B-154244, NOV. 22, 1961

B-154244, NOV. 22, 1961

TO CROSSLEY, S-D SURVEY, INC.:

REFERENCE IS MADE TO A LETTER DATED AUGUST 16, 1961, WITH ENCLOSURES, FROM THE ABOVE ATTORNEYS IN YOUR BEHALF, IN FURTHER REGARD TO YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT DATED JANUARY 23, 1961, WHICH DISALLOWED YOUR CLAIM FOR $51,603, REPRESENTING EXTRA COSTS ALLEGEDLY INCURRED BY YOU IN THE PERFORMANCE OF CONTRACT NO. 12-14-100 3826 (43), DATED JUNE 11, 1959.

UNDER THE CONTRACT, ENTERED INTO BY YOU WITH THE AGRICULTURAL RESEARCH SERVICE, DEPARTMENT OF AGRICULTURE, YOU AGREED TO FURNISH ALL LABOR, PERSONNEL, EQUIPMENT, ETC., NECESSARY TO CONDUCT, AND COMPLETE BY JUNE 30, 1960, A PERSONAL TRUCK CROP PRODUCTION PRACTICES AND COSTS SURVEY IN 12 DESIGNATED AREAS THROUGHOUT THE UNITED STATES IN ACCORDANCE WITH APPLICABLE BID SCHEDULE, SERVICE REQUIREMENTS, SPECIFICATIONS, ETC., FOR A TOTAL PRICE OF $76,500. FOUR OTHER BIDS WERE RECEIVED FOR THE WORK IN THE AMOUNTS OF $86,000, $89,750, $93,000, AND $225,000. YOUR BID, BEING THE LOWEST BID RECEIVED, WAS ACCEPTED BY THE AGRICULTURAL RESEARCH SERVICE ON JUNE 11, 1959, THEREBY CONSUMMATING CONTRACT NO. 12-14-100-3826 (43). YOU ALLEGE THAT DURING THE PERFORMANCE OF THE SURVEY YOU INCURRED ADDITIONAL COSTS OF $51,603 -- SINCE REDUCED TO $49,331 FOR THE REASONS STATED IN APPENDIX B OF THE ATTORNEYS' MEMORANDUM DATED AUGUST 16, 1961, IN SUPPORT OF YOUR CLAIM--- BECAUSE IN COMPUTING YOUR BID YOU HAD RELIED UPON THE 1954 CENSUS OF AGRICULTURE WHICH WAS SET FORTH IN CERTAIN PROVISIONS OF THE SPECIFICATIONS, A PART OF WHICH LATER PROVED TO BE INCORRECT; ALSO, THAT ADDITIONAL COSTS WERE INCURRED BY REASON OF THE GOVERNMENT'S INTERRUPTION OF THE SURVEY WHICH RESULTED FROM A DIRECTIVE OF THE BUREAU OF THE BUDGET THAT YOUR INTERVIEWERS COULD NOT BE IN CERTAIN CONTRACT AREAS DURING THE TAKING OF THE 1959 AGRICULTURE CENSUS.

THE DETAILED ARGUMENTS SET FORTH IN THE ATTORNEYS' MEMORANDUM DATED AUGUST 16, 1961, HAVE BEEN REVIEWED. IT APPEARS THAT THE BASIC CONTENTIONS ADVANCED ARE THAT THE DATA CONTAINED IN THE 1954 CENSUS OF AGRICULTURE AS TO THE TOTAL NUMBER OF FARMS IN THE APPLICABLE CONTRACT AREAS WAS OF FUNDAMENTAL IMPORTANCE TO THE EFFECTIVENESS AND OUTCOME OF THE SURVEY AND DID, IN FACT, GO TO THE VERY ESSENCE OF THE CONTRACT; ALSO, THAT THE GOVERNMENT WAS RESPONSIBLE FOR THE ACCURACY OF THE 1954 CENSUS DATA AND SINCE YOU RELIED UPON IT, AND IT LATER PROVED TO BE HIGHLY ERRONEOUS, THE GOVERNMENT IS RESPONSIBLE FOR THE CONSEQUENCES THAT RESULTED THEREFROM. REGARDING THE DIRECTIVE OF THE BUREAU OF THE BUDGET THAT RESULTED IN THE INTERRUPTION OF THE SURVEY, THE ATTORNEYS TAKE THE BASIC POSITION THAT THIS POST CONTRACT DIRECTIVE WAS ARBITRARY AND THAT PARAGRAPH X OF THE SPECIAL PROVISIONS OF THE CONTRACT, WHICH REFERS TO THE BUDGET BUREAU'S AUTHORITY UNDER THE FEDERAL REPORTS ACT OF 1942, CONTEMPLATED ONLY ROUTINE PROCEDURES,SUCH AS APPROVAL OF THE PLANS QUESTIONNAIRES, ETC., AND, THEREFORE, THE RESTRICTIONS AND CONDITIONS IMPOSED BY THE GOVERNMENT UPON THE TIMING AND CONDUCT OF THE SURVEY HAD NO REFERENCE TO, AND WERE NOT SUPPORTED BY, ANY SPECIFIC PROVISION OF THE CONTRACT.

IN CONSIDERING THE ISSUE AS TO THE ALLEGED INACCURACIES FOUND BY YOU TO HAVE EXISTED IN THE 1954 CENSUS OF AGRICULTURE, IT BECOMES NECESSARY TO DETERMINE THE GOVERNMENT'S RESPONSIBILITY FOR THE USE OF THIS DATA IN CONJUNCTION WITH SUCH RELIANCE AS YOU MAY HAVE PLACED UPON IT. IN THIS REGARD, WE FIND NOTHING IN ANY PART OF THE CONTRACT PROVISIONS WHICH WOULD JUSTIFY THE CONCLUSION THAT THE DEPARTMENT OF AGRICULTURE WARRANTED THAT THE NUMBER OF FARMS RAISING VEGETABLES FOR SALE, AS SHOWN IN THE VARIOUS AREAS IN THE TABLE ON PAGE 1 OF THE SPECIAL PROVISIONS OF THE CONTRACT WAS APPROXIMATELY THE SAME IN 1959 AS IT WAS IN 1954. THE VERY FACT THAT THE DEPARTMENT NOT ONLY USED THE DATA THAT WAS BASED ON THE 1954 CENSUS OF AGRICULTURE, BUT EXPRESSLY IDENTIFIED IT AS SUCH, FOR A SURVEY TO BE PERFORMED IN 1959 60 APPEARS TO SHOW THAT THE DATA WAS INTENDED ONLY AS A GUIDE OR FOR SUCH OTHER USE AS PROSPECTIVE BIDDERS MIGHT BE ABLE TO MAKE OF IT, AND THIS FACT ALONG ALSO SHOULD HAVE PLACED YOU ON NOTICE OF SUCH INTENDED LIMITED USE. IN THIS CONNECTION IT IS NOTED FURTHER THAT THERE WAS INCLUDED IN YOUR BID PROPOSAL TO PERFORM THE SURVEY THE FOLLOWING STATEMENT:

"IN VIEW OF THE OBSOLESCENCE OF THE 1954 CENSUS INFORMATION, WE WOULD CONSIDER IT ESSENTIAL TO UP-DATE THE INFORMATION INSOFAR AS POSSIBLE ON THE BASIS OF RECORDS AND PERSONAL KNOWLEDGE OF A COUNTY AGENT IN EACH OF THE COUNTIES SURVEYED. THE ESTIMATE OF COSTS MAKES PROVISION FOR CARRYING OUT THIS PRELIMINARY STEP.'

THUS, AS STATED IN THE ATTORNEYS' MEMORANDUM AFTER NOTING THAT THE DATA FURNISHED WAS TAKEN FROM THE 1954 CENSUS, YOU ACTUALLY DID REALIZE THAT SOME CHANGE INEVITABLY MUST HAVE TAKEN PLACE THROUGH THE MERE LAPSE OF TIME INVOLVED. MOREOVER, IT IS SHOWN THAT THE DATA AS TO THE NUMBER OF FARMS HAD BEEN UP-DATED BY YOU IN PREPARING YOUR BID AND THAT AN ALLOWABLE PROVISION FOR THIS WAS MADE IN YOUR ESTIMATE OF COSTS. IN THESE CIRCUMSTANCES, THERE APPEARS TO BE COMPLETELY APPLICABLE TO THE FOREGOING FACTS THE WELL-SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN AND THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR TO ENTITLE A CONTRACTOR TO ADDITIONAL COMPENSATION. UNITED STATES V. SPEARIN, 248 U.S. 132, 136; COLUMBUS RAILWAY AND POWER COMPANY V. COLUMBUS, 249 U.S. 399, 412; DAY V. UNITED STATES, 245 U.S. 159, 161; AND 19 COMP. GEN. 903, AND THE CASES THEREIN CITED.

THE FACTS IN THE COURT CASES SET FORTH BY THE ATTORNEYS IN SUPPORT OF THIS PART OF THE CLAIM ARE CLEARLY DISTINGUISHABLE FROM THE FACTS IN THIS CASE. IN THOSE CASES THE INCORRECT GOVERNMENT REQUIREMENTS, SPECIFICATIONS, ETC., GENERALLY WERE OF SUCH NATURE THAT THEIR USE UNDER THE CIRCUMSTANCES REPORTED PRACTICALLY AMOUNTED TO A WARRANTY OF THEIR CORRECTNESS BY THE GOVERNMENT. MOREOVER, THE CONTRACTORS REASONABLY COULD NOT HAVE BEEN CHARGED WITH NOTICE OF THE PROBABLE INACCURACIES, AND THE SPECIFICATIONS WERE, IN FACT, COMPLETELY RELIED UPON BY THE CONTRACTORS IN COMPUTING THE COST ESTIMATES. WE DO NOT BELIEVE IT MAY BE SAID THAT SUCH CONDITIONS EXISTED HERE.

IN VIEW OF THE FOREGOING, IT REASONABLY MAY NOT BE CONCLUDED THAT THE GOVERNMENT IS LEGALLY LIABLE FOR SUCH EXTRA COSTS AS YOU MAY HAVE INCURRED IN REGARD TO THIS PART OF YOUR CLAIM.

WITH RESPECT TO THE ALLEGED INTERRUPTIONS IN THE SURVEY WORK, PARAGRAPH X OF THE SPECIAL PROVISIONS OF THE CONTRACT PROVIDED FOR THE BUDGET BUREAU'S APPROVAL OF ALL QUESTIONNAIRES AND SURVEY PLANS IN CONNECTION WITH THE SURVEY, IN ACCORDANCE WITH THE TERMS OF THE FEDERAL REPORTS ACT OF 1942. UNDER TITLE 5, SECTIONS 139 AND 139A, U.S.C. THE ACT PROVIDES IN SUBSTANCE THAT THE DIRECTOR OF THE BUREAU OF THE BUDGET IS DIRECTED TO INVESTIGATE AND COORDINATE THE NEEDS AND METHODS USED BY FEDERAL AGENCIES IN OBTAINING CERTAIN INFORMATION AND TO COORDINATE INFORMATION-COLLECTING SERVICES WITH A VIEW TO REDUCING COST TO THE GOVERNMENT OF OBTAINING SUCH INFORMATION AND MINIMIZING THE BURDEN UPON BUSINESS ENTERPRISES AND OTHER PERSONS CONTACTED. THUS, IT IS OBVIOUS THAT THE POWERS GRANTED TO THE DIRECTOR UNDER THIS ACT ARE EXCEEDINGLY BROAD. IN ADDITION, IT IS NOTED THAT WHILE YOU CLAIM ADDITIONAL COSTS ALLEGEDLY RESULTING FROM THE INTERRUPTION OF THE SURVEY, SUCH AS WERE INVOLVED IN RESTRAINING OF INTERVIEWERS, EMPLOYMENT AND TRAINING OF SUBSTITUTES FOR INTERVIEWERS WHO HAD TAKEN OTHER EMPLOYMENT DURING THE ENFORCED LAYOFF, AND ADDITIONAL COSTS TO PERFORM PARTS OF THE SURVEY DURING THE WINTER INSTEAD OF THE FALL MONTHS, ETC., THERE IS NOTHING IN ANY PART OF YOUR CLAIM TO SHOW THE EXACT AMOUNT OF SUCH ADDITIONAL COSTS INCURRED BY YOU OR HOW THEY WERE COMPUTED. HAVING REGARD FOR THE AUTHORITY OF THE DIRECTOR OF THE BUREAU OF THE BUDGET UNDER THE FEDERAL REPORTS ACT OF 1942 AND IN VIEW OF THE LACK OF EVIDENCE AS TO THE ADDITIONAL COSTS INCURRED AS A RESULT OF THE INTERRUPTION OF THE SURVEY, WE HAVE CONSIDERABLE DOUBT REGARDING THIS PART OF YOUR CLAIM. THIS BEING THE CASE, THERE IS FOR APPLICATION THE PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291, AND CHARLES V. UNITED STATES, 19 CT.CL. 316, 319, TO THE EFFECT THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT CERTIFY SUCH A CLAIM FOR PAYMENT.

ACCORDINGLY, ON THE BASIS OF THE RECORD NOW BEFORE OUR OFFICE, THE SETTLEMENT DATED JANUARY 23, 1961, IS SUSTAINED.