B-140794, DEC. 4, 1959

B-140794, DEC. 4, 1959

TO DEEP SOUTH CONSTRUCTION CO., INC.:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 14, 1959, WRITTEN ON YOUR BEHALF BY MR. G. M. AKERS, ATTORNEY, WHEREIN CLAIM IS MADE FOR $166,000, ALLEGED TO BE DUE FOR EXTRA WORK STATED TO HAVE BEEN PERFORMED BY YOU AT THE INSTANCE OF A GOVERNMENT REPRESENTATIVE DURING YOUR PERFORMANCE AS A SUBCONTRACTOR UNDER CONTRACT NO. DA-01-076-ENG 4088, DATED JANUARY 22, 1958, COVERING A CAPEHART HOUSING PROJECT AT FORT MCCLELLAN, ALABAMA.

YOUR ATTORNEY ADVISES THAT THE SCOPE OF THE WORK COVERED BY YOUR SUBCONTRACT INCLUDED CLEARING, GRUBBING, GRADING, DRAINAGE, PAVING, OUTSIDE UTILITIES, AND ALL CONCRETE WORK. THE SPECIFICATIONS FOR THE GRADING OPERATION REQUIRED GENERALLY THAT ALL UNSUITABLE MATERIALS BE REMOVED FROM THE CUT AREAS AND THAT THE FILLS BE CONSTRUCTED WITH SUITABLE MATERIALS. IT IS ALLEGED THAT AT THE BEGINNING OF THE GRADING OPERATION YOU WERE INSTRUCTED BY THE GOVERNMENT INSPECTOR REPRESENTING THE RESIDENT ENGINEER TO REMOVE ALL TOP SOIL AND MATERIAL WHICH HE CONSIDERED UNDESIRABLE FROM BOTH CUT AND FILL AREAS. THE GENERAL INSTRUCTIONS WERE TO REMOVE ALL MATERIAL DOWN TO THE RED CLAY BEFORE BEGINNING ANY FILL OPERATIONS, AND NOT TO USE ANY OF THE MATERIAL REMOVED FROM THE CUTS TO CONSTRUCT FILLS. IT IS FURTHER STATED THAT IN COMPUTING YOUR BID YOU DID NOT CONSIDER THIS SOIL AS UNSUITABLE, AND CONSEQUENTLY, DID NOT INCLUDE THIS COST IN YOUR PRICE. YOUR ATTORNEY FURTHER STATES THAT SUBSEQUENTLY, TWO CORPS OF ENGINEERS OFFICIALS DETERMINED THAT THE REMOVAL OF SUCH MATERIAL WAS UNNECESSARY, AND THAT YOU WERE PERMITTED TO REPLACE A QUANTITY THEREOF WHICH HAD BEEN REMOVED. AS A RESULT OF THE EXTRA WORK STATED TO HAVE BEEN PERFORMED IT IS ALLEGED THAT DAMAGES AND INCREASED COSTS OF $166,000 WERE INCURRED, FOR WHICH CLAIM NOW IS MADE. IN THE EVENT THERE IS ANY LEGAL BARRIER TO PAYMENT, YOUR ATTORNEY REQUESTS, IN THE ALTERNATIVE, THAT THE CLAIM BE FAVORABLY REPORTED TO THE CONGRESS UNDER THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.

UNDER DATE OF OCTOBER 5, 1959, WE ADVISED YOUR ATTORNEY THAT THE SECRETARY OF THE ARMY HAD BEEN REQUESTED TO FURNISH US WITH A COMPLETE REPORT OF THE FACTS AND CIRCUMSTANCES PROMPTING YOUR CLAIM. IN RESPONSE THERETO THE OFFICE OF THE DEPUTY CHIEF OF STAFF FOR LOGISTICS, BY COVERING LETTER OF OCTOBER 21, 1959, FORWARDED A REPORT DATED OCTOBER 9, 1959, PREPARED BY THE CONTRACTING OFFICER BASED UPON AN INVESTIGATION OF THE MATTER. IT IS REPORTED THAT NEITHER YOU NOR THE PRIME CONTRACTOR WERE DIRECTED BY AN INSPECTOR FROM THE RESIDENT OFFICE TO DO OTHER THAN WAS REQUIRED BY THE SPECIFICATIONS MADE A PART OF THE CONTRACT WHICH PROVIDED FOR THE REMOVAL AND REPLACEMENT OF ALL UNSUITABLE MATERIAL IN THE GRADING OPERATIONS. REPRESENTATIVES OF THE DIVISION AND DISTRICT OFFICES OF THE CORPS OF ENGINEERS VISITED THE PROJECT SITE FOR THE PURPOSE OF GENERAL INSPECTIONS RATHER THAN FOR THE SPECIFIC PURPOSE OF EXAMINING GRADING MATERIAL. HOWEVER, IT APPEARS THAT DURING SUCH VISIT AN INSPECTION WAS MADE OF MATERIAL WHICH HAD BEEN PREVIOUSLY STOCKPILED FOR SUFFICIENT TIME TO PERMIT OF A DRYING OUT PROCESS, AND A STATEMENT WAS MADE BY MR. MURDEN THAT SPECIFIC STOCKPILED MATERIAL WAS THEN SUITABLE, WHICH OCCURRED DURING THE LATE STAGES OF THE WORK.

ALSO IT IS REPORTED THAT THE INVESTIGATION FAILED TO DISCLOSE ANY EVIDENCE TENDING TO SHOW THAT AS A RESULT OF REPRESENTATIONS ON THE PART OF A GOVERNMENT OFFICIAL THERE WAS CREATED AN IMPLIED CONTRACT RELATIONSHIP BETWEEN YOUR CORPORATION AND THE DEPARTMENT OF THE ARMY. CONVERSELY, IT IS INDICATED THAT THE PRIME CONTRACTOR WAS VITALLY CONCERNED IN COMPLETING THE CONTRACT ON TIME IN ORDER TO AVOID INTERIM FINANCING AND THAT IN ORDER TO DO SO, IT INSISTED ON PERFORMANCE OF THE GRADING WORK IN A MANNER THAT WOULD NOT PERMIT OF DELAYS INCIDENT TO AWAITING A DRYING OUT PERIOD OF OTHERWISE UNSUITABLE MATERIAL IN PLACE OR STOCKPILED.

WITH RESPECT TO THE MERITS OF YOUR DEMAND, INITIALLY, IT IS TO BE OBSERVED THAT THE CLAIM IS NOT SUPPORTED BY ANY DOCUMENTATION WHATEVER, AND, EXCEPT FOR THE SELF-SERVING DECLARATION CONTAINED IN YOUR ATTORNEY'S LETTER, THERE IS NO EVIDENCE TO SUPPORT THE CONCLUSION THAT AN IMPLIED CONTRACT WAS CREATED BY ACTION OF THE PARTIES. ON THE BASIS OF THE PRESENT RECORD YOUR DEMAND CLEARLY IS AN UNLIQUIDATED CLAIM FOR DAMAGES WHICH WE FEEL IS HIGHLY SPECULATIVE AND CONJECTURAL, AND THIS OFFICE HAS NO FACILITIES WITH WHICH IT MIGHT ASCERTAIN WHAT AMOUNTS, IF ANY, WOULD BE FAIR AND REASONABLE, PROVIDING AN IMPLIED CONTRACT RELATIONSHIP BETWEEN YOUR CORPORATION AND THE DEPARTMENT OF THE ARMY COULD BE ESTABLISHED. THE PROPER FORUM FOR THE LIQUIDATION OF ACCOUNTS OF THIS NATURE IS THE COURT OF CLAIMS WHERE EVIDENCE MAY BE WEIGHED AND RESOLVED. SEE, IN THIS CONNECTION 18 COMP. GEN. 111, 114, WHEREIN THE FOLLOWING APPLICABLE STATEMENT BY THE COURT IN CHARLES V. UNITED STATES, 19 C.CLS. 316, 319, IS QUOTED:

"WHEN, IN THE COURSE OF THE EXAMINATION OF THE ACCOUNTS IN THE DEPARTMENTS, SUSPICIONS ARE AROUSED OR DOUBTS ARE ENTERTAINED AS TO THE VALIDITY OF THE DEMANDS OF CLAIMANTS, THE PARTIES MAY BE SENT TO THIS COURT TO PROVE THEIR CASES UNDER THE RULES AND FORMS OF LAW, UPON LEGAL AND COMPETENT EVIDENCE, OR THEIR DEMANDS MAY BE REJECTED ALTOGETHER, LEAVING THE CLAIMANTS TO PROSECUTE THEM HERE UPON THEIR OWN VOLUNTARY PETITIONS, IF THEY SO DESIRE. THAT IS THE MAIN PROTECTION WHICH THE ACCOUNTING OFFICERS CAN SECURE FOR THEMSELVES AND FOR THE GOVERNMENT IN THE CASE OF CLAIMS OF DOUBTFUL VALIDITY IN FACT OR IN LAW, * * *.'

ALSO, SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD WE FIND NO LEGAL BASIS FOR CERTIFYING FOR PAYMENT ANY PART OF THE AMOUNT CLAIMED.

WITH RESPECT TO YOUR REQUEST THAT CONSIDERATION BE ACCORDED THE MATTER UNDER THE MERITORIOUS CLAIMS ACT OF APRIL 10, 1928, 31 U.S.C. 236, THAT STATUTE AUTHORIZES US TO REPORT TO THE CONGRESS OF THE UNITED STATES, WITH OUR RECOMMENDATIONS, CLAIMS WHICH, IN OUR JUDGMENT, CONTAIN SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY AS TO BE DESERVING OF CONSIDERATION OF THE CONGRESS. ON THE BASIS OF THE CONCLUSION HERETOFORE REACHED IT MUST BE APPARENT THAT WE DO NOT FEEL THAT THERE EXIST SUCH ELEMENTS OF LEGAL LIABILITY OR EQUITY TO WARRANT OUR REFERRING THE MATTER TO THE CONGRESS WITH A FAVORABLE RECOMMENDATION. THEREFORE, YOUR REQUEST FOR SUCH ACTION ON OUR PART MUST BE, AND IS DENIED.