B-95069, JULY 28, 1950, 30 COMP. GEN. 34

B-95069: Jul 28, 1950

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UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. 1950: REFERENCE IS MADE TO YOUR LETTER OF MAY 3. THE PRESENT CONTRACT WAS AWARDED ON JULY 20. THE ADDITIONAL WORK MENTIONED IS THE CONSTRUCTION OF A QUARTERS BUILDING FOR THE NURSING STAFF AND SINGLE AUXILIARY HOSPITAL EMPLOYEES. WHICH IS STATED TO BE URGENTLY NEEDED FOR THE OPERATION OF THE HOSPITAL BUILDING. THE INVITATION FOR BIDS UPON WHICH AWARD WAS MADE FOR THE CONSTRUCTION OF THE HOSPITAL INCLUDED A REQUEST FOR BIDS FOR CONSTRUCTING THE QUARTERS BUILDING AS ALTERNATE NO. 1.

B-95069, JULY 28, 1950, 30 COMP. GEN. 34

CONTRACTS - ADDITIONAL WORK - ADVERTISING REQUIREMENTS AN EXISTING CONTRACT FOR THE CONSTRUCTION OF A GOVERNMENT HOSPITAL MAY NOT BE MODIFIED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE WITHOUT COMPLIANCE WITH THE ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE INTERIOR, JULY 28, 1950:

REFERENCE IS MADE TO YOUR LETTER OF MAY 3, 1950, REQUESTING TO BE ADVISED WHETHER THIS OFFICE WOULD OBJECT TO THE MODIFICATION OF CONTRACT NO. I-1- IND-42213 WITH J. C. BOESPFLUG CONSTRUCTION COMPANY, PETER KIEWIT SONS' COMPANY, AND MORRISON-KNUDSEN COMPANY, INC., TO PROVIDE FOR THE PERFORMANCE OF ADDITIONAL WORK THEREUNDER, AT AN INCREASED COST OF $1,639,129. THE PRESENT CONTRACT WAS AWARDED ON JULY 20, 1949, AND CALLS FOR THE CONSTRUCTION OF A HOSPITAL AT ANCHORAGE, ALASKA, FOR THE TOTAL AMOUNT OF $4,612,354. THE ADDITIONAL WORK MENTIONED IS THE CONSTRUCTION OF A QUARTERS BUILDING FOR THE NURSING STAFF AND SINGLE AUXILIARY HOSPITAL EMPLOYEES, WHICH IS STATED TO BE URGENTLY NEEDED FOR THE OPERATION OF THE HOSPITAL BUILDING, AND WHICH CANNOT BE COMPLETED CONCURRENTLY WITH THE HOSPITAL UNLESS STARTED SHORTLY AFTER JULY 1, 1950.

THE INVITATION FOR BIDS UPON WHICH AWARD WAS MADE FOR THE CONSTRUCTION OF THE HOSPITAL INCLUDED A REQUEST FOR BIDS FOR CONSTRUCTING THE QUARTERS BUILDING AS ALTERNATE NO. 1, AND THE BID OF J. C. BOESPFLUG CONSTRUCTION COMPANY, ET AL., WAS LOW BOTH ON THE BASE PROPOSAL AND ON ALTERNATE NO. 1. HOWEVER, BECAUSE OF INADEQUATE FUNDS IT WAS NOT POSSIBLE TO MAKE AN AWARD ON ALTERNATE NO. 1, OR ON SEVERAL OTHER ALTERNATES. YOU STATE THAT A REQUEST FOR AN ADDITIONAL APPROPRIATION FOR THE CONSTRUCTION OF THE QUARTERS BUILDING BASED ON THE LOW BID OF J. C. BOESPFLUG CONSTRUCTION COMPANY, ET AL., IS INCLUDED IN THE GENERAL APPROPRIATION BILL FOR THE FISCAL YEAR 1951, AND THE DESIRED MODIFICATION OF THE PRESENT CONTRACT IS PREMISED UPON THE ANTICIPATED AVAILABILITY OF SUCH APPROPRIATION.

YOU STATE FURTHER THAT THE COST OF CONSTRUCTION AT ANCHORAGE, ALASKA, HAS NOT CHANGED MATERIALLY SINCE THE BIDS WERE RECEIVED IN APRIL 1949; THAT BY REASON OF THE FACT THE PRESENT CONTRACTORS ARE ALREADY ESTABLISHED ON THE SITE THEY CAN CONSTRUCT THE QUARTERS BUILDING AT A LOWER COST THAN ANOTHER CONTRACTOR COULD; THAT THEY ARE WILLING TO CONSTRUCT THE QUARTERS BUILDING FOR THE AMOUNT OF THEIR ORIGINAL BID ON ALTERNATE NO. 1; THAT IF ADVERTISING IS REQUIRED THE GOVERNMENT WILL PROBABLY HAVE TO PAY MORE THAN THAT AMOUNT EVEN IF THE PRESENT CONTRACTORS ARE THE LOW BIDDERS.

WHILE IT WOULD APPEAR, ON THE BASIS OF THE FACTS PRESENTED IN YOUR LETTER, THAT THE ACTION DESIRED TO BE TAKEN IN THIS MATTER MIGHT, AND PROBABLY WOULD, RESULT IN SOME SAVING TO THE GOVERNMENT, I AM COMPELLED TO CONCLUDE THAT SUCH ACTION WOULD BE IN CONTRAVENTION OF SECTION 3709, REVISED STATUTES. THE RULE APPLICABLE TO SITUATIONS OF THIS NATURE WAS STATED IN DECISION OF JANUARY 21, 1926, 5 COMP. GEN. 508, 512, TO THE THEN SECRETARY OF THE INTERIOR AS FOLLOWS:

* * * IN GENERAL, AN EXISTING CONTRACT MAY NOT BE EXPANDED SO AS TO INCLUDE ADDITIONAL WORK OF ANY CONSIDERABLE MAGNITUDE, WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES, UNLESS IT CLEARLY APPEARS THAT THE ADDITIONAL WORK WAS NOT IN CONTEMPLATION AT THE TIME OF THE ORIGINAL CONTRACTING AND IS SUCH AN INSEPARABLE PART OF THE WORK ORIGINALLY CONTRACTED FOR AS TO RENDER IT REASONABLY IMPOSSIBLE OF PERFORMANCE BY OTHER THAN THE ORIGINAL CONTRACTOR. THE APPARENT PROBABILITY THAT THE ADDITIONAL WORK MAY BE DONE MORE CONVENIENTLY OR EVEN AT LESS EXPENSE BY THE ORIGINAL CONTRACTOR, BECAUSE OF BEING ENGAGED UPON THE ORIGINAL WORK, OR OTHERWISE, IS NOT CONTROLLING OF THE MATTER AS TO WHETHER THE PROVISIONS OF SECTION 3709 ARE FOR APPLICATION. * *

SEE, ALSO, 14 COMP. GEN. 466; 15 ID. 573; 17 ID. 427.

THE DESIRABILITY OF COMPLETING THE QUARTERS BUILDING CONCURRENTLY WITH THE HOSPITAL APPARENTLY WAS KNOWN AT THE TIME THE ORIGINAL INVITATION WAS ISSUED FOR THE CONSTRUCTION OF BOTH OVER A YEAR AGO. THE FACT THAT CURRENTLY AVAILABLE APPROPRIATIONS HAVE BEEN INADEQUATE FOR THE CONSTRUCTION OF THE QUARTERS BUILDING SINCE THAT TIME AFFORDS NO JUSTIFICATION FOR THE EXPENDITURE OF SUBSEQUENT APPROPRIATIONS THEREFOR WITHOUT COMPLIANCE WITH SECTION 3709, REVISED STATUTES. THE ADDITIONAL WORK INVOLVES AN EXPENDITURE OF OVER $1,500,000, AND ADMITTEDLY IS NOT SUCH AN INTEGRAL PART OF THE WORK NOW BEING PERFORMED AS TO RENDER PERFORMANCE IMPOSSIBLE BY OTHER THAN THE PRESENT CONTRACTORS.

FOR THE FOREGOING REASONS, YOU ARE ADVISED THAT THE PROPOSED MODIFICATION OF CONTRACT NO. I-1-IND-42213 WOULD BE IN VIOLATION OF THE REQUIREMENTS OF SECTION 3709, REVISED STATUTES.