B-165365, MAR. 27, 1969

B-165365: Mar 27, 1969

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TO MEYNER AND WILEY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 30. WAS REQUIRED TO ENLARGE THE FACILITY IN ACCORDANCE WITH POD PUBLICATION 39A AND ATTACHED DRAWINGS NOS. YOUR CLAIM IS PREDICATED UPON THE ARGUMENT THAT MARRON WAS MISLED BY THE COGNIZANT GOVERNMENT CONTRACTING OFFICIALS DURING THE COURSE OF THE NEGOTIATIONS THAT CULMINATED IN THE AGREEMENT TO LEASE "INTO BELIEVING THAT IT WAS ONLY TO ERECT AN ADDITION TO THE EXISTING FACILITY IN SADDLE RIVER * * * WHICH WOULD NOT REQUIRE ANY WORK TO BE DONE IN THE OLD PART. IN AN ATTEMPT TO ASCERTAIN THE REASON WHY GREATER COSTS WERE BEING INCURRED THAN HAD BEEN ANTICIPATED. IT WAS LEARNED FOR THE FIRST TIME THAT THERE WERE. THE RECORD INDICATES THAT ABOUT THIS PERIOD OF TIME MARRON DISCUSSED ITS CLAIM AT CONSIDERABLE LENGTH WITH THE CONTRACTING OFFICIALS BUT THAT NO SETTLEMENT WAS MADE WITH RESPECT THERETO TO MARRON'S SATISFACTION.

B-165365, MAR. 27, 1969

TO MEYNER AND WILEY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 30, 1968, REQUESTING MODIFICATION OF A LEASE ENTERED INTO ON AUGUST 8, 1968, BY YOUR CLIENT, L.P. MARRON AND COMPANY WITH THE POST OFFICE DEPARTMENT. PURSUANT TO THE TERMS OF AN AGREEMENT TO LEASE DATED APRIL 21, 1966, MARRON -- AS LESSOR OF A POSTAL FACILITY LOCATED IN SADDLE RIVER, NEW JERSEY -- WAS REQUIRED TO ENLARGE THE FACILITY IN ACCORDANCE WITH POD PUBLICATION 39A AND ATTACHED DRAWINGS NOS. PA-4429-2A AND PA 4429-3A. IN CONSIDERATION FOR THE RENTAL OF A LARGER FACILITY THE DEPARTMENT AGREED TO AN ANNUAL RENTAL OF $10,000 FOR 10 YEARS WITH FOUR 5-YEAR OPTIONS TO RENEW THE LEASE AT THE SAME PRICE. YOUR CLAIM IS PREDICATED UPON THE ARGUMENT THAT MARRON WAS MISLED BY THE COGNIZANT GOVERNMENT CONTRACTING OFFICIALS DURING THE COURSE OF THE NEGOTIATIONS THAT CULMINATED IN THE AGREEMENT TO LEASE "INTO BELIEVING THAT IT WAS ONLY TO ERECT AN ADDITION TO THE EXISTING FACILITY IN SADDLE RIVER * * * WHICH WOULD NOT REQUIRE ANY WORK TO BE DONE IN THE OLD PART, OTHER THAN TO FURNISH AIR CONDITIONING.' IN SPITE OF THE FOREGOING YOU STATE THAT SOMETIME DURING 1967, IN AN ATTEMPT TO ASCERTAIN THE REASON WHY GREATER COSTS WERE BEING INCURRED THAN HAD BEEN ANTICIPATED, IT WAS LEARNED FOR THE FIRST TIME THAT THERE WERE, UNDER THE AGREEMENT TO LEASE WITH ATTACHED SPECIFICATIONS AND DRAWINGS, ITEMS THAT HAD "NEVER BEEN DISCUSSED NOR CONTEMPLATED TO BE EMBRACED IN THE ADDITION BY L.P. MARRON AND COMPANY.'

THE RECORD INDICATES THAT ABOUT THIS PERIOD OF TIME MARRON DISCUSSED ITS CLAIM AT CONSIDERABLE LENGTH WITH THE CONTRACTING OFFICIALS BUT THAT NO SETTLEMENT WAS MADE WITH RESPECT THERETO TO MARRON'S SATISFACTION. PROCEEDING UNDER PROTEST IN ORDER TO PROTECT ITS OBLIGATIONS UNDER THE AGREEMENT TO LEASE MARRON COMPLETED APPROXIMATELY 99 PERCENT OF THE CONSTRUCTION OF THE FACILITY BEFORE EXECUTING THE LEASE AND PROTESTING THE MATTER TO OUR OFFICE. WE HAVE BEEN INFORMALLY ADVISED THAT THE FACILITY IS NOW COMPLETE AND IS BEING USED FOR THE PURPOSES INTENDED.

THE ELEMENTS OF YOUR CLAIM FOR MODIFICATION CAN BE READILY SEPARATED INTO SIX ELEMENTS, AS FOLLOWS:

1. COST OF ARCHITECT'S DRAWINGS $2,600

2. COST OF REMOVAL OF LIGHTS IN EXISTING BUILDING AND REPLACEMENT OF FIXTURES.

3,500

3. TWO HEATING AND COOLING SYSTEMS INSTEAD OF ONE. 8,700

4. COST OF FINISHING WORK IN EXISTING BUILDINGS INCLUDING PAINTING CEILINGS, WAINSCOTING AND FLOORS. 4,000

5. COST OF INSTALLATION OF MASONRY CAUSED BY THE SPANNING OF THE OPENING BETWEEN THE EXISTING AND THE NEW STRUCTURE, RATHER THAN THE USE OF STEEL COLUMNS. 6,500

6. SOLID BRIDGING IN LIEU OF CROSS BRIDGING; 3/4 INCH MARINE PLYWOOD INSTEAD OF 5/8 INCH EXTERIOR GLUED PLYSCORE SHEETING; 1/2 INCH MARINE PLYWOOD INSTEAD OF 3/8 INCH EXTERIOR PLYWOOD, AND INTERIOR DOOR HEIGHTS OF 7 FEET INSTEAD OF 6 FEET 8 INCHES. 1,100

$26,400

SINCE, AND AS YOU APPARENTLY AGREE, ALL OF THE WORK COVERED IN THE ELEMENTS OF YOUR CLAIM WAS PROVIDED FOR IN THE AGREEMENT TO LEASE AND REFERENCED ATTACHMENTS, THERE MUST BE APPLIED THE RULE THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION FOR THE AMOUNT TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. B-163923, JUNE 11, 1968; BRAWLEY V UNITED STATES, 96 U.S. 168; SIMPSON V UNITED STATES, 172 U.S. 372. IN CASES WHERE PARTIES ENTER INTO A WRITTEN CONTRACT PURSUANT TO A DETAILED UNDERSTANDING THE CONTRACT IS TO BE CONSTRUED AS A REDUCTION TO WRITING OF THE TERMS REACHED DURING THE PRELIMINARY NEGOTIATIONS. UNITED STATES POST OFFICE CORPORATION V UNITED STATES, 79 CT. CL. 173.

THE CONTRACT VESTED IN THE UNITED STATES THE RIGHT TO LEASE A COMPLETED POSTAL FACILITY UPON THE EXPRESS TERMS THEREIN PROVIDED. IT IS A WELL- ESTABLISHED RULE THAT WITHOUT A COMPENSATING BENEFIT AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO DISPOSE OF THE MONEY OR PROPERTY OF THE UNITED STATES, TO MODIFY EXISTING CONTRACTS, OR TO SURRENDER OR WAIVE CONTRACT RIGHTS THAT HAVE VESTED IN THE UNITED STATES. SIMPSON V UNITED STATES, 172 U.S. 372; UNITED STATES V AMERICAN SALES CORPORATION, 27 F.2D 389.

THEREFORE, AND IN VIEW OF THE FACT THAT THE GOVERNMENT IS NOT THE OWNER OF THE SADDLE RIVER POSTAL FACILITY, NOR DID IT CONTRACT FOR ITS CONSTRUCTION OR HAVE ANY PROPERTY INTEREST THEREIN DURING CONSTRUCTION, WE FIND NO LEGAL BASIS FOR RELIEVING L.P. MARRON AND COMPANY FROM THE TERMS OF ITS LEASE OR TO AUTHORIZE AN INCREASE IN THE RENTAL CONSIDERATION TO COMPENSATE IT FOR ADDITIONAL CONSTRUCTION COSTS THAT MAY HAVE BEEN INCURRED IN COMPLETING THE BUILDING TO BE LEASED TO THE DEPARTMENT. SEE 45 COMP. GEN. 617.