAL SETTLEMENT AND WHETHER KNOWN OR UNKNOWN AT THAT TIME. SEE COURT CASES CITED IN THAT DECISION.

ACCORDINGLY, IT MUST BE CONCLUDED THAT THE PRESENT RECORD DOES NOT AFFORD ANY LEGAL BASIS FOR ..END :