B-59919, MAR 2, 1935

B-59919: Mar 2, 1935

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"AT THE TIME THE CONTRACT WAS SIGNED. NO DISCUSSION WAS HAD AS TO THE TYPE OF FRAME TO BE FURNISHED. WHEN THE PORTRAIT WAS COMPLETED. SECRETARY ICKES DECIDED ON A TYPE OF FRAME WHICH WAS NOT CONTEMPLATED TO BE FURNISHED BY MR. THE DIFFERENCE IN COST BETWEEN THE FRAME ORIGINALLY CONTEMPLATED AND THAT SELECTED BY THE SECRETARY WAS APPROXIMATELY $75. "INFORMATION IS REQUESTED AS TO WHETHER OR NOT THE SECRETARY MAY NOW ENTER INTO A SUPPLEMENTAL CONTRACT WITH MR. "PAYMENT OF THE ORIGINAL CONTRACT PRICE WAS MADE BY GUY F. IT IS UNDERSTOOD FROM THE ABOVE QUOTED LETTER THAT THE PORTRAIT WAS COMPLETED AND DELIVERED. THAT PAYMENT THEREFOR AT THE CONTRACT PRICE WAS MADE ON THE VOUCHER REFERRED TO BY YOU WHICH WAS CERTIFIED AS CORRECT AND JUST BY THE ARTIST-CONTRACTOR.

B-59919, MAR 2, 1935

PRECIS-UNAVAILABLE

THE HONORABLE, THE SECRETARY OF THE INTERIOR:

THERE HAS BEEN RECEIVED A LETTER DATED JANUARY 18, 1935, FROM THE ADMINISTRATIVE ASSISTANT OF YOUR DEPARTMENT, REQUESTING DECISION OF A QUESTION PRESENTED AS FOLLOWS:

"UNDER DATE OF JUNE 18, 1934, SECRETARY ICKES ENTERED INTO A CONTRACT (DEPT. NO. I, SEC. 147) WITH H. S. HUBBELL FOR THE PAINTING OF HIS PORTRAIT TO BE DEPOSITED IN THE DEPARTMENT OF THE INTERIOR. THE CONTRACT PROVIDED THAT THE PORTRAIT SHOULD BE 'SUITABLY FRAMED.'

"AT THE TIME THE CONTRACT WAS SIGNED, NO DISCUSSION WAS HAD AS TO THE TYPE OF FRAME TO BE FURNISHED. WHEN THE PORTRAIT WAS COMPLETED, SECRETARY ICKES DECIDED ON A TYPE OF FRAME WHICH WAS NOT CONTEMPLATED TO BE FURNISHED BY MR. HUBBELL WHEN HE ENTERED INTO THE CONTRACT. THE DIFFERENCE IN COST BETWEEN THE FRAME ORIGINALLY CONTEMPLATED AND THAT SELECTED BY THE SECRETARY WAS APPROXIMATELY $75.

"INFORMATION IS REQUESTED AS TO WHETHER OR NOT THE SECRETARY MAY NOW ENTER INTO A SUPPLEMENTAL CONTRACT WITH MR. HUBBELL TO COVER THE ADDITIONAL COST OF THE FRAME FINALLY SELECTED.

"PAYMENT OF THE ORIGINAL CONTRACT PRICE WAS MADE BY GUY F. ALLEN ON OCTOBER 16, 1934, AND COVERED BY VOUCHER NO. 323,831 UNDER MR. ALLEN'S DISBURSING SYMBOL NO. 106-100."

ARTICLE 1 OF THE CONTRACT PROVIDES:

"THE CONTRACTOR SHALL PAINT ONE PORTRAIT OF HAROLD L. ICKES, SECRETARY OF THE INTERIOR, TO BE DEPOSITED IN THE DEPARTMENT OF THE INTERIOR; THIS PORTRAIT TO BE SUITABLY FRAMED AND DELIVERED AT THE INTERIOR DEPARTMENT BUILDING IN WASHINGTON, D.C., THE TOTAL COST TO BE FIFTEEN HUNDRED DOLLARS ($1500) TO BE PAID FROM THE APPROPRIATION FOR CONTINGENT EXPENSES, DEPARTMENT OF THE INTERIOR, FOR THE FISCAL YEAR 1934; *** IN ACCORDANCE WITH PROPOSAL DATED JUNE 15, 1934, ATTACHED HERETO. DELIVERY SHALL BE MADE AT THE INTERIOR DEPARTMENT BUILDING, WASHINGTON, D.C., AT THE EARLIEST PRACTICABLE DATE AFTER COMPLETION OF SITTINGS."

IT IS UNDERSTOOD FROM THE ABOVE QUOTED LETTER THAT THE PORTRAIT WAS COMPLETED AND DELIVERED, SUITABLY FRAMED, AND THAT PAYMENT THEREFOR AT THE CONTRACT PRICE WAS MADE ON THE VOUCHER REFERRED TO BY YOU WHICH WAS CERTIFIED AS CORRECT AND JUST BY THE ARTIST-CONTRACTOR. THE VOUCHER BEARS NO EVIDENCE OF PROTEST AS TO THE PAYMENT OF $1500 BEING INSUFFICIENT FOR THE PORTRAIT AND THE FRAME SELECTED THEREFOR AND ACCEPTANCE OF PAYMENT UNDER SUCH CIRCUMSTANCES CLOSED THE TRANSACTION. SEE SOUTHERN PACIFIC COMPANY V. UNITED STATES, 268 U.S. 263; SEE ALSO WABASH VALLEY PACKING COMPANY V. UNITED STATES, 63 CT.CLS., 344.

MOREOVER, AS SHOWN BY THE ABOVE QUOTED TERMS OF THE CONTRACT, THE PORTRAIT WAS "TO BE SUITABLY FRAMED AND DELIVERED" AND, UNDER ARTICLE 12 OF THE CONTRACT, THE QUESTION AS TO WHAT IS A SUITABLE FRAME WAS FOR DETERMINATION BY THE CONTRACTING OFFICER WHO IN THIS INSTANCE IS THE SUBJECT OF THE PORTRAIT, THE SECRETARY OF THE INTERIOR. THE FACT THAT THE FRAME HE DETERMINED AS SUITABLE MAY HAVE COST THE ARTIST-CONTRACTOR MORE THAN HE ANTICIPATED AT THE TIME THE CONTRACT WAS ENTERED INTO IS IMMATERIAL AND UNDER THE CONTRACT THERE IS NO LEGAL OBLIGATION UPON THE UNITED STATES TO MAKE ANY PAYMENT IN ADDITION TO THE CONTRACT PRICE BY REASON OF THE FRAME BEING MORE EXPENSIVE THAN ANTICIPATED BY THE ARTIST CONTRACTOR AT THE TIME THE CONTRACT WAS ENTERED INTO. THIS BEING TRUE, A SUPPLEMENTAL AGREEMENT TO MAKE SUCH ADDITIONAL PAYMENT WOULD IMPOSE NO LEGAL OBLIGATION ON THE UNITED STATES. SEE OPINION DATED JANUARY 8, 1934, OF THE COURT OF CLAIMS IN BAUSCH & LOMB OPTIONAL COMPANY V. UNITED STATES, NO. E-17, WHEREIN THE COURT SAID WITH RESPECT TO A SUPPLEMENTAL AGREEMENT THAT:

"THE EFFECT OF THIS CONTRACT (SUPPLEMENTAL AGREEMENT), IS GIVEN EFFECT, WOULD BE TO VALIDATE AN UNENFORCEABLE CLAIM AND OBLIGATE THE GOVERNMENT TO PAY MONEY IT DOES NOT LEGALLY OWE. AGENTS AND OFFICERS OF THE GOVERNMENT ARE NOT AUTHORIZED TO GIVE AWAY THE MONEY OR PROPERTY OF THE UNITED STATES. THIS THEY CAN NEITHER DO DIRECTLY NOR UNDER THE GUISE OF A CONTRACT WHICH OBLIGATES THE GOVERNMENT TO PAY A CLAIM NOT OTHERWISE ENFORCEABLE AGAINST IT."

ACCORDINGLY, THE QUESTION PRESENTED IS ANSWERED IN THE NEGATIVE.