BNUMBER:  B-262251
DATE:  July 15, 1996
TITLE:  GraphicData, Inc.-Quantum Meruit Relief

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Matter of:GraphicData, Inc.-Quantum Meruit Relief

File:     B-262251

Date:July 15, 1996

DIGEST

A GPO contractor whose claim for unpaid services was denied by the 
contracting officer for failure to meet a contract provision requiring 
requests for billing adjustments to be submitted within 60 days of 
payment appeals the denial on equitable grounds.  The claim is denied.  
To allow recovery based on the doctrine of quantum meruit or other 
equitable grounds would circumvent a provision of the contract, the 
purpose of which is to require requests for billing adjustments to be 
submitted to the contracting officer within a reasonable time after a 
payment is made.
                                                                                                         
DECISION

GraphicData, Inc. (GraphicData) claims $11,177.95, for printing work 
provided to the Government Printing Office under a contract that 
GraphicData states it failed to invoice.  As discussed below, the 
claim may not be paid. 

BACKGROUND

The GPO awarded a requirements contract (Purchase Order 94547) to 
GraphicData to produce U.S. Trademark Registration and Updated 
Registration Certificates for the period April 1, 1994 through March 
31, 1995.  Under this contract, GraphicData invoiced its orders on a 
weekly basis.  On March 29, 1995, GraphicData submitted a voucher 
requesting adjustments to 48 paid invoices that had been submitted 
from May 3, 1994 to March 28, 1995 for 14,643 photoprints at $1.09 per 
photoprint ($15,960.87) that were shipped to GPO, but which 
GraphicData claims had not been previously invoiced.

Clause 24 of GPO's Contract Terms (GPO Publication 310.2) states, in 
relevant part:

     "(b) Checks tendered by GPO in payment of any invoice submitted 
     by the contractor, whether equal to or less than the amount 
     invoiced, are tendered as final payment.  Acceptance of payment 
     of any check so tendered shall operate as a bar to the assertion 
     of any exceptions by the contractor to the amount paid by GPO 
     unless the contractor notifies the Contracting Officer in writing 
     within 60 calendar days of the date of such check.  Such notice 
     shall specify the exceptions taken to the sum tendered, and the 
     reasons therefor."

Based on this clause, the contracting officer agreed to adjust only 
those invoices that had been paid within the last 60 days, which 
reduced the amount of GraphicData's claim to $11,177.95.  GraphicData 
asked the contracting officer to reconsider this decision.  On June 
27, 1995, the contracting officer issued his final decision, denying 
the remainder of GraphicData's claim and advising GraphicData that it 
may appeal the decision to the GPO Board of Contract Appeals within 90 
days of the date of the decision.  

Instead of appealing the contracting officer's decision to the Board, 
GraphicData  submitted a claim with this Office, asserting that it is 
entitled to equitable relief under the doctrine of quantum meruit for 
the unpaid 10,255 photoprints.  Essentially, it argues that since the 
10,255 photoprints were not billed under the contract, these items are 
outside of the contract and it would be inequitable for GPO not to pay 
for them.

OPINION

Under the doctrine of  quantum meruit, payment may be authorized for 
services provided by one party to another party without a valid 
written contract when certain conditions are met.  See 64 Comp. Gen. 
727 (1985); Drone-Mueller & Associates, B-251481, Feb. 23, 1993.  The 
basis for allowing recovery despite the absence of an express contract 
is to prevent unjust enrichment.  Where, however, there is an express 
contract between the parties, and a provision of that contract 
expressly precludes payment for the additional services or goods 
claimed, no matter how harsh the agreement, there can be no recovery.  
Industrial Dredging & Engineering Corporation v. Southern Indiana Gas 
& Elec. Company, 840 F.2d 523 (7th Cir. 1988); J.A. Moore Const. Co. 
v. Sussex Associates LTD., 688 F. Supp. 983 (D. Del. 1988).     

Here, there is a contract between the parties, and that contract 
expressly provides that payment by GPO of any invoice submitted by the 
contractor is tendered as final payment and shall operate as a bar to 
the assertion of any exceptions by the contractor to the amount paid 
by GPO, unless the contractor notifies the contracting officer in 
writing within 60 calendar days of such payment.  GraphicData has not 
contended, nor do we find, that the contracting officer knew, or 
should have known, before being notified by GraphicData that it had 
not billed for some of the photoprints furnished to GPO.  

Thus, GraphicData's claim simply boils down to a contention that its 
claim should be paid despite its failure to meet the 60-day time limit 
for seeking billing adjustments, because it would be unjust not to pay 
the claim.  The claim ignores the fact that the purpose of the 60-day 
provision is to require a request for a billing adjustment to be 
submitted within a reasonable time after the contractor has received a 
payment.  GraphicData agreed to this provision when it entered into 
the contract.  As the courts have held, a contractor may not use 
equitable doctrines to circumvent an express provision of a contract.  
The existence of an express contract precludes recovery on an implied 
contract theory covering the same subject matter.  See J.A. Moore 
Const. Co., supra. at 988;  42 C.J.S. Implied Contracts  sec.  39.

Finally, GraphicData alleges--but offers no evidence--that GPO has 
granted other contractors adjustments to invoices outside the 60-day 
period stated in the contract.  However, the claimant has not 
furnished any specific instances where GPO has waived the 60-day 
provision.  Thus, there is no basis to conclude that the agency should 
have waived the 60-day provision in this case.  

Accordingly, the claim is denied.

Robert P. Murphy
General Counsel