B-174792, FEB 3, 1972

B-174792: Feb 3, 1972

Additional Materials:

Contact:

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

 

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

ALTHOUGH THE WORK WAS NOT ADVERTISED OR APPROVED AS REQUIRED BY ARTICLE 1(C) OF THE CONTRACT. THE CLAIM MAY BE ALLOWED ON A QUANTUM MERUIT BASIS SINCE IT APPEARS THAT THE COST IS REASONABLE AND THE WORK WAS BOTH NECESSARY AND BENEFICIAL TO THE GOVERNMENT. THE CONTRACTING OFFICER DENIED THE CLAIM ON THE GROUND THAT THERE WAS NO BASIS FOR PAYMENT BECAUSE THE EXCAVATION WORK WAS NOT ADVERTISED OR APPROVED BY THE CONTRACTING OFFICER AS REQUIRED BY ARTICLE 1(C) OF THE CONTRACT WHICH PROVIDED: "THE OWNER MAY ACCOMPLISH THE WORK PROVIDED FOR IN THIS CONTRACT EITHER BY ITS OWN FORCES OR BY CONTRACT OR CONTRACTS. SUCH AWARDS TO BE SUBJECT TO APPROVAL OF BOTH THE OWNER AND THE CONTRACTING OFFICER AND SHALL NOT BE BINDING UNTIL SO APPROVED. *** " THE CULVERT WAS CONSTRUCTED BY CREWS AND EQUIPMENT OF MISSOURI PACIFIC.

B-174792, FEB 3, 1972

CONTRACTS - QUANTUM MERUIT DECISION ALLOWING A CLAIM BY THE MISSOURI PACIFIC RAILROAD COMPANY UNDER A COST-REIMBURSABLE RELOCATION CONTRACT FOR CONSTRUCTION OF A CONCRETE BOX CULVERT BENEATH CLAIMANT'S RIGHT OF WAY. ALTHOUGH THE WORK WAS NOT ADVERTISED OR APPROVED AS REQUIRED BY ARTICLE 1(C) OF THE CONTRACT, THE CLAIM MAY BE ALLOWED ON A QUANTUM MERUIT BASIS SINCE IT APPEARS THAT THE COST IS REASONABLE AND THE WORK WAS BOTH NECESSARY AND BENEFICIAL TO THE GOVERNMENT.

TO MR. SECRETARY:

WE REFER TO LETTER DAEN-GCC, DATED DECEMBER 16, 1971, FROM THE GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REQUESTING A DECISION REGARDING A CLAIM OF THE MISSOURI PACIFIC RAILROAD COMPANY (MISSOURI PACIFIC) UNDER COST-REIMBURSABLE RELOCATION CONTRACT NO. DACW38-70-C-0070, FOR CONSTRUCTION OF A CONCRETE BOX CULVERT BENEATH THE CLAIMANT'S RIGHT-OF- WAY.

MISSOURI PACIFIC SUBMITTED A CLAIM IN THE AMOUNT OF $3,180 FOR THE RENTAL OF A FRONT-END LOADER AND OPERATOR FOR THE EXCAVATION WORK INCIDENTAL TO THE CONSTRUCTION WORK. IN A LETTER OF OCTOBER 20, 1971, THE CONTRACTING OFFICER DENIED THE CLAIM ON THE GROUND THAT THERE WAS NO BASIS FOR PAYMENT BECAUSE THE EXCAVATION WORK WAS NOT ADVERTISED OR APPROVED BY THE CONTRACTING OFFICER AS REQUIRED BY ARTICLE 1(C) OF THE CONTRACT WHICH PROVIDED:

"THE OWNER MAY ACCOMPLISH THE WORK PROVIDED FOR IN THIS CONTRACT EITHER BY ITS OWN FORCES OR BY CONTRACT OR CONTRACTS, OR BY BOTH METHODS, PROVIDED THAT ANY CONTRACT OR CONTRACTS BE SECURED THROUGH OPEN COMPETITIVE BIDDING AND AWARDED TO THE LOWEST QUALIFIED RESPONSIBLE BIDDER, SUCH AWARDS TO BE SUBJECT TO APPROVAL OF BOTH THE OWNER AND THE CONTRACTING OFFICER AND SHALL NOT BE BINDING UNTIL SO APPROVED. *** "

THE CULVERT WAS CONSTRUCTED BY CREWS AND EQUIPMENT OF MISSOURI PACIFIC. HOWEVER, THE COMPANY RENTED A FRONT-END LOADER AND OPERATOR IN ORDER TO PREVENT DELAYS WHICH WOULD HAVE RESULTED FROM USE OF OTHER AVAILABLE METHODS OF EXCAVATION. MISSOURI PACIFIC SUPPORTS THE CLAIM ON THE GROUND THAT THE RENTAL FEE OF $15 PER HOUR WAS REASONABLE AND ALLEGES THAT, IF IT HAD ADVERTISED FOR THE WORK, THE COST OF THE DELAY IN FOLLOWING THE PROCEDURE WOULD HAVE BEEN GREATER THAN THE AMOUNT ACTUALLY PAID. THE CONTRACTING OFFICER, CONCURRING IN THE VIEW THAT THE RENTAL OF THE LOADER WAS NECESSARY AND THAT THE $15 PER HOUR FOR 212 HOURS OF USE FEE WAS REASONABLE, RECOMMENDS THAT THE CLAIM BE APPROVED IN THE AMOUNT OF $3,180. FURTHERMORE, THE GENERAL COUNSEL RECOMMENDS APPROVAL OF THE CLAIM BECAUSE THE GOVERNMENT HAS RECEIVED BENEFIT FROM THE WORK DONE UNDER THE SUBCONTRACT AND HAS AN OBLIGATION TO PROVIDE A REASONABLE SUBSTITUTE FOR THE CLAIMANT'S RIGHT-OF-WAY.

WHILE PAYMENT MAY NOT BE ALLOWED UNDER THE CLEAR TERMS OF THE CONTRACT, THE FACTS OF RECORD SUPPORT THAT THE RAILROAD RENDERED THE SERVICES FOR THE BENEFIT OF THE GOVERNMENT. THEREFORE, AND SINCE THE CONTRACTING OFFICER HAS RECOMMENDED PAYMENT OF THE AMOUNT CLAIMED AS FAIR AND REASONABLE, THE CLAIM MAY BE ALLOWED ON A QUANTUM MERUIT BASIS AS ADMINISTRATIVELY RECOMMENDED IN THE AMOUNT OF $3,180.