B-132568, SEP. 9, 1957

B-132568, SEP. 9, 1957

TO ORKIN EXTERMINATING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 21, 1957, REGARDING OUR SETTLEMENT DATED JANUARY 19, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,617.31 REPRESENTING ALLEGED ADDITIONAL WORK PERFORMED IN CONNECTION WITH CONTRACT NO. AF 41/628/-107, ENTERED INTO BY YOU WITH THE DEPARTMENT OF THE AIR FORCE ON JUNE 29, 1954.

UNDER THE CONTRACT YOU AGREED TO FURNISH ALL LABOR, EQUIPMENT AND MATERIALS AND PERFORM ALL WORK FOR THE TREATMENT, ETC., OF 327 BUILDINGS FOR THE CONTROL OF TERMITES AT THE BRYAN AIR FORCE BASE, BRYAN, TEXAS, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, SCHEDULES, DRAWINGS AND CONDITIONS FOR A TOTAL CONSIDERATION OF $31,784. IT APPEARS THAT DURING THE PROGRESS OF THE WORK UNDER CONTRACT NO. AF 41/628/-107, THE AIR FORCE INSTALLATIONS INSPECTOR, MR. L. J. MCCALL, NOTED THAT THE SHEET ROCK OR ASBESTOS UNDER-PINNING OF THE CIVILIAN HOUSING APARTMENTS HAD BEEN DAMAGED TO THE POINT THAT REPLACEMENT WAS NECESSARY. MR. MCCALL GAVE A VERBAL ORDER TO YOU TO REPLACE THE SHEET ASBESTOS UNDER-PINNING WITH ASBESTOS SIDING. THIS WORK WAS PERFORMED AND HAS RESULTED IN A CLAIM FILED BY YOU IN THE TOTAL AMOUNT OF $1,617.31, ALLEGEDLY REPRESENTING THE EXPENSES INCURRED BY YOU FOR ADDITIONAL LABOR, MATERIALS AND TRUCK RENTAL UTILIZED IN THE PERFORMANCE OF THE ADDITIONAL WORK INVOLVED.

WHILE THERE ARE NO SPECIFIC CONTENTIONS SET FORTH IN YOUR LETTER OF JUNE 21, 1957, AS THE BASIS FOR REVIEW OF OUR SETTLEMENT DATED JANUARY 19, 1956, THE MATTER IS HEREIN BEING REOPENED SINCE IT IS NOTED THAT YOUR LETTER DATED APRIL 30, 1955, TO THE BRYAN AIR FORCE BASE CONTRACTING OFFICE, TOGETHER WITH THE ENCLOSURE THERETO, APPEARS TO SET FORTH CLEARLY YOUR ARGUMENTS AND THE POSITION TAKEN BY YOU IN THE MATTER.

IN ADDITION TO THE PERTINENT PROVISIONS OF CONTRACT NO. AF 41 (628/ 107, CITED IN THE SECOND PARAGRAPH OF OUR SETTLEMENT DATED JANUARY 19, 1956, AS THE BASIS FOR THE DISALLOWANCE OF YOUR CLAIM, PARAGRAPH NO. 28 OF THE ADDITIONAL GENERAL PROVISIONS OF THE CONTRACT, COVERING "EXTRAS," PROVIDES:

"EXCEPT AS OTHERWISE PROVIDED IN THIS CONTRACT, NO PAYMENT FOR EXTRAS SHALL BE MADE UNLESS SUCH EXTRAS AND THE PRICE THEREFOR HAVE BEEN AUTHORIZED IN WRITING BY THE CONTRACTING OFFICER.'

WHILE AN EXAMINATION OF THE ADDITIONAL WORK THAT WAS PERFORMED, AS SHOWN IN THE BREAKDOWN OF THE ENCLOSURE ATTACHED TO YOUR LETTER OF APRIL 30, 1955, DOES NOT CONCLUSIVELY ESTABLISH THE EXACT NATURE THEREOF, THERE WOULD APPEAR TO BE LITTLE, IF ANY, DOUBT THAT SUCH WORK, OR CERTAINLY A LARGE PERCENTAGE OF THAT WORK, WAS EXTRA WORK, AS CONTEMPLATED BY PARAGRAPH NO. 28 OF THE ADDITIONAL GENERAL PROVISIONS OF THE CONTRACT. MOREOVER, THE ADDITIONAL WORK NOT ONLY WAS NOT AUTHORIZED BY THE CONTRACTING OFFICER IN WRITING, AS EXPRESSLY PROVIDED, BUT IT WAS NOT AUTHORIZED BY HIM AT ALL NOR WAS IT AUTHORIZED WITH HIS KNOWLEDGE OR CONSENT. HENCE, IT MUST BE CONCLUDED THAT THE WORK WAS PERFORMED UNDER CONDITIONS WHICH WERE IN DIRECT VIOLATION OF PARAGRAPH NO. 28 OF THE ADDITIONAL GENERAL PROVISIONS OF THE CONTRACT.

IT ALSO MIGHT BE STATED HERE THAT IF THE ADDITIONAL WORK THAT WAS PERFORMED WERE TO BE CONSIDERED AS WORK NECESSARY FOR COMPLETE AND PROPER CONSTRUCTION IN CARRYING OUT THE CONTRACT IN GOOD FAITH, AS POSSIBLY IMPLIED IN THE SECOND PARAGRAPH OF YOUR LETTER OF JUNE 21, 1957, HERE AGAIN THERE COULD BE NO QUESTION WHATSOEVER AS TO THE DISPOSITION OF YOUR CLAIM IN VIEW OF PARAGRAPH NO. 1-02 OF THE SPECIAL PROVISIONS OF CONTRACT NO. AF 41/628/-107. THIS PARAGRAPH COVERS "SCOPE OF WORK" AND STATES, IN EFFECT, THAT SUCH WORK WILL BE PERFORMED BY THE CONTRACTOR AT NO INCREASE IN COST TO THE GOVERNMENT. ON THE BASIS OF THE PRESENT RECORD THERE MAY NOT BE, OF COURSE, ENTIRELY RULED OUT THE POSSIBILITY THAT SOME OF THE ADDITIONAL WORK WAS NOT WORK OF THIS NATURE.

IN ADDITION TO THE FOREGOING, THERE WOULD NOT APPEAR TO BE, IN ANY EVENT, A BASIS FOR THE ALLOWANCE OF ANY PART OF THE CLAIM TO BE FOR TRUCK RENTAL. ALSO, THE AMOUNT CLAIMED TO BE FOR PROFIT APPEARS TO BE EXCESSIVE AND THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE LABOR CHARGE PART OF YOUR CLAIM IS DIFFICULT TO SUBSTANTIATE SINCE THERE IS NO WAY OF KNOWING WHETHER THE TIME SHOWN WAS EXPENDED ON THE EXTRA WORK, IN VIEW OF THE FACT THAT THE BASIC CONTRACT ALREADY CONTAINED SOME CARPENTER WORK. THEREFORE, THE VALIDITY OF YOUR CLAIM HAS NOT BEEN ESTABLISHED EITHER ON THE BASIS OF THE MERITS OF THE CLAIM OR THE AMOUNTS THEREOF.