B-127089, SEP. 19, 1956

B-127089, SEP. 19, 1956

TO SWETS AND ZEITLINGER:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 13, 1956, REQUESTING REVIEW OF THAT PART OF OUR SETTLEMENT DATED MAY 1, 1956, WHICH DISALLOWED $91.90 OF THE AMOUNT CLAIMED FOR CERTAIN PERIODICALS FURNISHED THE UNITED STATES DEPARTMENT OF AGRICULTURE UNDER CONTRACT NO. 12-01-100-16, DATED NOVEMBER 5, 1954.

ON SEPTEMBER 17, 1954, THE DEPARTMENT OF AGRICULTURE INVITED BIDS ON THE COST OF FURNISHING CERTAIN FOREIGN PERIODICALS PUBLISHED DURING THE CALENDAR YEAR 1955. INCLUDED AMONG THE PUBLICATIONS LISTED IN THE INVITATION WERE ANNALS OF APPLIED BIOLOGY AND JOURNAL OF AGRICULTURAL SCIENCE. AFTER YOUR BID ON A NUMBER OF THE ITEMS, INCLUDING THE ONES NAMED, WAS ACCEPTED AND THE ORDERS WERE FILLED, YOU ALLEGED THAT YOUR BID WAS IN ERROR IN THAT IT WAS ANTICIPATED THAT THE ANNALS OF APPLIED BIOLOGY FOR 1955 WOULD BE PUBLISHED IN ONE INSTEAD OF TWO VOLUMES AND THAT THE JOURNAL OF AGRICULTURAL SCIENCE WOULD BE PUBLISHED IN ONE INSTEAD OF ONE AND ONE-HALF VOLUMES. YOUR CLAIM FOR $150 AS ADDITIONAL COSTS INCURRED IN CONNECTION WITH THE FURNISHING OF THESE PUBLICATIONS UNDER THE CONTRACT WAS DISALLOWED BY OUR SETTLEMENT OF DECEMBER 7, 1955. IN YOUR LETTER OF FEBRUARY 3, 1956, YOU REQUESTED RECONSIDERATION OF THE MATTER. YOU STATED THAT AT THE TIME THE INVITATION WAS ISSUED THE PUBLISHER DID NOT KNOW THE EXACT NUMBER OF VOLUMES UNDER EACH SUBJECT THAT WOULD BE PUBLISHED AND THAT THE EXACT NUMBER WAS ANNOUNCED FOR THE FIRST TIME DURING THE LATTER PART OF DECEMBER 1954. AFTER CONSIDERING ALL FACTORS IN THE MATTER, IT WAS CONCLUDED THAT YOU HAD MADE AN ERROR IN YOUR BID AND THAT THE UNIT PRICES QUOTED WOULD BE CONSIDERED AS BEING FOR ONE VOLUME ONLY. ALTHOUGH YOU DID NOT FURNISH ANY CONCLUSIVE EVIDENCE AS TO THE AMOUNT YOU INTENDED TO BID ON AN ANNUAL BASIS IT WAS SATISFACTORILY ESTABLISHED THAT DURING THE CALENDAR YEAR 1955 THERE WAS PUBLISHED THE EQUIVALENT OF ONE-HALF VOLUME IN ADDITION TO ONE VOLUME THERETOFORE PUBLISHED AS THE JOURNAL OF AGRICULTURAL SCIENCE. LIKEWISE AS TO THE ANNALS ON APPLIED BIOLOGY THERE WAS PUBLISHED THE EQUIVALENT OF ONE VOLUME IN ADDITION TO THE ONE VOLUME NORMALLY PUBLISHED IN ONE YEAR. CONSEQUENTLY, BY LETTER OF MAY 1, 1956, YOU WERE ADVISED THAT ON THIS BASIS YOUR CLAIM WAS AUTHORIZED FOR PAYMENT IN THE AMOUNT OF $58.10 AND THAT THE BALANCE OF $91.90 WAS DISALLOWED.

IN THE LETTER OF JULY 13, 1956, YOU STATED THAT AS A "GO-BETWEEN" YOU HAD CHARGED THE UNITED STATES GOVERNMENT THE AMOUNT THE PUBLISHERS HAD CHARGED YOU FOR THE PUBLICATIONS AND THAT THE AMOUNT DISALLOWED BY OUR OFFICE WAS TO LOSS TO YOU. YOU CONCLUDED THAT THE WHOLE MATTER TURNS ON YOUR STATEMENT THAT "IT IS THE TASK OF YOUR OFFICE TO SEE TO IT THAT THE GOVERNMENT OR SUBSCRIBER RECEIVES WHAT IT IS ENTITLED TO, BUT IN OUR OPINION, NOT TO DUPE THE BOOKSELLER (THE MIDDLE MAN) ON TECHNICAL GROUNDS.'

IT APPEARS THAT YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE PERIODICALS DELIVERED--- CHANGES IN METHOD OF PUBLICATION CONSIDERED-- AND NOW WISH ADDITIONAL AMOUNTS TO COMPENSATE YOU FOR YOUR ALLEGED LOSSES. IS REGRETTED THAT YOU INCURRED LOSSES IN THE PERFORMANCE OF THE CONTRACT. OUR OFFICE, HOWEVER, AS WELL AS ALL AGENTS AND OFFICERS OF THE UNITED STATES, HAS NO AUTHORITY TO WAIVE CONTRACTUAL RIGHTS WHICH HAVE ACCRUED TO THE GOVERNMENT, OR TO MODIFY EXISTING CONTRACTS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE AMERICAN SALES CORP. V. UNITED STATES, 27 F.2D 389, AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335. AS YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE PERIODICALS FURNISHED, THERE IS NO LEGAL OR OTHER BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH PRICES.