B-168834, FEB. 25, 1970

B-168834, FEB. 25, 1970

CONTRACTS--PAYMENTS--ADDITIONAL WORK--RELEASE EFFECT DECISION TO CERTIFYING OFFICER OF THE FOREST SERVICE, AUTHORIZING CERTIFICATION OF VOUCHER FOR EXCESS COSTS INCURRED BY BAYAIRE AVIONICS, INC; FOR FURNISHING RADIO EQUIPMENT. ALTHOUGH A CONTRACTOR HAS SIGNED A CONTRACT RELEASE WITHOUT EXCEPTION, IT WAS EXECUTED WITHOUT KNOWLEDGE OF THE ADDITIONAL WORK REQUIRED TO BE PERFORMED BY THE CONTRACTOR CONCURRENTLY WITH THE CONTRACT WORK TO PROPERLY COMPLETE CONTRACT AND THEREFORE THE CLAIM MAY BE CERTIFIED FOR PAYMENT AND THE RELEASE MAY BE DISREGARDED FOR THE PURPOSES OF THE CLAIM.

TO MR. JENSEN:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 7, 1970, WITH ENCLOSURES, REQUESTING OUR DECISION WHETHER A VOUCHER MADE PAYABLE TO BAYAIRE AVIONICS, INC; IN THE AMOUNT OF $230.10, REPRESENTING A CLAIM FOR EXCESS COSTS UNDER CONTRACT NO. 002463, MAY BE CERTIFIED FOR PAYMENT.

THE CLAIM AROSE AS A RESULT OF WORK PERFORMED UNDER THE CITED CONTRACT FOR INSTALLATION OF RADIO EQUIPMENT IN THREE FOREST SERVICE AIRCRAFT. THE SCOPE OF THE CONTRACT INCLUDED PREFABRICATION OF RADIO CIRCUIT CABLES AND THE COMPLETE INSTALLATION OF THE WIRINGBREAKERS, MOUNTING OF RADIO, AND PANEL SWITCHES FOR A COMPLETE AUDIO SYSTEM CIRCUITRY IN EACH OF THREE AIRCRAFT, FOR A UNIT PRICE OF $2,300 OR TOTAL CONTRACT PRICE OF $6,900.

THE CONTRACT REQUIRED ALL WORK TO BE PERFORMED AT THE U.S. FOREST SERVICE HANGER AT TROUTDALE AIRPORT, TROUTDALE, OREGON. THIS REQUIRED THE CONTRACTOR TO SCHEDULE HIS WORK SO THAT ALL OF THE NECESSARY WIRING WAS PREFABRICATED BEFORE ARRIVAL AT THE INSTALLATION. THE CONTRACT FURTHER REQUIRED THAT THE GOVERNMENT WOULD:

1. CONSTRUCT NEW RADIO/INSTRUMENT PANEL AND RELOCATE AIRCRAFT SUNDAY TO 2400 HOURS THE NEXT FOLLOWING SATURDAY, THIS CANNOT OPERATE TO CHANGE THE ESTABLISHED DEFINITION OF THE DAY SUNDAY FOR PURPOSES OF AUTHORIZING SUNDAY PREMIUM PAY.

THE STATUTE, ITSELF, DEFINES THE PERIOD FOR WHICH SUNDAY PREMIUM CONTROLS AND INSTRUMENTS.

2. FABRICATE AND INSTALL RADIO MOUNTING SHELF IN NOSE OF AIRCRAFT.

3. REMOVE ALL RADIOS.

4. SUPPLY ALL RADIO EQUIPMENT AND INSTRUMENTS.

5. FURNISH ALL OTHER SHEET METAL WORK AS REQUIRED.

THE CONTRACTOR WAS REQUIRED TO:

1. SUPPLY PREFABRICATED CABLES PROPERLY MARKED FOR EQUIPMENT AND TERMINALS OF JUNCTION POINTS.

2. SUPPLY JUNCTION TERMINAL BOARDS AND HARDWARE

3. FURNISH AND INSTALL INDIVIDUAL MANUALLY OPERATED CIRCUIT BREAKERS FOR EACH RADIO. CIRCUIT BREAKERS WILL SERVE AS INDIVIDUAL OFF-ON SWITCHES.

4. INSTALL MASTER SWITCH FOR RADIOS WITH MASTER OVERRIDE SWITCH.

5. TEST INSTALLATION FOR PROPER PERFORMANCE OF RADIOS AND RADIO INSTRUMENTS UPON COMPLETION OF INSTALLATION.

DURING THE COURSE OF INSTALLATION, THE CONTRACTOR'S CREW DISCOVERED THAT THE FOREST SERVICE HAD FAILED TO FURNISH THE REQUIRED ENGRAVING FOR VARIOUS SWITCH LOCATIONS ON THE INSTRUMENT PANEL FURNISHED BY THE GOVERNMENT; IT HAD ALSO FAILED TO PROPERLY LOCATE ALL INSTRUMENT CUTOUTS AND CORRECTLY REINFORCE THE PANEL. THE ENGRAVING OF PANELS AND RED SWITCHES WHICH TOTALED $67.60 AND THE MODIFICATION OF RELAY KEYS AND MICROPHONE CIRCUITS FOR A TOTAL OF $72.50 WERE VERBALLY DIRECTED AT THE TIME BY THE CONTRACTING OFFICER'S REPRESENTATIVE. THE SHEET METAL WORK ON THE INSTRUMENT PANEL AND AIRCRAFT ANTENNA MOUNTING WAS PERFORMED BY THE CONTRACTOR ON A VOLUNTARY BASIS, APPARENTLY AT A COST OF $90, DURING A TIME WHEN THE CONTRACTING OFFICER'S REPRESENTATIVE WAS NOT PRESENT ON THE JOB SITE. THE WORK WAS NECESSARY TO ENABLE THE CONTRACTOR TO PROCEED AND WOULD HAVE BEEN DIRECTED BY THE CONTRACTING OFFICER'SREPRESENTATIVE HAD HE BEEN PRESENT. NO WRITTEN ORDER FOR THE ADDITIONAL WORK WAS ISSUED AND THE CONTRACTOR'S AGENT FAILED TO PROMPTLY NOTIFY HIS SUPERIOR OF THE EXTRA WORK AT THAT TIME.

IT IS APPARENT THAT AT THE TIME IT WAS NECESSARY TO PERFORM THIS WORK NEITHER THE CONTRACTING OFFICER'S REPRESENTATIVE NOR THE CONTRACTOR'S REPRESENTATIVE RECOGNIZED THAT THIS WAS ADDITIONAL WORK AND SHOULD HAVE BEEN PERFORMED UNDER A CHANGE ORDER. CONSEQUENTLY, NO DOCUMENTATION WAS MADE NOR WAS ANY NOTICE OF THE CHANGE GIVEN TO THE CONTRACTOR OR THE CONTRACTING OFFICER. THE CONTRACTOR EXECUTED A CONTRACT RELEASE DATED JUNE 24, 1969, WITHOUT RESERVING ANY CLAIMS OR DEMANDS, IN CONSIDERATION OF THE RECEIPT OF FINAL PAYMENT IN THE AMOUNT OF $6,900. THE CONTRACTOR IN SEPTEMBER 1969 SUBMITTED A BILL TO THE FOREST SERVICE IN THE AMOUNT OF $230.10 FOR THE ADDITIONAL WORK AND SERVICES PERFORMED WITHIN THE SCOPE OF THE CONTRACT.

THE FAILURE OF THE FOREST SERVICE TO FURNISH EVERYTHING REQUIRED BY THE CONTRACT AND ITS CHANGE IN CIRCUIT SPECIFICATIONS RESULTED IN ADDITIONAL WORK AMOUNTING TO $230.10 WHICH, THROUGH ERROR OF THE PARTIES, WAS REGARDED AS WORK CONTEMPLATED BY THE CONTRACT AS EXECUTED. IT IS STATED THAT HAD THE CONTRACTING OFFICER BEEN AWARE OF THE EXISTENCE OF THE NEED FOR THIS WORK AT THE TIME IT WAS BEING PERFORMED, A CHANGE ORDER WOULD HAVE BEEN ISSUED. IT IS CONCEDED THAT THIS WAS ADDITIONAL WORK WHICH WAS PERFORMED CONCURRENTLY WITH THE PERFORMANCE OF THE CONTRACT WORK. FURTHER, THE ADDITIONAL WORK WAS NECESSARY FOR THE PROPER COMPLETION OF THE CONTRACT AND ITS PERFORMANCE RESULTED IN A BENEFIT TO THE GOVERNMENT. YOU REQUEST OUR DECISION WHETHER SUCH ADDITIONAL COMPENSATION MAY BE PAID TO THE CONTRACTOR EVEN THOUGH HE SIGNED A CONTRACT RELEASE WITHOUT EXCEPTION OR RESERVATION.

RELEASES, ALTHOUGH IN GENERAL TERMS, AS HERE, ORDINARILY ARE TO BE CONSTRUED AS LIMITED IN THEIR OPERATION TO CLAIMS AND DEMANDS CONTEMPLATED BY THE PARTIES AT THE TIME OF THEIR EXECUTION. BUCKLEY V BASFORD, 184 F. SUPP. 870 (1960); BUTCHER V UNITED ELECTRIC COAL CO; 174 F. 2D 1003 (1949); 45 AM. JUR; RELEASE, SEC. 710; 30 COMP. GEN. 335 (1951). SEE J. G. WATTS CONSTRUCTION COMPANY V UNITED STATES, 161 CT. CL. 801, 806-807 (1963).

THE FACTS AS ADMINISTRATIVELY REPORTED SHOW THAT THE RELEASE WAS EXECUTED WITHOUT KNOWLEDGE OF THE PARTIES THAT THE WORK HAD BEEN PERFORMED BY THE CONTRACTOR OVER AND ABOVE ITS OBLIGATION UNDER THE CONTRACT. UNDER THE CIRCUMSTANCES, AND SINCE IT IS OBVIOUS THAT IT WAS NOT INTENDED TO INCLUDE THE CLAIM IN THE RELEASE, THE RELEASE MAY BE DISREGARDED INSOFAR AS THE INSTANT CLAIM IS CONCERNED. UNITED STATES V JORDAN, 186 F. 2D 803 (1951); SEE COLONIAL NAVIGATION COMPANY ET AL. V UNITED STATES, 149 CT. CL. 242 (1960); B-147470, DECEMBER 27, 1961. ACCORDINGLY, THE VOUCHER WHICH IS RETURNED HEREWITH MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT.