B-125384, OCT. 28, 1955

B-125384, OCT. 28, 1955

TO CAPITOL SALES, INCORPORATED:

REFERENCE IS MADE TO LETTER OF AUGUST 18, 1955, FROM YOUR ATTORNEY, RELATIVE TO OUR SETTLEMENT OF MAY 19, 1955, WHICH DISALLOWED YOUR CLAIM FOR $1,108.07 AS ADDITIONAL COMPENSATION DUE IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. DA-33-031-QM-18062 (PURCHASE ORDER O.I. 4710- 53Q), DATED DECEMBER 29, 1952. IN ADDITION TO THE PROTEST OF THE SETTLEMENT IN YOUR BEHALF, IT IS REQUESTED THAT, IN THE EVENT THE DISALLOWANCE IS SUSTAINED, A HEARING BE GRANTED AT WHICH TIME ADDITIONAL EVIDENCE SUPPORTING YOUR CONTENTIONS WILL BE PRESENTED.

IT IS THE ESTABLISHED PRACTICE THAT CLAIMS PRESENTED TO OUR OFFICE NECESSARILY MUST BE SETTLED ON THE BASIS OF THE WRITTEN RECORD AND IT FOLLOWS THAT THE SUBSTANCE OF ANY MATTERS PRESENTED ORALLY MUST BE REDUCED TO WRITING TO RECEIVE CONSIDERATION IN THE SETTLEMENT OF YOUR CLAIM. EXAMINATION OF THE CLAIM DISCLOSED YOUR CONTENTIONS ORIGINALLY WERE SET FORTH IN YOUR LETTER OF JUNE 2, 1953, TO THE COLUMBUS GENERAL DEPOT, U.S. ARMY, WHICH INCLUDED YOUR INVOICE STATEMENT OF INCREASED COSTS INCURRED IN THE PROCUREMENT OF THE CONTRACT ITEMS FROM YOUR SOURCE OF SUPPLY. SAID CONTENTIONS, WHILE FULLY CONSIDERED BY THE ADMINISTRATIVE OFFICE AND BY OUR OFFICE IN THE SETTLEMENT OF YOUR CLAIM, ARE, WITH SOME AMPLIFICATION, AGAIN PRESENTED IN THE LETTER OF AUGUST 18, 1955. NEVERTHELESS, YOU ARE FREE TO PRESENT ANY ADDITIONAL EVIDENCE OR DOCUMENTS BELIEVED PERTINENT TO YOUR CLAIM OR, IF YOU SO DESIRE, YOU MAY CALL AT OUR OFFICE, LOCATED AT 441 G STREET, N.W., ANY TIME DURING REGULAR WORKING HOURS, 8:15 A.M. TO 4:45 P.M., MONDAY THROUGH FRIDAY. HOWEVER, FOR REASONS HEREINAFTER SET FORTH, THERE APPEARS TO BE NO PROPER BASIS FOR THE ALLOWANCE OF YOUR CLAIM.

IN RESPONSE TO INVITATION NO. QM-33-031-53-207 ISSUED BY THE QUARTERMASTER SUPPLY SECTION, COLUMBUS GENERAL DEPOT, ON NOVEMBER 20, 1952, YOU SUBMITTED A BID DATED DECEMBER 9, 1952--- THE DATE OF SCHEDULED OPENING--- OFFERING TO FURNISH, IF THE BID WAS ACCEPTED WITHIN FIVE DAYS OF THE DATE OF OPENING, CERTAIN COPPER TUBING LISTED UNDER ITEMS NOS. 69, 70 AND 71 AT THE PRICES SPECIFIED. AWARD OF THE CONTRACT WAS MADE TO YOU AS LOW BIDDER AND PURCHASE ORDER FOR SUCH ITEMS WAS MAILED TO YOU ON DECEMBER 29, 1952. IN RESPONSE TO THE CONTRACTING OFFICER'S INQUIRY, YOU ADVISED THE PURCHASING OFFICE BY LETTER DATED JANUARY 17, 1953, THAT THE SHIPMENT OF THE SUPPLIES WOULD BE MADE FROM THE PLANT OF YOUR SUBCONTRACTOR (THE AMERICAN BRASS COMPANY, BUFFALO, NEW YORK) ON FEBRUARY 13TH, PROVIDED THE REQUIRED INSPECTION WAS MADE PROMPTLY, AT THAT PLACE.

YOU CONTEND THAT THE DELAY IN THE ACCEPTANCE OF YOUR ORDER AND THE DELAY IN SECURING THE MODIFICATION OF THE INSPECTION PAPERS, AS WELL AS THE ACTION BY THE INSPECTOR IN TWICE REFUSING THE APPROVAL OF MATERIAL -- SUBSEQUENTLY ACCEPTED IN ITS ORIGINAL FORM--- DIRECTLY RESULTED IN THE EXTENSION OF YOUR DELIVERY TIME; AND THAT, BECAUSE OF THE LIFTING OF CERTAIN PERTINENT PRICE CONTROLS BETWEEN FEBRUARY 13, 1953, THE DATE OF THE FIRST INSPECTION, AND MARCH 6, 1953, THE DATE OF FINAL INSPECTION, YOU WERE OBLIGED TO PAY AN INCREASE IN PRICE FOR THE ITEMS IN QUESTION EQUAL TO THE AMOUNT OF YOUR CLAIM.

OBVIOUSLY, YOUR ACCEPTANCE OF THE AWARD OF CONTRACT BEYOND THE DATE SPECIFIED IN YOUR BID CONSTITUTED A WAIVER OF YOUR STIPULATED DATE FOR THE ACCEPTANCE OF YOUR BID. IT WAS YOUR PRIVILEGE TO HAVE REFUSED THE ACCEPTANCE TENDERED BEYOND THE DATE FIXED, BUT, SINCE YOU DID NOT SO REFUSE, YOU WERE OBLIGATED TO COMPLETE DELIVERY IN ACCORDANCE WITH THE TERMS OF THE CONTRACT. NOWHERE IN THE AGREEMENT IS THERE ANY REVISION SETTING FORTH A LIMITATION AS TO THE TIME IN WHICH THE INSPECTION SERVICES ARE TO BE FURNISHED. CONSEQUENTLY, THE CONTRACT IS TO BE CONSTRUED AS REQUIRING THE PERFORMANCE OF SUCH SERVICES WITHIN A REASONABLE TIME. WHAT IS A REASONABLE TIME DEPENDS, OF COURSE, UPON THE FACTS AND CIRCUMSTANCES IN EACH PARTICULAR CASE. IT IS ADMINISTRATIVELY REPORTED AN INSPECTION WAS MADE ON FEBRUARY 13TH (THE SHIPPING DATE SUGGESTED IN YOUR LETTER OF JANUARY 17) WHEN THE QUESTION REGARDING THE FURNISHING OF STRAIGHT SECTIONS OR COILS WAS PRESENTED TO YOUR SUBCONTRACTOR, WHO WAS REQUESTED TO CLEAR THE MATTER THROUGH THE CONTRACTING OFFICER. IT IS FURTHER REPORTED THAT THE SUBCONTRACTOR NOTIFIED THE INSPECTOR BY TELEGRAM OF FEBRUARY 25TH THAT THE SHIPMENT WAS READY FOR REINSPECTION. UPON HIS ARRIVAL AT THE PLANT THE INSPECTOR DISCOVERED THAT THE REQUESTED CLARIFICATION HAD NOT BEEN RECEIVED. THE INSPECTOR RETURNED TO THE PLANT ON MARCH 6 AND AUTHORIZED RELEASE OF THE SHIPMENT. IN HIS FINDINGS OF JULY 16, 1953, THE SUCCESSOR CONTRACTING OFFICER HAS STATED THAT THE INSPECTION WAS PERFORMED WITHIN A REASONABLE TIME. UNDER PARAGRAPH 12 OF GENERAL PROVISIONS OF THE CONTRACT SUCH FINDINGS OF FACT MUST BE ACCEPTED AS FINAL AND CONCLUSIVE, IN THE ABSENCE OF AN APPEAL TO THE HEAD OF THE DEPARTMENT CONCERNED. CONSEQUENTLY, THE GOVERNMENT MAY NOT BE CHARGED WITH THE INCREASED COSTS BECAUSE OF ALLEGED DELAY IN INSPECTION. FURTHERMORE, THE CONTRACT HERE CONTAINS NO PROVISION FOR ADJUSTMENT IN PRICES UPON AUTHORIZED CHANGES IN PRICE CEILINGS. IN THE ABSENCE OF ANY SUCH PROVISION, THE GOVERNMENT IS NOT LIABLE FOR ANY INCREASED COSTS TO YOU OF THE CONTRACT MATERIAL WHICH MAY HAVE BEEN EFFECTED BY ACTION OF THE OFFICE OF PRICE STABILIZATION, SINCE SUCH AN AUTHORIZED CHANGE CONSTITUTED AN ACT BY THE GOVERNMENT IN ITS SOVEREIGN CAPACITY APPLICABLE TO ALL CONTRACTORS, PUBLIC AND PRIVATE ALIKE. SEE PIGGLY WIGGLY CORPORATION V. UNITED STATES, 112 C.CLS. 391, INVOLVING A SIMILAR SITUATION.

FINALLY, IT IS A SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AS WRITTEN AND THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR TO ENTITLE A CONTRACTOR TO ADDITIONAL COMPENSATION, UNLESS SO SPECIFICALLY PROVIDED IN THE CONTRACT. COLUMBUS RAILWAY, POWER AND LIGHT COMPANY V. COLUMBUS, 249 U.S. 399; PENN BRIDGE COMPANY V. UNITED STATES, 59 C.CLS. 892; AND DAY V. UNITED STATES, 245 U.S. 159.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF YOUR CLAIM IS SUSTAINED.