B-150994, APR. 3, 1963

B-150994, APR. 3, 1963

TO MR. JOHN J. BACHENSKY, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR:

WE HAVE YOUR LETTER OF MARCH 5, 1963, YOUR REFERENCE W1819, FORWARDING VOUCHER SCHEDULE NO. 29-1574, DATED MARCH 4, 1963, IN THE AMOUNT OF $11,250, TOGETHER WITH OTHER DOCUMENTS, AND REQUESTING OUR DECISION AS TO THE PROPRIETY OF PAYING $8,500 OF THAT AMOUNT UNDER THE CIRCUMSTANCES SET OUT BELOW.

ON APRIL 27, 1959, THE NATIONAL PARK SERVICE ENTERED INTO CONTRACT NO. 14 -10-529-2046 WITH RICHARD J. NEUTRA AND ROBERT E. ALEXANDER, ARCHITECTS, OF LOS ANGELES, CALIFORNIA, UNDER WHICH THE LATTER WERE TO PERFORM ALL PROFESSIONAL ARCHITECTURAL-ENGINEERING SERVICES NECESSARY FOR THE PREPARATION OF COMPLETE CONTRACT WORKING DRAWINGS FOR A VISITOR CENTER AND CYCLORAMA AT GETTYSBURG NATIONAL MILITARY PARK, GETTYSBURG, PENNSYLVANIA. UNDER ARTICLE VIII OF THE CONTRACT THE GOVERNMENT OBTAINED AN OPTION TO REQUIRE THE CONTRACTOR ALSO TO PERFORM ALL SUPERVISORY SERVICES WITH RESPECT TO THE CONSTRUCTION INVOLVED FOR A FEE AMOUNTING TO 2 PERCENT OF THE TOTAL AMOUNT OF THE CONSTRUCTION WORK. THE CONTRACT WAS AMENDED BY CHANGE ORDER NO. 1, ISSUED OCTOBER 20, 1959, AGREED TO BY THE CONTRACTORS ON OCTOBER 22, 1959, UNDER WHICH THE ARCHITECTS WERE TO PROVIDE COMPLETE SUPERVISION OF THE CONSTRUCTION. PARAGRAPH 2 (A) OF THE CHANGE ORDER STATED IN RT,"SUPERVISION SHALL COMMENCE WITH THE STARTING DATE OF CONSTRUCTION AND CONTINUE THROUGH THE LENGTH OF THE ENTIRE JOB UNTIL FINAL COMPLETION AND ACCEPTANCE OF THE WORK BY THE GOVERNMENT.' PARAGRAPH 3 OF THE CHANGE ORDER PROVIDED FOR PAYMENT IN ACCORDANCE WITH ARTICLE VIII OF THE CONTRACT, PLUS ADDITIONAL AMOUNTS FOR TRAVEL AND CONTINGENCIES RELATED THERETO.

AT THE TIME THE CHANGE ORDER WAS ENTERED INTO THE PARTIES CONTEMPLATED THAT THE WORK UNDER THE CONSTRUCTION CONTRACTS WOULD BE COMPLETED BY ABOUT NOVEMBER 11, 1960, 360 DAYS AFTER AWARD. HOWEVER, DUE TO UNANTICIPATED PROBLEMS WHICH AROSE, IT BECAME NECESSARY TO EXTEND THE COMPLETION TIME FOR THE CONSTRUCTION WORK AN ADDITIONAL 425 DAYS OR UNTIL JANUARY 10, 1962. AS A RESULT OF THE DELAY IN COMPLETION OF THE CONSTRUCTION CONTRACTS, THE ARCHITECTS HAD TO PROVIDE PROFESSIONAL SERVICES FOR A PERIOD 168 DAYS BEYOND THAT CONTEMPLATED AT THE TIME THE ORIGINAL CONTRACT AND CHANGE ORDER NO. 1 WERE ENTERED INTO. SINCE THE EXTENSION OF THE PERIOD OF PERFORMANCE UNDER THE CONSTRUCTION CONTRACTS WAS NOT ACCOMPANIED BY ANY INCREASE IN THE CONTRACT PRICES, AND SINCE UNDER THE TERMS OF ARTICLE VIII AND THE CHANGE ORDER COMPENSATION FOR SUPERVISING CONSTRUCTION WAS BASED IN EFFECT ON A PERCENTAGE OF THE TOTAL OF THE CONTRACT PRICES FOR THE CONSTRUCTION, THERE WAS NO PROVISION FOR INCREASING THE COMPENSATION TO BE PAID THE ARCHITECTS FOR THE ADDITIONAL PERIOD OF SERVICE. ACCORDINGLY, CHANGE ORDER NO. 3 WAS ENTERED INTO, EFFECTIVE FEBRUARY 7, 1963, AMENDING THE ARCHITECTURAL-ENGINEERING CONTRACT TO PROVIDE FOR ADDITIONAL COMPENSATION IN THE AMOUNT OF $8,500. THE AMENDMENT WAS ACKNOWLEDGED AND APPROVED BY THE CONTRACTORS AS OF FEBRUARY 18, 1963.

AS INDICATED ABOVE, THE ARCHITECTS WERE REQUIRED UNDER THE TERMS OF CHANGE ORDER NO. 1 TO PROVIDE SUPERVISION FOR THE ENTIRE LENGTH OF THE JOB UNTIL FINAL COMPLETION AND ACCEPTANCE OF THE WORK BY THE GOVERNMENT FOR WHICH COMPENSATION WAS TO BE 2 PERCENT OF THE TOTAL PRICE OF THE CONSTRUCTION WORK SUPERVISED. IT HAS BEEN OUR CONSISTENT POSITION THAT PROVISIONS OF THIS KIND OBLIGATE THE ARCHITECT TO PROVIDE SERVICES UNTIL WORK UNDER THE CONSTRUCTION CONTRACTS IS COMPLETED, NOTWITHSTANDING THAT COMPLETION OF SUCH LATTER CONTRACTS MAY HAVE BEEN MATERIALLY DELAYED BEYOND THE SCHEDULED TIME. B-421354 NOVEMBER 6, 1944. THEREFORE, THE ARCHITECTS WERE REQUIRED TO COMPLETE PERFORMANCE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT AND CHANGE ORDER NO. 1 WITHOUT THE ISSUANCE OF CHANGE ORDER NO. 3 AND THE INCREASE IN COMPENSATION PROVIDED THEREUNDER. SINCE THE RIGHT TO THE DESCRIBED PERFORMANCE HAD ALREADY VESTED IN THE GOVERNMENT, THERE WAS NO CONSIDERATION FOR CHANGE ORDER NO. 3 WHICH MUST BE REGARDED AS VOID AND OF NO EFFECT. 21 COMP. GEN. 31; 16 COMP. GEN. 463. ACCORDINGLY, THE AMOUNT OF $8,500 COVERING CHANGE ORDER NO. 3 INCLUDED ON VOUCHER SCHEDULE NO. 29-1574 MAY NOT BE PAID FROM APPROPRIATED FUNDS.