B-129440, OCT. 24, 1956

B-129440, OCT. 24, 1956

TO AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 4, 1956, TRANSMITTING CONTRACT PAYMENT ESTIMATE DATED AUGUST 8, 1956, ALONG WITH OTHER PAPERS RELATIVE TO THE CLAIM OF MR. RILEY HARRIS, CAMPTON, KENTUCKY, FOR $17,278, COVERING THE PLACEMENT OF LIMESTONE ROCK AND FOR SEEDING SERVICES RENDERED THE SOIL CONSERVATION SERVICE AT STILLWATER CREEK, RED RIVER PILOT WATERSHED NEAR CAMPTON, WOLFE COUNTY, KENTUCKY, PURSUANT TO CONSTRUCTION CONTRACT NO. 12-10-150-38, DATED MARCH 19, 1956.

AT THE OUTSET YOUR ATTENTION IS AGAIN CALLED TO THE FACT--- AS WAS POINTED OUT TO YOU IN DECISION OF AUGUST 8, 1956, B-128586--- THAT AS A CERTIFYING OFFICER YOU ARE NOT LEGALLY ENTITLED TO A DECISION ON A QUESTION PRESENTED BY YOU UNLESS YOUR REQUEST THEREFOR IS ACCOMPANIED BY A VOUCHER COVERING THE PROPOSED PAYMENT. THE REQUIREMENT FOR A VOUCHER AGAIN WILL BE WAIVED. YOU ARE ADVISED, HOWEVER, THAT ANY FUTURE REQUESTS FOR DECISION PRESENTED BY YOU WITHOUT PROPERLY PREPARED VOUCHERS WILL BE RETURNED TO YOU WITHOUT ACTION.

IN THIS CASE THE TECHNICAL SPECIFICATIONS, MADE A PART OF THE CONTRACT, GOVERNING THE "SEEDING, TREATING AND MULCHING OF CHANNEL BANKS," PROVIDE, IN PERTINENT PART THAT: "NO SEED SHALL BE PLANTED THAT HAS A TEST DATE OF MORE THAN ONE HUNDRED AND EIGHTY (180) DAYS PRIOR TO THE DATE OF PLANTING.'

THE SEEDING PORTION OF THE CLAIM IS SUPPORTED BY SEED LABORATORY REPORTS NOS. R 33898, R 40583 AND R 40584, DATED OCTOBER 14, 1955, JUNE 8, 1956, AND JUNE 7, 1956, RESPECTIVELY, EACH OF WHICH BEARS THE SIGNATURE OF AN AUTHORIZED REPRESENTATIVE OF THE COLLEGE OF AGRICULTURE, UNIVERSITY OF KENTUCKY. THESE REPORTS DISCLOSE THAT ALL THE SEED TESTED COMPLIED WITH THE MINIMUM PURE SEED CONTENT AND GERMINATION REQUIREMENTS OF THE CONTRACT. HOWEVER, SEED LABORATORY REPORT R 33898 DISCLOSES THAT THE KY- 21 FESCUE VARIETY OF SEED WAS TESTED MORE THAN 180 DAYS PRIOR TO THE TIME OF ITS ACTUAL PLANTING, CONTRARY TO THE REQUIREMENTS OF THE SPECIFICATIONS ABOVE-QUOTED.

IT APPEARS THAT AN EXAMINATION OF THE SEEDING JOB PERFORMED BY MR. HARRIS WAS RECENTLY CONDUCTED BY THE AREA CONSERVATIONIST SOIL CONSERVATION SERVICE AT HAZARD, KENTUCKY, THE RESULTS OF WHICH ARE REPORTED IN HIS STATEMENT OF OCTOBER 1, 1956, AS FOLLOWS:

"ON SEPTEMBER 25, 1956, I EXAMINED THE SEEDING JOB PERFORMED BY MR. HARRIS AND FIND THAT AN EXCELLENT STAND OF FESCUE HAS BEEN OBTAINED.

"THE CONTRACT SPECIFIED APPROXIMATELY 10.7 ACRES TO BE SEEDED WITH A MIXTURE OF GRASSES CONTAINING 30 POUNDS KY-31 FESCUE SEED PER ACRE; A TOTAL OF 321 POUNDS FESCUE SEED FOR THE JOB. THE CONTRACTOR ACTUALLY USED 375 POUNDS OF FESCUE SEED WHICH IS A RATE OF SLIGHTLY MORE THAN 35 POUNDS FESCUE PER ACRE. I CITE THIS TO ILLUSTRATE THE GENERAL GOOD FAITH OF THE CONTRACTOR IN PERFORMING HIS WORK IN A VERY ACCEPTABLE MANNER.

"I BELIEVE THE RESULTS OBTAINED FROM THE SEED USED ARE AS GOOD AS IF THE GERMINATION TEST DATE HAD BEEN WITHIN THE 180 DAYS SPECIFIED, AND RECOMMEND THAT THE CONTRACTOR BE PAID ACCORDINGLY.'

YOU STATE IN YOUR LETTER THAT THE TOTAL JOB DONE UNDER THE CONTRACT WAS PERFORMED IN A "VERY SATISFACTORY MANNER," AND YOU RECOMMEND THAT THE CONTRACTOR BE PAID IN FULL FOR THE WORK PERFORMED.

WHILE THE CONTRACTOR FAILED TO STRICTLY COMPLY WITH THE SPECIFICATIONS AS TO THE USE OF SEED TESTED WITHIN 180 DAYS PRIOR TO PLANTING, IN VIEW OF THE FACT THAT THE CONTRACT WORK WAS SATISFACTORILY PERFORMED, AND THAT THE GOVERNMENT SUFFERED NO DAMAGE AS A RESULT OF NONCOMPLIANCE WITH SUCH SPECIFICATIONS, WE WILL NOT OBJECT TO PAYMENT TO THE CONTRACTOR UPON THE BASIS PROPOSED IN THE CONTRACT PAYMENT ESTIMATE, IF OTHERWISE CORRECT. SEE DECISION TO YOU DATED AUGUST 14, 1956, B-128691.