B-144598, JAN. 10, 1961

B-144598, JAN. 10, 1961

TO MR. EDWARD E. HEDICKE, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 22, 1960, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT A CLAIM FOR $3,240.63, PRESENTED BY EARL MCCONNELL, WESTON, WYOMING, ON HIS PAYMENT APPLICATION NO. 9 UNDER CONTRACT NO. 12-10-480- 266, ENTERED INTO BY THE DEPARTMENT OF AGRICULTURE ON MAY 26, 1959, WITH EARL MCCONNELL AND MARY LAIRD FOR CONSERVATION TREATMENT OF RANGE LAND OWNED BY THEM IN CAMPBELL COUNTY, WYOMING, IN FURTHERANCE OF THE GREAT PLAINS CONSERVATION PROGRAM, ESTABLISHED IN ACCORDANCE WITH THE ACT OF AUGUST 7, 1956, 70 STAT. 1115, 16 U.S.C. 590P.

AS ORIGINALLY EXECUTED, THE CONTRACT PROVIDED FOR PERFORMANCE DURING THE PERIOD MAY 26, 1959, TO DECEMBER 31, 1963, OF SIX ITEMS OF WORK, COVERING THE CONSTRUCTION OF STOCKWATER PONDS, INCLUDING OUTLET FACILITIES, AN IRRIGATION DAM, INCLUDING OUTLET FACILITY, AND A DETENTION DAM, INCLUDING OUTLET FACILITY. ON FOUR OF THE SIX ITEMS, THE QUANTITIES OF WORK WERE STATED IN TERMS OF EITHER CUBIC YARDS OR SQUARE YARDS AND AVERAGE COSTS WERE STATED ON A UNIT COST BASIS SUCH AS $0.15 PER CUBIC YARD IN THE CASE OF ITEM NO. 1. HOWEVER, ON ITEMS NOS. 4 AND 6, DESCRIBED AS OUTLET FACILITIES, THE TOTAL AMOUNT OF WORK IN EACH CASE WAS DESCRIBED AS "1 OUTLET" AND THE FIGURES $788 AND $3,210 WERE SET FORTH IN THE "AVERAGE COST" COLUMN. IN THE COMPUTATIONS OF THE GOVERNMENT'S COST SHARES ON ITEMS NOS. 4 AND 6, 50 PERCENT OF COST, OR $394, WAS INDICATED FOR ALLOWANCE ON ITEM NO. 4, AND 80 PERCENT OF COST, OR$2,568 WAS SHOWN TO BE ALLOWABLE ON ITEM NO. 6.

THE CLAIM HERE INVOLVED CONCERNS ITEM NO. 6, RENUMBERED AS ITEM NO. 112 (6), AND THE RECORD INDICATES THAT THE OUTLET FACILITY REQUIRED FOR CONSTRUCTION UNDER THAT ITEM WAS COMPLETED DURING THE 1960 PROGRAM YEAR. BY SUPPLEMENTAL AGREEMENT, EITHER EARL MCCONNELL OR MARY LAIRD WAS AUTHORIZED TO EXECUTE DOCUMENTS OR CLAIMS FOR PAYMENTS ARISING UNDER THE OPERATION OF THE CONTRACT, AND IT WAS PROVIDED THAT PAYMENTS WOULD BE MADE TO EARL MCCONNELL. HIS PAYMENT APPLICATION NO. 9 COVERS ITEM NO. 112 (6) AND, WITH RESPECT TO THE FACT THAT THE CLAIMED COST SHARE OF $3,240.63 EXCEEDS THE FIGURE INDICATED IN THE CONTRACT AS ALLOWABLE FOR THAT ITEM, HIS APPLICATION STATES THAT THE COST-SHARE ESTIMATE WAS $2,568, THAT THE ESTIMATE WAS MADE FOR CONTRACT PURPOSES BEFORE DETAILED SURVEYS WERE MADE AND THAT IT WAS DETERMINED AFTER THE SURVEYS THAT MORE MATERIALS WERE NEEDED.

AN ADMINISTRATIVE REPORT DATED NOVEMBER 21, 1960, SUBMITTED BY THE STATE ADMINISTRATIVE OFFICER, SOIL CONSERVATION SERVICE, CASPER, WYOMING, SUBSTANTIATES THE CONTRACTOR'S STATEMENTS IN THE MATTER. AS STATED IN YOUR LETTER, THE REPORT SHOWS THAT DETAILED DESIGNS AND SURVEYS WERE NOT COMPLETED AT THE TIME THE CONTRACT WAS SIGNED, AND THAT THE AMOUNT SHOWN IN THE AVERAGE COST COLUMN OF THE CONTRACT FOR ITEM NO. 6 WAS INTENDED AS AN ESTIMATE OF THE OVER-ALL COST TO CONSTRUCT THE OUTLET FACILITY. FURTHER, IT APPEARS FROM THE STATE ADMINISTRATIVE OFFICER'S REPORT THAT, IF THE REGULATIONS AND OPERATING PROCEDURES FOR THE GREAT PLAINS CONSERVATION PROGRAM HAD BEEN FOLLOWED, INSTEAD OF ESTIMATING THE WORK ON A JOB BASIS, A CONTRACT MODIFICATION COULD HAVE BEEN PREPARED AT THE TIME THE FINAL PLANS AND SPECIFICATIONS WERE FURNISHED TO THE PRODUCER, AND PRIOR TO THE TIME CONSTRUCTION OF THE OUTLET FACILITY STARTED. HE HAS RECOMMENDED THAT THE CLAIM BE ALLOWED IN THE AMOUNT OF $3,240.63 FOR THE FOLLOWING STATED REASONS:

1. THE AMOUNT ORIGINALLY SHOWN IN THE CONTRACT AND MODIFICATION THERETO WAS INTENDED AS AN ESTIMATE.

2. IT WAS THE INTENTION OF THE SERVICE THAT THE PRODUCER WOULD BE ALLOWED PAYMENT ON THE BASIS OF ACTUAL MATERIALS USED IN CONSTRUCTING THE OUTLET FACILITY, BASED ON THE APPROVED COUNTY AVERAGE COST LIST IN EFFECT AT THE TIME THE CONTRACT WAS DRAWN OR AS REVISED AND IN EFFECT AT THE TIME INSTALLATION STARTED, WITH PAYMENT TO BE LIMITED TO THE SMALLER OF THOSE COSTS, UNLESS A CONTRACT MODIFICATION HAD BEEN ISSUED TO REFLECT ANY INCREASE IN THE APPROVED COUNTY AVERAGE COST LIST.

3. THE PRODUCER WAS ADVISED, AT THE TIME THE CONTRACT WAS PREPARED, THAT PAYMENT WOULD BE ALLOWED ON THE BASIS OF MATERIALS USED AND AS OUTLINED IN NO. 2 ABOVE.

4. HAD THE CONTRACT (OR MODIFICATIONS THERETO) BEEN PREPARED IN DETAIL TO AGREE WITH THE APPROVED COUNTY AVERAGE COST LIST, THE COST TO THE GOVERNMENT WOULD HAVE BEEN THE SAME AS CLAIMED BY THE PRODUCER, EARL MCCONNELL, IN PAYMENT APPLICATION NO. 9.

IT IS NOTED THAT COST SHARES FOR ALL SIX ITEMS OF THE ORIGINAL CONTRACT WERE SET FORTH IN A COLUMN HEADED AS "ESTIMATED G.P. COST SHARE.' THUS, IT IS PROBABLE THAT THE CONTRACT COULD REASONABLY BE INTERPRETED AS MEANING THAT THE COST SHARE STATED FOR ANY ITEM WAS TO BE REGARDED MERELY AS AN ESTIMATE AND NOT AS THE MAXIMUM AMOUNT WHICH WOULD BE CONTRIBUTED BY THE GOVERNMENT FOR ITS SHARE OF THE COST OF THE PARTICULAR WORK. IN ANY EVENT, IF THE TERMS OF THE CONTRACT WERE CONSIDERED TO BE CLEARLY TO THE EFFECT THAT THE FIGURE $2,568 REPRESENTED THE MAXIMUM AMOUNT OF THE GOVERNMENT'S OBLIGATION FOR PERFORMANCE OF ITEM NO. 6, THE APPARENT FACT THAT THE PARTIES DID NOT INTEND SUCH RESULT WOULD WARRANT THE CONCLUSION THAT THE COST-SHARE FIGURE COULD BE ADJUSTED AT THIS TIME ON THE BASIS THAT THE CONTRACT AS REDUCED TO WRITING DID NOT REFLECT THE ACTUAL CONTRACT ON WHICH THE PARTIES HAD PREVIOUSLY AGREED AND ATTEMPTED TO NEGOTIATE INSOFAR AS THAT ITEM OF THE CONTRACT IS CONCERNED.

ACCORDINGLY, WE ARE OF THE OPINION THAT THE PRODUCER'S CLAIM FOR $3,240.63 SHOULD BE CERTIFIED FOR PAYMENT IN FULL, AS RECOMMENDED BY THE STATE ADMINISTRATIVE OFFICER, SOIL CONSERVATION SERVICE, WHO EXECUTED THE CONTRACT ON BEHALF OF THE GOVERNMENT.

THE APPLICATION FOR PAYMENT AND THE COPY OF CONTRACT FORWARDED WITH YOUR LETTER ARE RETURNED.