B-153198, MAR. 11, 1964

B-153198, MAR. 11, 1964

TO PETERSON AND WESTBERG, INC.:

YOUR LETTER OF DECEMBER 10, 1963, HAS BEEN CONSIDERED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT OF NOVEMBER 18, 1963, DISALLOWING YOUR CLAIM FOR REIMBURSEMENT OF $854.94 WHICH YOU WERE REQUIRED BY THE GOVERNMENT TO PAY AS MINIMUM WAGES UNDER AIR FORCE CONTRACT NO. AF 20/612/-658, DATED JUNE 27, 1962, AND WHICH YOU CONTEND WERE IN EXCESS OF AMOUNTS PROPERLY PAYABLE.

THE CONTRACT, WHICH COVERED CERTAIN SEWER WORK AT KINCHELOE AIR FORCE BASE, MICHIGAN, PRESCRIBED MINIMUM WAGE SCHEDULES PURSUANT TO THE DAVIS- BACON ACT UNDER THE HEADINGS "HIGHWAY, BRIDGE AND AIRPORT CONSTRUCTION" AND "BUILDING AND HEAVY CONSTRUCTION.' BY LETTER DATED AUGUST 22, 1962, THE PROCUREMENT SUPERVISOR NOTIFIED YOU THAT PAYMENT OF YOUR EMPLOYEES AT WAGE RATES UNDER THE "HIGHWAY, BRIDGE, AND AIRPORT" SCHEDULE WAS IMPROPER AND THAT THE PREVAILING SCALE SHOULD BE THE "BUILDING AND HEAVY CONSTRUCTION" RATES. IN YOUR LETTER OF AUGUST 24, 1962, TO THE PROCUREMENT SUPERVISOR, YOU CONTENDED THAT SINCE THE WORK WAS NOT CONNECTED WITH A BUILDING OR BUILDINGS, THE JOB CLASSIFICATIONS AND WAGE RATES LISTED UNDER "HIGHWAY, BRIDGE AND AIRPORT (EXCLUSIVE OF BUILDINGS) CONSTRUCTION" APPLIED. THE PROCUREMENT SUPERVISOR, HOWEVER, IN A REPLY DATED AUGUST 30, 1962, FURNISHED YOU COPIES OF PERTINENT CORRESPONDENCE RELATIVE TO A SIMILAR PROJECT AT K. I. SAWYER AIR FORCE BASE SETTING FORTH THE BASIS OF A DECISION THAT SINCE THE SEWERS ALSO SERVE THE BUILDING AREA, THE INSTALLATION OF THE SEWERS IS INCIDENTAL TO THE BUILDINGS AND COMES UNDER THE BUILDING AND HEAVY CONSTRUCTION SCHEDULE. THEREAFTER, YOU MADE THE WAGE ADJUSTMENTS WITHOUT FURTHER PROTEST, AND YOU EXECUTED AN UNQUALIFIED RELEASE OF ALL CLAIMS UNDER THE CONTRACT IN CONSIDERATION OF RECEIPT OF FINAL PAYMENT ON NOVEMBER 1, 1962. YOUR CLAIM FOR REIMBURSEMENT OF THE AMOUNT EXPENDED FOR THE WAGE ADJUSTMENTS ON THE BASIS THAT THE ADMINISTRATIVE DECISION WAS IMPROPER WAS FIRST PRESENTED ON NOVEMBER 23, 1962, TWENTY-THREE DAYS AFTER ACCEPTANCE OF THE FINAL PAYMENT.

YOU STATE THAT YOU WERE TOLD THAT IT WAS NECESSARY FOR YOU TO SIGN THE AFFIDAVIT (RELEASE) IN ORDER TO RECEIVE MONEY FOR THE CONTRACT AND YOU FELT THAT YOU HAD TO SIGN IT IN ORDER "TO GET ANY CONSIDERATION WHATEVER IN REGARD TO THIS CLAIM.' YOU CONTEND, THEREFORE, THAT THE RELEASE SIGNED UNDER SUCH CONDITIONS IS NULL AND VOID.

PARAGRAPH 7 (E), PAYMENTS TO CONTRACTOR, OF THE GENERAL PROVISIONS OF THE CONTRACT, STATES THAT "THE AMOUNT DUE THE CONTRACTOR UNDER THIS CONTRACT SHALL BE PAID UPON THE PRESENTATION OF A PROPERLY EXECUTED VOUCHER AND AFTER THE CONTRACTOR SHALL HAVE FURNISHED THE GOVERNMENT WITH A RELEASE, IF REQUIRED, OF ALL CLAIMS AGAINST THE GOVERNMENT ARISING BY VIRTUE OF THIS CONTRACT, OTHER THAN CLAIMS IN STATED AMOUNTS AS MAY BE SPECIFICALLY EXCEPTED BY THE CONTRACTOR FROM THE OPERATION OF THE RELEASE.' IN THE SPACE PROVIDED FOR EXCEPTIONS IN THE RELEASE, WHICH WAS SIGNED ON OCTOBER 8, 1962, IN YOUR NAME BY G. D. BALL, THERE WAS INSERTED THE WORD "NONE.'

WHILE FINANCIAL CONSIDERATIONS MIGHT HAVE COMPELLED YOU TO EXECUTE THE RELEASE, SUCH FACT DOES NOT WARRANT A HOLDING THAT IT WAS EXECUTED UNDER DURESS SO AS TO RENDER IT NULL AND VOID. FURTHERMORE, NOTWITHSTANDING THAT THE LANGUAGE OF BOTH PARAGRAPH 7 (E) OF THE CONTRACT AND OF THE RELEASE PLACED YOU ON NOTICE THAT ANY CLAIMS MIGHT BE SPECIFICALLY EXCEPTED FROM THE OPERATION OF THE RELEASE IN STATED ACCOUNTS, YOU MADE NO RESERVATION OF YOUR CLAIM, AND THERE IS NO INDICATION THAT YOU WERE DETERRED FROM DOING SO BY ANY GOVERNMENT AGENT.

WHEN A CONTRACT HAS BEEN PERFORMED AND A STIPULATED CONSIDERATION HAS BEEN PAID, THE GENERAL PRESUMPTION IS THAT THE TRANSACTION IS ACLOSED ONE. IF THERE ARE CLAIMS ON THE PART OF THE CONTRACTOR WHICH AFFECT THE AMOUNT DUE AND PAYABLE TO HIM UNDER THE TERMS OF THE CONTRACT, THEY SHOULD BE ASSERTED AT OR BEFORE THE TIME A SETTLEMENT IS MADE. THE GOVERNMENT IS ENTITLED TO KNOW, WHEN IT MAKES WHAT IT BELIEVES TO BE A FINAL PAYMENT ON ITS CONTRACT, WHAT CLAIMS A CONTRACTOR INTENDS TO ASSERT AGAINST IT ON ACCOUNT OF THE CONTRACT. IT IS ITS RIGHT TO KNOW WHETHER THE SUPPOSED FINAL PAYMENT IS IN FACT FINAL AND CONCLUSIVE. SEE POOLE ENGINEERING AND MACHINE COMPANY V. UNITED STATES, 57 CT.CL. 232 (1922).

IN VIEW OF THE FOREGOING, WE SEE NO BASIS UPON WHICH ALLOWANCE OF YOUR CLAIM MAY BE AUTHORIZED. ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.