B-153439, FEB. 24, 1964

B-153439: Feb 24, 1964

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O-NEILL: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 8. THE CONTRACTOR WILL BE NOTIFIED THREE DAYS IN ADVANCE OF SUCH STARTING DATE. IT IS ESTIMATED (NOT GUARANTEED) THAT WORK WILL COMMENCE APPROXIMATELY MAY 27. THE CONTRACT WILL TERMINATE ON OR ABOUT JUNE 30. OR WHEN THE JOB IS COMPLETED. WHICHEVER IS EARLIER. YOU ADVISE THAT ON JUNE 3 THE CONTRACTOR WAS REQUESTED TO HAVE THE PACK OUTFITS READY TO START WORK AT THE CAMP ON JUNE 7. NO WORK WAS PERFORMED PRIOR TO JUNE 22. WORK WAS PERFORMED ON SEVEN DAYS IN JUNE AND ON NINE DAYS IN JULY. WHEN THE CONTRACTOR WAS REQUESTED TO EXECUTE A RELEASE ON THE BASIS OF PAYMENT FOR THE 20 DAYS GUARANTY. HE OBJECTED ON THE GROUND THAT HIS OUTFITS HAD BEEN COMMITTED AND ON THE JOB FROM JUNE 7 AND THAT HE WAS ENTITLED TO COMPENSATION FOR THE WORK PERFORMED DURING JUNE AT THE GUARANTEED MINIMUM.

B-153439, FEB. 24, 1964

TO MR. JOHN T. O-NEILL:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 8, 1963, FILE 6540, RECEIVED FEBRUARY 4, 1964, REQUESTING AN OPINION AS TO THE PROPRIETY OF APPROVING FOR PAYMENT A VOUCHER IN THE AMOUNT OF $5,040, PAYABLE TO TED C. FROME, AS ADDITIONAL COMPENSATION FOR FURNISHING SEVEN SHORT STRING PACK OUTFITS AND PACKERS TO THE FOREST SERVICE MOODY CREEK INSECT CONTROL CAMP, SOUTHEAST OF REXBURG, IDAHO, UNDER ITEM 3 OF THE CONTRACT 33-156, AT $80 PER DAY EACH.

THE CONTRACT PROVIDED, UNDER THE HEADING, PERIOD OF WORK, USE, AND WORK GUARANTEE, AS FOLLOWS:

"CLIMATIC CONDITIONS DICTATE THE STARTING DATE FOR WORK TO BEGIN. THE CONTRACTOR WILL BE NOTIFIED THREE DAYS IN ADVANCE OF SUCH STARTING DATE. IT IS ESTIMATED (NOT GUARANTEED) THAT WORK WILL COMMENCE APPROXIMATELY MAY 27, 1963. THE CONTRACT WILL TERMINATE ON OR ABOUT JUNE 30, 1963, OR WHEN THE JOB IS COMPLETED, WHICHEVER IS EARLIER. BECAUSE OF THIS FLUCTUATING PERIOD OF USE, THE GOVERNMENT GUARANTEES THE SUCCESSFUL BIDDER 20 DAYS USE FOR EACH OUTFIT.'

YOU ADVISE THAT ON JUNE 3 THE CONTRACTOR WAS REQUESTED TO HAVE THE PACK OUTFITS READY TO START WORK AT THE CAMP ON JUNE 7, AND THAT HE DID SO. HOWEVER, DUE TO INCLEMENT WEATHER, NO WORK WAS PERFORMED PRIOR TO JUNE 22. THEREAFTER, WORK WAS PERFORMED ON SEVEN DAYS IN JUNE AND ON NINE DAYS IN JULY, A TOTAL OF 16 DAYS IN ALL. WHEN THE CONTRACTOR WAS REQUESTED TO EXECUTE A RELEASE ON THE BASIS OF PAYMENT FOR THE 20 DAYS GUARANTY, HE OBJECTED ON THE GROUND THAT HIS OUTFITS HAD BEEN COMMITTED AND ON THE JOB FROM JUNE 7 AND THAT HE WAS ENTITLED TO COMPENSATION FOR THE WORK PERFORMED DURING JUNE AT THE GUARANTEED MINIMUM. PAYMENT HAS BEEN MADE FOR THE 16 DAYS OF ACTUAL WORK AT THE PRICE COMPUTED FOR 20 DAYS OF GUARANTEED WORK WITHOUT PREJUDICE TO THE CLAIM FOR ADDITIONAL COMPENSATION, WHICH IS EQUIVALENT TO THE CONTRACT PRICE FOR THE NINE DAYS WORKED IN JULY.

THE QUESTION TO BE DECIDED IS WHETHER THE GUARANTEE APPLIED TO A TERM OF PERFORMANCE TERMINATED IN ACCORDANCE WITH THE CONTRACT PROVISION ON JUNE 30. THE CONTRACTING OFFICER IN A MEMORANDUM OF SEPTEMBER 20, 1963, SUGGESTING SUBMISSION OF THE CONTROVERSY TO THIS OFFICE, REPORTED THAT:

"A FORMAL EXTENSION AGREEMENT WAS NOT EXECUTED FOR USE FROM THE PERIOD OF JULY 1 THROUGH JULY 10, 1963, BECAUSE THE CONTRACTING OFFICER'S REPRESENTATIVE INTERPRETED THE "ONE OR ABOUT JUNE 30" TO MEAN THAT USE COULD CONTINUE FOR A SHORT TIME AFTER JUNE 30. THE CONTINUED USE OF THE LIVESTOCK BY THE FOREST SERVICE ON THE INSECT CONTROL PROJECT WAS IN GOOD FAITH AND UNDER THE ASSUMPTION THAT THE CONTRACT WAS IN FULL FORCE. THE CONTRACTOR DID NOT AT THIS POINT QUESTION AS TO WHETHER THE CONTRACT WAS IN FORCE, BUT APPARENTLY, FROM HIS CORRESPONDENCE, WAS UNDER THE IMPRESSION THAT THE GUARANTEE PERIOD WAS NO LONGER APPLICABLE BEYOND JUNE 30, 1963.'

THE CORRESPONDENCE MENTIONED INCLUDES A LETTER OF JUNE 21, 1963, REQUESTING INFORMATION AS TO WHETHER IT WAS DESIRED TO USE THE OUTFITS AFTER THE "LAST DAY OF JUNE" IN ORDER TO COORDINATE OTHER DEMANDS FOR THEM. IN THIS CONNECTION, THE CONTRACTOR HAS ADVISED THAT BOTH HE AND HIS REPRESENTATIVE VERBALLY NOTIFIED THE CONTRACTING OFFICER'S REPRESENTATIVE BEFORE THE END OF JUNE THAT THEY COULD NOT AFFORD TO KEEP THE OUTFITS ON THE JOB IN JULY UNLESS GUARANTEED AT LEAST ONE WEEK OF ADDITIONAL WORK. HE STATES THAT THE PROJECT SUPERVISOR ASSURED HIM AT THE END OF JUNE THAT AT LEAST SIX MORE DAYS OF WORK WOULD BE GUARANTEED, AND THAT HE THEN STAYED ON THE JOB.

IT SEEMS CLEAR THAT, REGARDLESS OF THE CONTINUING NEEDS OF THE GOVERNMENT, THE CONTRACT BY ITS TERMS TERMINATED AT THE END OF JUNE. EVEN THOUGH THE LANGUAGE "ON OR ABOUT JUNE 30, 1963, OR WHEN THE JOB IS COMPLETED" GAVE THE GOVERNMENT A CERTAIN LEEWAY IN ENDING THE CONTRACT, THAT LEEWAY COULD BE EXERCISED ONLY WITHIN THE LIMITATION ESTABLISHED BY THE QUALIFYING LANGUAGE "WHICHEVER IS EARLIER.' IN THE ABSENCE OF EVIDENCE THAT THE CONTRACTOR ACQUIESCED IN THE APPARENTLY UNCOMMUNICATED VIEWS OF THE CONTRACTING OFFICER'S REPRESENTATIVE, IT FOLLOWS THAT THE GUARANTEE APPLIED TO THE PERIOD EXPIRING WITH THE CONTRACT, AND THAT IN OBTAINING SERVICES AFTER THAT DATE THE GOVERNMENT WAS NOT ENTITLED TO DISREGARD THE FACT THAT THE GUARANTEE ALREADY HAD BEEN EARNED.

SINCE BOTH PARTIES APPEAR TO HAVE ACTED IN GOOD FAITH, IT WOULD BE PROPER TO CERTIFY THE VOUCHER COVERING PAYMENT FOR THE SERVICES FURNISHED TO AND UTILIZED BY THE GOVERNMENT DURING JULY, AT THE DAILY PRICE ESTABLISHED UNDER THE CONTRACT, IN THE TOTAL AMOUNT OF $5,040.