B-155220, NOV. 17, 1964

B-155220, NOV. 17, 1964

TO EUGENE W. KELSEY AND SON:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT CERTIFICATE DATED JULY 10, 1964, WHICH DISALLOWED $757.44 OF YOUR CLAIM FOR $900, REPRESENTING ADDITIONAL COMPENSATION ALLEGED TO BE DUE UNDER CONTRACT NO. AF 08/617/-2147 DATED JUNE 5, 1963.

YOU SEEK PAYMENT FOR EXTRA PAINTING SERVICES PERFORMED AT MCCOY AIR FORCE BASE, ORLANDO, FLORIDA, WHICH ALLEGEDLY WERE OVER AND ABOVE THE REQUIREMENTS CALLED FOR BY THE PROJECT SPECIFICATIONS. YOU SPECIFICALLY CONTEND THAT THE OVERAGE OCCURRED AS A RESULT OF A DISAGREEMENT BETWEEN THE GOVERNMENT INSPECTORS AND YOURSELF, IN THAT THE INSPECTORS DIRECTED PAINTING WHICH WAS NOT CALLED FOR UNDER THE PROJECT SPECIFICATIONS. THE CONTRACTING OFFICE CONTENDS THAT THE PAINTING PERFORMED BY YOUR COMPANY WAS REQUIRED AS STIPULATED UNDER PARAGRAPH 2-08, TECHNICAL PROVISIONS OF THE CONTRACT, PAGE 2-10, WHICH READS AS FOLLOWS:

"A. GENERAL: ALL NEW AREAS OR AREAS THAT HAVE BEEN DAMAGED IN CONSTRUCTION SHALL BE PAINTED. * * *"

THIS DISAGREEMENT WAS BROUGHT TO THE ATTENTION OF THE CONTRACTING OFFICER BY YOUR LETTER OF OCTOBER 4, 1963. BEFORE YOU RECEIVED THE CONTRACTING OFFICER'S INTERPRETATION OF THE SPECIFICATIONS YOU HAD ALREADY PROCEEDED TO PAINT THOSE AREAS WHICH YOU WERE IN DISAGREEMENT WITH. IT WAS FINALLY DETERMINED BY THE CONTRACTING OFFICER THAT THE PAINTING OF THE INTERIOR WALL AREA HAD NO BASIS FOR CONSIDERATION SINCE CERTAIN AREAS WERE REQUIRED TO BE PAINTED UNDER THE TERMS OF THE CONTRACT AND ANY OTHER INTERIOR WALL AREAS WHICH YOU PAINTED WERE REQUIRED TO BE PAINTED TO RESTORE THE AREAS TO THE CONDITION THEY WERE IN BEFORE YOU BEGAN WORK ON THE PROJECT. THE CONTRACTING AGENCY REPORTS THAT THERE WERE FINGER MARKS AND ONE PERSON. AND SO THAT THE PUBLIC WOULD BE FULLY INFORMED, COMPLETION OF WORK BY YOUR FIRM. IT SEEMS OBVIOUS UNDER THE TERMS OF THE CONTRACT,"AREAS DAMAGED IN CONSTRUCTION" THAT YOU WERE REQUIRED TO RESTORE THESE AREAS TO THEIR ORIGINAL CONDITION. YOUR BREAKDOWN OF COSTS TO THE AGENCY DATED FEBRUARY 13, 1964, SHOWS THAT THE GREATER PORTION OF YOUR CLAIM PERTAINS TO INTERIOR PAINTING. IN VIEW OF THE FACT THAT THIS DAMAGE WAS A DIRECT RESULT OF YOUR OWN DOING, WE AGREE WITH THE ADMINISTRATIVE OFFICE, THAT IT WAS YOUR RESPONSIBILITY PURSUANT TO THE AFORESAID CONTRACT PROVISION TO RESTORE THE INTERIOR WALLS TO ORIGINAL CONDITION.

THE EXTERIOR WALL AREAS WERE COMPUTED BY THE CONTRACTING OFFICER TO ELIMINATE THE OPEN AREAS AND AREAS WHICH YOU WERE ALREADY REQUIRED TO PAINT FOR NEW CONSTRUCTION AND MODIFICATIONS OF THE EXISTING STRUCTURE. IT WAS DETERMINED THAT YOU ACTUALLY PAINTED 2,834 SQUARE FEET OF EXTERIOR SURFACES WHICH WERE OVER AND ABOVE THE CONTRACT REQUIREMENT. BASED ON THIS TOTAL AREA, OUR OFFICE AGREES THAT REIMBURSEMENT IS THE TOTAL AMOUNT OF $142.56 WAS A FAIR AND REASONABLE PRICE FOR THIS WORK.

IT IS A LONG STANDING RULE OF OUR OFFICE THAT WHEN A CLAIMANT'S CONTENTIONS ARE AT VARIANCE WITH THE FACTS REPORTED BY THE ADMINISTRATIVE AGENCY, OUR OFFICE ACCEPTS THE ADMINISTRATIVE REPORT IN THE ABSENCE OF EVIDENCE SUFFICIENTLY CONVINCING TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF.

IT IS THEREFORE CONCLUDED THAT THE PAINTING PERFORMED BY YOU WAS REQUIRED BY THE CONTACT AND MUST BE DEEMED TO HAVE BEEN INCLUDED IN THE CONTRACT PRICE. IN THESE CIRCUMSTANCES, IT WOULD NOT BE PROPER TO CERTIFY FOR PAYMENT YOUR CLAIM FOR $900 AND, OUR ORIGINAL SETTLEMENT CERTIFICATE OF JULY 10, 1964, IS HEREBY AFFIRMED.