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B-124462, AUG. 2, 1955

B-124462 Aug 02, 1955
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LITVIN AND SON: REFERENCE IS MADE TO YOUR LETTER OF MARCH 17. WHICH WAS ENTERED INTO PURSUANT TO NEGOTIATIONS. CERTAIN ADDITIONAL WORK WAS REQUIRED AND THE CONTRACT CONSIDERATION WAS INCREASED TO $191. COVERED BY THE SPECIFICATIONS WERE NOT INCLUDED IN THE WORK REQUIRED THEREUNDER. WERE REQUIRED TO BE FURNISHED AND INSTALLED UNDER THE CONTRACT TERMS. 148.31 ON THE BASIS THAT THERE WAS A MUTUAL MISTAKE WITH RESPECT TO THE REQUIREMENTS FOR HEATING UNITS AS A PART OF THE VENTILATING SYSTEM AND THAT THE SPECIFICATIONS WERE AMBIGUOUS WITH RESPECT TO THE REQUIREMENTS FOR HEATING UNITS AS A PART OF THE VENTILATING SYSTEM AND THAT THE SPECIFICATIONS WERE AMBIGUOUS WITH RESPECT TO OTHER ITEMS. THE FUNCTIONS OF WHICH ARE TO ADVISE THE CHIEF OF ORDNANCE WITH RESPECT TO REQUESTS FOR RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT.

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B-124462, AUG. 2, 1955

TO K. LITVIN AND SON:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 17, 1955, FORWARDED BY YOUR ATTORNEY, PRESENTING A CLAIM FOR $81,050.91 AS THE BALANCE ALLEGED TO BE DUE FOR WORK PERFORMED IN CONNECTION WITH CONTRACT NO. DA-36-038-ORD- 11684, DATED AUGUST 18, 1952.

UNDER THE CONTRACT, WHICH WAS ENTERED INTO PURSUANT TO NEGOTIATIONS, YOU AGREED TO FURNISH THE MATERIALS AND PERFORM THE WORK REQUIRED FOR ALTERATIONS TO BUILDING 510, FRANKFORD ARSENAL, IN ACCORDANCE WITH SPECIFICATION AND DRAWINGS MADE A PART THEREOF BY REFERENCE, FOR THE CONSIDERATION OF $189,000. BY SUPPLEMENTAL AGREEMENT NO. 1, DATED FEBRUARY 9, 1953, CERTAIN ADDITIONAL WORK WAS REQUIRED AND THE CONTRACT CONSIDERATION WAS INCREASED TO $191,775. ARTICLE 1 OF THE CONTRACT SPECIFIED THAT CERTAIN ITEMS, INCLUDING THE HEATING SYSTEM, COVERED BY THE SPECIFICATIONS WERE NOT INCLUDED IN THE WORK REQUIRED THEREUNDER. DURING THE PROGRESS OF THE WORK A CONTROVERSY AROSE AS TO WHETHER CERTAIN HEATING UNITS DESCRIBED IN THE SPECIFICATIONS AS PART OF THE VENTILATING SYSTEM AND THE PAINT SPRAY ROOM, RESPECTIVELY, WERE REQUIRED TO BE FURNISHED AND INSTALLED UNDER THE CONTRACT TERMS. BY SUPPLEMENTAL AGREEMENT NO. 2, DATED FEBRUARY 18, 1954, YOU AGREED, UNDER PROTEST, TO COMPLETE THE WORK UNDER THE CONTRACT IN THE MANNER PRESCRIBED BY THE POST ENGINEER AND TO SEEK RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT, 1941, AS AMENDED, 64 STAT. 1257.

IT APPEARS THAT YOU MADE APPLICATION FOR RELIEF IN THE AMOUNT OF $49,148.31 ON THE BASIS THAT THERE WAS A MUTUAL MISTAKE WITH RESPECT TO THE REQUIREMENTS FOR HEATING UNITS AS A PART OF THE VENTILATING SYSTEM AND THAT THE SPECIFICATIONS WERE AMBIGUOUS WITH RESPECT TO THE REQUIREMENTS FOR HEATING UNITS AS A PART OF THE VENTILATING SYSTEM AND THAT THE SPECIFICATIONS WERE AMBIGUOUS WITH RESPECT TO OTHER ITEMS, INCLUDING THE REQUIREMENT FOR HEATING UNITS IN THE PAINT SPRAY ROOM. THE ORDNANCE CONTRACT ADJUSTMENT BOARD, THE FUNCTIONS OF WHICH ARE TO ADVISE THE CHIEF OF ORDNANCE WITH RESPECT TO REQUESTS FOR RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT, SUPRA, CONSIDERED YOUR REQUEST. AS REFLECTED IN ITS FINDINGS AND RECOMMENDATION DATED JUNE 17, 1954, THE SAID BOARD CONCLUDED THAT THERE WAS AN AMBIGUITY WITH RESPECT TO THE REQUIREMENT FOR HEATING UNITS IN THE PAINT SPRAY ROOM BUT THAT THERE WERE NO AMBIGUITIES OR MUTUAL MISTAKES AS TO THE OTHER ITEMS COVERED BY THE CONTRACT. ON THE BASIS OF SUCH CONCLUSION AND AS A RESULT OF A REAUDIT OF THE EXPENDITURE, THE BOARD RECOMMENDED RELIEF IN THE AMOUNT OF $18,071.79 AS THE COST OF FURNISHING AND INSTALLING THE HEATING UNITS IN THE PAINT SPRAY ROOM. IN RESPONSE TO YOUR REQUEST FOR A REHEARING IN THE MATTER, THE BOARD, IN ITS FURTHER FINDINGS AND RECOMMENDATION DATED "FEB. 1955," FOUND THAT CERTAIN EVIDENCE NOT AVAILABLE TO IT AT THE TIME OF THE FIRST CONSIDERATION SHOWED ADDITIONAL COSTS WERE INCURRED AS A RESULT OF A CHANGE DIRECTING THAT THE HEATING UNITS REQUIRED FOR THE VENTILATING SYSTEM BE INSTALLED ON THE ROOF OF BUILDING 510 RATHER THAN INSIDE THE BUILDING AS ORIGINALLY PROVIDED AND OF THE REQUIREMENT FOR ADDITIONAL WORK IN INSTALLING A RELAY-DELAY SYSTEM NOT SPECIFIED IN THE CONTRACT. THE BOARD RECOMMENDED RELIEF IN THE AMOUNTS OF $7,755.52 AND $1,995.65, RESPECTIVELY, FOR THE SAID ITEMS OR A TOTAL OF $9,751.17, IN ADDITION TO THE AMOUNT OF $18,071.79 PREVIOUSLY RECOMMENDED.

BY LETTERS OF AUGUST 6, 1954, AND MARCH 2, 1955, THE CHIEF OF ORDNANCE AUTHORIZED THE CONTRACTING OFFICER TO AMEND THE CONTRACT IN ACCORDANCE WITH THE FINDINGS AND RECOMMENDATIONS OF THE ORDNANCE CONTRACT ADJUSTMENT BOARD AS INDICATED ABOVE. PURSUANT TO SUCH AUTHORITY SUPPLEMENTAL AGREEMENT NO. 4 WAS PREPARED AND PRESENTED TO YOU. IN VIEW OF THE CIRCUMSTANCES AND OF THE FACT THAT THE WORK UNDER THE CONTRACT HAD BEEN COMPLETED AND THAT YOU HAD RECEIVED THE FULL CONSIDERATION SPECIFIED IN THE CONTRACT AS PREVIOUSLY AMENDED, THE SUPPLEMENTAL AGREEMENT PROVIDED THAT THE EXECUTION THEREOF WOULD CONSTITUTE A WAIVER BY YOU OF ANY AND ALL CLAIMS AGAINST THE GOVERNMENT UNDER THE CONTRACT EXCEPT FOR THE AMOUNT OF $27,822.96 PROVIDED FOR THEREIN. YOU REFUSED TO EXECUTE THE SUPPLEMENT AND BY THE LETTER OF MARCH 17, 1955, YOU REQUEST CONSIDERATION OF THE MATTER BY THIS OFFICE. WHILE YOUR LETTER CONTAINS A STATEMENT THAT YOUR REQUEST CONSTITUTES AN APPEAL FROM THE FINDINGS FROM THE ORDNANCE CONTRACT ADJUSTMENT BOARD, THAT IS, FROM THE AUTHORIZATION OF THE CHIEF OF ORDNANCE, YOU ASSERT A CLAIM FOR $81,050.91 AS THE BALANCE ALLEGED TO BE DUE ON A QUANTUM MERUIT BASIS FOR THE MATERIALS AND SERVICES FURNISHED.

THE ADMINISTRATIVE OFFICE HAS REPORTED THAT CONTRACT NO. DA-36-038 ORD- 11684 WAS EXECUTED BY YOU AFTER NEGOTIATIONS DURING WHICH YOU HAD THE BENEFIT OF COUNSEL. THE RECORD SHOWS CLEARLY THAT AFTER DISPUTES AROSE AS TO THE WORK REQUIRED UNDER THE TERMS OF THE CONTRACT YOU AGREED TO PROCEED WITH THE WORK AS DIRECTED BY THE POST ENGINEER AND TO SEEK RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT. SUCH AGREEMENT IS CLEARLY REFLECTED IN SUPPLEMENTAL AGREEMENTS NOS. 2 AND 3 WHICH YOU SIGNED. ALSO, THE RECORD SHOWS THAT YOU DID SO PROCEED AND YOU COMPLETED THE WORK AND HAVE RECEIVED THE FULL CONSIDERATION SPECIFIED IN THE CONTRACT AS AMENDED BY SUPPLEMENTAL AGREEMENT NO. 1. FURTHERMORE, THE FINDINGS AND RECOMMENDATIONS OF THE ORDNANCE CONTRACT ADJUSTMENT BOARD, APPROVED BY THE CHIEF OF ORDNANCE, WERE TO THE EFFECT THAT THERE EXISTED A MUTUAL MISTAKE ONLY WITH RESPECT TO THE HEATING UNITS IN THE PAINT SPRAY ROOM. UNDER SUCH CIRCUMSTANCES THERE APPEARS NO LEGAL BASIS FOR YOUR CONTENTION THAT NO VALID AND BINDING CONTRACT AROSE. THEREFORE, THERE IS NO BASIS FOR CONSIDERING YOUR CLAIM AS ON A QUANTUM MERUIT BASIS.

THE PROVISIONS OF TITLE II OF THE FIRST WAR POWERS ACT, SUPRA, CONFERRED NO AUTHORITY ON THE GENERAL ACCOUNTING OFFICE TO ALLOW CLAIMS UNDER CONTRACTS WITHOUT REGARD TO THE PROVISIONS OF THE CONTRACTS OR THE LAWS APPLICABLE THERETO AND THIS OFFICE IS WITHOUT AUTHORITY TO MODIFY THE TERMS OF CONTRACTS ENTERED INTO BY THE ADMINISTRATIVE AGENCIES OF THE GOVERNMENT. MOREOVER, SINCE YOU ELECTED TO SEEK RELIEF UNDER TITLE II OF THE FIRST WAR POWERS ACT AND SINCE REVIEW OF THE ACTION OF THE CHIEF OF ORDNANCE PURSUANT TO THAT ACT IS A MATTER WITHIN THE JURISDICTION OF THE DEPARTMENT OF THE ARMY, ANY REQUEST FOR REVIEW OF THE ACTION SO TAKEN SHOULD BE ADDRESSED TO THAT DEPARTMENT.

ACCORDINGLY, THE RECORD AFFORDS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM OR FOR A REVIEW HERE OF THE ADMINISTRATIVE ACTION WITH RESPECT TO YOUR REQUEST FOR RELIEF.

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