B-172766, MAY 31, 1972

B-172766: May 31, 1972

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THE CLAIM WAS ADMINISTRATIVELY DENIED BECAUSE. ALTHOUGH THE BASIS OF THE CLAIM IS UNCLEAR. IS NOT WITHIN THE PURVIEW OF GAO. IS ONLY AUTHORIZED TO MODIFY CONTRACTS WHICH FAIL TO REFLECT THE INTENT OF THE PARTIES. OR WHERE THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONTRACTOR'S ERROR. BESSER: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 14. AN EDUCATIONAL SERVICE AGREEMENT DESIGNED FOR THE PURPOSE OF ELIMINATING THE NECESSITY FOR YEARLY CONTRACTS WAS ENTERED INTO. THE CONTRACTING OFFICER ADVISED THE REPRESENTATIVES OF THE COLLEGE THAT IF THE SUMMER COURSE WAS CONDUCTED ESPECIALLY FOR AIR FORCE STUDENTS THE ADDITIONAL FUNDS REQUIRED OVER AND ABOVE THOSE COSTS PUBLISHED IN THE COLLEGE CATALOG WOULD BE NEGOTIATED.

B-172766, MAY 31, 1972

PROCUREMENT LAW - CLAIM FOR EXCESS COSTS - REQUESTED CONTRACT MODIFICATION CONCERNING THE CLAIM OF SAN JOSE STATE COLLEGE FOR THE EXCESS ADMINISTRATIVE COSTS OF FURNISHING SUMMER METEOROLOGY COURSES UNDER CONTRACT WITH THE AIR FORCE. THE CLAIM WAS ADMINISTRATIVELY DENIED BECAUSE, CONTRARY TO THE TERMS OF THE AGREEMENT, THE COLLEGE ADMITTED OTHER THAN AIR FORCE PERSONNEL IN ATTENDANCE. ALTHOUGH THE BASIS OF THE CLAIM IS UNCLEAR, IT SHOULD BE NOTED THAT CONTRACT MODIFICATION UNDER PUB. L. 85-804, 50 U.S.C. 1431-1435, IS NOT WITHIN THE PURVIEW OF GAO. THE COMP. GEN. IS ONLY AUTHORIZED TO MODIFY CONTRACTS WHICH FAIL TO REFLECT THE INTENT OF THE PARTIES, OR WHERE THE CONTRACTING OFFICER WAS ON ACTUAL OR CONSTRUCTIVE NOTICE OF THE CONTRACTOR'S ERROR. SINCE THE RECORD PRESENTED DOES NOT ESTABLISH THE EXISTENCE OF SUCH CIRCUMSTANCES, THE CLAIM MUST BE DENIED.

TO MR. IRVING E. BESSER:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 14, 1971, WITH ENCLOSURES, RELATIVE TO A CLAIM OF THE SAN JOSE STATE COLLEGE FOR $1,000 TO COVER THE EXCESS ADMINISTRATIVE COSTS OF FURNISHING COURSES IN METEOROLOGY TO AIR FORCE STUDENTS DURING THE SUMMER SESSION FOR THE YEAR 1970, UNDER AIR FORCE CONTRACT NO. F11602-69-C-0197, MADE EFFECTIVE ON JUNE 1, 1969.

THE RECORD INDICATES THAT SAN JOSE STATE COLLEGE HAD AGREED IN ANNUAL CONTRACTS WITH THE AIR FORCE TO TEACH COURSES IN METEOROLOGY TO AIR FORCE PERSONNEL DURING THE SUMMERS OF 1966 THROUGH 1968. FOR EACH OF THOSE YEARS THE AIR FORCE PAID THE COLLEGE, IN ADDITION TO THE NORMAL TUITION AND RELATED FEES, $1,000 TO COVER EXCESS COSTS IN CONJUNCTION WITH THE PROGRAM. FOR THE PERIOD BEGINNING IN 1969, AN EDUCATIONAL SERVICE AGREEMENT DESIGNED FOR THE PURPOSE OF ELIMINATING THE NECESSITY FOR YEARLY CONTRACTS WAS ENTERED INTO. THE AGREEMENT PROVIDES THAT THE AIR FORCE WOULD PAY ONLY NORMAL TUITION AND RELATED FEES. HOWEVER, DURING THE NEGOTIATION OF THE AGREEMENT, THE CONTRACTING OFFICER ADVISED THE REPRESENTATIVES OF THE COLLEGE THAT IF THE SUMMER COURSE WAS CONDUCTED ESPECIALLY FOR AIR FORCE STUDENTS THE ADDITIONAL FUNDS REQUIRED OVER AND ABOVE THOSE COSTS PUBLISHED IN THE COLLEGE CATALOG WOULD BE NEGOTIATED. THE COLLEGE INVOICED THE AIR FORCE FOR $1,000 TO COVER COSTS OF THE COURSE CONDUCTED DURING THE SUMMER OF 1969 IN EXCESS OF TUITION AND NORMAL FEES. THE COLLEGE ALSO INVOICED THE AIR FORCE FOR $1,000 AS ADDITIONAL COSTS OF THE COURSE IN METEOROLOGY CONDUCTED DURING THE SUMMER OF 1970. THE CONTRACTING OFFICER FOUND THAT THE 1970 SUMMER COURSE WAS INCLUDED IN THE COLLEGE CATALOG AND, IN FACT, THAT SEVEN NON-AIR FORCE STUDENTS WERE IN ATTENDANCE. THEREFORE, PAYMENT WAS REFUSED ON THE GROUND THAT THE COURSE WAS NOT CONDUCTED ESPECIALLY FOR THE AIR FORCE.

HEADQUARTERS, AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, BY MEMORANDUM DECISION OF MARCH 3, 1972, DENIED THE REQUEST OF THE COLLEGE FOR A CONTRACT ADJUSTMENT UNDER PUBLIC LAW 85-804, 50 U.S.C. 1431-1435, AS IMPLEMENTED BY SECTION XVII OF THE ARMED SERVICES PROCUREMENT REGULATION. IT WAS FOUND THAT NO MISTAKE WAS MADE BY THE GOVERNMENT IN THE NEGOTIATION OF AIR FORCE CONTRACT NO. F11602-69-C 0197, NOR DID THE GOVERNMENT CONTRIBUTE TO ANY MISTAKE ON THE PART OF THE COLLEGE. THE DECISION ALSO CONCLUDED THAT THE COLLEGE WAS AWARE OF THE PROVISION IN THE CONTRACT THAT TUITION RATES OR FEES SHOULD NOT BE ESTABLISHED TO APPLY SOLELY TO GOVERNMENT STUDENTS, AND THAT, SINCE OTHER THAN AIR FORCE STUDENTS WERE ATTENDING THE 1970 SUMMER COURSE IN METEOROLOGY, THE COLLEGE WAS NOT ENTITLED TO THE ADDITIONAL AMOUNT REQUESTED NOTWITHSTANDING THE FACT THAT EXTRA PAYMENTS HAD BEEN MADE IN PREVIOUS YEARS.

WE HAVE NOT BEEN PROVIDED WITH A CLEAR STATEMENT OF THE BASIS UPON WHICH RELIEF IS REQUESTED FROM OUR OFFICE. THE APPEAL OF ANY MATTER ARISING UNDER THE DISPUTES CLAUSE OF THE CONTRACT MUST BE PROCESSED IN THE MANNER PRESCRIBED BY THAT CLAUSE.

REQUESTS FOR AMENDMENTS OR MODIFICATIONS OF CONTRACTS WITHOUT REGARD TO OTHER PROVISIONS OF LAW UNDER PUBLIC LAW 85-804 OR REVIEW OF DECISIONS THEREUNDER ARE NOT WITHIN THE PURVIEW OF OUR OFFICE.

WE DO HAVE JURISDICTION TO AUTHORIZE THE MODIFICATION OF CONTRACTS WHICH DO NOT REFLECT THE INTENT OF THE PARTIES OR AS TO WHICH THE CONTRACTING OFFICER WAS, AT TIME OF AWARD, ON ACTUAL OR CONSTRUCTIVE NOTICE OF AN ERROR ON THE PART OF THE CONTRACTOR. HOWEVER, THE RECORD BEFORE US DOES NOT ESTABLISH THE EXISTENCE OF SUCH CIRCUMSTANCES AS WOULD JUSTIFY RELIEF BY OUR OFFICE. ACCORDINGLY, WE MUST, ON THE BASIS OF THE PRESENT RECORD, DENY YOUR CLAIM.