B-164425, JUN. 11, 1968

B-164425, JUN. 11, 1968

TO ARMOR ELEVATOR COMPANY, INCORPORATED:

WE REFER TO YOUR LETTER DATED MAY 15, 1968, REQUESTING RECONSIDERATION OF YOUR CLAIM FOR $52, WHICH WAS DISALLOWED BY OUR CLAIMS DIVISION BY LETTER OF MAY 13, 1968. THIS CLAIM REPRESENTS OVERTIME PAID YOUR MECHANIC FOR SERVICES FURNISHED THE VETERANS ADMINISTRATION HOSPITAL, HINES, ILLINOIS, ON SUNDAY, JULY 9, 1967, AS REQUIRED BY SPECIFICATION CLAUSE 850-21, INSPECTION AND MAINTENANCE SERVICE, UNDER CONTRACT NO. V5076C-541.

THE PROPRIETY OF ALLOWING YOUR CLAIM DEPENDS ON THE RESOLUTION OF THE DISPUTE WHETHER UNDER THE CONTRACT YOU WERE REQUIRED TO FURNISH THE SERVICE REQUESTED BY THE HOSPITAL ON A SUNDAY, WHICH NECESSITATED PAYMENT OF OVERTIME WAGES, OR, IN THE ALTERNATIVE, WHETHER THIS SERVICE WAS BEYOND THE SCOPE OF THE CONTRACT, AND PERFORMED AT BEHEST AND EXPENSE OF THE GOVERNMENT FOR ADDITIONAL COSTS.

YOUR LETTER OF MAY 15, 1968, SETS FORTH YOUR POSITION AS FOLLOWS:

"IN THE ORIGINAL CONTRACT AND CONDITIONS, NO PROVISIONS HAVE BEEN MADE FOR 24 HOUR CALL BACK SERVICE AND OVERTIME CALL BACK SERVICE WOULD NOT HAVE BEEN USED IF IT HAD NOT BEEN FOR THE INSISTANCE OF THE PARTY PLACING THE CALL. WE DID NOT CHARGE YOU FOR REGULAR CALL BACK SERVICE AS COVERED UNDER THE CONTRACT. OUR MISTAKE COMES IN THAT WE DID NOT ASK FOR AUTHORIZATION FOR THE OVERTIME EXPENSE, OVER AND ABOVE THE EXPENSE THAT WAS JUSTIFIABLY OURS TO INCUR. OUR REASON FOR RESPONSDING IN SPITE OF OUR BETTER JUDGMENT WAS THE INSISTANCE OF THE PARTY PLACING THE CALL AND THE FACT THAT WE REALIZED THAT THE ELEVATOR WAS SERVING A HOSPITAL.' AS NOTED BY OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM, CLAUSE 850-21, PURSUANT TO WHICH THIS SERVICE WAS PROVIDED, NEITHER LIMITS THE FURNISHING OF SERVICES OR PARTS WITHIN THE GUARANTY PERIOD TO REGULAR WORK DAYS AND REGULAR WORK HOURS, NOR DOES IT INDICATE ANY LIABILITY ON THE PART OF THE GOVERNMENT TO MAKE PAYMENT IN ADDITION TO THE CONTRACT PRICE FOR ANY SERVICES RENDERED ON SUNDAYS. HOWEVER, THAT CLAUSE DOES PROVIDE EMERGENCY CALL-BACK SERVICE SHALL CONSIST OF PROMPT RESPONSE. FURTHER, CLAUSE 850- 4, QUALIFICATIONS, PROVIDES IN PART:

"/C) APPROVAL OF MANUFACTURER'S EQUIPMENT WILL BE CONTINGENT UPON HIS HAVING A PERMANENTLY MAINTAINED SERVICE BRANCH WHICH WILL RENDER SERVICE WITHIN TWENTY-FOUR HOURS OF RECEIPT OF NOTIFICATION.'

IN VIEW OF THE INCLUSION IN THE SPECIFICATIONS OF THE REQUIREMENT THAT THE CONTRACTOR MUST BE ABLE TO RENDER SERVICE IN TWENTY-FOUR HOURS AND THE FACT THAT THIS ELEVATOR WAS SERVING A HOSPITAL, WE MUST CONCLUDE THAT MAINTENANCE SERVICE COULD BE REQUIRED UNDER THE CONTRACT ON OTHER THAN A REGULAR WORK DAY WITHOUT ADDITIONAL PAYMENT AND THAT THE CONTRACTOR SHOULD HAVE BEEN AWARE OF SUCH REQUIREMENT. FURTHER, AN AGENT OF THE GOVERNMENT MAY NOT WAIVE VESTED RIGHTS UNDER THE TERMS OF THE CONTRACT BECAUSE OF CONSIDERATION OF HARDSHIP OR EQUITIES IN FAVOR OF THE CONTRACTOR. SEE 22 COMP. GEN. 260; DAY V UNITED STATES, 245 U.S. 159.

FOR THE ABOVE REASONS, THE DISALLOWANCE OF YOUR CLAIM MUST BE SUSTAINED.