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B-169674, JUN. 30, 1970

B-169674 Jun 30, 1970
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WHICH PROPOSAL WAS REJECTED AND LATER NEGOTIATIONS RESULTED IN CONTRACT COVERING COSTS BUT OMITTING ANY PROVISION FOR FEE OR PROFIT. REQUEST FOR FEE IS DENIED. OMISSION OF FEE ITEM IS NOT REGARDED AS ERROR IN CONTRACT SO THAT ABSENT FRAUD OR DURESS IN EXECUTION. WRITTEN CONTRACT IS PRESUMED TO EXPRESS FINAL UNDERSTANDING OF PARTIES. SUBMISSION AS MERITORIOUS CLAIM IS NOT HERE RECOMMENDED. INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 17. WHICH YOU BELIEVE YOUR COMPANY IS DUE IN EQUITY. KNOWN AS "PROJECT PROVE" WAS AN OUT-OF-SCHOOL NEIGHBORHOOD YOUTH CORPS PROGRAM WHICH WAS TO BE ADMINISTERED BY YOUR COMPANY AS THE SPONSOR FOR THE PROJECT IN ACCORDANCE WITH THE ECONOMIC OPPORTUNITY ACT OF 1964.

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B-169674, JUN. 30, 1970

CONTRACTS--MISTAKES--CORRECTION DENIED WHERE CONTRACTOR INITIALLY SUBMITTED YOUTH CORPS PROGRAM PROPOSAL TO LABOR DEPARTMENT REQUESTING FEE, WHICH PROPOSAL WAS REJECTED AND LATER NEGOTIATIONS RESULTED IN CONTRACT COVERING COSTS BUT OMITTING ANY PROVISION FOR FEE OR PROFIT, REQUEST FOR FEE IS DENIED. SINCE NO OTHER YOUTH CORPS SPONSORS RECEIVED SUCH FEE AND IN LIGHT OF LABOR DEPARTMENT'S REFUSAL OF FEE INITIALLY, OMISSION OF FEE ITEM IS NOT REGARDED AS ERROR IN CONTRACT SO THAT ABSENT FRAUD OR DURESS IN EXECUTION, WRITTEN CONTRACT IS PRESUMED TO EXPRESS FINAL UNDERSTANDING OF PARTIES. MOREOVER, SUBMISSION AS MERITORIOUS CLAIM IS NOT HERE RECOMMENDED.

TO ASSOCIATE CONTROL, RESEARCH AND ANALYSIS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 17, 1970, REQUESTING A FEE, WHICH YOU BELIEVE YOUR COMPANY IS DUE IN EQUITY, FOR PERFORMANCE OF SERVICES UNDER CONTRACT NO. RA-9004-09 AWARDED YOUR FIRM ON DECEMBER 16, 1968, BY THE MANPOWER ADMINISTRATION OF THE DEPARTMENT OF LABOR.

THE SUBJECT CONTRACT, KNOWN AS "PROJECT PROVE" WAS AN OUT-OF-SCHOOL NEIGHBORHOOD YOUTH CORPS PROGRAM WHICH WAS TO BE ADMINISTERED BY YOUR COMPANY AS THE SPONSOR FOR THE PROJECT IN ACCORDANCE WITH THE ECONOMIC OPPORTUNITY ACT OF 1964, AS AMENDED (42 U.S.C. 2701).

IT IS REPORTED THAT THE UNITED PLANNING ORGANIZATION (UPO) IN ITS ROLE AS THE COMMUNITY ACTION AGENCY FOR THE DISTRICT OF COLUMBIA WAS EARLIER GIVEN A PLANNING GRANT TO ESTABLISH THE FEASIBILITY OF THIS PROJECT. THEREAFTER UPO SUBCONTRACTED WITH YOUR FIRM FOR THE ACTUAL DEVELOPMENT OF THE PROJECT. AT THE CONCLUSION OF THE PLANNING GRANT YOUR COMPANY SUBMITTED A PROPOSAL TO THE DEPARTMENT OF LABOR FOR THE PROJECT, WHICH REQUESTED THAT IT BE ALLOWED A FIXED FEE OF $45,000 OVER AND ABOVE STAFF SALARIES AND OTHER ACTUAL COSTS. BY LETTER OF NOVEMBER 13, 1968, THE UNDER SECRETARY OF LABOR REJECTED YOUR PROPOSAL. THE RECORD ALSO REFLECTS THAT IN EARLY DECEMBER, 1968, NEGOTIATIONS BETWEEN THE DEPARTMENT OF LABOR AND YOUR FIRM WERE RESUMED, WHICH CULMINATED IN THE EXECUTION OF THE CONTRACT IN QUESTION.

THE NEGOTIATIONS ULTIMATELY RESULTED IN THE APPROVAL OF A BUDGET OF $376,272 FOR THE PROJECT, WHICH WAS LATER INCREASED TO $437,236. THE BUDGETED FIGURES ALLOCATED COSTS OVER VARIOUS ITEMS BUT DID NOT CONTAIN ANY ITEM FOR A FEE OR PROFIT FOR YOUR FIRM.

THE RULE IS WELL SETTLED THAT A WRITTEN CONTRACT IS PRESUMED IN LAW TO EXPRESS THE FINAL UNDERSTANDING OF THE PARTIES. 38 COMP. GEN. 218 (1958) AND CASES CITED THEREIN. IN THE LIGHT OF THE PREVIOUS SPECIFIC REFUSAL OF YOUR ORIGINAL REQUEST FOR A FEE WE FIND NO BASIS ON WHICH THE FAILURE TO PROVIDE FOR A FEE IN THE CONTRACT COULD BE REGARDED AS AN ERROR OR OVERSIGHT. IN FACT, THE DEPARTMENT OF LABOR REPORTS THAT NO SPONSOR UNDER THE NEIGHBORHOOD YOUTH CORPS PROGRAM HAS EVER RECEIVED A FEE. ACCORDINGLY, THERE BEING NO SHOWING OF ANY MISTAKE, DURESS, OR FRAUD IN THE NEGOTIATION OR FINAL EXECUTION OF THE CONTRACT, IT IS OUR OPINION THAT NO MODIFICATION OF THE CONTRACT PRICE WOULD BE JUSTIFIED. WE ALSO DO NOT FEEL THAT THE CLAIM CONTAINS SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS WOULD WARRANT REPORTING IT TO CONGRESS UNDER THE MERITORIOUS CLAIMS ACT OF 1928, 31 U.S.C. 236, CF. 37 COMP. GEN. 688 (1958), AND YOUR CLAIM IS THEREFORE DENIED.

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