B-151417, JUN. 11, 1963

B-151417, JUN. 11, 1963

TO HUGH YATES SERVICE COMPANY:

BY LETTER DATED APRIL 19, 1963, YOU REQUESTED RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE OF MARCH 21, 1963, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $18,903.10, REPRESENTING SERVICES ALLEGEDLY RENDERED IN EXCESS OF THE MAXIMUM SPECIFICATION REQUIREMENTS OF CONTRACT NO. AF41/611/ -1950.

UNDER THE CONTRACT, YOU AGREED TO FURNISH NECESSARY LABOR, MATERIAL AND CONTRACTOR-OWNED EQUIPMENT DURING THE PERIOD SEPTEMBER 1, 1960, TO AUGUST 31, 1961, FOR THE DELIVERY OF ESTIMATED QUANTITIES OF GOVERNMENT-FURNISHED AVIATION FUEL AND OIL PRODUCTS INTO AIR FORCE AND NAVY AIRCRAFT AND AIR FORCE GROUND POWERED EQUIPMENT, LOCATED AT JAMES CONNALLY AIR FORCE BASE, TEXAS. ALSO, YOU WERE REQUIRED TO FURNISH NECESSARY LABOR, MATERIALS AND CONTRACTOR-OWNED EQUIPMENT TO DEFUEL AIR FORCE AND NAVY AIRCRAFT ON THE BASE.

YOU ALLEGE THAT PRIOR TO COMMENCEMENT OF THE CONTRACT WORK, YOU WERE REQUIRED TO INSTALL NON-DIRECTIONAL TIRES ON YOUR VEHICLES; TO COAT THE INTERIOR OF TANK TRAILERS WITH A SPECIAL COATING FOR JP-4 JET FUEL; TO INSTALL EXPOSED WIRES ON THE VEHICLES IN VAPOR-PROOF TUBING; AND TO ERECT A WORKSHOP AND STORAGE BUILDING. IT IS ALLEGED THAT THESE ITEMS WERE NOT A PART OF THE CONTRACT SPECIFICATIONS. HENCE, REIMBURSEMENT IS CLAIMED OF THE EXPENSE INCURRED IN PERFORMING THIS ADDITIONAL WORK IN ACCORDANCE WITH THE DIRECTIONS FROM THE INSPECTING AND CONTRACTING OFFICERS IN THE AMOUNT OF $18,903.10.

THE CONTRACT CONTAINED THE STANDARD "CHANGES" CLAUSE UNDER WHICH THE CONTRACTING OFFICER MAY, BY WRITTEN ORDER, MAKE CHANGES IN OR ADDITIONS TO THE SPECIFICATIONS. IF SUCH A CHANGE CAUSES AN INCREASE IN COST, AN EQUITABLE PRICE ADJUSTMENT IS AUTHORIZED. SECTION III, PAGE 5, OF THE CONTRACT PROVIDED THAT ALL SERVICING EQUIPMENT AND FACILITIES WILL BE INSPECTED BY THE CONTRACTING OFFICER OR HIS DESIGNATED REPRESENTATIVE.

ON SEPTEMBER 6, 1960, AN INITIAL INSPECTION WAS MADE OF YOUR EQUIPMENT AND IT WAS NOTED THAT MOST OF THE VEHICLES WERE EQUIPPED WITH NON- DIRECTIONAL TYPE TIRES WHICH WERE NOT SPECIFICALLY REQUIRED BY THE CONTRACT. THE ONLY REQUIREMENT RELEVANT HERE WAS THAT THE SERVICING EQUIPMENT BE MAINTAINED IN A CLEAN CONDITION TO REDUCE FIRE HAZARD. FIND NOTHING IN THE RECORD WHICH WOULD INDICATE THAT NON-DIRECTIONAL TYPE TIRES WERE REQUIRED TO BE INSTALLED AT THE DIRECTION OF THE CONTRACTING OFFICER OR HIS INSPECTOR. IT APPEARS, RATHER, THAT YOU ELECTED TO INSTALL THIS TYPE OF TIRE TO AVOID DECONTAMINATION CLEANING OF TIRES EACH TIME THE EQUIPMENT ENTERED THE FUELING AREA.

WHILE COATING OF THE INTERIOR OF TANK TRAILERS WAS NOT SPECIFICALLY REQUIRED BY THE CONTRACT IN THE CASE OF JP-4 JET FUEL, THE CONTRACTING OFFICER REPORTED THAT THE TANK TRAILERS ARRIVED FOR ACCEPTANCE INSPECTION ALREADY SPECIALLY COATED, AND THAT AT NO TIME DID THE GOVERNMENT REQUIRE THAT THESE TANKS BE COATED BUT THAT THE ONLY REQUIREMENT IMPOSED WAS TO DELIVER CLEAN FUEL INTO THE AIRCRAFT.

THE EXPENSE INCURRED IN INSTALLING VAPOR-PROOF TUBING ON EXPOSED VEHICLE WIRING WAS REQUIRED TO MEET THE CONTRACT SPECIFICATIONS AS TO ELECTRICAL WIRING. SECTION II, PARAGRAPH 2D OF THE ADDITIONAL GENERAL DELIVERY CONDITIONS OF THE CONTRACT REQUIRED THAT ELECTRICAL CONDUIT INSULATION ON ALL REFUELING EQUIPMENT BE SHIELDED BY METAL TUBING OR OTHER SUITABLE SHIELDING MATERIAL. IN COMPLIANCE THEREWITH, YOU ELECTED TO PLACE ALL WIRING IN METAL TUBING AND SHIELD ALL WIRING AND LIGHTS. IN THE ABSENCE OF A WRITTEN DIRECTION FROM THE CONTRACTING OFFICER TO EXCEED THE REQUIREMENTS OF PARAGRAPH 2D, THERE IS NO LEGAL BASIS TO IMPOSE ON THE GOVERNMENT THE COST OF SUCH WORK WHICH APPARENTLY WAS DONE TO SATISFY THE CONTRACT REQUIREMENT TO THE FULLEST EXTENT.

CONCERNING THE COST OF ERECTING A WORKSHOP AND STORAGE BUILDING, WE FIND NOTHING IN THE CONTRACT WHICH AUTHORIZED THE GOVERNMENT TO FURNISH SUCH FACILITIES AT ITS EXPENSE. THE EXPENSE INVOLVED WAS FOR YOUR ACCOUNT AND BENEFIT IN FULFILLING YOUR CONTRACT MANAGEMENT REQUIREMENTS. THE LIABILITY OF THE GOVERNMENT UNDER THE TERMS OF THE CONTRACT COULD NOT BE EXTENDED IN THE ABSENCE OF AN AUTHORIZED AMENDMENT THERETO SUPPORTED BY ADDITIONAL CONSIDERATION MOVING TO THE GOVERNMENT.

THE ONLY AUTHORITY IN THE CONTRACT FOR PROVIDING ADDITIONAL COMPENSATION WAS CONTAINED IN THE ,CHANGES" CLAUSE. HOWEVER, PRICE ADJUSTMENT THEREUNDER WAS AUTHORIZED ONLY WHEN A "WRITTEN" CHANGE ORDER HAD BEEN ISSUED BY THE CONTRACTING OFFICER. IN THE ABSENCE OF WRITTEN ORDERS OR EVIDENCE THAT SOME AUTHORIZED GOVERNMENT AGENT DIRECTED YOU TO INCUR ADDITIONAL COSTS ON BEHALF OF THE GOVERNMENT, WE FIND NO LEGAL BASIS TO ALLOW ANY PART OF YOUR CLAIM. WHILE YOUR CONTENTIONS OFFERED IN SUPPORT OF YOUR CLAIM ARE AT VARIANCE WITH THE FACTS REPORTED BY THE PROCUREMENT AGENCY, IT IS A LONG ESTABLISHED RULE OF OUR OFFICE TO ACCEPT THE ADMINISTRATIVE REPORT OF THE FACTS INVOLVED IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF ..END :