A-91705, DECEMBER 8, 1938, 18 COMP. GEN. 514

A-91705: Dec 8, 1938

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THE EXPRESS STIPULATIONS OF THE CONTRACT AS TO CONSIDERATION THEREUNDER ARE CONCLUSIVE ON THE PARTIES AND MEASURE THE AMOUNT OF RECOVERY FOR PERFORMANCE. THERE IS NO AUTHORITY IN THE GENERAL ACCOUNTING OFFICE TO REFORM THE CONTRACT AS TO THE PRICE. 1938: THERE WAS RECEIVED YOUR LETTER OF OCTOBER 17. BY WHICH WAS SUSTAINED THE PRIOR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL COMPENSATION IN THE SUM OF $774.89. THE FACTS RELATIVE TO THE MATTER AND THE REASONS FOR DISALLOWANCE OF YOUR SAID CLAIM WERE SET FORTH IN DETAIL IN SAID DECISION. THE MERITS OF YOUR CLAIM WERE FULLY CONSIDERED WHEN THE SETTLEMENT OF JULY 9. WAS REVIEWED AND DECISION THEREON RENDERED ON OCTOBER 10. THE EXPRESS STIPULATIONS OF A CONTRACT AS TO CONSIDERATION THEREUNDER ARE CONCLUSIVE ON THE PARTIES THERETO AND MEASURE THE AMOUNT OF RECOVERY FOR PERFORMANCE BRAWLEY V.

A-91705, DECEMBER 8, 1938, 18 COMP. GEN. 514

CONTRACTS - INCREASED COSTS - WAGES - BIDDER'S DESIGNATION OF SEVERAL CLASSES OF EMPLOYEES INSTEAD OF PREDOMINANT OCCUPATIONAL CLASS - CONTRACT PRICE ADJUSTMENT LIMITATIONS WHERE COAL PURCHASE CONDITIONS AND CONTRACT PROVIDED FOR A PERCENTAGE CONTRACT PRICE ADJUSTMENT IN CASE OF WAGE CHANGES AFTER THE OPENING OF BIDS, BASED ON THE PREDOMINANT OCCUPATIONAL CLASS OF LABOR RECEIVING THE SAME WAGE RATE, SPECIFIED BY THE CONTRACTOR, AND THE CONTRACTOR'S BID NEVERTHELESS SPECIFIED SEVERAL CLASSES OF EMPLOYEES RECEIVING SEVERAL DIFFERENT WAGE RATES AND CONSTITUTING VARYING PERCENTAGES OF THE COST OF PRODUCTION, THE EXPRESS STIPULATIONS OF THE CONTRACT AS TO CONSIDERATION THEREUNDER ARE CONCLUSIVE ON THE PARTIES AND MEASURE THE AMOUNT OF RECOVERY FOR PERFORMANCE, AND THERE IS NO AUTHORITY IN THE GENERAL ACCOUNTING OFFICE TO REFORM THE CONTRACT AS TO THE PRICE, OR TO UNDERTAKE TO MAKE AN EQUITABLE ADJUSTMENT THEREOF, IT BEING THE DUTY OF THE ACCOUNTING OFFICERS IN DOUBTFUL CLAIMS TO RESOLVE THE DOUBT IN FAVOR OF THE GOVERNMENT, LEAVING THE CLAIMANTS TO THEIR RIGHT OF RECOURSE TO THE COURTS. 18 COMP. GEN. 320, AMPLIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE VICKERS COAL COMPANY, DECEMBER 8, 1938:

THERE WAS RECEIVED YOUR LETTER OF OCTOBER 17, 1938, REQUESTING RECONSIDERATION OF DECISION OF THIS OFFICE DATED OCTOBER 10, 1938, 18 COMP. GEN. 320, BY WHICH WAS SUSTAINED THE PRIOR DISALLOWANCE OF YOUR CLAIM FOR ADDITIONAL COMPENSATION IN THE SUM OF $774.89, IN EXCESS OF THE STIPULATED CONTRACT TONNAGE PRICE UNDER NAVY DEPARTMENT COAL CONTRACT NO. W-505-QM-17085, DATED APRIL 23, 1937, BASED ON INCREASE IN COST OF PRODUCTION OF $4,558,20 TONS OF COAL RESULTING FROM INCREASES IN THE WAGE SCALES OF MINE EMPLOYEES EFFECTIVE APRIL 1, 1937.

THE FACTS RELATIVE TO THE MATTER AND THE REASONS FOR DISALLOWANCE OF YOUR SAID CLAIM WERE SET FORTH IN DETAIL IN SAID DECISION.

THE MERITS OF YOUR CLAIM WERE FULLY CONSIDERED WHEN THE SETTLEMENT OF JULY 9, 1938, WAS REVIEWED AND DECISION THEREON RENDERED ON OCTOBER 10, 1938, AND SAID DECISION APPEARS TO BE IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, THE FACTS AS REPORTED, AND THE APPLICABLE LAW.

THE EXPRESS STIPULATIONS OF A CONTRACT AS TO CONSIDERATION THEREUNDER ARE CONCLUSIVE ON THE PARTIES THERETO AND MEASURE THE AMOUNT OF RECOVERY FOR PERFORMANCE BRAWLEY V. UNITED STATES, 96 U.S. 168; 13 CORPUS JURIS 584.

THE PURCHASE CONDITIONS AND CONTRACT IN THIS INSTANCE ARE SPECIFIC AS TO THE MANNER IN WHICH THE STIPULATED CONTRACT PRICES MAY BE ADJUSTED. PAYMENT OF THE INCREASED LABOR COST OF PRODUCTION OF COAL--- UNDER THE CONTRACT PROVISIONS--- IS CONTINGENT ON TWO CONDITIONS PRECEDENT: (1) THE NAMING IN THE BID OF THE PREDOMINANT OCCUPATIONAL CLASS OF MINE EMPLOYEES RECEIVING THE SAME WAGE RATE; AND (2) THE FURNISHING OF AUTHENTICATED COPIES OF WAGE SCALES TO THE CONTRACTING OFFICER WITHIN 60 DAYS FROM THE DATE OF THE CHANGE IN THE WAGE RATES. THE CONTRACT MAKES NO PROVISION FOR AN ADJUSTMENT OF THE PRICES STIPULATED THEREIN UNDER ANY OTHER CIRCUMSTANCES. AS TO THE NECESSITY FOR STRICT COMPLIANCE WITH SUCH STIPULATIONS SEE PLUMLEY V. UNITED STATES, 226 U.S. 545; ROCK ISLAND, ETC., R.R. V. UNITED STATES, 254 U.S. 141.

THE BID FORM WHICH WAS MADE A PART OF YOUR CONTRACT REQUIRED THAT THERE BE STATED THEREIN "THE PREDOMINANT OCCUPATIONAL CLASS OF MINE EMPLOYEES" IN SUCH MANNER THAT IT MIGHT BE CLEARLY IDENTIFIED IN THE WAGE AGREEMENTS.

YOU CONTEND THAT YOUR CLAIM SHOULD BE ALLOWED ON THE BASIS OF THE INCREASE IN THE WAGE RATE OF THE CLASS OF MINE EMPLOYEES WHICH WAS IN FACT THE PREDOMINANT CLASS REGARDLESS OF YOUR FAILURE TO DESIGNATE, IN YOUR BID, THE PREDOMINANT CLASS AS REQUIRED. IN THIS CONNECTION YOUR ATTENTION IS AGAIN INVITED TO THE FACT THAT YOUR CONTRACT DOES NOT PROVIDE FOR AN INCREASE IN PRICE BASED ON CHANGES IN THE WAGE RATES OF WHAT MAY BE SUBSEQUENTLY DETERMINED TO BE IN FACT THE PREDOMINANT OCCUPATIONAL CLASS, BUT PROVIDES FOR THE INCREASE ONLY ON THE BASIS OF AN INCREASE IN THE WAGE RATE OF THE PREDOMINANT OCCUPATIONAL CLASS SPECIFIED IN THE BID. SUBMITTING YOUR BID, INSTEAD OF COMPLYING WITH THE PLAIN TERMS OF THE SPECIAL PURCHASE CONDITIONS UNDER WHICH SAME WAS SUBMITTED, YOU INSERTED IN THE BLANK PLACE FOR INDICATING THE PREDOMINANT OCCUPATIONAL CLASS OF MINE EMPLOYEES, FOR USE IN CALCULATING A CHANGE IN THE STIPULATED CONTRACT PRICE DUE TO A CHANGE IN THE WAGE RATE THEREFOR, THE FOLLOWING SEVERAL CLASSES OF EMPLOYEES: "MINING AND YARDAGE RATES, ALL DAY LABOR NOT CLASSIFIED AS SUPERVISORY OR CLERICAL.' SINCE YOU DID NOT SPECIFY A PREDOMINANT CLASS RECEIVING THE SAME RATE OF WAGES BUT ON THE CONTRARY SPECIFIED NUMEROUS CLASSES OF EMPLOYEES RECEIVING DIFFERENT WAGE RATES AND CONSTITUTING VARYING PERCENTAGES OF THE COST OF PRODUCTION, THERE IS NO PROPER BASIS ON WHICH THIS OFFICE MAY ALLOW AN ADJUSTMENT OF THE PRICE IN ACCORDANCE WITH THE CONTRACT TERMS. AND THERE IS NO AUTHORITY IN THIS OFFICE TO REFORM YOUR CONTRACT IN THIS RESPECT, OR TO UNDERTAKE TO MAKE AN EQUITABLE ADJUSTMENT IN THE CONTRACT PRICE. IN OTHER WORDS, SINCE THE CLAIMED INCREASE IS NOT IN STRICT ACCORDANCE WITH THE TERMS OF YOUR CONTRACT, THE VALIDITY OF YOUR CLAIM IS TOO DOUBTFUL TO WARRANT THIS OFFICE IN CERTIFYING IT FOR PAYMENT UNDER ANY EXISTING APPROPRIATION. THIS CONNECTION SEE LONGWILL V. UNITED STATES, 17 CT.CLAS. 288, 291, WHEREIN THE COURTS SAID:

THE ACCOUNTING OFFICERS OF THE TREASURY (NOW THE GENERAL ACCOUNTING OFFICE) ARE IN DUTY BOUND TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE, AS IS THEIR CUSTOM; AND IT IS THE UNDOUBTED RIGHT AND DUTY OF THE COMPTROLLERS * * * WHO ALONE OF THE ACCOUNTING OFFICERS HAVE AUTHORITY TO DECIDE THEREON, TO REJECT, IN WHOLE OR IN PART, AS THEIR JUDGMENT DICTATES, ALL THOSE CLAIMS * * * TO WHICH THEY BELIEVE THERE MAY BE SUBSTANTIAL DEFENSES IN LAW, OR AS TO THE VALIDITY OF WHICH THEY ARE IN DOUBT.

WITH REFERENCE TO THE STATEMENT IN YOUR LETTER OF OCTOBER 17, 1938, TO THE EFFECT THAT THE GOVERNMENT CANNOT BE SUED IN FEDERAL COURTS, YOU MAY BE INFORMED THAT CLAIMANTS DO HAVE A RIGHT, IN SUCH CASES AS THIS, TO SUE THE GOVERNMENT EITHER IN THE UNITED STATES COURT OF CLAIMS OR IN THE APPROPRIATE UNITED STATES DISTRICT COURT.

THE DECISION OF OCTOBER 10, 1938, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM, MUST BE AND IS AFFIRMED.