B-156784, JUN. 10, 1965

B-156784: Jun 10, 1965

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TO CAPITAL CITY MANUFACTURING CO.: REFERENCE IS MADE TO YOUR LETTER OF MAY 13. THE FILE SUBMITTED WITH YOUR LETTER OF MAY 13 SHOWS THAT THIS MATTER WAS THE SUBJECT OF A CLAIM IN THE AMOUNT OF $56. THE FILE FURTHER SHOWS THAT PURSUANT TO SUCH AUTHORITY YOUR CLAIM WAS CONSIDERED BY THE HEAD OF THE ARMY CLEVELAND PROCUREMENT DISTRICT AND THE ARMY CONTRACT ADJUSTMENT BOARD. 319 IN THE TOTAL CONTRACT AMOUNT WAS AGREED TO BY THE PARTIES CONCERNED AND AUTHORIZED IN FULL SATISFACTION OF ANY AND ALL CLAIMS UNDER THE CONTRACT BY MODIFICATION NO. 2. 446.38 IS ACTUALLY THE DIFFERENCE BETWEEN WHETHER YOUR FIRM STAYS IN BUSINESS OR CLOSES ITS DOORS. WHILE IT IS OUR VIEW THAT ANY ADDITIONAL PAYMENT ON YOUR CLAIM IS EFFECTIVELY PRECLUDED BY THE EXPRESS TERMS OF THE ABOVE SETTLEMENT AGREEMENT.

B-156784, JUN. 10, 1965

TO CAPITAL CITY MANUFACTURING CO.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 13, 1965, AND ENCLOSURE, CONCERNING YOUR COMPLETED ARMY CONTRACT NO. DA-30-144-ORD-5626/W) WHICH YOU STATE RESULTED IN A HEAVY FINANCIAL LOSS TO YOUR FIRM.

THE FILE SUBMITTED WITH YOUR LETTER OF MAY 13 SHOWS THAT THIS MATTER WAS THE SUBJECT OF A CLAIM IN THE AMOUNT OF $56,765.38 FILED BY YOU WITH THE DEPARTMENT OF THE ARMY UNDER THE PROVISIONS OF PUBLIC LAW 85 804, APPROVED AUGUST 28, 1958, 72 STAT. 972, 50 U.S.C. 1431-1435, AS IMPLEMENTED BY SECTION XVII OF THE ARMED SERVICES PROCUREMENT REGULATION, WHICH AUTHORIZES AMENDING OR MODIFYING CONTRACTS TO FACILITATE THE NATIONAL DEFENSE. THE FILE FURTHER SHOWS THAT PURSUANT TO SUCH AUTHORITY YOUR CLAIM WAS CONSIDERED BY THE HEAD OF THE ARMY CLEVELAND PROCUREMENT DISTRICT AND THE ARMY CONTRACT ADJUSTMENT BOARD, AND THAT PAYMENT OF AN INCREASE OF $21,319 IN THE TOTAL CONTRACT AMOUNT WAS AGREED TO BY THE PARTIES CONCERNED AND AUTHORIZED IN FULL SATISFACTION OF ANY AND ALL CLAIMS UNDER THE CONTRACT BY MODIFICATION NO. 2, SUPPLEMENTAL AGREEMENT, TO THE CONTRACT. PARAGRAPH 3 OF THE MODIFICATION SPECIFICALLY PROVIDES:

"THE CONTRACTOR HEREBY UNCONDITIONALLY WAIVES ANY AND ALL CLAIMS AGAINST THE GOVERNMENT ARISING FROM THIS CONTRACT AND HEREBY DOES REMISE, RELEASE AND FOREVER DISCHARGE THE GOVERNMENT FROM ANY AND ALL CLAIMS, DAMAGES, ACTIONS AND CAUSES OF ACTIONS WHATSOEVER ARISING OUT OF OR BY VIRTUE OF FURNISHING THE SUPPLIES AND SERVICES DESCRIBED IN THE CONTRACT, AS AMENDED, WHICH THE CONTRACTOR EITHER NOW HAS ASSERTED OR MIGHT HEREAFTER ASSERT.'

YOU STATE THAT THE UNALLOWED BALANCE OF $35,446.38 IS ACTUALLY THE DIFFERENCE BETWEEN WHETHER YOUR FIRM STAYS IN BUSINESS OR CLOSES ITS DOORS, AND YOU REQUEST "THIS ISSUE BE REOPENED ON THE BASIS OF OUR CLAIM THROUGH YOUR OFFICE AND THE AUTHORITY VESTED IN YOU (P.L. 85 804).'

WHILE IT IS OUR VIEW THAT ANY ADDITIONAL PAYMENT ON YOUR CLAIM IS EFFECTIVELY PRECLUDED BY THE EXPRESS TERMS OF THE ABOVE SETTLEMENT AGREEMENT, IT IS OUR FURTHER OPINION THAT AN ADMINISTRATIVE DECISION GRANTING OR DENYING A RELIEF CLAIM UNDER PUBLIC LAW 85-804 IS NOT SUBJECT TO REVIEW BY OUR OFFICE. WE ARE NOT ONE OF THE GOVERNMENT AGENCIES AUTHORIZED BY THE STATUTE AND IMPLEMENTING EXECUTIVE ORDERS TO AMEND OR MODIFY CONTRACTS WITHOUT CONSIDERATION ON THE BASIS THAT SUCH ACTION WOULD FACILITATE THE NATIONAL DEFENSE, AND ACTIONS TAKEN BY THOSE AGENCIES UNDER THAT AUTHORITY ARE CONSIDERED BY US TO BE BINDING UPON OUR OFFICE. IN THE ABSENCE OF SUCH SPECIFIC AUTHORITY, WE WOULD BE REQUIRED TO APPLY THE GENERAL RULES THAT OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO AMEND OR MODIFY EXISTING CONTRACTS UNLESS A COMPENSATING BENEFIT RESULTS TO THE UNITED STATES; AND THAT SUPERVENING EVENTS OR UNFORESEEN CAUSES WHICH RENDER CONTRACT PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, ARE NOT SUFFICIENT TO ENTITLE A CONTRACTOR TO AN ADJUSTMENT IN THE CONTRACT PRICE. SEE J. J. PREIS AND COMPANY V. UNITED STATES, 58 CT.CL. 81, 86 VULCANITE PORTLAND CEMENT CO. V. UNITED STATES, 74 CT.CL. 692, 705; CHOUTEAU V. UNITED STATES, 95 U.S. 61, 68; AND DAY ET AL. V. UNITED STATES, 245 U.S. 159, 161.

ACCORDINGLY, THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY GRANT YOU THE RELIEF REQUESTED, AND YOUR REQUEST MUST THEREFORE BE DENIED.

CONCERNING THE MATTER OF INTEREST ON THE ADDITIONAL AMOUNT AWARDED BY THE ARMY, IT IS WELL SETTLED THAT INTEREST ON CLAIMS AGAINST THE UNITED STATES MAY BE PAID ONLY UNDER A CONTRACT OR ACT OF CONGRESS EXPRESSLY PROVIDING THEREFOR, AND NO SUCH CONDITIONS APPEAR TO PERTAIN IN YOUR CASE. SEE 28 U.S.C. 2516.