A-65057, NOVEMBER 9, 1935, 15 COMP. GEN. 386

A-65057: Nov 9, 1935

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A TRADE DEFINITION IN EFFECT AT THE TIME OF PERFORMANCE OF THE CONTRACT PERMITTING A VARIATION OF 10 PERCENT FROM THE SPECIFIED QUANTITY IS NOT EFFECTIVE TO CHANGE OR VARY THE TERMS OF THE CONTRACT. WHEREIN WAS DISALLOWED ITS CLAIM FOR THE SUM OF $61.61. INSOFAR AS IS MATERIAL TO THE CONSIDERATION OF THE INSTANT MATTER. SAID CONTRACTOR WAS ADVISED BY LETTER DATED MARCH 3. THAT BIDS WERE BEING INVITED WITH A VIEW TO MAKING PURCHASE OF THE LUMBER AS A CHARGE AGAINST CONTRACTOR'S ACCOUNT. WE UNDERSTAND WE ARE TO HAVE THE OPTION OF REDUCING THE DIFFERENT ITEMS ON OUR ORDER BY APPROXIMATELY 10 PERCENT. WE WILL NOTIFY YOU PRIOR TO INSPECTION OUR WISHES IN THE MATTER. HE EXPLAINS THAT HE WILL ACCEPT TEN PERCENT UNDERSHIPMENT FROM US TO APPLY ON THE CONTRACT BUT YOU WILL BE OBLIGED TO SUPPLY BALANCE IN ACCORDANCE WITH CONTRACT.

A-65057, NOVEMBER 9, 1935, 15 COMP. GEN. 386

CONTRACTS - SPECIFIED QUANTITIES - USE OF WORDS "ABOUT" AND "MORE OR LESS" UNLESS EXPRESSLY PROVIDED OTHERWISE THE WORDS "ABOUT" AND "MORE OR LESS," WHEN USED IN CONTRACTS FOR PURCHASE OF GOODS BY THE GOVERNMENT IN CONNECTION WITH SPECIFIED QUANTITIES, PROVIDE AGAINST ACCIDENTAL AND NOT MATERIAL VARIATIONS, AND A TRADE DEFINITION IN EFFECT AT THE TIME OF PERFORMANCE OF THE CONTRACT PERMITTING A VARIATION OF 10 PERCENT FROM THE SPECIFIED QUANTITY IS NOT EFFECTIVE TO CHANGE OR VARY THE TERMS OF THE CONTRACT.

DECISION BY COMPTROLLER GENERAL MCCARL, NOVEMBER 9, 1935:

NIEDERMEYER-MARTIN LUMBER CO. HAS REQUESTED REVIEW OF SETTLEMENT NO. 0169505 (3), DATED JANUARY 20, 1932, WHEREIN WAS DISALLOWED ITS CLAIM FOR THE SUM OF $61.61, REPRESENTING THE AMOUNT DEDUCTED FROM VOUCHER NO. 26566, MARCH 1926, ACCOUNTS OF J. H. MERRIAM, TO COVER THE EXCESS COST OVER CONTRACT PRICE OF CERTAIN LUMBER PURCHASED AGAINST THE ACCOUNT OF CONTRACTOR BY REASON OF ITS FAILURE TO FURNISH SAID LUMBER AS PROVIDED IN CONTRACT NO. 62022, DATED NOVEMBER 18, 1924.

THE SAID CONTRACT PROVIDED, INSOFAR AS IS MATERIAL TO THE CONSIDERATION OF THE INSTANT MATTER, FOR THE FURNISHING OF APPROXIMATELY 51,500 FEETBOARD MEASURE, REDWOOD LUMBER, MEETING CERTAIN SPECIFICATIONS, AT PRICES SET FORTH IN THE CONTRACT, WITHIN 60 DAYS AFTER DATE OF CONTRACT OR BUREAU ORDER, THIS ITEM OF THE CONTRACT BEING DESIGNATED AS CLASS 385, AND THE TOTAL CONSIDERATION THEREFOR BEING EXTENDED AS $5,095.

DUE TO THE FAILURE OF CONTRACTOR TO MAKE DELIVERY UNDER CLASS 385 OF THE CONTRACT WITHIN THE REQUIRED TIME, SAID CONTRACTOR WAS ADVISED BY LETTER DATED MARCH 3, 1925, FROM THE PAYMASTER GENERAL OF THE NAVY, THAT BIDS WERE BEING INVITED WITH A VIEW TO MAKING PURCHASE OF THE LUMBER AS A CHARGE AGAINST CONTRACTOR'S ACCOUNT. THEREAFTER CERTAIN CORRESPONDENCE ENSUED BETWEEN THE PARTIES RESULTING IN AN AGREEMENT BY THE CONTRACTOR TO MAKE SHIPMENT OF THE LUMBER UNDER CLASS 385 WITHIN 4 WEEKS FROM MARCH 10, 1925. UNDER DATE OF MARCH 25, 1925, THE CONTRACTOR ISSUED AN ORDER TO ITS SUBCONTRACTOR, VAN ARSDALE HARRIS LUMBER CO., FOR THE SHIPMENT OF 51,500 FEET OF LUMBER, SUCH ORDER IN ALL RESPECTS MEETING THE REQUIREMENTS OF CLASS 385. HOWEVER, BY LETTER OF THE SAME DATE NIEDERMEYER-MARTIN LUMBER CO. ADVISED ITS SUBCONTRACTOR, AS FOLLOWS:

REFERRING TO OUR ORDER FOR REDWOOD PATTERN STOCK, AND CONVERSATION OF EVEN DATE, WE UNDERSTAND WE ARE TO HAVE THE OPTION OF REDUCING THE DIFFERENT ITEMS ON OUR ORDER BY APPROXIMATELY 10 PERCENT, IN OTHER WORDS THE TOTAL AMOUNT OF 51,500 FEET COULD, AT OUR OPTION, BE REDUCED TO 46,400 FEET.

WE WILL NOTIFY YOU PRIOR TO INSPECTION OUR WISHES IN THE MATTER.

BY LETTER DATED MARCH 26, 1925, THE CONTRACTOR ADVISED ITS SUBCONTRACTOR, AS FOLLOWS:

PLEASE ARRANGE TO UNDERSHIP EACH ITEM ON OUR ORDER FOR PORT ORFORD CEDAR APPROXIMATELY TEN PERCENT, UNLESS YOU SHOULD HEAR FROM US TO THE CONTRARY BY SATURDAY, MARCH 28TH.

REPLYING TO THIS LETTER BY TELEGRAM OF MARCH 27, 1925, THE VAN ARSDALE HARRIS LUMBER COMPANY STATED:

REFERRING YOUR LETTER REGARDING UNDERSHIPMENTS. YOU MENTION PORT ORFORD CEDAR PRESUME YOU MEAN REDWOOD. GOVERNMENT INSPECTOR NOW AT OUR YARD STATES THAT HE MUST INSIST ON FULL COMPLETION OF ORDER. HE EXPLAINS THAT HE WILL ACCEPT TEN PERCENT UNDERSHIPMENT FROM US TO APPLY ON THE CONTRACT BUT YOU WILL BE OBLIGED TO SUPPLY BALANCE IN ACCORDANCE WITH CONTRACT. WIRE INSTRUCTIONS.

BY TELEGRAM OF MARCH 30, 1925, CONTRACTOR NOTIFIED ITS SUBCONTRACTOR, AS FOLLOWS:

CONFIRMATION YOUR TELEGRAM MARCH TWENTY-SEVENTH ADDRESSED C. A. NIEDERMEYER JUST RECEIVED, ORIGINAL NOT YET RECEIVED. PLEASE UNDERSHIP EACH ITEM TEN PERCENT ON OUR ORDER REDWOOD PATTERN LUMBER FOR DELIVERY NAVY YARD, MARE ISLAND.

NOTWITHSTANDING THE FACT THAT THE ORDER CALLED FOR DELIVERY OF 51,500 FEET BOARD MEASURE, THE CONTRACTOR FURNISHED ONLY 46,340 FEET BOARD MEASURE, AND THE SHORTAGE OF 5,160 FEET BOARD MEASURE, NOT BEING DUE TO CONDITIONS OF LOADING, SHIPPING, OR OTHER CAUSES BEYOND ITS CONTROL BUT THE RESULT OF SPECIFIC INSTRUCTIONS TO ITS SUBCONTRACTOR, WAS PURCHASED FROM THE VAN ARSDALE HARRIS LUMBER CO. AT AN EXCESS COST OF $61.61 OVER THE CONTRACT PRICE.

THE CONTRACTOR HAS URGED THAT IT WAS NOT RESPONSIBLE FOR THE EXCESS COST OF THE LUMBER PURCHASED AGAINST ITS ACCOUNT FOR THE REASONS THAT THE WORD "ABOUT" USED IN THE CONTRACT IN CONNECTION WITH THE QUANTITY OF LUMBER TO BE FURNISHED GRANTED THE PRIVILEGE OF REDUCING OR INCREASING THE STIPULATED QUANTITY BY 10 PERCENT AND IN SUPPORT OF THAT CONTENTION CITED A DEFINITION OF THE WORD "ABOUT" BY THE AMERICAN ACCEPTANCE COUNCIL TO THE EFFECT THAT THE WORD SHOULD BE CONSTRUED TO PERMIT A VARIATION OF NOT EXCEEDING 10 PERCENT FROM THE NAMED SUM OR QUANTITY; THAT A QUANTITY OF LUMBER WITHIN 10 PERCENT OF THE QUANTITY STIPULATED IN ANOTHER CONTRACT WITH THE GOVERNMENT, I.E., NO. 127, DATED JULY 22, 1924, HAD BEEN ACCEPTED BY THE NAVY YARD, PUGET SOUND, WASH., AS FULL COMPLIANCE WITH THE CONTRACT PROVISIONS; AND THAT AS 10 PERCENT EXCESS ON ITEM 6 OF CONTRACT 62022 HAD BEEN ACCEPTED NO REASON WAS SEEN WHY A 10-PERCENT SHORTAGE WOULD NOT BE ACCEPTABLE AS SATISFACTORY COMPLIANCE WITH THE PROVISIONS OF THE CONTRACT.

THE GOVERNMENT DESIRED 51,500 FEET BOARD MEASURE OF LUMBER, BUT BECAUSE OF THE DIFFICULTIES WHICH WOULD BE ENCOUNTERED IN FURNISHING THE EXACT QUANTITY DUE TO CONDITIONS OF LOADING, SHIPPING, ETC., THE WORD "ABOUT" WAS INSERTED IN THE CONTRACT. IT WAS NOT INTENDED TO COVER OTHER THAN SMALL VARIATIONS DUE TO THE CONDITIONS STATED NOR TO A SITUATION AS HERE WHERE THE CONTRACTOR ORDERED 10 PERCENT LESS LUMBER THAN THE STIPULATED QUANTITY FROM A SUBCONTRACTOR. THE WORD "ABOUT," WHILE ALLOWING A MARGIN FOR A MODERATE EXCESS IN, OR DIMINUTION OF, THE QUANTITY MENTIONED, CANNOT REASONABLY INDICATE THAT SUCH MARGIN MAY INCLUDE A VERY LARGE FRACTION OR PERCENTAGE OF THE WHOLE, TOUCHING WHICH IT IS USED. (SEE 1 C.J. 335 AND CASES CITED IN FOOTNOTES 22 AND 23.) THE ESTABLISHED RULE IS THAT IN CONTRACTS FOR SALE OF GOODS "ABOUT" AND "MORE OR ESS" ARE USED FOR THE PURPOSE OF PROVIDING AGAINST ACCIDENTAL AND NOT MATERIAL VARIATIONS, AND THE QUANTITY SPECIFIED GOVERNS. (SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; PINE RIVER LOGGING CO. V. UNITED STATES, 186 U.S. 279; MOORE V. UNITED STATES, 196 U.S. 157; AND ROETTINGER, ADM., V. UNITED STATES, 26 CT.CLS. 391, 420.) FURTHERMORE, THE TRADE CUSTOM CITED BY YOU AS BEING IN EFFECT AT THE TIME OF THE PERFORMANCE OF THE CONTRACT IS NOT ADMISSIBLE TO VARY OR CONTRADICT THE TERMS OF THE CONTRACT, PARTICULARLY IN VIEW OF THE INTERPRETATION BY THE COURTS OF THE WORD ,ABOUT" IN THE CASES CITED.

THE NEEDS OF THE GOVERNMENT MAY HAVE BEEN SUCH THAT IT DID NOT REQUIRE ALL OF THE LUMBER STIPULATED IN CONTRACT NO. 127, AND PROBABLY FOR THAT REASON THE CONTRACTOR WAS EXCUSED FROM FURNISHING THE REMAINING 10 PERCENT THEREOF. HOWEVER, IT MAY BE STATED THAT THE ACTION PERMITTED IN THAT CASE WOULD NOT BE A PRECEDENT FOR OTHER CASES AND, PARTICULARLY, WOULD NOT BE FOR APPLICATION IN THIS CASE AS IT IS SHOWN THAT THE GOVERNMENT REQUIRED ALL THE QUANTITY OF LUMBER STIPULATED IN THE CONTRACT BY THE FACT THAT UPON THE CONTRACTOR'S DEFAULT THE REMAINING QUANTITY OF LUMBER WAS PURCHASED AGAINST THE CONTRACTOR'S ACCOUNT.

IT MAY BE, AS URGED BY THE CONTRACTOR, THAT 10 PERCENT OVERRUN OF LUMBER WAS ACCEPTED UNDER ITEM 6 OF THE SUBJECT CONTRACT BUT THAT, IN ITSELF, IS NOT SUFFICIENT TO AUTHORIZE INCOMPLETE PERFORMANCE OF ANOTHER ITEM UNDER THE SAME CONTRACT. IN THAT CONNECTION IT MAY BE STATED THAT UNDER ORDINARY CONDITIONS OFFICERS OR EMPLOYEES OF THE GOVERNMENT ARE NOT AUTHORIZED TO ACCEPT SUPPLIES IN EXCESS OF THE QUANTITY STIPULATED IN THE CONTRACT, SUCH ADDITIONAL QUANTITIES, IF NEEDED, BEING FOR PROCUREMENT PURSUANT TO SECTION 3709, REVISED STATUTES. FURTHERMORE, IT APPEARS TO HAVE BEEN TO THE CONTRACTOR'S ADVANTAGE TO HAVE THE OVERRUN ACCEPTED, OTHERWISE HAD THE LUMBER BEEN REJECTED THE COST OF RETURNING IT WOULD HAVE BEEN CHARGED TO THE CONTRACTOR.

THE CONTRACT REQUIRED DELIVERY OF ABOUT 51,500 FEET BOARD MEASURE OF LUMBER AND THE FURNISHING OF 46,340 FEET BOARD MEASURE OF LUMBER CANNOT BE CONSIDERED AS A COMPLIANCE WITH THE CONTRACT PROVISIONS. THE SUM OF $61.61 WAS PROPERLY COLLECTED FROM THE CONTRACTOR AND THAT ACTION IN NO WAY CONTRAVENED THE TERMS OF THE CONTRACT.

ACCORDINGLY, UPON REVIEW, THE SETTLEMENT DISALLOWING THE CLAIM MUST BE, AND IS, SUSTAINED.