B-141493, MAR. 10, 1960

B-141493, MAR. 10, 1960

TO MR. ELMER A. ROMAN:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1960, WITH ENCLOSURES, WITH FURTHER REGARD TO YOUR CLAIM IN THE GROSS AMOUNT OF $1,194, REPRESENTING LIQUIDATED DAMAGES DEDUCTED FROM AMOUNTS OTHERWISE PAYABLE UNDER CONTRACT NO. 14-10-028-456 DATED JULY 19, 1954, AND COMPENSATION FOR EXTRA WORK ALLEGEDLY PERFORMED AT THE REQUEST OF THE SITE ENGINEER.

THE DETAILS OF THE CONTRACT AND THE CIRCUMSTANCES UNDER WHICH LIQUIDATED DAMAGES WERE ASSESSED WERE SET OUT IN OUR LETTER OF JANUARY 11, 1960, TO YOU, AND OFFICE SETTLEMENT DATED NOVEMBER 25, 1958, AND WILL NOT BE RESTATED HERE.

CONCERNING THE ASSESSMENT OF LIQUIDATED DAMAGES, THE RECORD SHOWS THAT THIS MATTER WAS THOROUGHLY CONSIDERED BY THE BOARD OF CONTRACT APPEALS, DEPARTMENT OF THE INTERIOR, AND BY DECISION OF JUNE 28, 1957, IT WAS HELD THAT YOU WERE LEGALLY RESPONSIBLE UNDER THE CONTRACT FOR 32 DAYS' DELAY AT $25 PER DAY, OR $800. NOTHING HAS BEEN PRESENTED BY YOU WHICH COULD OVERCOME SUCH DECISION. AS POINTED OUT IN OUR PREVIOUS LETTER, SUCH DECISION MUST BE CONSIDERED FINAL BY OUR OFFICE UNLESS IT IS PROVEN BY COMPETENT AND SUFFICIENT EVIDENCE TO BE FRAUDULENT OR CAPRICIOUS OR SO GROSSLY ERRONEOUS AS TO IMPLY BAD FAITH, OR NOT SUPPORTED BY SUBSTANTIAL EVIDENCE. SEE WELLS AND WELLS, INC. V. UNITED STATES, 164 F.SUPP. 26.

CONCERNING YOUR CLAIM FOR EXTRA WORK, IT APPEARS FROM THE RECORD THAT THIS PORTION OF YOUR CLAIM WAS FIRST ASSERTED SOME NINE MONTHS AFTER COMPLETION AND ACCEPTANCE OF THE CONTRACT WORK. THE CONTRACT PROCEDURES WHEREBY ADDITIONAL COMPENSATION MAY BE CLAIMED ON ACCOUNT OF CHANGES WERE NOT FOLLOWED BY YOU AS CONTEMPLATED BY PARAGRAPH 3 OF THE GENERAL PROVISIONS AND PARAGRAPH 1-14 OF THE GENERAL CONDITIONS OF THE CONTRACT. THESE PROVISIONS GOVERN CLAIMS OR PROTESTS FOR WORK CONSIDERED TO BE WITHOUT THE PURVIEW OF THE CONTRACT WHICH MUST BE ADHERED TO IN ORDER TO ASSERT A VALID CLAIM FOR EXTRA WORK. AS A CONDITION PRECEDENT, TO A CLAIM FOR EXTRA WORK, THE CONTRACT REQUIRED THAT EXTRA WORK BE ORDERED IN WRITING BY THE CONTRACTING OFFICER. NO WRITTEN ORDERS WERE ISSUED TO YOU COVERING THE EXTRA WORK CLAIMED. IN THE ABSENCE THEREOF, NO LEGAL BASIS EXISTS FOR PAYMENT OF YOUR CLAIM FOR EXTRAS. AND THE FEDERAL COURTS HAVE SO HELD IN MANY DECISIONS. SEE BLAIR V. UNITED STATES, 66 F.SUPP. 405, AFFIRMED 164 F.2D 115; B W CONSTRUCTION COMPANY V. UNITED STATES, 104 C.CLS. 608; PLUMLEY V. UNITED STATES, 226 U.S. 545; YUHASZ V. UNITED STATES, 109 F.2D 467; LOUISE HARDWICK, ADMINISTRATRIX V. UNITED STATES, 95 C.CLS. 336, 342. WHILE THE SITE ENGINEER MAY HAVE ORDERED THE CLAIMED EXTRA WORK, THE RULE IS WELL SETTLED THAT WHERE EXTRA WORK IS DONE BY A CONTRACTOR UPON THE ORDER OF A SUBORDINATE AGENT OF THE GOVERNMENT HAVING NO AUTHORITY TO GIVE THE ORDER, NO CONTRACT CAN BE IMPLIED FOR THE PAYMENT OF THE EXTRA COST. THAT RULE STEMS FROM THE TERMS OF THE CONTRACT BETWEEN THE PARTIES WHICH REQUIRES THE CONTRACTING OFFICER TO ORDER CHANGES IN THE WORK IN WRITING. CLEARLY, THE CONTRACT HERE IN QUESTION MAY NEITHER BE ENLARGED NOR CHANGED BY A SUBORDINATE, AND IT HAS BEEN HELD THAT THOUGH ASSURANCE IS GIVEN IN SUCH A CASE THAT ADDITIONAL COMPENSATION WILL BE ALLOWED, SUCH AN AGREEMENT IS INOPERATIVE AND VOID. CF. MCLAUGHLIN V. UNITED STATES, 37 C.CLS. 150, 197; SANFORD AND BROOKS CO. V. UNITED STATES, 58 C.CLS. 158, AFFIRMED 267 U.S. 455.