B-164850, JUL. 29, 1968

B-164850: Jul 29, 1968

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THE CONTRACT FURTHER STATES THAT: "SERVICE TO BE EFFECTIVE UPON INSTALLATION OF EXTENSION STATION. (* * *) AND CONTINUED THEREAFTER UNTIL 10 DAYS WRITTEN NOTICE TO THE CONTRARY IS GIVEN BY (SIC) EITHER PARTY BY THE OTHER.'. THE TOTAL AMOUNT BILLED IS $829.50 FOR THE STATED PERIOD. YOU REPORT THAT PAYMENTS IN FACT HAVE BEEN MADE AT A RATE OF $15.00 PER MONTH FOR SERVICE FROM DECEMBER 1964 TO NOVEMBER 1965. THE RECORD REVEALS THAT THE INCREASES TO $18.00 AND $22.50 WERE UNILATERAL. THE CONTRACT IN QUESTION PROVIDES THAT ANSWERING SERVICE UP TO 100 CALLS PER MONTH WILL BE PROVIDED AT THE RATE OF $15.00 PER MONTH. WILL BE CONTINUED UNTIL EITHER PARTY GIVES A 10-DAY WRITTEN NOTICE TO THE CONTRARY.

B-164850, JUL. 29, 1968

TO MISS ROSE M. SPERLING:

YOUR LETTER OF JULY 12, 1968, REQUESTS OUR ADVANCE DECISION AS TO WHETHER YOU MAY PROPERLY CERTIFY FOR PAYMENT THE BILL SUBMITTED BY ANSERCALL, INC., SYRACUSE, NEW YORK, FOR TELEPHONE ANSWERING SERVICE RENDERED TO THE FEDERAL MEDIATION AND CONCILIATION SERVICE FROM DECEMBER 1964 TO MAY 1968.

THE CONTRACT PURCHASE ORDER FMCS 62-265, DATED JANUARY 17, 1962, IN ESTABLISHING THE TELEPHONE SERVICE FOR THE AGENCY PROVIDED FOR: "$15.00 PER MONTH FOR 9:00 A.M. - 5:00 P.M. MONDAY THROUGH FRIDAY SERVICE, EXCEPTING LEGAL FEDERAL HOLIDAYS. 100 CALL (SIC) PER MONTH. CALLS IN EXCESS OF 100 PER MONTH ?15 EACH.' THE CONTRACT FURTHER STATES THAT: "SERVICE TO BE EFFECTIVE UPON INSTALLATION OF EXTENSION STATION. (* * *) AND CONTINUED THEREAFTER UNTIL 10 DAYS WRITTEN NOTICE TO THE CONTRARY IS GIVEN BY (SIC) EITHER PARTY BY THE OTHER.'

ANSERCALL, INC., IN A LETTER TO YOU, CLAIMED THAT SINCE DECEMBER 1964, IT NEITHER SUBMITTED A BILL, NOR RECEIVED ANY REMITTANCE FROM THE FEDERAL MEDIATION AND CONCILIATION SERVICE, AND ASKED THE PAYMENT OF A SUMMARIZED BILL CONTAINING CHARGES FROM DECEMBER 1964 TO MAY 1968. THE TOTAL AMOUNT BILLED IS $829.50 FOR THE STATED PERIOD, AND INCLUDES A PERIODIC RATE INCREASE AS OUTLINED BELOW:

TIME PERIOD RATE PER MONTH TOTAL

DECEMBER 1964 $15.00

JAN. 1965 - DEC. 1966 18.00

JAN. 1967 - MAY 1968 22.50 $829.50

NOTWITHSTANDING THE STATEMENT OF ANSERCALL, INC., THAT NO PAYMENT HAS BEEN MADE SINCE DECEMBER 1964, YOU REPORT THAT PAYMENTS IN FACT HAVE BEEN MADE AT A RATE OF $15.00 PER MONTH FOR SERVICE FROM DECEMBER 1964 TO NOVEMBER 1965.

CONCERNING THE PROPER RATE PER MONTH, THE RECORD REVEALS THAT THE INCREASES TO $18.00 AND $22.50 WERE UNILATERAL, WITHOUT ANY NOTICE OF SUCH ACTION TO THE AGENCY. THE CONTRACT IN QUESTION PROVIDES THAT ANSWERING SERVICE UP TO 100 CALLS PER MONTH WILL BE PROVIDED AT THE RATE OF $15.00 PER MONTH, AND WILL BE CONTINUED UNTIL EITHER PARTY GIVES A 10-DAY WRITTEN NOTICE TO THE CONTRARY.

IT IS A FUNDAMENTAL PRINCIPLE OF CONTRACT LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND ONE PARTY TO A CONTRACT CANNOT ALTER ITS TERMS WITHOUT THE ASSENT OF THE OTHER PARTY. SEE CORBIN ON CONTRACTS, 1952 ED., PAGE 267, WHERE IT IS STATED: "THE MERE FACT THAT A CONTRACTOR HAS MADE A LOSING CONTRACT, OR THAT HE HAS ENCOUNTERED DIFFICULTIES AND COSTS THAT WERE REASONABLY TO BE FORESEEN, IS GENERALLY HELD NOT TO BE A SUFFICIENT REASON FOR HIS ASKING FOR MORE PAY OR FOR ENFORCING A PROMISE OF MORE PAY BY THE OTHER PARTY. * * *"

IT IS THEREFORE OUR OPINION THAT THE CONTRACTOR WAS OBLIGATED TO PERFORM THE DESIGNATED SERVICE AT THE RATE OF $15.00 UNTIL SUCH TIME AS HE NOTIFIED YOUR AGENCY TO THE CONTRARY. SINCE THE CONTRACTOR FAILED TO FOLLOW THE PRESCRIBED PROCEDURE, IT IS OUR FURTHER OPINION THAT THERE IS NO OBLIGATION UPON, OR AUTHORITY IN, YOUR AGENCY TO PAY THE INCREASED RATES.

BASED ON THE FOREGOING, THE TOTAL BILL WHICH MAY BE CERTIFIED FOR PAYMENT IS $450, CONSTITUTING PAYMENTS FOR SERVICES PERFORMED FROM DECEMBER 1965 TO MAY 1968 AT A RATE OF $15.00 PER MONTH. THE CONTRACTOR SHOULD BE SO ADVISED AND REQUESTED TO SUBMIT A REVISED BILL IN THAT AMOUNT.