B-154042, AUG. 31, 1964

B-154042, AUG. 31, 1964

TO JWJ CONTRACTING CO., INC.:

REFERENCE IS MADE TO YOUR LETTERS OF APRIL 8 AND 22, 1964, REGARDING YOUR CLAIM FOR REIMBURSEMENT OF EXPENSES ALLEGED TO HAVE BEEN INCURRED IN CONNECTION WITH A CONTRACT ENTERED INTO WITH THE NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR.

ON OCTOBER 22, 1963, THE REGIONAL DIRECTOR, SOUTHWEST REGION, NATIONAL PARK SERVICE, SOLICITED BIDS--- TO BE OPENED DECEMBER 3, 1963 -- FOR CONSTRUCTION OF UTILITY BUILDING, RESIDENCES, COMFORT STATIONS AND UTILITY EXTENSIONS AT ORGAN PIPE CACTUS NATIONAL MONUMENT, ARIZONA, IN ACCORDANCE WITH THE SCHEDULES MADE A PART OF THE INVITATION. ON DECEMBER 20, 1963, THE CONTRACTING OFFICER NOTIFIED YOU THAT YOU WERE AWARDED A CONTRACT FOR THE WORK FOR THE AMOUNT OF $263,878. YOU WERE ADVISED AT THE TIME IN THE NOTICE OF AWARD THAT "THIS CONTRACT IS SUBJECT TO THE APPROVAL OF THE DIRECTOR, NATIONAL PARK SERVICE, DEPARTMENT OF THE INTERIOR, INTERIOR BUILDING, WASHINGTON, D.C., AND WILL NOT BE BINDING ON THE GOVERNMENT UNTIL IT HAS BEEN SO APPROVED.' ON FEBRUARY 6, 1964, YOU WERE INFORMALLY ADVISED THAT THE CONTRACT HAD NOT BEEN APPROVED BY THE DIRECTOR, NATIONAL PARK SERVICE AND YOUR CONTRACT WAS THEREFORE CANCELED. THIS ADVICE WAS CONFIRMED BY LETTER DATED FEBRUARY 10, 1964, AT WHICH TIME YOU WERE INFORMED THAT THE REQUIREMENTS FOR THE WORK WOULD BE READVERTISED. UPON A READVERTISEMENT WITH A REVISED SCHEDULE VI YOU WERE AWARDED A CONTRACT UNDER A SECOND INVITATION.

ON FEBRUARY 14, 1964, YOU PRESENTED A CLAIM FOR $17,045 TO THE CONTRACTING OFFICER, ALLEGED TO REPRESENT YOUR COSTS INCURRED UNDER THE FIRST CONTRACT BEFORE THE CANCELLATION OF THE SAME ON FEBRUARY 6, 1964. THE AMOUNT OF YOUR CLAIM WAS INCREASED THEREAFTER TO $21,495.

IT IS WELL SETTLED THAT WHERE, AS HERE, THE CONTRACT IS NOT TO BE BINDING ON THE GOVERNMENT UNTIL APPROVED BY SOME OFFICER OF THE GOVERNMENT IT IS NOT A BINDING OBLIGATION ON THE GOVERNMENT UNTIL OR UNLESS IT HAS BEEN SO APPROVED. SEE MONROE V. UNITED STATES, 184 U.S. 524; AND DARRAGH V. UNITED STATES, 33 CT.CL. 377. ALSO, SEE 15 COMP. GEN. 104, 106. WHILE IT IS ADMINISTRATIVELY REPORTED THAT THE REASON FOR DISAPPROVAL OF THE CONTRACT BY THE ASSISTANT DIRECTOR OF NATIONAL PARK SERVICE WAS THE FACT THAT THE AMOUNT OF $104,905 BID FOR THE FIVE RESIDENCES UNDER SCHEDULE II OF THE CONTRACT EXCEEDED THE "CONGRESSIONAL LIMITATION OF $20,000 PER RESIDENCE," THIS FACT CANNOT BE CONSIDERED IN CONNECTION WITH YOUR CLAIM, AS IN THE MONROE CASE, THE COURT STATED, IN DENYING A CLAIM FOR EXPENSES AND LOSS OF PROFIT, THAT THE REASONS WHY THE CHIEF OF ENGINEERS DID NOT APPROVE THE CONTRACT (FAILURE TO INCLUDE AN 8-HOUR PROVISION FOR LABORERS) "WERE NOT OPEN TO OUR INQUIRY.' IN THE DARRAGH CASE, THE COURT, AT PAGE 391, STATED THAT APPROVAL WAS "A CONDITION PRECEDENT TO THE LEGAL EFFECT OF THE AGREEMENT" AND THAT THE CONTRACT WAS A CONDITIONAL ONE WHICH WAS NOT FULLY CONSUMMATED. ASIDE FROM THE FACT THAT THERE IS NO LEGAL BASIS FOR ANY PAYMENT IN CONNECTION WITH THE CONDITIONAL CONTRACT AWARDED YOU ON DECEMBER 20, 1963, THE AMOUNTS CLAIMED DO NOT APPEAR TO REPRESENT ANY TANGIBLE BENEFITS WHICH THE GOVERNMENT HAS RECEIVED.

IN VIEW OF THE REPORTED FACTS AND THE LAW APPLICABLE THERETO, YOUR CLAIM IS DENIED.