B-142481, JUN. 17, 1960

B-142481, JUN. 17, 1960

TO THE JIMMIE WALKER CONTRACTING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 27, 1960, TO THE HONORABLE HAROLD B. MCSWEEN, MEMBER OF CONGRESS, WHICH WAS FORWARDED TO OUR OFFICE WITH THE REQUEST THAT RECONSIDERATION BE GIVEN TO YOUR CLAIM UNDER AIR FORCE CONTRACT NO. AF 16/600/-496, DATED JUNE 2, 1958, AS AMENDED, REQUIRING THE PERFORMANCE OF CERTAIN WORK NECESSARY FOR THE REPAIR OR MODIFICATION OF THE OFFICERS OPEN MESS, BUILDING 1119, AT ENGLAND AIR FORCE BASE, LOUISIANA.

ON APRIL 21, 1960, OUR OFFICE CERTIFIED THE AMOUNT OF $7,747.78 FOR PAYMENT ON A CLAIM OF YOUR COMPANY IN THE AMOUNT OF $10,790.56, COVERING ALLEGED EXTRA WORK PERFORMED UNDER THE CONTRACT AND OVERRUNS ON CERTAIN ESTIMATED QUANTITIES OF WORK FOR WHICH PAYMENT WAS TO BE MADE AT SPECIFIED UNIT PRICES. IN THE COMPUTATION OF THE ALLOWABLE AMOUNT ON THE CLAIM, TWO ITEMS OF CLAIM IN THE SUMS OF $640.33 AND $2,110.05 WERE DISALLOWED, AND A SETOFF OF $292.40 WAS MADE AS AN ADJUSTMENT DUE THE GOVERNMENT IN CONNECTION WITH A REPORTED OVERPAYMENT FOR ASBESTOS SIDING WORK ON WHICH THE QUANTITY ACTUALLY PERFORMED HAD BEEN LESS THAN THE CONTRACT ESTIMATE OF 100 SQUARES.

IT IS YOUR CONTENTION THAT FULL CONSIDERATION WAS NOT GIVEN TO THE ITEMS OF CLAIM FOR $640.33 AND $2,110.05, AND THAT YOU ARE ENTITLED TO THE PAYMENT OF INTEREST ON MONEY NOT PAID AS OF OCTOBER 15, 1958. THE CLAIM FOR INTEREST MUST BE REJECTED BY OUR OFFICE SINCE IT IS A SETTLED PRINCIPLE OF LAW THAT THE UNITED STATES IS NOT LIABLE FOR THE PAYMENT OF INTEREST ON UNPAID ACCOUNTS OR CLAIMS UNLESS A STATUTE OR A CONTRACT SPECIFICALLY SO PROVIDES. SEE UNITED STATES V. N.Y. RAYON CO., 329 U.S. 654, 658, 659; AND FEENER TECHNICAL SCHOOLS, INC. V. UNITED STATES, 136 C.CLS. 94, 102.

YOU ALLEGE THAT, UPON INVESTIGATION OF YOUR CLAIM AT THE ENGLAND AIR FORCE BASE, YOU FOUND THAT THE ENGLAND AIR FORCE BASE OFFICIALS DID NOT PRESENT YOUR CLAIM AS ORIGINALLY FILED. HOWEVER, THE RECORD SHOWS THAT ALL ITEMS OF THE CLAIM FOR $10,790.56 WERE CONSIDERED BY THE ENGLAND AIR FORCE BASE IN CONNECTION WITH ITS RECOMMENDATION THAT THE SUM PAYABLE ON THE CLAIM SHOULD NOT EXCEED THE AMOUNT OF $7,747.78. ALSO, WITH RESPECT TO YOUR OFFER TO FURNISH ADDITIONAL EVIDENCE, IF NECESSARY, COPIES OF THE PERTINENT CONTRACT DOCUMENTS AND CORRESPONDENCE WERE SUBMITTED WITH THE REPORT WHICH WE RECEIVED FROM THE DEPARTMENT OF THE AIR FORCE IN THE MATTER, AND IT APPEARS THAT IT WOULD BE UNNECESSARY TO REQUIRE ADDITIONAL INFORMATION OR EVIDENCE RELATING TO THE QUESTION AS TO WHETHER OR NOT YOU ARE ENTITLED TO ADDITIONAL PAYMENT ON THE CLAIM FOR $10,790.56.

THE ITEM OF CLAIM FOR $640.33 RELATES TO THE REQUIREMENT IN THE ORIGINAL CONTRACT THAT ACOUSTICAL TITLE UNITS CONFORM TO FEDERAL SPECIFICATION SS-A -118B, TYPE II, CLASS B, GRADE 6. IN THE UNIT-PRICE PORTION OF THE ORIGINAL CONTRACT, COVERING CERTAIN ESTIMATED QUANTITIES OF WORK, THERE WAS STIPULATED A PRICE OF $0.4976 PER SQUARE FOOT FOR ACOUSTICAL TITLE INSTALLATIONS. THE ESTIMATED QUANTITY OF ACOUSTICAL TITLE WAS 8,000 SQUARE FEET. YOU INSTALLED 8,316 SQUARE FEET OF CLASS A ACOUSTICAL TILE AND CLAIMED AN ADDITIONAL ALLOWANCE OF $0.07 PER SQUARE FOOT, PLUS 10 PERCENT FOR OVERHEAD. THE CONTRACTING OFFICER HAD PERMITTED THE SUBSTITUTION OF CLASS A TILE, FOR CLASS B TILE WITH THE EXPRESS CONDITION THAT CLASS A TILE WOULD BE FURNISHED AT NO ADDITIONAL COST TO THE GOVERNMENT. IN VIEW THEREOF, AND SINCE THE CHANGE OBVIOUSLY WAS PERMITTED SOLELY FOR YOUR CONVENIENCE, AND UPON YOUR SPECIFIC REQUEST, IT IS APPARENT THAT NO LEGAL BASIS EXISTS FOR PAYMENT OF THE CLAIMED ADDITIONAL AMOUNT OF $640.33.

YOU REFER TO THE ITEM OF CLAIM FOR $2,110.05 AS HAVING RESULTED FROM THE GOVERNMENT'S FAILURE TO DELETE THAT PART OF THE SPECIFICATIONS FOR THE WORK REQUIRED TO BE PERFORMED UNDER SUPPLEMENTAL AGREEMENT NO. 2 OF THE CONTRACT WHICH STATES "ALL WORN OR DAMAGED ASPHALT TILE IN THE BAR, TV ROOM, AND DINING ROOMS IS TO BE REPLACED TO MATCH EXISTING.' THERE WAS FORWARDED A COPY OF YOUR LETTER DATED MARCH 10, 1959, TO THE BASE PROCUREMENT OFFICE, ENGLAND AIR FORCE BASE, IN WHICH IT WAS ALLEGED THAT IT WAS DECIDED TO ELIMINATE CERTAIN PORTIONS OF THE TECHNICAL PROVISIONS FOR SUPPLEMENTAL AGREEMENT NO. 2 IN ORDER TO KEEP THE COST OF THE JOB WITHIN AN EXISTING BUDGET FIGURE. IT WAS FURTHER ALLEGED IN THAT LETTER THAT IT WAS AGREED THAT THE PLANS WOULD BE REVISED TO AGREE AND COINCIDE WITH YOUR COST BREAKDOWN OF $10,680.16 AND THAT ANY ASPHALT TILE WOULD BE INSTALLED ON A UNIT PRICE BASIS.

IT IS TRUE THAT SEVERAL ITEMS OF WORK WERE DELETED FROM THE ORIGINAL PLANS FOR SUPPLEMENTAL AGREEMENT NO. 2, BUT THE CONTRACTING OFFICER HAS STATED THAT UNIT PRICE WAS NEVER DISCUSSED IN HIS OFFICE AT THE TIME OF NEGOTIATING THE FINAL AGREEMENT OF AUGUST 22, 1958. MAJOR HOWARD F. BOLTON, THE INSTALLATION ENGINEER, ONE OF THE PARTIES NAMED AS HAVING TAKEN PART IN THE DISCUSSIONS LEADING TO THE ALLEGED PRIOR AGREEMENT TO INSTALL THE ASPHALT TILE ON A UNIT PRICE BASIS, HAS ALSO FURNISHED A STATEMENT THAT HIS OFFICE DID NOT CONSIDER THE CONTRACT AMENDMENT TO HAVE AFFECTED BASIC QUANTITIES INASMUCH AS THE AGREEMENT WAS CONSIDERED A LUMP SUM ITEM.

IT IS ALSO TRUE, AS YOU HAVE INDICATED, THAT THE CONTRACT AMENDMENT WAS ENTERED INTO PROMPTLY AFTER THE RECEIPT OF YOUR FINAL PROPOSAL. HOWEVER, THE MATTER CANNOT BE CONSIDERED AS INDICATING THAT A MUTUAL MISTAKE HAD OCCURRED IN EXECUTING THE CONTRACT AMENDMENT. YOU MAY HAVE BELIEVED THAT THE CONTRACT AMENDMENT WOULD NOT REQUIRE THE PLACEMENT OF ASPHALT TILE AS A PART OF YOUR UNDERTAKING TO PERFORM THE PARTICULAR WORK AT A STATED LUMP SUM PRICE, BUT THE RESPONSIBLE CONTRACTING OFFICIALS HAVE, IN EFFECT, REPORTED THAT THERE WAS NO UNDERSTANDING THAT EITHER THE REQUIREMENT FOR THE REPLACEMENT OF WORN OR DAMAGED TILE WOULD BE DELETED OR THAT, IF YOU MADE SUCH REPLACEMENTS, PAYMENT THEREFOR WOULD BE MADE AT THE STIPULATED UNIT PRICE UNDER THE ORIGINAL CONTRACT.

THE RESPONSIBILITY FOR THE PREPARATION OF THE FINAL PROPOSAL WAS THAT OF YOUR COMPANY AND IT APPEARS THAT THE PROPOSAL WAS ACCEPTED IN ENTIRE GOOD FAITH. THE PROPOSAL COVERED NUMEROUS ITEMS OF WORK AND MATERIAL AND, WHILE A COST BREAKDOWN WAS INCLUDED IN THE PROPOSAL, IT IS OUR OPINION THAT THE CONTRACTING OFFICER WAS NOT REQUIRED TO DETERMINE IN ADVANCE WHETHER OR NOT THE COST BREAKDOWN INCLUDED ALLOWANCES FOR ALL OF THE REQUIRED WORK OR TO COMPARE THE COST BREAKDOWN OF THE FINAL PROPOSAL WITH THAT OF A PREVIOUS PROPOSAL SUBMITTED BY YOUR COMPANY BEFORE THE DELETION OF VARIOUS REQUIREMENTS IN ORDER TO KEEP THE COST OF THE COMPLETE JOB WITHIN A PARTICULAR BUDGETARY LIMIT.

SUCH MISTAKE AS WAS MADE IN YOUR FINAL PROPOSAL ON THE WORK COVERED BY SUPPLEMENTAL AGREEMENT NO. 2 OF THE CONTRACT APPEARS TO HAVE BEEN UNILATERAL--- NOT MUTUAL--- AND THEREFORE DOES NOT ENTITLE YOU TO ANY RELIEF. SEE 38 COMP. GEN. 119, 123, AND THE DECISIONS CITED THEREIN, SUPPORTING SUCH CONCLUSION.

ACCORDINGLY, THE SETTLEMENT WHICH LIMITED PAYMENT ON YOUR CLAIM FOR $10,790.56 TO THE AMOUNT OF $7,747.78 MUST BE SUSTAINED.