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