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sation was to be 2 percent of the total price of the construction work supervised. It has been our consistent position that provisions of this kind obligate the architect to provide services until work under the construction contracts is completed, notwithstanding that completion of such latter contracts may have been materially delayed beyond the scheduled time. B-42135, November 6, 1944. Therefore, the architects were required to complete performance in accordance with the terms of the contract and Change Order No. 1 without the issuance of Change Order No. 3 and the increase in compensation provided thereunder. Since the right to the described performance had already vested in the Government, there was no consideration for Change Order No. 3 which must be regarded as void and of no effect. 21 Comp. Gen. 31; 16 Comp. Gen. 463. Accordingly, the amount of $8,500 covering Change Order No. 3 included on voucher schedule No. 29–1574 may not be paid from appropriated funds.
The Architects were apparently unaware that the matter had been transmitted to the Comptroller General by the certifying officer, and also were unaware that the Comptroller General had rendered a decision. On July 18, 1963, the contracting officer notified Mr. Alexander as follows: 5
It is with regret that we must advise you that Change Order No. 3 to your professional services contract, providing additional compensation for the design and construction of the Gettysburg Visitor Center-Cyclorama, has been ruled illegal by the Comptroller General. Upon request for reconsideration, we had hoped that the decision would be reversed and the additional compensation granted; however, recent correspondence indicated that this is not possible and we have no further recourse in this matter.
On August 21, 1963, Volney F. Morin, Attorney at Law, requested the contracting officer to issue a decision. The letter reads in its pertinent part as follows:
Pursuant to the provisions of Article IX entitled Disputes in Contract No. 14 10–529–2046 entered into by and between the United States of America and Richard J. Neutra and Robert E. Alexander on April 27, 1959, we hereby request that a specific decision or ruling be made that a dispute exists between the contracting officer and the architect over an amount of $17,591 with interest, claimed for extra services rendered.
On October 11, 1963, the contracting officer wrote a letter to the attorney for the appellant e in which he wrote as follows:
Dear Mr. Morin:
Receipt is acknowledged of your letter dated August 21, 1963, relative to the referenced contract with Neutra & Alexander, Architects.
We have thoroughly reviewed this matter and find that all services under the
5 Government Exhibit No. 7, Transcript, p. 10. The Government stipulated "that no notice was given to Appellant at the time the Certifying Officer submitted it to the Comptroller General."
6 Government Exhibit No. 6, Transcript, p. 11.
ROBERT E. ALEXANDER
October 16, 1964
aforesaid contract have been furnished and accepted by the Government for which the Government has paid the contractor in full. Payment of additional compensation would be improper under the decision of the Comptroller General of the United States, a copy of which (decision) was recently forwarded to you.
My decision therefore is that the claim of $17,591 or any part thereof is necessarily refused.
The contractor then appealed timely. The Department Counsel argued :
The action is in form and substance an appeal from the decision of the Comptroller General and requests this Board to overrule the decision of the Comptroller General on the pure question of law, i.e., the interpretation of a contract. * * * that the question raised by this appeal was properly before the Comptroller General in the first instance and is final.
On December 27, 1963, Department Counsel moved that the appeal be dismissed for lack of jurisdiction.
Appellants' counsel, on the other hand, in its main thrust argued that Change Order No. 3 is a bilateral agreement and could not be unilaterally altered by the contracting officer. He quoted our language used in Wickes Engineering and Construction Company," where we stated "The binding effect of agreements of this nature is amply supported by authority."
Despite the simplicity of the issue, no applicable precedent was found by the Board nor cited by the parties. In view thereof, a conference, pursuant to 43 CFR 4.9, was held on June 17, 1964. In that conference, which was conducted by the undersigned, the contents of the appeal file was established consisting of 26 exhibits, some of which are quoted in this opinion. The hearing official stated as follows: 8
CHAIRMAN GANTT: Further, * * * there are two issues before the Board : One, has the Board jurisdiction? Two, is Change Order Number 3 binding on the government? I am inclined to agree that these are at the present time the two issues which have to be decided by the Board as a threshold question.
But, as I am going to state later on, there is a third issue which the parties have not presented, but which the Board will want to formulate.
The parties then agreed, pursuant to 43 CFR 4.2(b), that the hearing official may "decide" the appeal. Since the decision which the under
* IBCA-191 (November 30, 1960), 61-1 BCA par. 2872, 3 Gov. Contr. 30, afr'd on reconsideration IBCA-191 (January 18, 1961), I. 30, 61-1 BC par. 2915, 3 Gov. Contr. 88(e). 8 Transcript, p. 20. Transcript, p. 25.
signed dictated in the record concerns a novel question. I am going to restate that decision in the language as it appears in the transcript.20
*** I want, however, to emphasize that I am not concerned about the finality of the Board's decision. I am only concerned with the power of this Board one, to look at this case; and two, to decide whether the Comptroller General's decision is binding; and three, whether the hearing is necessary and whatnot.
Now, I make the following interlocutory Order, which incidentally, is not appealable at this stage. The Board takes full jurisdiction in this matter since it concerns the question of whether services had been rendered by the A&E which are properly payable under the Contract. This will depend upon the factual examination of what services have actually been rendered. The Board feels that under the Bianchi decision of the Supreme Court, an adequate record must be established in order to enable a competent court, if it is necessary, for the parties to resort to litigation, to be able to dispose of the controversy.
It seems to the Chairman that this is a requirement imposed by the Supreme Court decision on Contract Appeals procedures. This does not exclude that in certain situations, when it is completely out of the power of the Board to dispose of an appeal, that the Board would decline jurisdiction at an early stage; but examples for this would be the failure of appellant to state the cause of action or the established characterization of a claim as one for breach of contract.
Secondly, even if a pure question of law would have been presented to the Board, I do not hesitate to state that the Board would have taken jurisdiction since its jurisdiction does not extend only to questions of fact, but also to questions of law, which this Board has held on numerous occasions.
In that respect, the jurisdiction of the Board is broader than that of the Armed Services Board of Contract Appeals. This does not mean finality. It does not curb the power of the Comptroller General to look at the Board decision, nor does it curb the power of a court to look at the law side of a Board decision, assuming that the facts as found by the Board are supported by substantial evidence.
There are, of course, different charters for the various Boards, but early since its establishment in 1954, the Board has so held to carry out the policy of the Department of the Interior as I understand it, to give it full and adequate remedy, in the terms of the contract, to an appellant.
In summary, then, there are facts to be established, and on the basis of those facts, the Board will interpret and construct, based on the terms of the contract—and my choice of the use of both words “interpret and construct" is a deliberate one.
Now, gentlemen, I come to the second hurdle in our obsolete course here, which is not an easy one, that is the binding effect of the decision of the Comptroller General. I will summarize, for the benefit of both parties, the relationship of this Board to the Comptroller General. I do this with great deference because, being a "land-lubber,” I hate to navigate into an unchartered sea, especially since the pilots, which are counsel of both parties, unfortunately have not as yet rendered me any assistance.
Furthermore, I have been unable to find any precedent which would be of any help. I am going, first, to outline the position of the Board in the case of the
10 Transcript, pp. 23-25.
ROBERT E. ALEXANDER
October 16, 1964
submission by the Contracting Officer, and distinguish, then, the consequence of a submission by the Certifying Officer.
I am now going to discuss 11 the relationship of this Board to the Comptroller General, and again the parties will have to bear with me in recognizing the difference between the power to dispose of an appeal and the finality accorded to a decision of the Board, or in this case, as to a one-man decision.
There are two situations in which a matter can go to the Comptroller General. There are three instances which affect two government officials: One is, submissions by the Contracting Officer unilaterally; two, joint submissions by the Contracting Officer and the Contractor; and third, submission by a Certifying Officer.
Concerning the unilateral submission, this Board, as well as other Boards, notably the Armed Services Board of Contract Appeals, have held that a unilateral submission does not bind the Board. In fact, there is landmark case in this Board in the appeal of Merritt, Chapman, Scott, where the Comptroller General had given an advance opinion to the Contracting Officer. The Contracting Officer issued the decision based on the Comptroller's advance opinion. The Board made an award of approximately $4 to $5 million to the Appellant, and despite the magnitude of the award, the Comptroller General held that the Board's opinion was supported by substantial evidence, and therefore, he would not have any objection to the payment of $4 to $5 million.
The decision of the Comptroller General is significant because in the unilateral submission by a Contracting Officer, the Comptroller General will base his advance opinion on a presumption that the facts are correct as presented; whereas, of course, a Board could not be so generous, since, on the basis of the Wunderlich Act, it must base its decision on substantial evidence. And in fact, it is the rule of this Board and of other boards, this being a civil case, to proceed only on the basis of the preponderance of evidence, which I believe requires a higher quantum of evidence than substantial evidence. The difference, of course, is that this would be an ex parte submission.
I believe there is no doubt that if there is a joint submission by a Contracting Officer and the Contractor, that the Board would be bound by the decision of the Comptroller General. My conclusion is completely different regarding a submission by the Certifying Officer.
The Act of December 29, 1941, 55 Stat. 8763, 31 USC 82d, gives the Certifying Officer an express statutory right “to apply for and obtain a decision by the Comptroller General on any question of law when he doubts the legality of a payment.”
Obviously, there is a different situation than in the case of submission by the Contracting Officer.
CHAIRMAN GANTT: 12 Despite the absence of the precedents, I am going to hold that the decision of the Comptroller General is binding on the Certifying Officer, which has the consequence that no payment can be made under Change Order No. 3. However, this does not dispose of the claim of appellant, since,
if he rendered additional services, and if such services should be payable under the terms of the contract, he would be entitled to such payment. I consider, however, the decision of the Comptroller General as a valuable precedent, as we have recently said, which will be considered with other precedents, which may have arisen.
Where does that leave us now? It means that the Certifying Officer cannot pay Change Order No. 3 since the statute has given to the Certifying Officer the statutory right to obtain a decision and to the Comptroller the statutory right to make a decision. Therefore, under this analysis, the decision of the Comp troller that the Change Order No. 3 is null and void, is binding.
The difficulty in this case arises from an erroneous assumption on the part of the Contracting Officer that he has discharged his duty to find facts and to make an adequate, just and fair decision by the letter of October 11, 1963. It is obvious that that decision lacks the primary ingredients of a decision, namely, to reasonably inform the Appellant and also the Board of its position. Secondly, he has not made a finding of facts why his prior finding of facts has been
Obviously, the Comptroller General bases his opinion only on an assumed statement of facts, not made by the Contracting Officer, but by the Certifying Officer.
Also, in certain situations, the Contracting Officer may act in a quasi-judicial capacity. We do not know of any fact-finding authority vested in a Certifying Officer.
I believe that the Certifying Officer acted correctly in submitting a question on which he had doubt, to the Comptroller General, but it seemed to us that fairness would have demanded that a reputable government contractor should be apprised of the submission to the Comptroller General in order to avoid the stigma of an ex parte procedure.
The situation is, as I realize, a little bit different from cases adjudicated by the Comptroller General pursuant to 31 USC 74 where the Comptroller normally remands the matter back to the Department to give the contract appellant a possibility to exhaust its administrative remedy. But we are sure that the Comptroller General, who has applied the concept of fairness on numerous occasions, did not want to deprive the contract appellant of his contractual right to have a dispute decided by the executive agency and after hearing.
There are, obviously, two avenues available in this matter to proceed further : One, I could remand the matter back to the Contracting Officer to issue a finding of facts or an appropriate decision for a determination of the question whether additional services had been rendered, and especially whether the five categories of additional work specified by the appellant have been rendered.
The second question which would have to be decided by the Contracting Officer is, whether the terms of the contract provide for changes, and whether such changes are compensable. The other way would be, since proceedings before this Board are de novo, to proceed with a hearing to establish by witnesses for the Government and for the appellant what additional services have been rendered.
During the conference, the undersigned found “that not all the facts had been presented to the Comptroller General *** and that im