B-157845, DEC. 10, 1965

B-157845, DEC. 10, 1965

TO ASSOCIATION FILMS, INC.:

YOUR LETTER OF OCTOBER 12, 1965, WITH ENCLOSURES, REQUESTS EXTRAORDINARY CONTRACTUAL RELIEF PURSUANT TO PUBLIC LAW 85-804, APPROVED AUGUST 28, 1958, 72 STAT. 972, 50 U.S.C. 1431-1435, TO AUTHORIZE PAYMENT TO YOU OF THE AMOUNT OF $8,431 FOR SERVICES RENDERED TO THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA).

UNDER CONTRACT NO. NAS W-371, (NASA HEADQUARTERS) DATED FEBRUARY 8, 1962, YOU AGREED TO PROVIDE NECESSARY MATERIALS AND SERVICES TO PROMOTE AND EFFECT THE MAXIMUM DISTRIBUTION THROUGHOUT THE UNITED STATES OF A NASA MOTION PICTURE SHOWING A MANNED ORBITAL FLIGHT OF A MERCURY CAPSULE. THE CONTRACT ORIGINALLY COVERED A 12-MONTH PERIOD AND AUTHORIZED UP TO 500 TELEVISION (TV) SHOWINGS AND 5,000 NONTHEATRICAL BOOKINGS AT PRESCRIBED UNIT PRICES NOT TO EXCEED A TOTAL PAYMENT OF $18,900.

BY VARIOUS AMENDMENTS TO THE CONTRACT, THE NUMBER OF TV SHOWINGS WAS INCREASED TO A MAXIMUM OF 1,125; THE NUMBER OF NONTHEATRICAL BOOKINGS WAS INCREASED TO A MAXIMUM OF 25,201; AND THE CEILING PRICE FOR THE SHOWINGS AND BOOKINGS WAS RAISED TO $75,127.50. IN ADDITION, THE CONTRACT TERMINATION DATE WAS EXTENDED, THE FINAL EXTENSION TO DECEMBER 31, 1963, BEING EFFECTED BY AN AMENDMENT ISSUED IN JUNE 1963.

THE FILE FORWARDED BY YOU INDICATES THAT ON DECEMBER 18, 1963, THE NASA TECHNICAL MONITOR FOR THE CONTRACT DISCUSSED THE CONTRACT WITH A VICE PRESIDENT OF YOUR FIRM AND ADVISED HIM TO MAKE SURE THAT ADVANCE BOOKINGS DID NOT EXCEED THE MAXIMUM FUNDING IN THE CONTRACT. IN RESPONSE THERETO, THE FILE INDICATES THAT YOUR VICE PRESIDENT STATED THAT HE WOULD HAVE THE BOOKINGS STOPPED IN PLENTY OF TIME. IN THIS CORRECTION, YOU STATE THAT WHILE YOU THEN STOPPED ACCEPTING BOOKINGS, YOU ELECTED TO HONOR MORE THAN 3,000 EXCESS BOOKINGS ALREADY MADE FOR DATES BEYOND DECEMBER 31. THE BASIS FOR YOUR ACTION, YOU STATE, WAS TO INDICATE GOOD FAITH TO THE PARTICIPATING ORGANIZATIONS THAT HAD ORDERED THE BOOKINGS.

THE AMOUNT OF YOUR CLAIM, $8,431, IS SAID TO COVER 3,864 BOOKINGS AND 52 TELECASTS HONORED AFTER THE TERMINATION DATE. YOU CONTEND THAT CERTAIN "VERBAL AMBIGUITIES" AND REQUESTS BY NASA PERSONNEL LED YOUR COMPANY TO BELIEVE THAT THE CONTRACT MIGHT BE EXTENDED BEYOND DECEMBER 31, 1963. YOU STATE THAT IN DECEMBER 1963, THE NASA TECHNICAL MONITOR REQUESTED YOU TO FURNISH A PERFORMANCE SUMMARY ON TWO NASA FILMS YOU DISTRIBUTED AND A RECOMMENDATION FOR THEIR CONTINUANCE, STRESSING ANY ECONOMIES OR EFFICIENCIES THAT MIGHT BE MADE. THIS REQUEST, YOU SAY, WAS COMPLIED WITH BUT ACTION WAS NEVER TAKEN ON CONTINUATION OF DISTRIBUTION. YOU ALSO ASSERT THAT YOU WERE NEVER ADVISED THAT TERMINATION WAS DEFINITE. HOWEVER, YOU CONCEDE THAT THE TECHNICAL MONITOR DID VERBALLY ADVISE YOU THAT THE CONTRACT MIGHT NOT BE RENEWED. FINALLY, YOU CONTEND THAT NASA HAS RECEIVED THE BENEFIT OF YOUR SERVICES.

THE FILE FORWARDED BY YOU SHOWS THAT YOUR CLAIM WAS PREVIOUSLY FILED WITH NASA UNDER PUBLIC LAW 85-804 AND THAT BY A MEMORANDUM OF DECISION DATED MAY 28, 1965, THE NASA CONTRACT ADJUSTMENT BOARD DENIED THE REQUESTED RELIEF. THE BOARD FOUND THAT PRIOR TO THE TERMINATION DATE, YOU HAD EXCEEDED THE 25,201 LIMIT ON NONTHEATRICAL BOOKINGS WITH THE RESULT THAT THE CEILING PRICE OF $75,127.50 (WHICH WAS BASED ON THE NUMBER OF AUTHORIZED BOOKINGS AND SHOWINGS MULTIPLIED BY THE UNIT PRICES SET FORTH IN THE CONTRACT), WAS ALSO EXCEEDED. THE BOARD FURTHER FOUND THAT NOTWITHSTANDING THE CONTRACT LIMITATIONS HAD BEEN REACHED AND THAT THE CONTRACTING OFFICER HAD SERVED YOU WITH A WRITTEN REMINDER ON DECEMBER 23, 1963, REGARDING THE CONTRACT LIMITATIONS AND TERMINATION DATE, YOU HONORED THE EXCESS BOOKINGS WITHOUT NASA'S CONSENT. WITH RESPECT TO NASA'S REQUEST ON DECEMBER 18, 1963, THAT YOU SUBMIT A PERFORMANCE REPORT, THE BOARD STATED THAT TWO SUCH REPORTS WERE RECEIVED FROM YOU ON JANUARY 2, 1964, BUT NO ACTION WAS TAKEN TO EXTEND THE CONTRACT. WHILE THE BOARD FOUND THAT THE EXECUTION OF PREVIOUS CONTRACT AMENDMENTS MIGHT HAVE JUSTIFIED, TO A DEGREE, YOUR BELIEF THAT THE CONTRACT PERIOD WOULD BE EXTENDED, WITH ADDITIONAL BOOKINGS AND FUNDS AVAILABLE, DENIAL OF YOUR CLAIM WAS BASED ON THE FACT THAT YOU EXCEEDED THE AUTHORIZED CONTRACT LIMITATIONS WITHOUT NASA'S CONSENT AND WITH CLEAR NOTICE THAT THE CONTRACT MIGHT NOT BE FURTHER EXTENDED.

OUR OFFICE IS NOT ONE OF THE GOVERNMENT AGENCIES AUTHORIZED BY PUBLIC LAW 85-804 AND IMPLEMENTING EXECUTIVE ORDERS TO GRANT EXTRAORDINARY CONTRACTUAL RELIEF TO FACILITATE THE NATIONAL DEFENSE. ACTIONS TAKEN BY GOVERNMENT AGENCIES PURSUANT TO THE AUTHORITY OF PUBLIC LAW 85-804 ARE CONSIDERED BY US TO BE BINDING UPON OUR OFFICE. CONSIDERATION OF YOUR CLAIM BY OUR OFFICE, THEREFORE, MUST REST ON A DETERMINATION WHETHER THERE EXISTS A SUFFICIENT LEGAL BASIS INDEPENDENT OF PUBLIC LAW 85-804 FOR THE ALLOWANCE OF THE CLAIM FROM APPROPRIATED FUNDS.

IT IS AXIOMATIC THAT NO PERSON, BY HIS VOLUNTARY ACT, MAY CONSTITUTE THE GOVERNMENT HIS DEBTOR. 17 COMP. GEN. 530, 532. UTICA, ITHACA AND ELMIRA RAILWAY CO. V. UNITED STATES, 22 CT.CL. 265. MOREOVER, WHERE A WRITTEN AGREEMENT BETWEEN CONTRACTING PARTIES IS SEEMINGLY COMPLETE, A COURT WILL NOT LIKELY IMPLY AN ADDITIONAL COVENANT ENLARGING ITS TERMS. RYDER TRUCK RENTAL, INC. V. CENTRAL PACKING CO., 341 F.2D 321. SEE, ALSO, THE LACCHI CONSTRUCTION CO., INC. V. UNITED STATES, 102 CT.CL. 324, 356. ON THE FACTS OF RECORD, IT IS APPARENT THAT THE EXCESS BOOKINGS AND TELECASTS WERE VOLUNTARILY HONORED BY YOU WITH FULL KNOWLEDGE THAT THERE WAS NEITHER AN EXPRESS NOR AN IMPLIED OBLIGATION ON THE PART OF THE GOVERNMENT TO COMPENSATE YOU FOR ANY EXPENSE THEREBY INCURRED. ACCORDINGLY, WE FIND NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM, AND IT IS, THEREFORE, DENIED.