B-163849, APR. 5, 1968

B-163849, APR. 5, 1968

TO GENERAL MCKEE:

REFERENCE IS MADE TO A LETTER DATED MARCH 19, 1968, FROM THE DIRECTOR, LOGISTICS SERVICE, REQUESTING OUR CONCURRENCE WITH A PROPOSED ALLOWANCE, BY PURCHASE ORDER AMENDMENT, OF A CLAIM PRESENTED BY HARVARD UNIVERSITY IN THE AMOUNT OF $4,956.83 FOR ADDITIONAL WORK PERFORMED UNDER DEPARTMENT OF COMMERCE PURCHASE ORDER NO. 711924, DATED AUGUST 16, 1966, COVERING SERVICES TO STUDY THE AVAILABILITY OF DATA ON INTERREGIONAL SHIPMENTS BY TRANSPORTATION MODES, AT A STATED COST OF $1,663.

IT IS REPORTED THAT THE CONTRACT CURRENTLY IS BEING ADMINISTERED BY THE FEDERAL AVIATION ADMINISTRATION, THAT FOUR AMENDMENTS INVOLVING NO CHANGE IN COST WERE ADDED TO THE PURCHASE ORDER AND THAT, IN CONNECTION WITH THE CLAIM FOR $4,956.83 HARVARD UNIVERSITY ALLEGES THAT THE GOVERNMENT AUTHORIZED THE PERFORMANCE OF ADDITIONAL WORK UNDER THE PURCHASE ORDER, AS AMENDED. THE NATURE OF THE ADDITIONAL WORK IS DISCUSSED IN THE LETTER OF MARCH 19, 1968, AND IT IS ADMITTED THAT AUTHORIZATION FOR THE PERFORMANCE OF SUCH EXTRA WORK WAS GIVEN ORALLY BY GOVERNMENT TECHNICAL OFFICIALS. IS RECOGNIZED THAT THE UNIVERSITY SHOULD HAVE OBTAINED AN AUTHORIZATION FROM THE CONTRACTING OFFICER BEFORE PERFORMING ANY WORK IN ADDITION TO THAT CALLED FOR IN THE PURCHASE ORDER AND THE AMENDMENTS THERETO. HOWEVER, SINCE THE GOVERNMENT HAS DERIVED A BENEFIT FROM THE EXTRA WORK PERFORMED BY THE UNIVERSITY AND THE DEPARTMENT OF TRANSPORTATION ESTIMATES THE EXTRA WORK TO BE WORTH $4,956.83, IT IS PROPOSED TO ISSUE AN AMENDMENT TO THE PURCHASE ORDER SO THAT SUCH AMOUNT MAY BE PAID IN ADDITION TO THE ORIGINAL PURCHASE ORDER PRICE FOR THE SERVICES RENDERED.

ARTICLE 3 OF THE PROVISIONS ATTACHED TO AND MADE A PART OF THE ORIGINAL PURCHASE ORDER DESIGNATED THE GOVERNMENT'S PROJECT OFFICER AS THE REPRESENTATIVE OF THE CONTRACTING OFFICER FOR APPROVAL OF ALL WORK INCLUDING ANY AND ALL REPORTS. WITH RESPECT TO THE MATTER OF OBTAINING A WRITTEN AUTHORIZATION FOR THE PERFORMANCE OF ADDITIONAL WORK, ARTICLE 3 PROVIDES IN PART THAT:

"* * * IF AT ANY TIME THE PROJECT OFFICER, AS PART OF THIS TECHNICAL ADMINISTRATION, REQUESTS THE CONTRACTOR TO MAKE CHANGES IN THE TECHNICAL CONDITIONS WHICH THE CONTRACTOR CONSIDERS A CHANGE IN THE TERMS AND CONDITIONS OF THE CONTRACT, THE CONTRACTOR WILL NOT PROCEED WITH THE WORK UNTIL HE IS AUTHORIZED IN WRITING TO DO SO BY THE CONTRACTING OFFICER.'

ALTHOUGH THE UNIVERSITY DID NOT COMPLY WITH THAT PROVISION OF THE TERMS AND CONDITIONS OF THE ORIGINAL PURCHASE ORDER, IT APPEARS TO HAVE BEEN CONSIDERED BY THE TECHNICAL OFFICIALS, INCLUDING THE PROJECT OFFICER, THAT THE PERFORMANCE OF ADDITIONAL WORK WOULD BE NECESSARY FOR A SATISFACTORY COMPLETION OF THE PROJECT. IT ALSO APPEARS THAT THE PERFORMANCE OF ADDITIONAL WORK UNDER THE PURCHASE ORDER WOULD HAVE BEEN AUTHORIZED BY THE CONTRACTING OFFICER IF HE HAD BEEN AWARE OF THE NEED FOR SUCH ADDITIONAL WORK. IN SUCH CIRCUMSTANCES, IT WOULD BE REASONABLE TO CONCLUDE THAT THE GOVERNMENT SUFFERED NO INJURY OR PREJUDICE RESULTING FROM THE UNIVERSITY'S FAILURE TO REQUEST A WRITTEN AUTHORIZATION.

ACCORDINGLY, AND SINCE IT HAS BEEN INDICATED THAT THE GOVERNMENT BENEFITED SUBSTANTIALLY BY REASON OF THE ADDITIONAL WORK WHICH WAS PERFORMED BY THE UNIVERSITY, YOU ARE ADVISED THAT WE ARE NOT REQUIRED TO OBJECT TO THE PROPOSED ISSUANCE OF AN AMENDMENT TO THE PURCHASE ORDER UNDER WHICH PAYMENT TO THE UNIVERSITY OF THE CLAIMED AMOUNT OF $4,956.83 WOULD BE AUTHORIZED.