B-117728, NOV 2, 1954

B-117728: Nov 2, 1954

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PRECIS-UNAVAILABLE CROWN ELECTRONICS & MACHINE WORKS: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24. YOU CONTEND THAT SUBSEQUENT TO THE DATE OF AWARD YOU WERE ADVISED BY THE SUPPLIER THAT THE MILLS HAD DISCONTINUED MAKING THIS TYPE OF ALUMINUM. THAT YOU WERE REQUIRED TO SECURE A DEVIATION AND A DIRECTIVE. THAT IS IN THE INTERIM THE GOVERNMENT AUTHORIZED AN INCREASE IN THE PRICE TO THE ALUMINUM INDUSTRY AND THAT YOU WERE REQUIRED TO PAY SUCH INCREASE PRICE. THAT DUE TO THE DELAY THAT ENSUED YOU WERE COMPELLED TO PAY MORE FOR THE PLATING WORK AND BY REASON OF THE ABOVE FACTS YOU SUSTAINED A LOSS OF $4. THE FACT THAT MILLS HAD DISCONTINUED MAKING THE PARTICULAR TYPES OF ALUMINUM CAN HAVE NO BEARING ON THE MATTER AS YOU WERE REQUIRED TO PRODUCE A SPECIFICATION ARTICLE AND IT WAS YOUR RESPONSIBILITY TO OBTAIN THE MATERIAL THEREFOR.

B-117728, NOV 2, 1954

PRECIS-UNAVAILABLE

CROWN ELECTRONICS & MACHINE WORKS:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 24, 1954, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 13, 1953, WHICH DISALLOWED YOUR CLAIM FOR $4,500, ALLEGED TO BE DUE UNDER CONTRACT NO. DA-36-039-SC 36830, DATED SEPTEMBER 16, 1952.

UNDER THE TERMS OF THE CONTRACT YOUR COMPANY AGREED TO MANUFACTURE AND ASSEMBLE FOR THE SIGNAL CORPS SUPPLY AGENCY, DEPARTMENT OF THE ARMY, 50,100 STUFFING TUBES AT THE UNIT PRICES SPECIFIED THEREIN. YOU CONTEND THAT SUBSEQUENT TO THE DATE OF AWARD YOU WERE ADVISED BY THE SUPPLIER THAT THE MILLS HAD DISCONTINUED MAKING THIS TYPE OF ALUMINUM; THAT YOU WERE REQUIRED TO SECURE A DEVIATION AND A DIRECTIVE; THAT IS IN THE INTERIM THE GOVERNMENT AUTHORIZED AN INCREASE IN THE PRICE TO THE ALUMINUM INDUSTRY AND THAT YOU WERE REQUIRED TO PAY SUCH INCREASE PRICE; THAT DUE TO THE DELAY THAT ENSUED YOU WERE COMPELLED TO PAY MORE FOR THE PLATING WORK AND BY REASON OF THE ABOVE FACTS YOU SUSTAINED A LOSS OF $4,500 WHICH YOU BELIEVE SHOULD BE REIMBURSED TO YOU BY THE UNITED STATES.

THE FACT THAT MILLS HAD DISCONTINUED MAKING THE PARTICULAR TYPES OF ALUMINUM CAN HAVE NO BEARING ON THE MATTER AS YOU WERE REQUIRED TO PRODUCE A SPECIFICATION ARTICLE AND IT WAS YOUR RESPONSIBILITY TO OBTAIN THE MATERIAL THEREFOR. IN ANY EVENT A DIRECTIVE WAS AUTHORIZED WITH THE SPECIFIC AGREEMENT THAT THERE WOULD BE NO DELAY AND NO INCREASE IN COST TO THE GOVERNMENT. THE DIRECTIVE WAS ISSUED FOR YOUR PARTICULAR BENEFIT TO ENABLE YOU TO OBTAIN THE MATERIAL.

THE ACTION OF THE GOVERNMENT IN GRANTING A HIGHER PRICE TO THE ALUMINUM INDUSTRY WAS AN ACT OF THE GOVERNMENT IN ITS SOVEREIGN CAPACITY, APPLICABLE TO ALL CONTRACTORS, PUBLIC AND PRIVATE ALIKE. IT IS A GENERAL RULE OF LAW THAT THE GOVERNMENT AS A CONTRACTOR IS NOT LIABLE FOR ITS ACTS AS A SOVEREIGN PERFORMED BY AGENCIES CARRYING OUT GENERAL PROGRAMS IN THE NATIONAL INTEREST. SEE PIGGLY WIGGLY CORPORATION V. UNITED STATES, 112 C. CLS. 391; MAXWELL V. UNITED STATES, 3 F. 2D 906, AFFIRMED 271 U. S. 647; GOTHWAITE V. UNITED STATES, 102 C. CLS. 400; STANDARD ACCIDENT INSURANCE COMPANY AT AL. V. UNITED STATES, 103 C. CLS. 607, CERTIORARI DENIED 326 U. S. 729; CLEMMER CONSTRUCTION COMPANY V. UNITED STATES 108 C. CLS. 718 AND HOROWITS V. UNITED STATES, 267 U. S. 458.

FURTHERMORE, IT IS AN ESTABLISHED RULE OF LAW THAT IF A PARTY CHARGES HIMSELF WITH AN OBLIGATION POSSIBLE OF PERFORMANCE, HE MUST ABIDE BY IT UNLESS PERFORMANCE IS RENDERED IMPOSSIBLE BY AN ACT OF GOD, THE LAW OR THE OTHER PARTY. UNFORESEEN DIFICULTIES WILL NOT ENTITLE THE PARTY TO ADDITIONAL COMPENSATION UNLESS SPECIFICALLY PROVIDED FOR IN THE CONTRACT. SEE COLUMBUS RAILWAY AND POWER COMPANY V. CITY OF COLUMBUS, 349 U. S. 399; CARNEGIE STEEL COMPANY V. UNITED STATES, 240 U. S. 156, 164; INDUSTRIAL ENGINEERING COMPANY V. UNITED STATES, 92 C. CLS. 54,60; AND BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C. CLS. 503. IN VIEW THEREOF, AND SINCE YOUR CONTRACT DOES NOT PROVIDE FOR AN ADJUSTMENT IN THE PRICES STATED THEREIN TO COVER CONTINGENCIES SUCH AS HERE INVOLVED, THERE IS NO LEGAL BASIS FOR ALLOWING ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE.

ACCORDINGLY, THE DISALLOWANCE OF OCTOBER 13, 1953, IS SUSTAINED.