B-148138, APR. 16, 1962

B-148138, APR. 16, 1962

TO THE AUTHORIZED CERTIFYING OFFICER, FEDERAL HOUSING ADMINISTRATION:

YOUR LETTER OF FEBRUARY 2, 1962 (AE-C), REQUESTS OUR ADVICE AS TO WHETHER YOU MAY CERTIFY FOR PAYMENT THE ENCLOSED VOUCHER FOR $3,214.21 REPRESENTING THE CLAIM OF RENE RAMOS MUNOZ, P.O. BOX 611, MAYAGUEZ, PUERTO RICO, FOR AN ADDITIONAL AMOUNT ALLEGED TO BE DUE FOR THE COST OF REPAIRS TO SANITARY AND STORM SEWERS INCIDENT TO SERVICES PERFORMED OVER AND ABOVE THE REQUIREMENTS OF CONTRACT NO. 056-14, DATED MARCH 2, 1960.

BY THE TERMS OF THE CONTRACT AS AMENDED BY SUPPLEMENTAL AGREEMENT OF OCTOBER 31, 1960, THE CONTRACTOR AGREED TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS AND PERFORM ALL WORK FOR REPAIRING THE SANITARY AND STORM SEWER SYSTEM AT MAYAGUEZ TERRACE, IN ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS THEREIN PROVIDED FOR $100,850, ON THE BASIS OF THE CONTRACTOR'S BID UNIT PRICES APPLIED TO ESTIMATED QUANTITIES ON 19 ITEMS AS ITEMIZED IN THE ORIGINAL CONTRACT. THE SPECIFICATIONS STATED THAT THE FOREGOING ESTIMATES OF QUANTITIES, ALTHOUGH STATED WITH AS MUCH ACCURACY AS POSSIBLE, WERE APPROXIMATE ONLY AND ASSUMED SOLELY FOR THE BASIS OF CALCULATION UPON WHICH THE AWARD OF THE CONTRACT WOULD BE MADE.

THE SPECIFICATIONS PROVIDED THAT THE SUPERVISION, INSPECTION, MAKING IN- SPACE MEASUREMENTS AND OTHER RELATED ENGINEERING SERVICES, INCLUDING A FULL-TIME RESIDENT ENGINEER, WOULD BE PERFORMED BY THE ENGINEERING FIRM OF NOGUERA, NAVAS AND MOREDA; THAT THE ENGINEERS WOULD BE UNDER THE DIRECT SUPERVISION OF THE DESIGNATED FHA REPRESENTATIVE, HAVE GENERAL SUPERVISION OF ALL TECHNICAL PHASES OF THE WORK; THAT THEIR INTERPRETATION OF INTENT OF PLANS AND SPECIFICATIONS WOULD BE ACCEPTED AND THAT "THE ENGINEERS SHALL NOT HAVE THE AUTHORITY TO ISSUE CHANGE ORDERS INVOLVING ANY INCREASE OR DECREASE IN THE CONTRACT PRICE/S) OR SCOPE OF THE WORK.' THE SPECIFICATIONS FURTHER PROVIDED THAT---

"CHANGE ORDERS INVOLVING ANY CHANGE IN THE SCOPE OF WORK OR CONTRACT AMOUNT MUST BE APPROVED BY THE CONTRACTING OFFICER, FEDERAL HOUSING ADMINISTRATION, WASHINGTON, D.C., IN WRITING, AND IN ADVANCE OF ACTUAL PERFORMANCE OF SUCH CHANGES; OTHERWISE, THE FEDERAL HOUSING ADMINISTRATION SHALL NOT BE RESPONSIBLE FOR PAYMENT FOR SUCH WORK PERFORMED BEYOND THE SCOPE OF THESE SPECIFICATIONS.'

AND THAT---

"SCOPE: THIS DIVISION INCLUDES EXCAVATING, FILLING, ROUGH GRADING, FINISHED GRADING, AND RELATED ITEMS REQUIRED TO FULLY COMPLETE THE WORK WITHIN THIS PROJECT, UNLESS SPECIFICALLY EXCEPTED. IT INCLUDES PROVISION OF ADDITIONAL FILL IF NECESSARY, AND THE DISPOSITION OF SURPLUS MATERIALS, MATERIAL NOT SUITABLE FOR FILLING, AND DEBRIS.'

UNDER THE GENERAL PROVISIONS, THE TERM "CONTRACTING OFFICER" WAS DEFINED AS INCLUDING HIS DULY APPOINTED SUCCESSOR OR HIS AUTHORIZED REPRESENTATIVE.

PARAGRAPH 3 OF THE GENERAL PROVISIONS CONTAINED THE USUAL PROVISIONS WITH RESPECT TO "CHANGES" IN THE DRAWINGS AND SPECIFICATIONS AND FOR AND EQUITABLE ADJUSTMENT AND MODIFICATION OF THE CONTRACT IN THE EVENT SUCH CHANGES SHOULD CAUSE AN INCREASE OR DECREASE IN THE AMOUNT DUE UNDER THE CONTRACT OR TIME REQUIRED FOR PERFORMANCE. PARAGRAPH 4 CONTAINED THE USUAL PROVISIONS CONTAINED IN GOVERNMENT CONSTRUCTION CONTRACTS RELATING TO SUBSURFACE, LATENT OR UNKNOWN PHYSICAL CONDITIONS AND FOR CONSIDERATION AND ADJUSTMENT OF CLAIMS ASSERTED BY THE CONTRACTOR BEFORE THE DATE OF FINAL SETTLEMENT OF THE CONTRACT IF THE CONTRACTING OFFICER DETERMINED THE FACTS JUSTIFIED.

THE WORK TO BE PERFORMED UNDER THE CONTRACT WAS BASED ON ENGINEERING STUDIES, RECOMMENDATIONS, SERVICES, REPORTS, PLANS AND SPECIFICATIONS, ETC., PREVIOUSLY FURNISHED BY THE ENGINEERS UNDER CONTRACT NO. 056-9, DATED JUNE 4, 1959. PARAGRAPH 1 (I) OF THIS CONTRACT OBLIGATED THE CONTRACTOR TO PROVIDE A RESIDENT ENGINEER QUALIFIED TO ACCEPT FULL RESPONSIBILITY FOR THE ADEQUACY AND ACCURACY OF THE SPECIFICATIONS AND PERFORMANCE OF THE CONSTRUCTION CONTRACTOR AND TO ACT THROUGH THE GOVERNMENT CONTRACTING OFFICER "AS AN AGENT OF THE GOVERNMENT IN ITS RELATIONS WITH CONSTRUCTION CONTRACTOR/S).'

THE WORK AND SERVICES COMPRISING THE BASIS OF THE PRESENT CLAIM, ALONG WITH OTHER ITEMS NOT HERE INVOLVED, WERE EXCLUDED FROM THE RELEASE EXECUTED BY THE CONTRACTOR AT THE TIME OF FINAL SETTLEMENT. YOU STATE THAT WHILE SUCH ADDITIONAL WORK AND SERVICES WERE PERFORMED DURING THE COURSE OF COMPLETION OF THE WORK UNDER THE CONTRACT, THE CONTRACTING OFFICER RECEIVED NO REQUESTS OR JUSTIFICATIONS FOR ISSUANCE OF ANY CHANGE ORDERS AS REQUIRED BY CONTRACT NO. 056-14; THAT THE CONTRACTOR CLAIMS AN EXCESS AMOUNT OF TRENCH EXCAVATION INCLUDING BACKFILL FOR SECTIONS OF STORM SEWER TO THE EXTENT OF 1600.30 CUBIC YARDS; AND THAT THE ENGINEER ATTRIBUTED THE NEED FOR THE EXTRA WORK TO THREE CAUSES, NAMELY, (1) ERROR BY ENGINEERS IN CALCULATING VOLUME OF EARTH TO BE EXCAVATED BECAUSE OF NEED FOR 8 FOOT TRENCHES IN LIEU OF 5 FOOT TRENCHES AS SPECIFIED, (2) THE NEED FOR RELOCATING THE STORM DRAIN OUTSIDE THE LIMITS OF MAYAGUEZ TERRACE CONTRARY TO THE ORIGINAL PLANS, THE RELOCATION BEING NECESSARY BECAUSE OF A CHANGE IN THE RIGHT OF WAY, AND (3) LANDSLIDES CAUSED BY THE RAINY SEASON.

THE SUMMARY OF THE EXTRA WORK PERFORMED BY THE CONTRACTOR UNDER CONTRACT NO. 056-14 PREPARED BY THE FHA CONTRACTING OFFICER CONSISTS OF 14 ITEMS. YOU STATE THAT THE CONTRACTOR HAS BEEN PAID FOR THE WORK SUMMARIZED UNDER ITEMS NUMBERED 1, 7, 8, 13 AND 14 SINCE THESE ITEMS REPRESENTED VALID AMOUNTS DUE AT THE UNIT PRICES FIXED BY THE CONTRACT; THAT NO PAYMENTS WILL BE MADE WITH RESPECT TO ITEMS NUMBERED 9 AND 12 SINCE THE COST ATTRIBUTABLE TO SUCH WORK WAS CONSIDERED TO HAVE BEEN INCLUDED IN THE CONTRACTOR'S OVERALL BID; AND THAT THE AMOUNT CLAIMED ON THE VOUCHER SUBMITTED REPRESENTS ONLY THE AMOUNTS CLAIMED WITH RESPECT TO WORK SUMMARIZED UNDER ITEMS NUMBERED 2, 3, 4, 5, 6, 10 AND 11, IN PERTINENT PART AS FOLLOWS:

"2. BY REASON OF RAISING THE SANITARY SEWER IN MARGINAL STREET FOR A SPECIFIED DISTANCE BETWEEN MANHOLES 46 AND 53, THE HOUSE CONNECTIONS TO DWELLINGS F-1-A, F-1-B, F-2-A AND F-2-B ALSO HAD TO BE RAISED AS WELL AS THE HOUSE SANITARY ROUGHINGS. THE CONTRACT PROVIDES FOR THE SEWER LINE AND HOUSE CONNECTIONS BUT NOT ROUGHINGS; HOWEVER, THE RESIDENT ENGINEER ORDERED THE WORK DONE. RAISING THE ROUGHINGS IS AN OBVIOUS NECESSITY TO MAKE THE PROPERTIES TENABLE. * * *

"3. CONSISTS OF 29 LINEAL YARDS OF 12 INCHES BY 18 INCHES REINFORCED CONCRETE BOX CULVERTS BETWEEN STORM SEWER INLET ON OPPOSITE SIDES OF STREET 7, 9 AND 14 WHERE THE CONTRACT PROVIDES FOR 18 INCH CONCRETE PIPES. THE CONTRACT CONTEMPLATED THE 18 INCH PIPE WOULD BE LAID AT A DEPTH WHERE THE TOP WOULD BE 24 INCHES OR MORE BELOW THE PAYMENT WOULD THUS BE SAFE FROM DAMAGE BY VEHICULAR TRAFFIC. WHILE LAYING THE PIPE IN STREET 14 BETWEEN THE INLET ON THE SOUTH SIDE AND MANHOLE NO. 1 ON THE NORTH SIDE AN 8 INCH SANITARY SEWER LINE WAS DISCOVERED DIRECTLY IN THE PATH OF THE PROPOSED CONSTRUCTION. IT THEREFORE BECAME NECESSARY TO RAISE THE LEVEL OF THE 18 INCH PIPE TO THE POINT WHERE IT COULD NOT BE PROVIDED WITH ADEQUATE PROTECTION FROM VEHICULAR TRAFFIC ABOVE. AS A CONSEQUENCE, THE RESIDENT ENGINEER DETERMINED THAT 12 INCH BY 18 INCH REINFORCED CONCRETE BOX CULVERTS SHOULD BE SUBSTITUTED. IT HAS BEEN DETERMINED ON THE SITE AND BY DISCUSSION WITH THE FHA SAN JUAN OFFICE STAFF TO BE A PROPER DETERMINATION FOR THE ENGINEER TO MAKE. * * *

"4. CONSISTS OF 6.7 SQUARE YARDS OF REINFORCED CONCRETE. WHEN THE SANITARY SEWER LINE WAS RAISED BETWEEN MANHOLES 46 AND 53 IN MARGINAL STREET, SETTLEMENT HAD OCCURRED TO THE EXTENT THAT TO MAINTAIN PROPER FLOW ELEVATION, THE SEWER LINE HAD TO BE RELOCATED BETWEEN THE SIDEWALK AND THE BUILDING LINE. IT WAS SO CLOSE TO THE SURFACE AS TO REQUIRE PROTECTION FROM POSSIBLE DAMAGE BY VEHICULAR TRAFFIC IN THE DRIVEWAY ENTRANCES TO THE CARPORTS FOR DWELLINGS F-1-A, F-1-B, F-2-A AND F-2-B. THE RESIDENT ENGINEER DETERMINED THAT THE NECESSARY PROTECTION COULD BEST BE PROVIDED BY MEANS OF A SIX-INCH REINFORCED CONCRETE SLAB SIX FEET WIDE BETWEEN THE SIDEWALK AND CARPORT ENTRANCE OF EACH OF THE FOUR DWELLINGS. IT WAS A PROPER DETERMINATION FOR THE ENGINEER. * * *

"5. CONSISTS OF 91 LINEAL FEET OF 4 INCHES S AND S CAST IRON PIPE ENCASED IN CONCRETE, ONE FOOT SQUARE. THE TOP OF THE ENCASEMENT IS REINFORCED SINCE IT FORMS A PART OF THE STREET SURFACE. THE ITEM IS NOT PROVIDED FOR IN THE CONTRACT BUT WAS DETERMINED BY THE ENGINEER TO BE NECESSARY TO DRAIN SURFACE WATER FROM DEPRESSED AREAS ON LOTS F-1 AND F-2.

"IT WAS A PROPER DETERMINATION FOR THE ENGINEER TO MAKE. * * *

"6. CONSISTS OF THE DIFFERENCE IN COST OF TWO LARGER STORM SEWER MANHOLE INLETS SUBSTITUTED FOR TWO SPECIFIED IN NO. 4 STREET. THE PLANS AND SPECIFICATIONS PROVIDE FOR 28 INCH BY 40 INCH MANHOLE DRAINAGE INLETS. THE ENGINEER OBSERVED THAT THEY WERE NOT ADEQUATE TO PROVIDE THE REQUIRED DRAIN OFF AT TWO LOCATIONS IN NO. 4 STREET AND DETERMINED THAT INLETS SIZE 40 INCH BY 40 INCH SHOULD BE INSTALLED. IT WAS A PROPER DETERMINATION FOR THE ENGINEER TO MAKE BUT SHOULD HAVE BEEN HANDLED BY AMENDMENT PRIOR TO PERFORMANCE.

"10. THIS ITEM CONSISTS OF CHARGES BY THE AQUEDUCT AND SEWER AUTHORITY FOR JUMPING WATER LINES OVER PROPOSED CONSTRUCTION INCLUDING THE 15 PERCENT CONTRACTOR'S PROFIT. IT BECAME NECESSARY WHEN IT WAS DISCOVERED THAT A WATER LINE WAS IN THE DIRECT PATH OF THE PROPOSED SEWER CONSTRUCTION AND SHOULD HAVE BEEN HANDLED BY AMENDMENT. THE ENGINEER ORDERED IT DONE WITHOUT REALIZING THAT AN AMENDMENT WAS NECESSARY. THE CONTRACTOR FOLLOWED THROUGH AND THE ITEM SHOULD BE SUPPORTED ALONG WITH THE OTHER ITEMS OF CLAIM. THE 15 PERCENT CONTRACTOR'S PROFIT IS NOT ALLOWABLE. THERE SHOULD BE ATTACHED TO THE CLAIM VOUCHER A COPY OF THE PAID INVOICE FROM THE AQUEDUCT AND SEWER AUTHORITY.

"11. THIS ITEM INVOLVES CHARGES BY THE WATER RESOURCES AUTHORITY FOR RELOCATING A LAMP AT THE CORNER OF NO. 7 STREET AND THE ALLEY WHICH WAS MADE NECESSARY BY CONSTRUCTION OF THE 8 INCH SANITARY SEWER LINE. IT IS AN ITEM OF NECESSARY WORK BUT SHOULD HAVE BEEN HANDLED BY AMENDMENT. SINCE IT WAS NOT SO HANDLED IT MUST NOW BE SUBMITTED AS CLAIM. * * *"

THE SUPPORTING PAPERS SHOW THAT WHEN THE CLAIM FOR THE ADDITIONAL AMOUNT WAS FIRST SUBMITTED TO THE CONTRACTING OFFICER HE OBJECTED TO CONSIDERATION OF THE CLAIM BECAUSE OF THE ABSENCE OF A CHANGE ORDER AND LACK OF AUTHORITY IN THE ENGINEERS TO ORDER THE WORK PERFORMED OVER AND ABOVE THAT REQUIRED BY THE CONTRACT. IN MEMORANDUM OF JANUARY 12, 1962, TRANSMITTING THE VOUCHER TO YOU FOR PAYMENT, HOWEVER, THE CONTRACTING OFFICER STATED THAT THROUGH A MISUNDERSTANDING ON THE PART OF THE RESIDENT ENGINEER EMPLOYED BY FHA TO OVERSEE PERFORMANCE OF THE WORK CALLED FOR IN THE CONTRACT, HE ORDERED EXTRA WORK WITHOUT GOING THROUGH THE FORMALITY OF OBTAINING AMENDMENTS TO THE CONTRACT; THAT ALL WORK PERFORMED UNDER THE CONTRACT AS WELL AS THE WORK COVERED BY THE PRESENT CLAIM WAS INSPECTED BY THE FHA SAN JUAN OFFICE STAFF IN COMPANY WITH TWO REPRESENTATIVES OF THE CENTRAL OFFICE; THAT ALL CONCLUDED THE EXTRA WORK WAS ACTUALLY REQUIRED IN ORDER TO ADEQUATELY COMPLETE THE PROJECT; AND THAT WHILE THE RESIDENT ENGINEER ACTED WITHIN THE SCOPE OF HIS AUTHORITY IN DETERMINING THAT THE EXTRA WORK WAS NEEDED HE SHOULD NOT HAVE ORDERED THE CONTRACTOR TO PERFORM IT UNTIL AFTER THE NEED FOR SAME WAS RECOGNIZED BY THE CONTRACTING OFFICER AND AUTHORIZED BY HIM BY APPROPRIATE AMENDMENTS TO THE CONTRACT. CONCLUSION THE CONTRACTING OFFICER STATED THAT SINCE HIS INVESTIGATION HAS ESTABLISHED THAT AMENDMENTS FOR THE EXTRA WORK WOULD HAVE BEEN APPROVED, HAD THEY BEEN REQUESTED, PAYMENT OF THE VOUCHER HINGES ENTIRELY ON A TECHNICALITY. AS TO ITEMS NUMBERED 10 AND 11 HE NOTED THAT THESE TWO ITEMS REPRESENT MONEY PAID BY THE CONTRACTOR TO THE MUNICIPAL AUTHORITIES FOR WORK PERFORMED BY THEM WITHIN THE PROJECT INCIDENT TO THE REQUIREMENTS OF THE PRIME CONTRACT.

ON THE BASIS OF THE RECORD PRESENTED IT IS SATISFACTORILY ESTABLISHED THAT ADDITIONAL WORK AND SERVICES WERE NOT PROVIDED FOR OR REQUIRED BY THE CONTRACT, AND THAT THE NEED FOR PERFORMANCE OF SUCH WORK AND SERVICES WAS NECESSITATED BY UNFORESEEN OR CHANGED CONDITIONS ENCOUNTERED BY THE CONTRACTOR AND, THEREFORE, WITHIN THE PURVIEW OF PARAGRAPH 4 OF THE GENERAL PROVISIONS OF THE CONTRACT RATHER THAN WITHIN THE PURVIEW OF THE "CHANGES" PROVISION OF PARAGRAPH 3. W. C. SHEPHERD V. UNITED STATES, 125 CT. CL. 724 AND 809. CF. MACDOUGALD CONSTRUCTION COMPANY V. UNITED STATES, 122 CT. CL. 210.

ACCORDINGLY, SINCE THE RECORD SATISFACTORILY ESTABLISHES THAT THE WORK AND SERVICES WERE FURNISHED BY CONTRACTOR AT THE REQUEST OF THE RESIDENT ENGINEER, WHOSE AUTHORITY AS THE AUTHORIZED REPRESENTATIVE OF THE CONTRACTING OFFICER APPEARS TO HAVE BEEN SUFFICIENT TO BIND THE GOVERNMENT AS TO THE NECESSITY FOR THE WORK REQUIRED TO MEET UNFORESEEN CONDITIONS; THAT SUCH WORK AND SERVICES WERE IN EXCESS OF THOSE REQUIRED BY THE CONTRACT, BUT WERE NECESSITATED BY UNFORESEEN CONDITIONS AND CONTINGENCIES, AND THAT THE GOVERNMENT HAS RECEIVED THE BENEFITS OF THE WORK PERFORMED, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT, IF CORRECT IN OTHER RESPECTS. CARLO BIANCHI AND COMPANY, INC., V. UNITED STATES, 144 CT.CL. 500; VADE P. LOFTIS V. UNITED STATES, 110 CT. CL. 551; AND PETER KIEWIT SONS' COMPANY V. UNITED STATES, 109 CT. CL. 517.