B-169557, MAY 4, 1970

B-169557: May 4, 1970

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

RATIFICATION OF TRANSACTION TO PERMIT PAYMENT OF $61.25 IS APPROPRIATE. NOTWITHSTANDING LACK OF COMPLIANCE WITH DAVIS-BACON AND MILLER ACT REQUIREMENTS SINCE ADDITIONAL SERVICES WERE RENDERED IN GOOD FAITH AND BENEFITS THEREOF WERE RECEIVED BY GOVERNMENT. THE SUBJECT PURCHASE ORDER WAS NEGOTIATED PURSUANT TO THE OPEN MARKET PURCHASE AUTHORITY CONTAINED IN 41 U.S.C. 252 (C) (3). ARE GENERALLY APPLICABLE TO CONSTRUCTION CONTRACTS WHERE THE PRICE IS IN EXCESS OF $2. 000 WAS REDELEGATED TO THE CHIEF. AFTER CONSTRUCTION WAS COMPLETED. MEASUREMENTS WERE TAKEN AND IT WAS DETERMINED THAT AN ADDITIONAL 113 RODS OF FENCE HAD BEEN CONSTRUCTED. THE CONTRACTOR WAS COMPENSATED FOR THE ADDITIONAL CONSTRUCTION TO THE EXTENT OF THE PROCUREMENT AUTHORITY OF THE CHIEF.

B-169557, MAY 4, 1970

PURCHASES--PURCHASE ORDERS--CONSTRUCTION CONTRACTS--LABOR STIPULATION PROVISIONS UNDER PURCHASE ORDER FOR FENCE CONSTRUCTION NEGOTIATED UNDER OPEN MARKET PURCHASE AUTHORITY IN 41 U.S.C. 252 (C) (3), WHERE GOVERNMENT'S FAILURE TO ADEQUATELY MONITOR PERFORMANCE AND ITS ERRONEOUS ESTIMATES RESULTED IN CONSTRUCTION OF MORE FENCE THAN AUTHORIZED IN ORIGINAL PURCHASE ORDER, COMPENSATION FOR WHICH WOULD EXCEED CONTRACTING OFFICER'S AUTHORITY TO NEGOTIATE CONSTRUCTION CONTRACTS OF $2,000 OR LESS, RATIFICATION OF TRANSACTION TO PERMIT PAYMENT OF $61.25 IS APPROPRIATE, NOTWITHSTANDING LACK OF COMPLIANCE WITH DAVIS-BACON AND MILLER ACT REQUIREMENTS SINCE ADDITIONAL SERVICES WERE RENDERED IN GOOD FAITH AND BENEFITS THEREOF WERE RECEIVED BY GOVERNMENT. SEE B-112977, JAN. 27, 1953.

TO MRS. LILA B. HANNEBRINK:

BY LETTER, WITH ENCLOSURES, DATED APRIL 3, 1970, YOU REQUESTED OUR DECISION WHETHER YOU MAY CERTIFY FOR PAYMENT A VOUCHER, IN AN AMOUNT OF $61.25, STATED IN FAVOR OF MR. CHARLES A. TRIPP.

THE VOUCHER COVERS FENCE CONSTRUCTION SERVICES PERFORMED BY MR. TRIPP UNDER PURCHASE ORDER NO. 36030-PHO-351 DATED DECEMBER 5, 1969, THE PAYMENT FOR WHICH EXCEEDS THE AUTHORITY OF THE CHIEF, DIVISION OF ADMINISTRATION, BUREAU OF LAND MANAGEMENT (BLM), VALE DISTRICT OFFICE, OREGON.

THE SUBJECT PURCHASE ORDER WAS NEGOTIATED PURSUANT TO THE OPEN MARKET PURCHASE AUTHORITY CONTAINED IN 41 U.S.C. 252 (C) (3). SECTION 1510.03B2D OF THE BLM MANUAL DELEGATED THE AUTHORITY TO UTILIZE 41 U.S.C. 252 (C) (3) TO THE OREGON STATE DIRECTOR FOR "CONTRACTS FOR CONSTRUCTION NOT TO EXCEED $2,000." AT THIS POINT, IT SHOULD BE NOTED THAT THE PROVISIONS OF THE DAVIS-BACON ACT, 40 U.S.C. 276A, AND THE MILLER ACT, 40 U.S.C. 270A, ARE GENERALLY APPLICABLE TO CONSTRUCTION CONTRACTS WHERE THE PRICE IS IN EXCESS OF $2,000. IN ACCORDANCE WITH BLM MANUAL SECTION 1510.03C, THE AUTHORITY TO NEGOTIATE CONSTRUCTION CONTRACTS NOT IN EXCESS OF $2,000 WAS REDELEGATED TO THE CHIEF, DIVISION OF ADMINISTRATION.

THE RECORD INDICATES THAT THE PURCHASE ORDER AS ORIGINALLY ISSUED COVERED 1,536 RODS OF FENCE CONSTRUCTION AT $1.25 PER ROD, OR A TOTAL PRICE OF $1,920. AFTER CONSTRUCTION WAS COMPLETED, MEASUREMENTS WERE TAKEN AND IT WAS DETERMINED THAT AN ADDITIONAL 113 RODS OF FENCE HAD BEEN CONSTRUCTED. BY AMENDMENT NO. 1 TO THE PURCHASE ORDER, THE CONTRACTOR WAS COMPENSATED FOR THE ADDITIONAL CONSTRUCTION TO THE EXTENT OF THE PROCUREMENT AUTHORITY OF THE CHIEF, DIVISION OF ADMINISTRATION.

A MEMORANDUM DATED FEBRUARY 27, 1970, FROM THE CHIEF, DIVISION OF ADMINISTRATION, INCLUDED IN THE RECORD, ADVISES THAT THE FOREGOING SITUATION IS ATTRIBUTABLE TO ERRONEOUS GOVERNMENT ESTIMATES, THE ACCURACY OF WHICH WAS INFLUENCED BY THE TERRAIN, AND AN INADVERTENT FAILURE TO ADEQUATELY MONITOR PERFORMANCE. IT ALSO APPEARS THAT CORRECTIVE ACTION HAS BEEN TAKEN TO AVOID A RECURRENCE OF THE SITUATION.

WE HAVE BEEN INFORMALLY ADVISED THAT AN AUTHORIZED OFFICIAL IN THE BLM WILL RATIFY THE TRANSACTION IN ACCORDANCE WITH SECTION 1-1.405 OF THE FEDERAL PROCUREMENT REGULATIONS, UNLESS OUR OFFICE INTERPOSES AN OBJECTION TO SUCH ACTION. SINCE THE ADDITIONAL SERVICES WERE RENDERED IN GOOD FAITH AND THE BENEFITS THEREOF RECEIVED BY THE GOVERNMENT, WE BELIEVE THAT RATIFICATION IS APPROPRIATE IN THIS CASE. SEE B-112977, JANUARY 27, 1953 (COPY ENCLOSED), WHICH RECOGNIZED IN ANALOGOUS CIRCUMSTANCES THAT WHERE THE CONTRACTING PARTIES ARE ACTING IN GOOD FAITH, A FAILURE TO COMPLY WITH THE PROVISIONS OF THE DAVIS-BACON AND MILLER ACTS NEED NOT BE A BAR TO RECOVERY.

ACCORDINGLY, THE VOUCHER, RETURNED HEREWITH, MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE PROPER.