B-148965, MAY 5, 1965

B-148965: May 5, 1965

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SCHUCHERT AND SAPP: REFERENCE IS MADE TO YOUR LETTER OF APRIL 13. 030.80 AND $462.36 WERE ADDED TO THAT AMOUNT FOR "MALAN'S 15 PERCENT OVERHEAD. FROM WHICH THERE WAS DEDUCTED THE AMOUNT OF $37. HEAT WAS FURNISHED IN THAT BUILDING FROM ABOUT FEBRUARY 24. WHEN IT WAS NEARLY COMPLETED. THE CLAIM WAS CONSIDERED BY THE DEPARTMENT WITH A VIEW TOWARD THE NEGOTIATION OF A MUTUALLY AGREEABLE AMOUNT TO BE PAID THEREON SUBJECT TO THE APPROVAL OF OUR OFFICE. A VOUCHER FOR THAT AMOUNT WAS CERTIFIED BY OUR OFFICE FOR PAYMENT TO THE COMPANY. IT WAS STATED ON THE VOUCHER THAT SUCH AMOUNT HAD BEEN "DETERMINED" AS DUE BY THE DISTRICT ENGINEER AND ACCEPTED BY THE CONTRACTOR.'. 849.75 AND $241.68 WERE ADDED AS BEING DUE THE MALAN CONSTRUCTION CORPORATION FOR OVERHEAD AND PROFIT AND FOR BOND COST.

B-148965, MAY 5, 1965

TO PORSCHE-, SCHUCHERT AND SAPP:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 13, 1965, PRESENTING IN BEHALF OF THE MALAN CONSTRUCTION CORPORATION, NEW YORK, NEW YORK, A CLAIM FOR $9,275.44, ALLEGED TO BE DUE FROM THE GOVERNMENT FOR THE FURNISHING OF TEMPORARY HEATING IN A BUILDING CONSTRUCTED UNDER ARMY CONTRACT NO. DA-36- 058-ENG-4622 (SERIAL NO. ENG-36-058-59-20).

THE STATEMENT OF CLAIM LISTS VARIOUS BILLINGS TO THE MALAN CONSTRUCTION CORPORATION BY H. REICHMAN AND COMPANY AND THE SUPERIOR ELECTRIC CONSTRUCTION COMPANY IN AMOUNTS TOTALING THE SUM OF $40,205.35. THE SUMS OF $6,030.80 AND $462.36 WERE ADDED TO THAT AMOUNT FOR "MALAN'S 15 PERCENT OVERHEAD, TAXES AND INSURANCE" AND "BOND 1 PERCENT," IN ARRIVING AT A TOTAL CLAIM FOR $46,698.51, FROM WHICH THERE WAS DEDUCTED THE AMOUNT OF $37,423.07 AS "PAYMENT RECEIVED DATED JUNE 13, 1962, FROM U.S. GENERAL ACCOUNTING OFFICE.'

OUR RECORDS SHOW THAT ON JUNE 22, 1960, THE MALAN CONSTRUCTION CORPORATION SUBMITTED TO THE DEPARTMENT OF THE ARMY A CLAIM FOR $40,878.78 AS LABOR COSTS INVOLVED IN THE FURNISHING OF TEMPORARY HEAT IN THE "AACC" BUILDING CONSTRUCTED UNDER CONTRACT NO. DA-36-058-ENG 4622. HEAT WAS FURNISHED IN THAT BUILDING FROM ABOUT FEBRUARY 24, 1960, WHEN IT WAS NEARLY COMPLETED, UNTIL ABOUT JUNE 18, 1960, APPARENTLY WITHOUT PROPER AUTHORIZATION. THE CLAIM WAS CONSIDERED BY THE DEPARTMENT WITH A VIEW TOWARD THE NEGOTIATION OF A MUTUALLY AGREEABLE AMOUNT TO BE PAID THEREON SUBJECT TO THE APPROVAL OF OUR OFFICE. THE COMPANY EVENTUALLY AGREED TO ACCEPT THE GOVERNMENT'S ESTIMATE OF $37,423.07 AS A REASONABLE SETTLEMENT. ON JUNE 13, 1962, A VOUCHER FOR THAT AMOUNT WAS CERTIFIED BY OUR OFFICE FOR PAYMENT TO THE COMPANY, AND IT WAS STATED ON THE VOUCHER THAT SUCH AMOUNT HAD BEEN "DETERMINED" AS DUE BY THE DISTRICT ENGINEER AND ACCEPTED BY THE CONTRACTOR.'

THE COMPUTATION OF THE RECOMMENDED ALLOWANCE OF $37,423.07 INCLUDED PORTIONS OF SUBCONTRACTOR DIRECT COSTS AMOUNTING TO $26,720.36,AND THE ADDITIONS OF THE AMOUNTS OF $2,672.04 AND $2,939.24 AS OVERHEAD AND PROFIT TO SUBCONTRACTORS. TO THE AGGREGATE OF $32,331.64, THE AMOUNTS OF $4,849.75 AND $241.68 WERE ADDED AS BEING DUE THE MALAN CONSTRUCTION CORPORATION FOR OVERHEAD AND PROFIT AND FOR BOND COST.

SUBCONTRACTOR BILLINGS WERE NOT INCLUDED AMONG THE PAPERS SUBMITTED TO OUR OFFICE IN SUPPORT OF THE CLAIM. WE THEREFORE HAVE NO INFORMATION TO SHOW THAT ANY OF THE BILLINGS LISTED IN THE PRESENT STATEMENT OF CLAIM WERE NOT CONSIDERED IN ARRIVING AT THE AMOUNT OF $37,423.07 WHICH THE CONTRACTOR AGREED TO ACCEPT IN SETTLEMENT OF THE CLAIM. IN ANY EVENT, PAYMENT AND ACCEPTANCE OF THAT AMOUNT IN ACCORDANCE WITH THE AGREEMENT REACHED IN THE MATTER CONSTITUTED A COMPLETE SETTLEMENT OF THE CLAIM FOR THE PERIOD FEBRUARY 24 TO JUNE 18, 1960, AND WE FIND NO LEGAL BASIS FOR AUTHORIZING PAYMENT OF ANY ADDITIONAL AMOUNT ON SUCH CLAIM. SEE CHOUTEAU V. UNITED STATES, 95 U.S. 61; AND 1 C.J.S., ACCORD AND SATISFACTION, SECTIONS 32 AND 34.

ACCORDINGLY, THE CLAIM FOR $9,275.44 MUST BE, AND IS, HEREBY DISALLOWED.