B-139864, AUGUST 3, 1959, 39 COMP. GEN. 71

B-139864: Aug 3, 1959

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PAYMENT OF THE CLAIM WILL NOT BE CONSIDERED TO BE IN CONTRAVENTION OF THE PROVISION IN SECTION 3 OF THE ACT OF MARCH 3. ALTHOUGH THE CONSIDERATION IN RESEARCH CONTRACTS EXECUTED BY GOVERNMENT AGENCIES AND THE NATIONAL ACADEMY OF SCIENCES IS REQUIRED BY SECTION 3 OF THE ACT OF MARCH 3. 1959: WE HAVE BEFORE US FOR SETTLEMENT A CLAIM OF THE NATIONAL ACADEMY OF SCIENCES. 750 WAS TO BE PAID IN ADVANCE UPON THE EXECUTION OF THE CONTRACT. THE TIME FOR COMPLETION OF THE CONTRACT WAS EXTENDED TO JUNE 30. PAYMENT OF THE CLAIM WAS DENIED ADMINISTRATIVELY. IT IS MANIFEST. WAS IMPROPERLY EXECUTED. IS IN CONTRAVENTION OF SECTION 3648. THE MATTER IS BROUGHT TO YOUR ATTENTION WITH THE SUGGESTION THAT.

B-139864, AUGUST 3, 1959, 39 COMP. GEN. 71

CONTRACTS - RESEARCH WORK PERFORMED BY NATIONAL ACADEMY OF SCIENCES - CONSIDERATION LIMITATION - ACTUAL EXPENSES RESEARCH CONTRACTS BETWEEN GOVERNMENT DEPARTMENTS AND AGENCIES AND THE NATIONAL ACADEMY OF SCIENCES, WHICH PROVIDE A FIXED CONSIDERATION AND FOR AN INITIAL PAYMENT UPON THE EXECUTION OF THE CONTRACT, CONTRAVENE THE PROVISION OF SECTION 3 OF THE ACT OF MARCH 3, 1863, 36 U.S.C. 253, WHICH REQUIRES THE ACADEMY TO PERFORM RESEARCH WORK FOR THE UNITED STATES ON REQUEST, BUT WITHOUT COMPENSATION ABOVE THE ACTUAL COST OF THE SERVICES, AND THE ADVANCE PAYMENT PROHIBITION IN SECTION 3648, REVISED STATUTES, 31 U.S.C. 529. IN VIEW OF THE RECORD WHICH SUBSTANTIATES THAT THE CLAIM BY THE NATIONAL ACADEMY OF SCIENCES FOR AN AMOUNT IN ADDITION TO THE CONSIDERATION FIXED IN THE CONTRACT FOR PERFORMANCE OF RESEARCH WORK FOR THE DEPARTMENT OF AGRICULTURE REPRESENTS THE DIFFERENCE BETWEEN THE TOTAL ACTUAL COSTS FOR THE WORK AND THE PAYMENTS MADE PURSUANT TO THE TERMS OF THE CONTRACT, PAYMENT OF THE CLAIM WILL NOT BE CONSIDERED TO BE IN CONTRAVENTION OF THE PROVISION IN SECTION 3 OF THE ACT OF MARCH 3, 1863, 36 U.S.C. 253, WHICH PRECLUDES REIMBURSEMENT TO THE NATIONAL ACADEMY OF SCIENCES FOR ANY COMPENSATION ABOVE THE ACTUAL COSTS OF SERVICES PERFORMED FOR THE UNITED STATES GOVERNMENT. ALTHOUGH THE CONSIDERATION IN RESEARCH CONTRACTS EXECUTED BY GOVERNMENT AGENCIES AND THE NATIONAL ACADEMY OF SCIENCES IS REQUIRED BY SECTION 3 OF THE ACT OF MARCH 3, 1863, 36 U.S.C. 253, TO BE LIMITED TO THE ACTUAL EXPENSES INCURRED FOR THE WORK, A LIMITATION ON THE MAXIMUM AMOUNT PAYABLE UNDER THE CONTRACTS MAY BE INCLUDED.

TO THE SECRETARY OF AGRICULTURE, AUGUST 3, 1959:

WE HAVE BEFORE US FOR SETTLEMENT A CLAIM OF THE NATIONAL ACADEMY OF SCIENCES, WASHINGTON, D.C., FOR $25,055.28, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE IN CONNECTION WITH RESEARCH SERVICES PERFORMED FOR THE DEPARTMENT OF AGRICULTURE PURSUANT TO CONTRACT NO. A-1S-33826, DATED JUNE 30, 1953.

UNDER THE TERMS OF THE CONTRACT THE ACADEMY AGREED TO COMPILE FOR YOUR DEPARTMENT THE MOST RELIABLE DATA AVAILABLE ON THE COMPOSITION OF DOMESTIC CEREAL GRAINS AND FORAGES. THE CONTRACT PROVIDED FOR PAYMENT OF $27,500, OF WHICH $3,750 WAS TO BE PAID IN ADVANCE UPON THE EXECUTION OF THE CONTRACT, AND THE BALANCE IN PERIODIC PAYMENTS UPON RECEIPT AND ACCEPTANCE BY THE CONTRACTING OFFICER, OR HIS DESIGNATED REPRESENTATIVE, OF REPORTS FOR THE QUARTERS ENDING DECEMBER 31, 1953, JUNE 30, 1954, DECEMBER 31, 1954, AND JUNE 30, 1955. BY SUPPLEMENTAL AGREEMENT DATED JUNE 23, 1955, THE CONTRACTOR AGREED TO ASSEMBLE, CLASSIFY, AND COMPILE ACCORDING TO NOMENCLATURE THE COMPOSITION DATA FOR THE ADDITIONAL CONSIDERATION OF $14,788, THUS INCREASING THE TOTAL CONTRACT COST TO $42,288. THE TIME FOR COMPLETION OF THE CONTRACT WAS EXTENDED TO JUNE 30, 1957.

FOLLOWING COMPLETION OF THE CONTRACT THE NATIONAL ACADEMY OF SCIENCES PRESENTED A CLAIM IN THE AMOUNT OF $25,055.28 TO THE AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE, WHICH CLAIM REPRESENTS THE DIFFERENCE BETWEEN THE TOTAL ACTUAL COSTS INCURRED IN THE PERFORMANCE OF THE CONTRACT AND PAYMENTS MADE UNDER THE CONTRACT AND THE SUPPLEMENT THERETO. PAYMENT OF THE CLAIM WAS DENIED ADMINISTRATIVELY.

THE NATIONAL ACADEMY OF SCIENCES OPERATES AS A NON-PROFIT SCIENTIFIC INSTITUTION, HAVING BEEN ESTABLISHED BY THE ACT OF MARCH 3, 1863, 12 STAT. 806, 36 U.S.C. 253, WHICH PROVIDES, IN PERTINENT PART (SECTION 3), THAT---

* * * THE ACADEMY SHALL, WHENEVER CALLED UPON BY ANY DEPARTMENT OF THE GOVERNMENT, INVESTIGATE, EXAMINE, EXPERIMENT, AND REPORT UPON ANY SUBJECT OF SCIENCE OR ART, THE ACTUAL EXPENSE OF SUCH INVESTIGATIONS, EXAMINATIONS, EXPERIMENTS, AND REPORTS TO BE PAID FROM APPROPRIATIONS WHICH MAY BE MADE FOR THE PURPOSE, BUT THE ACADEMY SHALL RECEIVE NO COMPENSATION WHATEVER FOR ANY SERVICES TO THE GOVERNMENT OF THE UNITED STATES. ( ITALICS SUPPLIED.)

IT IS MANIFEST, IN VIEW OF THE ABOVE-QUOTED PORTION OF THE ACT OF MARCH 3, 1863, WHICH REQUIRES THE ACADEMY TO PERFORM RESEARCH WORK FOR THE UNITED STATES UPON REQUEST, BUT WITHOUT COMPENSATION ABOVE THE ACTUAL COST THEREEOF, THAT THE CONTRACT HERE INVOLVED, WHICH PROVIDES FOR A STATED CONSIDERATION, WAS IMPROPERLY EXECUTED--- BOTH ON THE PART OF THE ACADEMY AND THE DEPARTMENT OF AGRICULTURE. IN ADDITION, THE PROVISION FOR THE INITIAL PAYMENT OF $3,750, IN ADVANCE OF THE RENDITION OF SERVICE, IS IN CONTRAVENTION OF SECTION 3648, REVISED STATUTES, 31 U.S.C. 529.

THE MATTER IS BROUGHT TO YOUR ATTENTION WITH THE SUGGESTION THAT, SHOULD YOUR DEPARTMENT REQUIRE FURTHER RESEARCH WORK ON THE PART OF THE NATIONAL ACADEMY OF SCIENCES, THE CONTRACTS COVERING SUCH WORK LIMIT THE CONSIDERATION TO BE PAID THEREUNDER TO REIMBURSEMENT OF THE ACADEMY'S ACTUAL EXPENSES, WITH A LIMITATION, IF DESIRED, ON THE MAXIMUM AMOUNT PAYABLE UNDER THE CONTRACTS. SEE B-4252, JUNE 21, 1939.

REGARDING THE INSTANT CLAIM, THE RECORD SUPPORTS THE CONTENTION OF THE CLAIMANT THAT THE SUM OF $25,055.28 REPRESENTS THE DIFFERENCE BETWEEN THE TOTAL ACTUAL COSTS INCURRED AND THE PAYMENTS WHICH WERE MADE PURSUANT TO THE TERMS OF THE CONTRACT. ACCORDINGLY, THE CLAIMS DIVISION OF OUR OFFICE IS TODAY BEING INSTRUCTED TO CERTIFY THAT AMOUNT FOR PAYMENT.

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