B-117434, NOV. 2, 1955

B-117434: Nov 2, 1955

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TO NORTHWESTERN TOOL AND ENGINEERING COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 1. IT APPEARS THAT YOU BASE YOUR CLAIM ON THE FACT THAT CERTAIN DRAWINGS WHICH WERE AT VARIANCE WITH THE SPECIFICATIONS DESCRIBED IN THE INVITATION FOR BIDS WERE FORWARDED TO YOU WITH THE INVITATION. YOU CONTEND THAT SINCE THE CONTRACT DID NOT STATE THAT THE DRAWINGS WERE INCLUDED IN ERROR AS A PART OF THE CONTRACT. OR THAT THEY WERE TO BE USED AS A GUIDE ONLY. YOU RIGHTFULLY ASSUMED THAT THEY WERE A PART OF THE CONTRACT. STATED THAT "INVESTIGATION REVEALS THAT ALTHOUGH SIGNAL CORPS DRAWINGS WERE FURNISHED THE CONTRACTOR WITH THE INVITATION TO BID. HE WAS VERBALLY ADVISED PRIOR TO AWARD THAT THE DRAWINGS WERE FURNISHED IN ERROR AND WERE NOT APPLICABLE TO THE PROCUREMENT.'.

B-117434, NOV. 2, 1955

TO NORTHWESTERN TOOL AND ENGINEERING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED SEPTEMBER 1, 1955, AND ENCLOSURES, FORWARDED HERE BY THE AIR FORCE FINANCE CENTER, DENVER, COLORADO, REQUESTING RECONSIDERATION OF OUR DECISION DATED MAY 18, 1954, WHICH SUSTAINED SETTLEMENT OF MARCH 31, 1952, DISALLOWING YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE UNDER CONTRACT NO. AF 33/038/- 9981, DATED JANUARY 11, 1950.

IT APPEARS THAT YOU BASE YOUR CLAIM ON THE FACT THAT CERTAIN DRAWINGS WHICH WERE AT VARIANCE WITH THE SPECIFICATIONS DESCRIBED IN THE INVITATION FOR BIDS WERE FORWARDED TO YOU WITH THE INVITATION. YOU ALLEGE THAT YOU RELIED UPON THESE DRAWINGS IN THE PREPARATION OF YOUR BID AND IN THE MANUFACTURE OF THE MOUNTING BASES. YOU CONTEND THAT SINCE THE CONTRACT DID NOT STATE THAT THE DRAWINGS WERE INCLUDED IN ERROR AS A PART OF THE CONTRACT, OR THAT THEY WERE TO BE USED AS A GUIDE ONLY, YOU RIGHTFULLY ASSUMED THAT THEY WERE A PART OF THE CONTRACT.

THE CONTRACTING OFFICER IN HIS REPORT OF MARCH 29, 1954, STATED THAT "INVESTIGATION REVEALS THAT ALTHOUGH SIGNAL CORPS DRAWINGS WERE FURNISHED THE CONTRACTOR WITH THE INVITATION TO BID, HE WAS VERBALLY ADVISED PRIOR TO AWARD THAT THE DRAWINGS WERE FURNISHED IN ERROR AND WERE NOT APPLICABLE TO THE PROCUREMENT.' ALSO, THE INVITATION AND THE CONTRACT PROVIDED THAT THE MOUNTINGS WERE TO BE BUILT IN ACCORDANCE WITH SPECIFICATION NO. JAN-C- 172A, DATED JUNE 15, 1949. NO REFERENCE WAS MADE IN THE CONTRACT TO THE DRAWINGS. IN VIEW THEREOF, THERE APPEARS NO BASIS FOR YOU TO ASSUME THAT THE DRAWINGS WERE MADE A PART OF THE CONTRACT. ALSO, IF YOU HAD BASED YOUR BID ON THE DRAWINGS RATHER THAN ON THE SPECIFICATIONS, YOU WERE AFFORDED AN OPPORTUNITY TO SO STATE BEFORE AWARD WAS MADE.

IN REGARD TO THE ALLEGED INCREASED COSTS, AS SET FORTH IN YOUR LETTER OF DECEMBER 19, 1950, TO THE PROCUREMENT AGENCY, THE CONTRACTING OFFICER, IN HIS STATEMENT OF FACT DATED JULY 19, 1951, STATED THAT AFTER AN INVESTIGATION IT WAS DETERMINED THAT THE SO CALLED CHANGES WERE REQUIRED BY SPECIFICATION NO. JAN-C-172A AND AS SUCH WARRANTED NO PRICE CHANGES. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT INTERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR ENTITLE A CONTRACTOR TO COMPENSATION IN ADDITION TO THAT PROVIDED IN THE CONTRACT. COLUMBUS RY. POWER AND LIGHT CO. V. COLUMBUS, 249 U.S. 399, 412; BLAUNER CONSTRUCTION CO. V. UNITED STATES, 94 C.CLS. 503, 511; 19 COMP. GEN. 902. SINCE THE CONTRACT CONTAINED NO PROVISION FOR ADDITIONAL COMPENSATION IN CASE OF INCREASED COST OF PERFORMANCE, YOU WERE BOUND TO PERFORM THE CONTRACT IN ACCORDANCE WITH ITS TERMS AND AT THE PRICES STIPULATED. AS YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE SERVICE PERFORMED, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH PRICES.