B-169051, MAR. 17, 1970

B-169051: Mar 17, 1970

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EXCESS COST CLAIM UNDER TIMBER SALES CONTRACT WHERE PURCHASER WAS REQUIRED TO BUILD ACCESS ROAD WITH CREDIT THEREFOR ACCORDING TO TABLE IN CONTRACT. PURCHASER WAS ADVISED AFTER AWARD THAT CLEARING MANUALLY WOULD BE REQUIRED AND ALLOWANCE WOULD BE INCREASED THEREFORE. WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED GOVT. RAAKA: REFERENCE IS MADE TO YOUR LETTER 6540 OF FEBRUARY 9. THE PURCHASER IS REQUIRED TO CONSTRUCT ROADS NEEDED FOR HARVESTING THE TIMBER THAT IS THE SUBJECT OF THE CONTRACT. TABLE 6 IN THE CONTRACT LISTS THE ROAD BUILDING CONSTRUCTION PHASES AND THE AMOUNT OF PURCHASER CREDIT THAT WILL BE DEDUCTED FROM THE PRICE THAT THE PURCHASER IS REQUIRED TO PAY FOR THE TIMBER. "CLEARING" IS ONE OF THE CONSTRUCTION PHASES LISTED IN THE TABLE.

B-169051, MAR. 17, 1970

TIMBER SALES--ACCESS ROADS--EXCESS COST CLAIM UNDER TIMBER SALES CONTRACT WHERE PURCHASER WAS REQUIRED TO BUILD ACCESS ROAD WITH CREDIT THEREFOR ACCORDING TO TABLE IN CONTRACT, REPORTEDLY BASED ON MACHINE CLEARING METHOD, BUT PURCHASER WAS ADVISED AFTER AWARD THAT CLEARING MANUALLY WOULD BE REQUIRED AND ALLOWANCE WOULD BE INCREASED THEREFORE--IT BEING LATER DECIDED ADMINISTRATIVELY THAT CONTRACT WOULD NOT PERMIT SUCH MODIFICATION--PURCHASER MAY BE ALLOWED $1,530 CREDIT ALLOWANCE WITHOUT INTEREST, AS ADMINISTRATIVELY RECOMMENDED, SINCE PAYMENT ON QUANTUM MERUIT BASIS MAY BE MADE IF (1) GOVT. HAS RECEIVED BENEFIT OF SERVICES, AND (2) SERVICES, AS HERE, WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED GOVT. CONTRACTING OFFICIALS. SEE COMP. GEN. DECS. CITED.

TO MR. RAAKA:

REFERENCE IS MADE TO YOUR LETTER 6540 OF FEBRUARY 9, 1970, REGARDING THE CLAIM OF LEV LUMBER O; INC; IN THE AMOUNT OF $1,530, PLUS INTEREST, FOR CLEARING WORK PERFORMED MANUALLY IN CONNECTION WITH TIMBER SALES CONTRACT 15-489 AWARDED BY THE ACTING FOREST SUPERVISOR ON JUNE 25, 1968.

UNDER THE TIMBER SALES CONTRACT, THE PURCHASER IS REQUIRED TO CONSTRUCT ROADS NEEDED FOR HARVESTING THE TIMBER THAT IS THE SUBJECT OF THE CONTRACT. TABLE 6 IN THE CONTRACT LISTS THE ROAD BUILDING CONSTRUCTION PHASES AND THE AMOUNT OF PURCHASER CREDIT THAT WILL BE DEDUCTED FROM THE PRICE THAT THE PURCHASER IS REQUIRED TO PAY FOR THE TIMBER.

"CLEARING" IS ONE OF THE CONSTRUCTION PHASES LISTED IN THE TABLE. THE AMOUNT LISTED FOR PURCHASER CREDIT UNDER THAT HEADING IS $4,590. THE CLEARING SPECIFICATION DOES NOT SPECIFY THE METHOD FOR ACCOMPLISHING THE CLEARING. IT IS REPORTED THAT THE ALLOWANCE FOR CLEARANCE WAS BASED UPON MACHINE CLEARING METHODS.

AFTER THE CONTRACT WAS AWARDED, THE DISTRICT RANGER DECIDED THAT AN ACCEPTABLE JOB OF CLEARING COULD NOT BE DONE BY MACHINE AND THAT MANUAL CLEARING WAS NECESSARY. THE DISTRICT RANGER SENT A MEMORANDUM TO THE FOREST SUPERVISOR REQUESTING THAT HE CONSIDER THE SITUATION. THEREAFTER, THE DISTRICT RANGER RECEIVED A WRITTEN REPLY FROM THE FOREST ENGINEER IN THE FOREST SUPERVISOR'S OFFICE STATING THAT THE RIGHT-OF-WAY WAS TOO NARROW FOR THE USE OF EQUIPMENT FOR CLEARING AND THAT A CONTRACT MODIFICATION WAS BEING INITIATED TO INCREASE THE CONTRACT ALLOWANCE FOR CLEARING.

BASED ON THE FOREGOING, THE DISTRICT RANGER ADVISED THE PURCHASER TO PERFORM THE CLEARING MANUALLY AND THAT THE ALLOWANCE FOR CLEARANCE IN THE CONTRACT WOULD BE INCREASED. THE PURCHASER COMPLETED THE CLEARING AS REQUESTED. SUBSEQUENTLY, THE DEPUTY FOREST SUPERVISOR ADVISED THE DISTRICT RANGER THAT, WHILE PREVIOUS ADVICE HAD BEEN FURNISHED BY THE FOREST SUPERVISOR'S OFFICE THAT A CONTRACT MODIFICATION WOULD BE ISSUED, UPON FURTHER CONSIDERATION OF THE MATTER, IT WAS DECIDED THAT THERE WAS NO PROVISION IN THE CONTRACT UNDER WHICH A MODIFICATION COULD BE ISSUED.

YOU RECOMMEND THAT FAVORABLE CONSIDERATION BE GIVEN TO THE PURCHASER'S CLAIM FOR A CREDIT ALLOWANCE IN THE AMOUNT OF $1,530 BECAUSE SUCH AMOUNT WAS CALCULATED ADMINISTRATIVELY AS REPRESENTING THE ADDITIONAL COST TO PERFORM THE CLEARANCE WORK MANUALLY AND BECAUSE THE PURCHASER WAS MISLED BY THE DISTRICT RANGER TO BELIEVE THAT IT WOULD RECEIVE A CONTRACT CREDIT IN THAT AMOUNT.

A PAYMENT MAY BE MADE ON A QUANTUM MERUIT BASIS FOR SERVICES RENDERED FOR WHICH THERE WAS NO FORMAL CONTRACTUAL COVERAGE, IF TWO CONDITIONS EXIST: (1) THE GOVERNMENT HAS RECEIVED A BENEFIT, AND (2) THE SERVICES WERE EXPRESSLY OR IMPLIEDLY RATIFIED BY AUTHORIZED CONTRACTING OFFICIALS OF THE GOVERNMENT. 46 COMP. GEN. 348 (1966); B 168228, NOVEMBER 26, 1969; B- 166439, MAY 2, 1969; AND B-163819, OCTOBER 11, 1968. IT IS INDICATED THAT THE SERVICES WERE ORIGINALLY APPROVED BY THE FOREST SUPERVISOR'S OFFICE AND THAT A MODIFICATION FOR THE WORK WOULD HAVE BEEN ISSUED BUT FOR THE ABSENCE OF AN APPROPRIATE PROVISION AUTHORIZING SUCH A MODIFICATION IN THE CONTRACT.

ACCORDINGLY, AS RECOMMENDED BY YOU, THE PURCHASER SHOULD BE ALLOWED A CREDIT ALLOWANCE IN THE AMOUNT OF $1,530. INTEREST IS NOT ALLOWABLE. COMP. GEN. 169 (1965).