B-122055, JAN 18, 1955

B-122055, JAN 18, 1955

PRECIS-UNAVAILABLE

LIEUTENANT COLONEL HOKE MCWHORTER, DEPARTMENT OF THE AIR FORCE:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 3, 1954, WITH ENCLOSURES, WHEREIN YOU REQUEST AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON A CLAIM FOR $184.93, SUBMITTED BY THE BARNETT RADIO AND APPLIANCE COMPANY, PRICHARD, ALABAMA, REPRESENTING THE CLAIMED VALUE OF CERTAIN MISSING PARTS WHICH WERE REPLACED WHILE RECONDITIONING REFRIGERATION EQUIPMENT FOR THE BROOKLEY AIR FORCE BASE, ALABAMA, UNDER NEGOTIATED CONTRACT NO. AF 01(601)18558, DATED FEBRUARY 1, 1954.

UNDER THE TERMS OF THE CONTRACT THE CLAIMANT AGREED, IN CONSIDERATION "FOR THE FLAT PRICE QUOTED" OPPOSITE EACH OF THE SEVERAL ITEMS INVOLVED, TO "FURNISH ALL LABOR, FACILITIES, PARTS AND MATERIALS AS REQUIRED TO OVERHAUL AND RECONDITION" THE SEVERAL TYPES OF REFRIGERATION EQUIPMENT THEREIN DESCRIBED. INCLUDED AMONG THE ITEMS SCHEDULED FOR OVERHAUL WAS ITEM NO. 3, DESCRIBED IN THE BID SCHEDULE AS 14 GENERAL STORAGE REFRIGERATORS, ELECTRIC MOTOR DRIVEN, CAPACITY 65 CUBIC FEET, AS TO WHICH THE CLAIMANT QUOTED A FLAT UNIT PRICE OF $360 EACH, OR A TOTAL OF $5,040 FOR A COMPLETE OVERHAUL OF THE 14 UNITS LISTED UNDER THE ITEM. THE REPAIR SERVICES, AS APPLIED TO ITEM NO. 3, WERE TO HAVE BEEN PERFORMED IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN APPENDIX "A", MADE A PART OF THE CONTRACT. THE PERTINENT REQUIREMENTS OF APPENDIX "A", SECTION II, ARE AS FOLLOWS:

"1. THE OVERHAUL FACILITY (CONTRACTOR) WILL DISASSEMBLE AND INSPECT THE DISPLAY CASE IN ACCORDANCE WITH THE PROCEDURES LISTED BELOW.

"(2) INSPECT ELECTRICAL SYSTEM FOR SECURITY, CONTINUITY, LOOSE CONNECTIONS, BONDING, INSULATION, DETERIORATION, SIGNS OF MALFUNCTIONING AND OTHER DEFECTS THAT AFFECT SERVICEABILITY. REPAIR OR REPLACE PART IF CONDITION WARRANTS. ***

THE RECORD ESTABLISHES THAT WITH PURCHASE ORDER NO. (01-601) 54 8632, DATED FEBRUARY 1, 1954 - OTHERWISE DESIGNATED DELIVERY ORDER NO. 1 - THERE WERE DELIVERED TO THE CLAIMANT FOR RECONDITIONING SEVERAL DIFFERENT ITEMS OF REFRIGERATION EQUIPMENT, INCLUDING TWO UNITS OF THE TYPE DESCRIBED OPPOSITE ITEM NO. 3 OF THE CONTRACT. IN THE PROCESS OF RECONDITIONING THE LATTER UNITS, IT WAS DISCOVERED THAT CERTAIN PARTS WERE MISSING, WHEREUPON, IN RESPONSE TO THE CLAIMANT'S REQUEST OF MARCH 26, 1954, THE CONTRACTING OFFICER, BY AMENDMENT NO. 1, DATED APRIL 5, 1954, TO DELIVERY ORDER NO. 1, SOUGHT TO AUTHORIZE REIMBURSEMENT TO THE CONTRACTOR FOR THE NET VALUE OF THE REPLACED MISSING PARTS, IDENTIFIED AS FOLLOWS:

MISSING NOMENCLATURE PART NO. NET TOTAL

1 COPELAND UNIT

1/2 TON COMPRESSOR 18 $35.50

1 REDMOND FAN L-3553 8.38

1 STANCO BLADE O-7402 1.55 $45.43

THE CONTRACTING OFFICER ATTEMPTED TO JUSTIFY HIS ACTION UPON THE FOLLOWING GROUNDS: "TERMS OF *** CONTRACT CALLED FOR CONTRACTOR TO HAVE ISSUED TO HIM TWO EACH REPARABLE AND ITEMS, COMPLETE, UNDER W/O #H G377- AC, AS PRELIMINARY INSPECTION SHOWED "NO VISIBLE SHORTAGES'; AND CONTRACTOR'S BID WAS BASED THEREON."

SIMILARLY, BY AMENDMENT NO. 1, DATED JULY 16, 1954, TO DELIVERY ORDER NO. 2, THE CONTRACTING OFFICER ALSO PROPOSED TO AUTHORIZE REIMBURSEMENT TO THE CONTRACTOR IN THE ADDITIONAL AMOUNT OF $139.50, TO COVER THE COST OF INSTALLING ON ANOTHER ITEM NO. 3 REFRIGERATOR UNIT A COMPLETE HALF-TON COMPRESSOR UNIT, DESCRIBED IN THE CONTRACTOR'S LETTER OF JULY 7, 1954, AS FOLLOWS:

MISSING NOMENCLATURE PART NO. NET

1 COPLAMETIC UNIT Z-50-C $139.50

SERIAL NO. 1150254

THE REASON ASSIGNED BY THE CONTRACTING OFFICER FOR HAVING ISSUED THE AMENDMENT TO DELIVERY ORDER NO. 2 WAS THE SAME AS THAT GIVEN BY HIM FOR HIS EARLIER AMENDMENT TO DELIVERY ORDER NO. 1.

WHILE IT MIGHT HAVE BEEN THE INTENTION OF THE PARTIES TO HAVE RESTRICTED THE CONTRACT SERVICES TO THE REPAIR AND REPLACEMENT ONLY OF THOSE PARTS WHICH, UPON PRELIMINARY INSPECTION, WERE FOUND TO BE IN NEED OF SERVICING, OVERHAUL OR REPLACEMENT BECAUSE OF WEAR, THERE IS NOTHING IN THE CONTRACT ITSELF, OR ELSEWHERE IN THE RECORDS NOW AVAILABLE, WHICH REASONABLY MIGHT BE INTERPRETED AS AUTHORIZING REIMBURSEMENT TO THE CONTRACTOR OF THE COST OF REPLACING ANY MISSING PARTS DISCOVERED DURING THE PROGRESS OF THE RECONDITIONING OPERATIONS ORIGINALLY CONTRACTED FOR. TO THE CONTRARY, THE RECORD SHOWS AFFIRMATIVELY THAT THE CONTRACTOR QUOTED A FIXED PRICE TO COVER THE SERVICES OF RECONDITIONING EACH OF THE SEVERAL TYPES OF REFRIGERATORS LISTED IN THE CONTRACT, AND NO PROVISION WAS MADE FOR REIMBURSING SUCH PARTY ADDITIONAL AMOUNTS TO COMPENSATE FOR UNEXPECTED OR UNFORESEEN EXPENDITURES NECESSITATED BY THE REPLACEMENT OF MISSING PARTS, THE LOSS OF WHICH WAS NOT DISCOVERED DURING THE COURSE OF THE PRELIMINARY INSPECTIONS MADE OF THE ITEM.

THE COURTS FREQUENTLY HAVE HELD THAT WHERE ONE AGREES TO DO, FOR A FIXED SUM, A THING POSSIBLE TO BE PERFORMED, HE WILL NOT BE EXCUSED OR ENTITLED TO ADDITIONAL COMPENSATION BECAUSE UNFORESEEN DIFFICULTIES OR UNEXPECTED EXPENSES WERE ENCOUNTERED IN THE FULFILLMENT OF HIS CONTRACT. UNITED STATES V. SPEARIN, 248 U.S. 132; COLUMBUS RAILWAY, POWER & LIGHT COMPANY V. COLUMBUS, 249 U.S. 399; DAY V. UNITED STATES, 245 U.S. 159. IT MUST BE RECOGNIZED, OF COURSE, THAT CERTAIN ELEMENTS OF RISK ARE PRESENT IN EVERY MECHANICAL OVERHAUL OR REPAIR JOB UNDERTAKEN UPON A FLAT PRICE BASIS, AS IN THIS CASE, AND IF DURING THE COURSE OF THE WORK THERE IS ENCOUNTERED UNUSUAL OR UNEXPECTED EXPENSE, THE BURDEN OF SUCH RISK NECESSARILY MUST FALL UPON THE PARTY WHO VOLUNTARILY ASSUMED IT. CF. CHOUTEAU V. UNITED STATES, 95 U.S. 61. FURTHERMORE, THE CONTRACT REQUIREMENT THAT THE CONTRACTOR INSPECT THE ENTIRE UNITS INCLUDING THEIR ELECTRICAL SYSTEMS, WITH A VIEW TO DISCOVERING ANY SIGNS OF "MALFUNCTIONING AND OTHER DEFECTS" THAT MIGHT AFFECT THEIR "SERVICEABILITY," AND ALSO, TO REPAIR OR "REPLACE" THOSE PARTS, WHERE NECESSARY, WOULD APPEAR TO INCLUDE THE REQUIREMENT THAT EVEN MISSING PARTS BE REPLACED.

IN THE CIRCUMSTANCES, THE CONCLUSION IS REQUIRED THAT THE UNITED STATES LEGALLY IS NOT OBLIGATED TO REIMBURSE THE CONTRACTOR FOR THESE AND SIMILAR REPLACEMENT COSTS. CHRISTIE V. UNITED STATES, 237 U.S. 234.

THE VOUCHER AND RELATED PAPERS ARE RETURNED.