B-144094, OCT. 14, 1960

B-144094, OCT. 14, 1960

TO MR. HENRY W. MERRY:

YOU HAVE LODGED WITH THE CONTRACTING OFFICER ADMINISTERING CONTRACT DA-19 -016-CIVENG-57-259 SEVEN CLAIMS. SINCE SIX OF THESE CLAIMS INVOLVE FACTUAL QUESTIONS THEY WILL BE DISPOSED OF BY THE CONTRACTING OFFICER BY FINDINGS OF FACT UNDER THE CONTRACT "DISPUTES" CLAUSE. THE SEVENTH, INVOLVING A QUESTION OF LAW, WAS SUBMITTED HERE FOR OUR CONSIDERATION. PURSUANT TO YOUR REQUEST, YOU DISCUSSED THE MERITS OF YOUR CLAIM WITH REPRESENTATIVES OF THIS OFFICE ON SEPTEMBER 27, 1960; AND BY LETTER OF SEPTEMBER 29, 1960, YOU MADE A FURTHER PRESENTATION ON YOUR BEHALF.

THE PERTINENT FACTS RELATIVE TO YOUR CLAIM ARE AS FOLLOWS. THE SUBJECT CONTRACT WAS FOR REPAIRS TO A DIKE LOCATED AT LONG BEACH, PLYMOUTH, MASSACHUSETTS. IT CALLED FOR FURNISHING AND PLACING AN ESTIMATED 10,000 TONS OF STONE AT $4.73 PER TON AND FOR PERFORMING AN ESTIMATED 100 HOURS OF STONE RESETTING WORK AT $25 PER HOUR FOR A TOTAL ESTIMATED CONTRACT PRICE OF $49,800. WHEN 10,030 TONS OF STONE WERE SET AND 100 HOURS OF RESETTING WERE ACCOMPLISHED, THE CONTRACTING OFFICER CONSIDERED THE CONTRACT PERFORMED, AND THEREAFTER SOLICITED BIDS FOR, AND AWARDED, A NEW CONTRACT FOR AN ADDITIONAL ESTIMATED 11,300 TONS OF STONE WORK TO ANOTHER CONTRACTOR. YOU POINT TO A STATEMENT IN YOUR CONTRACT THAT $88,000 WAS AVAILABLE FOR PAYMENT OF THE DESCRIBED WORK AND CONTEND, IN EFFECT THAT THE CONTRACTING OFFICER BREACHED THE CONTRACT WHEN HE DID NOT PERMIT YOU TO PERFORM WORK TO THE AMOUNT OF $88,000. THEREFORE, THE QUESTION PRESENTED FOR OUR CONSIDERATION IS WHETHER THE STATEMENT THAT $88,000 WAS AVAILABLE FOR THE PAYMENT OF WORK WAS A PROMISE TO LET YOU PERFORM TO THAT EXTENT.

THE SPECIFIC STATEMENT CONCERNING THE AMOUNT OF $88,000 APPEARS IN PARAGRAPH SW-3 OF THE SPECIFICATIONS AS FOLLOWS:

"REDUCTION OF WORK.--- THE FUNDS AVAILABLE FOR PAYMENT TO THE CONTRACTOR AMOUNT TO $88,000. THE ABOVE DESCRIBED WORK TO BE DONE IS SUBJECT TO THE LIMITATION OF AVAILABLE FUNDS. THE GOVERNMENT RESERVES THE RIGHT TO INCREASE BUT NOT TO DECREASE AVAILABLE FUNDS. SHOULD IT BE IMPOSSIBLE TO COMPLETE THE WORK AT THE UNIT PRICE STATED IN THE CONTRACT WITH FUNDS AVAILABLE THE WORK WILL BE REDUCED BY SUCH REDUCTION OF REQUIRED LENGTH OF REPAIR AS MAY BE NECESSARY.'

THIS PROVISION WAS INCLUDED IN THE INVITATION FOR BIDS WHICH BECAME PART OF THE SUBJECT CONTRACT. THE GOVERNMENT ESTIMATE FOR THE ADVERTISED WORK WAS $119,400. BECAUSE THE POSSIBILITY EXISTED THAT BID PRICES MIGHT EXCEED THE $88,000 THEN AVAILABLE FOR THE ADVERTISED WORK, PARAGRAPH SW-3 WAS INCLUDED IN THE INVITATION FOR BIDS ONLY FOR THE PURPOSE OF INFORMING BIDDERS THAT IF THEIR BID PRICES EXCEEDED THAT AMOUNT, THE STATED QUANTITIES OF WORK WOULD BE REDUCED IN ORDER TO COME WITHIN THE LIMIT OF AVAILABLE FUNDS.

WITH RESPECT TO THE AMOUNT OF WORK TO BE ACCOMPLISHED, THE CONTRACT STATES THE AMOUNT OF REPAIRS IN TERMS OF ESTIMATED WORK QUANTITIES AND SPECIFICALLY PROVIDES IN PARAGRAPH SW-2 OF THE SPECIFICATIONS THAT THE REPAIRS TO THE DIKE WILL NOT BE REQUIRED THROUGHOUT THE ENTIRE LENGTH BUT ONLY IN SUCH AREAS AS MAY BE DESIGNATED BY THE CONTRACTING OFFICER. THE RESTRICTIVENESS OF THE WORK IS ALSO SHOWN IN THE MAP CONTAINED IN DRAWING 460-DR-27, INCORPORATED BY REFERENCE INTO THE SPECIFICATIONS. THE BOUNDS OF THE OVER-ALL WORK AREA IS MARKED OUT ON THE MAP, BUT IS QUALIFIED BY THE STATEMENT,"LIMITS OF REPAIR AS DIRECTED.' IN ADDITION, IN THE SPECIFICATIONS THE SCOPE OF THE GOVERNMENT'S OBLIGATION IS DELINEATED IN TERMS OF DURATION IN TIME IN THAT THE WORK IS TO BE PERFORMED WITHIN 150 CALENDAR DAYS AFTER RECEIPT OF THE NOTICE TO PROCEED. WHILE THE CONTRACT CONTAINS PROVISIONS WHICH PERMIT THE CONTRACTING OFFICER TO REQUIRE WORK BEYOND THE ESTIMATED WORK QUANTITIES AND TIME LIMITATIONS, THE CONTRACT IS NOT AN EXCLUSIVE CONTRACT AND CONTAINS NO AGREEMENT OR GUARANTEE THAT ANY ADDITIONAL WORK WILL BE CALLED FOR.

IN THE CIRCUMSTANCES, IT IS OUR OPINION THAT THE ONLY OBLIGATION IMPOSED UPON THE GOVERNMENT UNDER CONTRACT DA-19-016-CIVENG-57-259 WAS TO PROVIDE WORK APPROXIMATING THE QUANTITIES SPECIFIED IN THE CONTRACT. IT HAVING DONE SO, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM, AND IT IS ACCORDINGLY DISALLOWED.