B-150292, DEC. 11, 1962

B-150292: Dec 11, 1962

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754.20 WAS MADE TO YOU ON JULY 17. THE ADDITIONAL AMOUNT CLAIMED BY YOU AND DISALLOWED BY THE CONTRACTING OFFICE REPRESENTED EXTRA EXPENSES WHICH YOU ALLEGE WERE MADE NECESSARY BECAUSE THE WORK HAD TO BE SCHEDULED SO AS NOT TO INTERFERE WITH CLASSES IN SESSION AND BECAUSE THE POST ENGINEER REQUIRED THE REMOVAL OF SEVERAL BLINDS FROM WOOD STRIPPING AND THE INSTALLATION INTO THE MASONRY WALL. IT WAS REQUIRED BY THE TERMS OF THE PURCHASE ORDER THAT SUCH CHANGES OR EXTRA WORK BE ORDERED IN WRITING BY THE CONTRACTING OFFICER. THIS WAS NOT DONE. IS SUFFICIENT WITHOUT ANYTHING ELSE TO PREVENT RECOVERY. A CASE VERY MUCH IN POINT IS UNITED STATES V. MATERIALS AND MISCELLANEOUS COSTS ALLEGED TO HAVE BEEN IMPOSED ON HIM BY THE "ARBITRARY.

B-150292, DEC. 11, 1962

TO AMERICAN SHADE COMPANY:

BY LETTER DATED NOVEMBER 8, 1962, YOU REQUESTED, IN EFFECT, REVIEW OF OUR DISALLOWANCE DATED NOVEMBER 5, 1962, WHICH DENIED YOUR CLAIM FOR $463.75, REPRESENTING ADDITIONAL COMPENSATION ALLEGED TO BE DUE UNDER PURCHASE ORDER NO. 62-5742 AWARDED ON APRIL 24, 1962.

THE PURCHASE ORDER COVERED THE FURNISHING AND INSTALLING OF 51 VENETIAN BLINDS IN 17 CLASSROOMS AT THE U.S. ARMY INTELLIGENCE CENTER AND FORT HOLABIRD, MARYLAND, IN THE MANNER DESIGNATED BY THE POST ENGINEER, FOR A TOTAL CONSIDERATION OF $1,790. LESS 2 PERCENT 10 DAYS PROMPT PAYMENT DISCOUNT. ON JUNE 25, 1962, YOU SUBMITTED AN INVOICE FOR THE WORK COMPLETED IN THE AMOUNT OF $2,253.75 WHICH INCLUDED THE $463.75 CLAIMED. PAYMENT IN THE NET CONTRACT AMOUNT OF $1,754.20 WAS MADE TO YOU ON JULY 17, 1962. THE ADDITIONAL AMOUNT CLAIMED BY YOU AND DISALLOWED BY THE CONTRACTING OFFICE REPRESENTED EXTRA EXPENSES WHICH YOU ALLEGE WERE MADE NECESSARY BECAUSE THE WORK HAD TO BE SCHEDULED SO AS NOT TO INTERFERE WITH CLASSES IN SESSION AND BECAUSE THE POST ENGINEER REQUIRED THE REMOVAL OF SEVERAL BLINDS FROM WOOD STRIPPING AND THE INSTALLATION INTO THE MASONRY WALL.

THE PURCHASE ORDER PRESCRIBED THE PROCEDURES TO BE FOLLOWED IN EFFECTING AN EQUITABLE ADJUSTMENT FOR CHANGES WITHIN THE GENERAL SCOPE OF THE PURCHASE ORDER AND IN OBTAINING PAYMENT FOR EXTRA WORK. IN ORDER TO BE ENTITLED TO AN EQUITABLE ADJUSTMENT FOR CHANGES OR TO PAYMENT FOR EXTRA WORK, IT WAS REQUIRED BY THE TERMS OF THE PURCHASE ORDER THAT SUCH CHANGES OR EXTRA WORK BE ORDERED IN WRITING BY THE CONTRACTING OFFICER. THIS WAS NOT DONE, AND NEITHER OUR OFFICE NOR THE CONTRACTING AGENCY HAS AUTHORITY TO WAIVE THAT REQUIREMENT IN THE ABSENCE OF SOME COMPENSATING BENEFIT TO THE GOVERNMENT.

IN ANY EVENT, PARAGRAPH 12 OF THE GENERAL PROVISIONS OF THE PURCHASE ORDER PROVIDED THAT ANY DISPUTE CONCERNING A QUESTION OF FACT SHALL BE DECIDED BY THE CONTRACTING OFFICER. FAILURE TO COMPLY WITH THE DISPUTES CLAUSE,"THE ONLY AVENUE FOR RELIEF" AVAILABLE FOR THE SETTLEMENT OF DISPUTES CONCERNING QUESTIONS ARISING UNDER THE CONTRACT, IS SUFFICIENT WITHOUT ANYTHING ELSE TO PREVENT RECOVERY. UNITED STATES V. CALLAHAN WALKER CO., 317 U.S. 56, 61. THE GOVERNMENT CANNOT BE DEPRIVED OF THE BENEFITS OF THE ADMINISTRATIVE MACHINERY IT HAS PROVIDED TO ADJUDICATE DISPUTES AND TO AVOID DAMAGE CLAIMS. UNITED STATES V. BLAIR, 321 U.S. 730, 735; UNITED STATES V. HOLPUCH CO., 328 U.S. 234, 239-240; YUHASZ V. UNITED STATES, 109 F2D 467, 468; AND J. AND J. W. STOLTS ASSOCIATION V. UNITED STATES, 66 CT.CL. 1, 8-9.

THE RECORD DOES NOT SHOW THAT YOU FOLLOWED THIS DISPUTES PROCEDURE IN PURSUING CLAIMS COGNIZABLE BY THE CHANGES AND EXTRAS CLAUSES. ASIDE FROM THIS FACT, THERE HAS BEEN NO VERIFICATION OF THE AMOUNT OF THE INCREASED COSTS OCCASIONED BY INTERRUPTION OF THE WORK BY REASON OF THE CLASSES BEING IN SESSION AND IT HAS NOT BEEN ESTABLISHED THAT YOUR CONTEMPLATED METHOD OF INSTALLATION MET THE REQUIREMENTS OF THE CONTRACT.

REGARDING YOUR CLAIM, A CASE VERY MUCH IN POINT IS UNITED STATES V. BLAIR, SUPRA. IN THAT CASE, THE CONTRACTOR FILED A CLAIM FOR EXTRA LABOR, MATERIALS AND MISCELLANEOUS COSTS ALLEGED TO HAVE BEEN IMPOSED ON HIM BY THE "ARBITRARY, CAPRICIOUS AND UNFAIR CONDUCT OF GOVERNMENT AGENTS.' THE CONTRACTOR HAD NEVER REFERRED THE DISPUTE TO THE CONTRACTING OFFICER AS WAS REQUIRED BY THE DISPUTES CLAUSE SIMILAR TO PARAGRAPH 12 CONTAINED IN THE IMMEDIATE CONTRACT. THE SUPREME COURT HELD THAT THE CONTRACTOR SHOULD BE PRECLUDED FROM RECOVERING ON ITS CLAIM. THE COURT SAID THAT EVEN IF THE CONDUCT OF THE GOVERNMENT SUPERINTENDENT OR CONTRACTING OFFICER, OR THEIR ASSISTANTS, WAS SO FLAGRANTLY UNREASONABLE OR SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH, THE APPEAL PROVISIONS OF THE CONTRACT MUST BE EXHAUSTED. ID. AT 736.

WE FIND NO LEGAL BASIS TO SUPPORT YOUR CLAIM, AND OUR PRIOR DISALLOWANCE IS ACCORDINGLY SUSTAINED.