B-144094, MAR. 1, 1961

B-144094, MAR. 1, 1961

TO MR. HENRY W. MERRY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1960, REQUESTING RECONSIDERATION OF OUR DECISION B-144094, DATED OCTOBER 14, 1960, DISALLOWING YOUR CLAIM UNDER CONTRACT DA-19-016-CIVENG-57-259.

YOUR REQUEST FOR REVIEW IS PROMISED ON THE BASIS THAT THE CITED CONTRACT REFERS TO THE AMOUNT OF REPAIR WORK TO BE PERFORMED ON THE DIKE IN TERMS OF ESTIMATED QUANTITIES OF 10,000 TONS OF STONE AND PROVIDES THAT THE CONTRACTOR WILL BE REQUIRED TO COMPLETE THE JOB WITHIN THE LIMIT OF AVAILABLE FUNDS; ALSO, THAT THE AMOUNT OF $88,000 IS SPECIFIED AS THE AVAILABLE FUND AND THE CONTRACT STATES THAT THE AMOUNT WILL NOT BE REDUCED. YOU CONTEND THAT UPON INSPECTION OF THE DIKE AREA, PURSUANT TO THE ADMONITION IN THE SPECIFICATIONS, YOU ESTIMATED THAT 20,000 TONS OF STONE WOULD BE NEEDED TO MAKE ALL THE REPAIRS WITHIN THE AREA. IN VIEW OF THESE PROVISIONS IN THE CONTRACT AND YOUR ESTIMATE OF THE QUANTITY OF WORK INVOLVED, YOU CONTEND THAT IT WAS CONSIDERED THAT THE CONTRACT WOULD COVER YOUR ESTIMATE OF THE WORK AT LEAST UNTIL THE AMOUNT OF $88,000 HAD BEEN EXHAUSTED.

HOWEVER, PARAGRAPH SW-3 OF THE CONTRACT INDICATES ONLY THAT THE $88,000 FUND IS AVAILABLE FOR ,PAYMENT" OF THE "ABOVE DESCRIBED WORK.' ASCERTAIN WHAT IS COVERED BY THE "ABOVE DESCRIBED WORK,"IT IS NECESSARY TO REFER TO PARAGRAPHS SW-1 AND SW-2 IMMEDIATELY PRECEDING PARAGRAPH SW-3. PARAGRAPH SW-1 DESCRIBES THE WORK GENERALLY AS REPAIRS TO THE STONE DIKE IN STRICT ACCORDANCE WITH THE SPECIFICATIONS. PARAGRAPH SW-2 OF THE SPECIFICATIONS SPECIFICALLY PROVIDES THAT THE WORK WILL NOT BE REQUIRED THROUGHOUT THE ENTIRE LENGTH OF THE DIKE BUT ONLY IN SUCH AREAS AS THE CONTRACTING OFFICER MAY DESIGNATE. FURTHER, PARAGRAPH SC-3 OF THE SPECIFICATIONS ESTIMATES THAT THE WORK WILL REQUIRE THE FURNISHING AND PLACING OF 10,000 TONS OF STONE AND 100 HOURS OF STONE RESETTING WORK.

THE STATEMENT IN THAT PARAGRAPH THAT "WITHIN THE LIMIT OF AVAILABLE FUNDS THE CONTRACTOR WILL BE REQUIRED TO COMPLETE THE WORK SPECIFIED HEREIN IN ACCORDANCE WITH THE CONTRACT AND AT THE CONTRACT PRICE OR PRICES WHETHER IT INVOLVES GREATER OR LESS" THAN THE AMOUNTS ESTIMATED BINDS THE CONTRACTOR TO PERFORM ANY AMOUNT OF WORK REQUIRED BY THE CONTRACTING OFFICER. THE STATEMENT THAT THE CONTRACTOR WILL BE REQUIRED TO COMPLETE THE WORK "WITHIN THE LIMIT" OF AVAILABLE FUNDS DOES NOT REQUIRE THAT THE AVAILABLE FUNDS BE EXHAUSTED. IT MERELY INDICATES THE AMOUNT OF MONEY THAT IS AVAILABLE TO PAY FOR THE WORK AND PROVIDES A MONETARY LIMIT WITHIN WHICH THE CONTRACTING OFFICER CAN REQUIRE THE CONTRACTOR TO PERFORM THE ESTIMATED WORK. THE CONTRACT DELINEATES THE LAND BOUNDARY WITHIN WHICH THE WORK IS TO BE PERFORMED, BUT IT DOES NOT IDENTIFY SPECIFIC LOCATIONS WITHIN THOSE BOUNDARIES. THE SPECIFIC LOCATION UNDER THE TERMS OF THE CONTRACT WAS TO BE DESIGNATED BY THE CONTRACTING OFFICER AND THE AMOUNT OF WORK TO BE PERFORMED NECESSARILY DEPENDED UPON THE AREAS SELECTED BY THE CONTRACTING OFFICER.

YOU ALSO MAKE A POINT OF THE FACT THAT PARAGRAPH SW-3 INDICATES THAT THE GOVERNMENT WILL NOT REDUCE THE $88,000 FUND. HOWEVER, THE $88,000 IS SIGNIFICANT ONLY AS A PAYMENT FUND OUT OF WHICH THE CONTRACTOR IS TO BE PAID FOR "THE ABOVE DESCRIBED WORK TO BE DONE.' THE PARAGRAPH IS NOT A COMMITMENT TO PAY OUT THE ENTIRE FUND. IT IS ONLY A COMMITMENT TO USE THE FUND FOR WORK DONE AND THAT, OF COURSE, DEPENDS UPON THE AREA IN WHICH THE CONTRACTING OFFICER ASSIGNS THE CONTRACTOR TO WORK. WHILE YOU MAY HAVE EXAMINED THE DIKE AREA AND ESTIMATED THE AMOUNT OF WORK THAT IT WOULD TAKE TO REPAIR THE ENTIRE AREA, THERE IS NO ASSURANCE GIVEN IN THE SPECIFICATIONS THAT THE AREAS OF WORK YOU CONSIDERED WOULD COINCIDE WITH THE AREAS OF WORK THE CONTRACTING OFFICER MIGHT DESIGNATE.

IN THE CIRCUMSTANCES WE MUST CONCLUDE THAT THERE WAS NO OBLIGATION ON THE PART OF THE GOVERNMENT TO PROVIDE YOU WITH WORK UNTIL THE $88,000 FUND WAS EXHAUSTED. THE CONTRACT CALLED FOR ESTIMATED QUANTITIES OF 10,000 TONS OF STONE AND 100 HOURS OF LABOR. AFTER YOU PROVIDED 10,030 TONS OF STONE AND 100 HOURS OF LABOR IN THE AREA DESIGNATED BY THE CONTRACTING OFFICER, THE CONTRACT WAS CONSIDERED COMPLETE. CONSIDERING THAT YOU HAVE BEEN PAID FOR THESE QUANTITIES OF WORK AT THE PRICES QUOTED BY YOU AND PROVIDED IN THE CONTRACT THERE APPEARS NO PROPER BASIS FOR PAYING YOU FOR ANY ADDITIONAL AMOUNT WHICH WOULD BE FOR WORK NOT ACTUALLY PERFORMED.