B-131566, MAY 24, 1957

B-131566, MAY 24, 1957

TO KENMORE WINDOW CLEANING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 8, 1957, WITH ENCLOSURES, REQUESTING RECONSIDERATION OF OFFICE SETTLEMENTS DATED DECEMBER 3 AND 19, 1956, WHICH DISALLOWED YOUR CLAIMS AGGREGATING $18,260, REPRESENTING THE COST OF CUSTODIAL SERVICES ALLEGEDLY PERFORMED BEYOND THE SCOPE OF THE WORK CONTEMPLATED BY CONTRACTS NOS. DA 19-128-AI-360 AND DA 19-128-AI-421, DATED JUNE 28, 1954, AND JUNE 13, 1955, RESPECTIVELY.

IT APPEARS THAT AT THE TIME THE ORIGINAL CLEANING AND CUSTODIAL CONTRACT WAS AWARDED YOU, THE TOTAL AREA TO BE SERVICED CONSISTED OF APPROXIMATELY 716,000 SQUARE FEET, OF WHICH ABOUT 260,000 SQUARE FEET THEN WAS COMPRISED OF OFFICE SPACE, AND 456,000 SQUARE FEET OF EMPTY AREAS AT THE BOSTON ARMY BASE, MASSACHUSETTS. ACCORDING TO YOUR LETTER, THE SERVICING OF THE EMPTY AREAS MERELY REQUIRED THE SWEEPING OF THE CEMENT FLOORS, WITHOUT SECTIONAL OR OTHER BARRIERS, WHICH ALLEGEDLY COULD BE PERFORMED BY YOUR REGULAR DAILY WORKING STAFF. AROUND THE TIME OF COMMENCEMENT OF THE ORIGINAL CONTRACT PERIOD ON JULY 1, 1954, YOU RECEIVED NOTIFICATION FROM THE CONTRACTING OFFICER TO ELIMINATE CLEANING SERVICES IN TWO EMPTY AREAS LOCATED IN BUILDING NO. 4, COMPRISING APPROXIMATELY 33,200 FEET, PENDING CONVERSION OF THESE EMPTY AREAS IN SECTION F, 6TH AND 7TH FLOORS, TO OFFICE SPACE. AN APPROPRIATE REDUCTION WAS MADE IN THE CONTRACT CONSIDERATION TO COVER THE REDUCED SERVICES DURING THE CONVERSION PERIOD. ON OR ABOUT SEPTEMBER 1, 1954, YOU WERE INSTRUCTED TO RESUME CUSTODIAL AND CLEANING SERVICES IN THE RECONVERTED OFFICE AREAS, FOR WHICH YOU WERE COMPENSATED AT THE CONTRACT RATE OF $0.0135 SQUARE FOOT PER MONTH.

IT IS YOUR POSITION IN THE MATTER THAT BY REASON OF THE CONVERSION OF APPROXIMATELY 33,200 SQUARE FEET FROM EMPTY AREAS TO OFFICE SPACE, YOU WERE COMPELLED ON AND AFTER SEPTEMBER 1, 1954, TO ENGAGE MORE PERSONNEL, AT AN ADDITIONAL COST TO YOU OF ABOUT $830 PER MONTH, TO PERFORM SUCH UNANTICIPATED SERVICES AS CLEANING MANY NEW GLASS PARTITIONED OFFICES; "HUNDREDS" OF ADDITIONAL DESKS, CHAIRS, FILING CABINETS, FURNITURE, AND RELATED OFFICE EQUIPMENT; THE WASHING, WAXING AND POLISHING OF NEW FLOOR AREAS; THE CLEANING AND SERVICING OF MANY NEW FLUORESCENT LIGHTS, AND THE SERVICING NIGHTLY OF SEVERAL NEW LAVATORIES. YOU BASE YOUR CLAIM PRINCIPALLY UPON THE "UNIT PRICE SCHEDULE" OF THE CONTRACT, WHICH READS, IN PERTINENT PART:

"* * * THE UNIT PRICE BID PER MONTH WILL BE USED AS A BASIS FOR ADJUSTING PAYMENTS TO THE CONTRACTOR RESULTANT FROM INCREASES OR DECREASES IN THE AREAS TO BE SERVICED. * * * PAYMENTS WILL BE MADE ON THE BASIS OF THE ACTUAL AREAS SERVICED AS DETERMINED BY INSIDE MEASUREMENT OF AREAS SERVICED. THE UNIT PRICE WILL APPLY FOR ADDITIONS TO OR DEDUCTIONS FROM THE CONTRACT AMOUNT ONLY WHEN SUCH CHANGES INVOLVE THE SAME WORK AS THAT REQUIRED IN THE SPECIFICATIONS. IT WILL NOT BE APPLIED TO CHANGES REQUIRING USE OF MATERIALS OR METHODS OF DIFFERENT CHARACTER FROM THOSE APPROVED FOR GENERAL USE UNDER THE CONTRACT AS ORIGINALLY DRAWN. THE UNIT PRICE SHALL INCLUDE THE COLLATERAL OR INDIRECT COST CONNECTED THEREWITH.'

CHANGE ORDERS NOS. 1 AND 2, DATED JULY 1 AND NOVEMBER 14, 1954, RESPECTIVELY, WERE ISSUED UNDER THE ORIGINAL CONTRACT TO COVER AUTHORIZED CHANGES IN THE CONTRACT DRAWINGS REFLECTING REDUCTIONS AND INCREASES IN THE AREAS REQUIRED TO BE SERVICED. THESE, OF COURSE, RESULTED IN CHANGES IN THE AMOUNT PAYABLE UNDER THE CONTRACT, AND IN EACH INSTANCE THE AUTHORIZED CHANGES IN PRICE WERE COMPUTED UPON THE BASIS OF THE QUOTED UNIT PRICE OF $0.0135 PER SQUARE FOOT PER MONTH, IN CONFORMITY WITH THE "CHANGES IN SCOPE OF WORK" CLAUSE, WHICH READS:

"THE GOVERNMENT RESERVES THE RIGHT TO INCREASE OR DECREASE THE SCOPE OF WORK TO BE ACCOMPLISHED WITHIN EACH OF THE BUILDINGS LISTED, AND TO ADD TO OR DELETE FROM THE LISTING OF BUILDINGS, EITHER PRIOR TO AWARD OF THE CONTRACT OR DURING THE TERM OF THE CONTRACT. SUCH INCREASES OR DECREASES, AND ADDITIONS AND DELETIONS SHALL BE ADDED TO OR DEDUCTED FROM THE MONTHLY PAYMENT AT THE SQUARE FOOT UNIT PRICE ($0.0135) CITED IN THE BID.'

THE SUM OF $8,300 OF YOUR TOTAL CLAIM ($18,260) REPRESENTS THE ALLEGED ADDITIONAL COST TO YOU OF SERVICING THE OFFICE AREAS IN BUILDING NO. 4 FROM SEPTEMBER 1, 1954, THE EFFECTIVE DATE OF THEIR CONVERSION FROM EMPTY SPACES, UNTIL THE EXPIRATION OF THE ORIGINAL CUSTODIAL CONTRACT ON JUNE 30, 1955, OR FOR 10 MONTHS AT $830 PER MONTH.

BOTH THE BASIC CONTRACT NO. DA 19-128-AI-360 AND THE SUCCEEDING CONTRACT NO. DA 19-128-AI-421 COVER COMPLETE AND COMPREHENSIVE CUSTODIAL SERVICES FOR BOTH OFFICE AND FLOOR SPACE WITHIN PRESCRIBED AREA LIMITATIONS AT THE BOSTON ARMY BASE. THESE SERVICES, AS DEFINED IN YOUR CONTRACT, EMBRACE SCHEDULED OR PERIODIC SWEEPING OF ALL FLOOR AREAS, LANDINGS, AND STEPS; THE MOPPING AND PERIODIC WAXING OF FLOORS; CLEANING OF RUGS, ALONG WITH ALL WALL, DOOR, SASH AND TRIM AREAS; SCRUBBING OF STAIRS, LANDINGS AND CEILINGS; THE NECESSARY DUSTING OF OFFICE FURNITURE AND EQUIPMENT; THE CLEANING OF RADIATORS; THE CLEANING OF ALL EXTERIOR AND INTERIOR WINDOW SURFACES, PARTITIONS, DOORS AND ENTRANCES; THE DAILY CLEANING AND SERVICING OF TOILET BOWLS, WASH BASINS, DISPENSERS AND DRINKING FOUNTAINS; THE DUSTING AND CLEANING OF VENETIAN BLINDS; EMPTYING AND CLEANING WASTE BASKETS AND ASH TRAYS; POLISHING; THE PERIODIC CLEANING OF LIGHT FIXTURES, ELEVATORS, AND VIRTUALLY EVERY OTHER TYPE OF CUSTODIAL SERVICE NORMALLY REQUIRED IN THE UPKEEP OF LARGE OFFICE STRUCTURE OR AREA OF THIS KIND. WHILE THE CONVERSION OF EMPTY AREAS TO OFFICE SPACE MAY HAVE IN SOME MEASURE INCREASED THE COST AND EXTENT OF CERTAIN OF THE CUSTODIAL SERVICES REQUIRED TO BE FURNISHED, THE FACT REMAINS THAT YOUR CONTRACT EXPRESSLY PROVIDED FOR PAYMENT UPON THE BASIS OF THE ACTUAL AREAS SERVICED, "AS DETERMINED BY INSIDE MEASUREMENT.' THAT IS TO SAY, THE AMOUNTS PROPERLY PAYABLE TO YOU UNDER THE CLEAR TERMS OF YOUR CONTRACTS ARE DETERMINABLE SOLELY UPON THE BASIS OF THE INSIDE MEASUREMENTS OF THE PREMISES TO BE SERVICED, AS SHOWN ON THE GOVERNMENT'S DRAWINGS, EXPRESSED IN TERMS OF THE SQUARE FOOTAGE INVOLVED MULTIPLIED BY THE UNIT PRICES PER SQUARE FOOT QUOTED BY YOU IN YOUR ACCEPTED PROPOSALS. THIS IS PRECISELY THE BASIS UPON WHICH YOU ACTUALLY WERE PAID UNDER THE TWO CONTRACTS HERE INVOLVED.

CONCERNING YOUR CONTENTION THAT THE SCOPE OF THE WORK REQUIRED TO BE PERFORMED BY YOU WAS CHANGED BY THE CONVERSION OF APPROXIMATELY 33,200 SQUARE FEET IN BUILDING 4 FROM EMPTY TO OFFICE SPACE, YOU WILL OBSERVE THAT THE "UNIT PRICE SCHEDULE," MADE AN ESSENTIAL PART OF YOUR CONTRACTS, AUTHORIZED A CHANGE IN THE QUOTED UNIT PRICES ONLY WHEN THE AUTHORIZED CHANGES REQUIRED "USE OF MATERIALS OR METHODS" DIFFERENT FROM THOSE APPROVED FOR GENERAL USE WHEN THE CONTRACT WAS ORIGINALLY DRAWN. EVEN IF THE CONVERSION REFERRED TO INCREASED TO SOME EXTENT THE CLEANING, DUSTING, POLISHING AND OTHER CUSTODIAL DUTIES OF THE KIND OR CHARACTER GENERALLY CONTEMPLATED BY THE TERMS OF YOUR ORIGINAL OR BASIC CONTRACT, IT CANNOT BE SAID THAT THE SAID CONVERSION INVOLVED WORK ANY DIFFERENT FROM THAT "REQUIRED IN THE SPECIFICATIONS," OR REQUIRED THE USE OF "MATERIALS OR METHODS OF A DIFFERENT CHARACTER FROM THOSE APPROVED FOR GENERAL USE UNDER THE CONTRACT AS ORIGINALLY DRAWN.' THE CONTRACT IS EXPLICIT AND DETAILED AS TO THE MULTIPLE CUSTODIAL SERVICES REQUIRED TO BE PERFORMED BY YOU, SUCH AS DUSTING, CLEANING, WAXING, POLISHING, THE SERVICING OF LAVATORIES, AND RELATED DUTIES. ACCORDINGLY, IT MUST BE CONCLUDED THAT THERE WAS NO MATERIAL CHANGE IN THE NATURE OF CHARACTER OF THE WORK REQUIRED TO BE PERFORMED IN THE CONVERTED AREAS SO AS TO ENTITLE YOU TO AN INCREASE IN THE SPECIFIED UNIT PRICE WITHIN THE CONTEMPLATION OF THE CONTRACT TERMS.

YOUR CLAIM FOR $9,130 ASSERTED FOR IDENTICAL EXTRA SERVICES CLAIMED TO HAVE BEEN PERFORMED UNDER CONTRACT NO. DA 19-128-AI-421, COVERING THE SUCCEEDING FISCAL YEAR ENDING JUNE 30, 1956, OBVIOUSLY IS WITHOUT MERIT. AT THE TIME YOU EXECUTED THE CONTRACT WHEREBY YOU AGREED TO PERFORM THE WORK AT A MONTHLY UNIT PRICE OF $0.0118333 PER SQUARE FOOT QUOTED THEREIN- -- WHICH, INCIDENTALLY, WAS LESS THAN YOUR QUOTED PRICE FOR SUBSTANTIALLY SIMILAR SERVICES UNDER THE PRIOR YEAR'S CONTRACT--- THE AREA IN QUESTION LONG SINCE HAD BEEN CONVERTED TO OFFICE SPACE AND, OF COURSE, YOU WERE AWARE OF THAT FACT. WE KNOW OF NO LEGAL PRINCIPLE WHICH UNDER THESE CIRCUMSTANCES WOULD JUSTIFY ANY INCREASE IN THE PRICE FOR WHICH YOU AGREED TO PERFORM THE SERVICES.

UPON THE BASIS OF THE FACTS OF RECORD, THERE EXISTS NO LEGAL LIABILITY UPON THE PART OF THE GOVERNMENT FOR THE PAYMENT OF ANY PORTION OF YOUR CLAIMS, AND THE SETTLEMENTS OF DECEMBER 3 AND 19, 1956, ARE AFFIRMED.