B-129747, MAR. 15, 1957

B-129747, MAR. 15, 1957

TO MR. O. G. DENNIS:

REFERENCE IS MADE TO LETTERS DATED OCTOBER 25, 1956, AND FEBRUARY 7, 1957, WITH ENCLOSURE, FROM YOUR ATTORNEY, REQUESTING RECONSIDERATION OF SETTLEMENT DATED SEPTEMBER 25, 1956, WHICH DISALLOWED YOUR CLAIM FOR AN ADDITIONAL $500 FOR DRAWINGS OF A DRY TYPE SPRINKLER SYSTEM PLUS AN ADDITIONAL $5,053 FOR THE EXTRA WORK INCURRED IN THE INSTALLATION OF THAT SYSTEM IN BUILDING 423, NORTH AREA, FORT MYER, VIRGINIA, UNDER CONTRACT NO. DA-44-040-MDW-1484, DATED JUNE 27, 1955.

UNDER THE TERMS OF THE CONTRACT YOU WERE REQUIRED TO PERFORM THE WORK OF MAKING ADDITIONS AND ALTERATIONS TO BUILDING 423, NORTH AREA, FORT MYER, VIRGINIA, FOR THE CONSIDERATION OF $62,152. INCLUDED IN THE WORK WAS THE INSTALLATION OF A WET TYPE AUTOMATIC SPRINKLER SYSTEM IN ACCORDANCE WITH THE SPECIFICATIONS ATTACHED TO THE INVITATION FOR BIDS, AS MODIFIED BY ADDENDA NOS. 1, 2 AND 3, DISTRIBUTED TO THE RECIPIENTS OF THE INVITATION PRIOR TO OPENING OF BIDS, AND RECEIPT OF WHICH WAS ACKNOWLEDGED BY YOU IN THE SUBMISSION OF YOUR BID. UNDER ADDENDUM NO. 2 YOU WERE REQUIRED TO SUBMIT, PRIOR TO FABRICATION, COMPLETE DRAWINGS OF THE SPRINKLER SYSTEM, TO THE CONTRACTING OFFICER FOR APPROVAL. THE CONTRACT CONTAINED THE USUAL PROVISIONS WITH REGARD TO CHANGES AND DISPUTES (PARAGRAPHS 3 AND 6, STANDARD GENERAL CONTRACT PROVISIONS NO. 2, HEADQUARTERS MILITARY DISTRICT OF WASHINGTON, MAY 1, 1955).

ON SEPTEMBER 9, 1955, A SGCP ORDER TO SUSPEND WORK ON THE SPRINKLER SYSTEM WAS ISSUED BECAUSE OF THE FAILURE TO SUBMIT DRAWINGS, DETAILS, MATERIAL AND EQUIPMENT SCHEDULES FOR APPROVAL BY THE CONTRACTING OFFICER, PRIOR TO FABRICATION AND INSTALLATION, AS REQUIRED BY THE CONTRACT. THE CONTRACTING OFFICER HAS REPORTED THAT W. J. BAUMBACH, INC., YOUR SUBCONTRACTOR, FAILED TO COMPLY WITH THE CONTRACT REQUIREMENTS FOR SUBMISSION OF DRAWINGS, ETC., IN THAT THE DRAWINGS WERE INCOMPLETE AND DID NOT SHOW THE REQUIRED DETAILS BUT THAT THE TYPE OF SYSTEM WAS NOT IN QUESTION. IT IS INDICATED THAT THE SUBCONTRACTOR'S FAILURE IN THIS MATTER WAS DUE TO THE FACT THAT YOU HAD NOT SENT HIM, OR ADVISED HIM WITH REGARD TO, ADDENDA 2 AND 3.

SUBSEQUENTLY, AS INDICATED IN YOUR LETTER OF MARCH 6, 1956, TO THE CONTRACTING OFFICER, YOU INSTRUCTED A. DEO COUNTS, A CONSULTING ENGINEER, TO DESIGN A SYSTEM THAT WOULD BE APPROVED BY THE CORPS OF ENGINEERS.' DEO COUNTS PREPARED A SET OF PLANS FOR A DRY TYPE SPRINKLER SYSTEM AND ALTHOUGH HE STATES THAT HE OBTAINED TECHNICAL DESIGN DATA FROM MR. A. H. BARBER, CHIEF OF FIRE PROTECTION SECTION OF THE UTILITIES BRANCH, CORPS OF ENGINEERS, GRAVELY POINT, VIRGINIA, THE CONTRACTING OFFICER HAS REPORTED THAT IF YOU HAD SUBMITTED PROPER DRAWINGS FOR A WET TYPE SPRINKLER INSTALLATION IT WOULD HAVE BEEN ACCEPTABLE. THE PLANS AS SUBMITTED BY YOUR ENGINEER MET THE TECHNICAL APPROVAL OF THE OFFICE OF THE CHIEF OF ENGINEERS, THE ENGINEER OFFICE OF THE MILITARY DISTRICT OF WASHINGTON AND THE POST ENGINEER, THE LATTER OF WHICH IS THE CONTRACTING OFFICER'S REPRESENTATIVE. THE POST ENGINEER HAS REPORTED THAT NO OBJECTION WAS TAKEN TO THE DRY PIPE SYSTEM AS IT WAS ASSUMED THAT THE CONTRACTOR WAS FAMILIAR WITH THE SPECIFICATIONS AND WAS SUBMITTING A DRY SYSTEM IN HIS OWN BEST INTEREST AS EITHER TYPE WOULD HAVE SERVED THE SAME PURPOSE. STATED FURTHER THAT NO ISSUE OF ADDITIONAL COST WAS EVER DISCUSSED.

IN YOUR LETTER OF FEBRUARY 7, 1957, REQUESTING REVIEW OF THE DISALLOWANCE OF YOUR CLAIM, YOU CONTEND THAT THE CHANGE FROM A WET TO A DRY SYSTEM WAS UNDER THE DIRECTION AND APPROVAL OF THE PROPER GOVERNMENT OFFICIAL. IT IS CONTENDED FURTHER THAT YOU WERE NOT AFFORDED AMPLE TIME, PRIOR TO THE OPENING OF BIDS, TO DETERMINE WHAT WAS REQUIRED UNDER PAMPHLET NO. 13 OF THE NATIONAL BOARD OF FIRE UNDERWRITERS, MADE A PART OF THE CONTRACT, WHICH IT IS ALLEGED IS IN THE NATURE OF A REGULATION RATHER THAN A SPECIFIC INSTALLATION INSTRUCTION.

AS INDICATED HEREINABOVE, ADDENDUM 2 TO THE INVITATION SPECIFICALLY DIRECTED THAT SHOP DRAWINGS FOR THE SPRINKLER SYSTEM WERE TO BE SUBMITTED TO THE CONTRACTING OFFICER FOR APPROVAL BEFORE STARTING WORK. THAT YOU WERE AWARE OF THIS REQUIREMENT IS EVINCED BY THE FACT THAT YOU SIGNED THE ADDENDS AND SUBMITTED THEM WITH YOUR UNQUALIFIED BID. THE BID, BEING COMPLETELY RESPONSIVE TO THE INVITATION, IS DEEMED TO HAVE ENCOMPASSED THE COST OF ANY DRAWINGS REQUIRED UNDER THE CONTRACT. ACCORDINGLY, YOUR CLAIM FOR $500 FOR DRAWINGS PROPERLY WAS DISALLOWED.

WITH REGARD TO YOUR CONTENTION THAT YOU WERE NOT AFFORDED AMPLE TIME TO DETERMINE WHAT WAS REQUIRED UNDER PAMPHLET 13, OF THE NATIONAL BOARD OF FIRE UNDERWRITERS, IT MAY BE STATED THAT THIS PAMPHLET WAS A PART OF THE ORIGINAL SPECIFICATIONS, AND IF ANY DOUBT WAS LEFT IN YOUR MIND AS TO WHAT THE SPECIFICATIONS REQUIRED THAT DOUBT SHOULD HAVE BEEN RESOLVED BEFORE SUBMITTING A BID OR NO BID SHOULD HAVE BEEN SUBMITTED AT ALL.

IT IS ALLEGED THAT PAMPHLET 13 IS IN THE NATURE OF A REGULATION RATHER THAN A SPECIFIC INSTALLATION INSTRUCTION. THE PAMPHLET IS THE RECOGNIZED STANDARD FOR INSTALLATION OF AUTOMATIC SPRINKLER SYSTEM. THE REQUIREMENTS CONTAINED IN THAT PAMPHLET, RATHER THAN BEING GENERAL AND INDEFINITE, AS ALLEGED, ARE CLEAR, SPECIFIC AND DETAILED AND COMPLIANCE WITH THEM IS REQUIRED BY THE CONTRACT.

IT APPEARS THAT THE CONTRACT AWARDED TO THE CONTRACTOR REQUIRED THE INSTALLATION OF A WET TYPE SPRINKLER SYSTEM. AS A RESULT OF EITHER THE ORAL DIRECTION OF OR THE ORAL CONSENT OF MR. A. H. BARBER, AND WITHOUT ANY REGARD FOR THE PROVISIONS AND MINIMUM REQUIREMENTS OF THE CONTRACT, A DRY TYPE SPRINKLER SYSTEM WAS INSTALLED AT AN INCREASED COST TO YOU. HOWEVER, THE INCREASED COSTS APPEAR TO BE ATTRIBUTABLE TO YOUR FAILURE TO COMPLETELY ADVISE THE SUBCONTRACTOR OF THE CONTRACT REQUIREMENTS AND THE VAGUE INSTRUCTIONS TO THE CONSULTING ENGINEER "TO DESIGN A SYSTEM THAT WOULD BE APPROVED BY THE CORPS OF ENGINEERS.' NEVERTHELESS, PAYMENT FOR THE INSTALLATION OF A DRY TYPE SYSTEM IS CLAIMED ON A QUANTUM MERUIT BASIS.

YOU KNEW, OR SHOULD HAVE KNOWN, THAT MR. BARBER, WHO WAS NOT THE CONTRACTING OFFICER, HAD NO AUTHORITY WHATEVER TO ENLARGE, VARY OR ALTER ANY OF THE REQUIREMENTS OR CONDITIONS OF THE CONTRACT, ESPECIALLY SO AS TO OBLIGATE THE GOVERNMENT FOR ADDITIONAL COSTS, AS THAT WRITTEN AGREEMENT PROVIDED SPECIFICALLY THAT NO DEPARTURE OR CHANGES COULD BE MADE WITHOUT THE WRITTEN CONSENT OF THE CONTRACTING OFFICER. ALSO, PROVISION FOR CHANGES IS MADE IN PARAGRAPH 3 OF THE GENERAL CONTRACT PROVISIONS WHICH PROVIDES THAT THE CONTRACTING OFFICER MAY, BY WRITTEN ORDER, MAKE CHANGES IN THE DRAWINGS AND SPECIFICATIONS AND IF SUCH CHANGES CAUSE AN INCREASE IN THE COST OF PERFORMANCE, AN EQUITABLE ADJUSTMENT IS TO BE MADE. ANY CLAIM BY YOU WAS TO BE ASSERTED WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF NOTIFICATION OF CHANGE. ANY FAILURE TO AGREE ON THE AMOUNT OF THE ADJUSTMENT WAS TO BE SETTLED UNDER THE DISPUTES CLAUSE. YOU DID NOT REQUEST AN ORDER FOR THE CHANGE NOR DID YOU FOLLOW THE CONTRACT PROCEDURE WITH REGARD TO ASSERTING YOUR CLAIM FOR ADDITIONAL COMPENSATION. FURTHERMORE, INDIVIDUALS DEALING WITH OFFICERS OF THE GOVERNMENT ACT AT THEIR OWN PERIL AND MUST SEE THAT THE PERSON ACTING IN AN OFFICIAL CAPACITY HAS AUTHORITY TO BIND THE GOVERNMENT. THE FLOYD ACCEPTANCE, 7 WALL. 666, 676; WHITESIDE V. UNITED STATES, 93 U.S. 247, 257; HAWKINS V. UNITED STATES, AFFIRMED 32 F.2D141, CERTIORARI DENIED 280 U.S. 574; J. AND J. W. STOLTS ASSOCIATION V. UNITED STATES, 66 C.CLS. 1, 7-8. AN OFFICER'S "UNAUTHORIZED ACTS CANNOT ESTOP THE GOVERNMENT FROM INSISTING UPON THEIR INVALIDITY, HOWEVER BENEFICIAL THEY MAY HAVE PROVED TO THE UNITED STATES.' FILOR V. UNITED STATES, 9 WALL. 45, 49; YUHASS V. UNITED STATES, 109 F.2D 467, 468. AND THIS IS SO EVEN THOUGH THE CONDUCT OF THE SUBORDINATE OFFICER MAY HAVE BEEN SO GROSSLY ERRONEOUS OR SO FLAGRANTLY UNREASONABLE AS TO IMPLY BAD FAITH. UNITED STATES V. BLAIR, 321 U.S. 730.

A CASE VERY MUCH IN POINT IS HAWKINS V. UNITED STATES, 96 U.S. 689. THAT CASE, THE CONSTRUCTION CONTRACTOR ALLEGED AND PROVED THAT HE WAS REQUIRED BY AN ASSISTANT SUPERINTENDENT TO FURNISH BETTER STONE FOR A WALL THAN THAT SPECIFIED IN THE CONTRACT. THE COURT STATED THAT THE CLAIMANT READILY SUBMITTED TO THE DIRECTIONS GIVEN BY THE UNAUTHORIZED AGENT WITHOUT GIVING ANY NOTICE AT THE TIME THAT HE WOULD CLAIM ANY GREATER COMPENSATION AND THE COURT CONCLUDED:

"EXPRESS STIPULATIONS CANNOT IN GENERAL BE SET ASIDE OR VARIED BY IMPLIED PROMISES; OR IN OTHER WORDS, A PROMISE IS NOT IMPLIED WHERE THERE IS AN EXPRESS WRITTEN CONTRACT, UNLESS THE EXPRESS CONTRACT HAS BEEN RESCINDED OR ABANDONED, OR HAS BEEN VARIED BY THE CONSENT OF THE PARTIES. HENCE, THE RULE IS, THAT, IF THERE BE AN EXPRESS WRITTEN CONTRACT BETWEEN THE PARTIES, THE PLAINTIFF IN AN ACTION TO RECOVER FOR WORK AND LABOR DONE, OR FOR MONEY PAID, MUST DECLARE UPON THE WRITTEN AGREEMENT SO LONG AS THE SPECIAL AGREEMENT REMAINS IN FORCE AND UNRESCINDED, AS HE CANNOT RECOVER UNDER SUCH CIRCUMSTANCES UPON A QUANTUM MERUIT. * * * (ID. AT 697.)

"IMPLIED PROMISES OR PROMISES IN LAW EXIST ONLY WHEN THERE IS NO EXPRESS PROMISE BETWEEN THE PARTIES,--- EXPRESSUM FACIT CESSARE TACITUM * * *.' ID. AT 697-698.

THE LAW IS CLEAR THAT IN CONTRACTS CONTAINING PROVISIONS SIMILAR IN CHARACTER TO THOSE CONTAINED IN THE IMMEDIATE CONTRACT THE GOVERNMENT IS NOT LIABLE EITHER ON QUANTUM MERUIT OR UPON THE CONTRACT FOR THE EXTRA WORK WHICH WAS NOT ORDERED BY THE PROPER OFFICIAL NOR IN THE APPROVED MANNER PROVIDED BY THE CONTRACT. PLUMLEY V. UNITED STATES, 226 U.S. 545, 547; UNITED STATES V. BLAIR, 321 U.S. 730, 734-736; YUHASS V. UNITED STATES, 109 F.2D 467, 468; BAUSCH AND LAMB OPTICAL CO. V. UNITED STATES, 78 C.CLS. 584; LOUISE HARDWICK, ADMINISTRATRIX V. UNITED STATES, 95 C.CLS. 336, 343; STANDARD ACCIDENT INSURANCE CO. V. UNITED STATES,102 C.CLS. 770, 787, CERTIORARI DENIED, 325 U.S. 870.

FAILURE TO COMPLY WITH THE "CHANGES CLAUSE" IS SUFFICIENT WITHOUT ANYTHING ELSE TO PREVENT RECOVERY. LOUISE HARDWICK, ADMINISTRATRIX V. UNITED STATES, 95 C.CLS. 336, 343. THE GOVERNMENT CANNOT BE DEPRIVED OF THE BENEFITS OF THE ADMINISTRATIVE MACHINERY IT HAS PROVIDED TO MODIFY CONTRACTS, TO ADJUDICATE DISPUTES AND TO AVOID LARGE DAMAGE CLAIMS. UNITED STATES V. BLAIR, SUPRA; UNITED STATES V. HELPUCH CO., 328 U.S. 234, 239-240; YUHASS V. UNITED STATES, 109 F.2D 467, 468; J. AND J. W. STOLTS ASSOCIATION V. UNITED STATES, 66 C.CLS. 1, 8-9.

THERE IS NO LEGAL BASIS TO SUPPORT YOUR QUANTUM MERUIT CLAIM FOR THE INSTALLATION OF THE DRY ..END :