B-126618, JAN. 27, 1956

B-126618, JAN. 27, 1956

TO HONORABLE RAYMOND BLATTENBERGER, PUBLIC PRINTER:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 12, 1956, WITH ENCLOSURES, REQUESTING A DECISION WHETHER IN VIEW OF A REVISION IN THE "AMERICAN STANDARD SAFETY CODE FOR ELEVATORS, DUMBWAITERS AND ESCALATORS," CONTRACT NUMBER GP-17932-A AND PURCHASE ORDER NUMBER 14770, DATED APRIL 26, 1955, MAY BE AMENDED TO ALLOW INSTALLATION OF HOISTWAY ACCESS SWITCHES.

THE RECORD REVEALS THAT ON FEBRUARY 28, 1955, THE GOVERNMENT PRINTING OFFICE REQUESTED BIDS TO FURNISH AND INSTALL COMPLETE THE EQUIPMENT NECESSARY FOR AUTOMATIC OPERATION OF ELEVATORS NUMBERED 31, 32 AND 33 LOCATED IN THE GOVERNMENT PRINTING OFFICE ON THE NORTH CAPITOL STREET SIDE OF BUILDING NUMBER 3. AMONG OTHER PROVISIONS, THE SPECIFICATIONS IN THE INVITATION TO BID INCLUDED PARAGRAPH 40 WHICH PROVIDED:

"ALL WORK AND EQUIPMENT INCLUDED IN THESE SPECIFICATIONS SHALL BE IN ACCORDANCE WITH THE ,AMERICAN STANDARD SAFETY CODE FOR ELEVATORS, DUMBWAITERS AND ESCALATORS' OF THE LATEST ISSUE. * * *"

ON MARCH 21, 1955, THE HAUGHTON ELEVATOR COMPANY SUBMITTED ITS BID, NUMBER 65122, FOR THE SUM OF $76,866. BY PURCHASE ORDER NUMBER 14770, DATED APRIL 26, 1955, IT WAS AWARDED THE CONTRACT, IN ACCORDANCE WITH ITS BID.

THE ONLY "AMERICAN STANDARD SAFETY CODE FOR ELEVATORS, DUMBWAITERS AND ESCALATORS" IN EXISTENCE WHEN THE AWARD WAS MADE WAS THE 1937 EDITION AS REPRINTED WITH CERTAIN CHANGES IN APRIL 1942. IN LETTER DATED JANUARY 4, 1956, HAUGHTON ELEVATOR COMPANY ADVISED THE GOVERNMENT PRINTING OFFICE THAT SINCE THE ISSUANCE OF THE PURCHASE ORDER A NEW SAFETY CODE FOR ELEVATORS HAD BEEN PUBLISHED. THE COMPANY EXPLAINED THAT THE NEW CODE REQUIRED A CERTAIN SAFETY DEVICE, KNOWN AS A "HOISTWAY ACCESS SWITCH," AND INQUIRED WHETHER THE GOVERNMENT PRINTING OFFICE DESIRED TO INCLUDE THIS ITEM, AND ALSO TO ELIMINATE FROM THE CAR SWITCH OPERATING PANEL CERTAIN DOOR RELEASE SWITCHES PROHIBITED BY THE NEW CODE BUT INCLUDED IN THE COMPANY'S DRAWING WHICH HAD BEEN APPROVED ON AUGUST 2, 1955. IN THE INTERESTS OF SAFETY, THE GOVERNMENT PRINTING OFFICE PLANT ENGINEER HAS RECOMMENDED THE INSTALLATION OF THE SAFETY SWITCH.

YOU STATE THAT IT WAS YOUR INTENTION THAT THE CONTRACTOR SHOULD QUOTE ON THE INVITATION TO BID ON THE BASIS OF THE SAFETY CODE IN EXISTENCE AT THE TIME THE PURCHASE ORDER WOULD BE ISSUED, AND THAT IT, IS YOUR BELIEF THAT ANY ADDITIONAL COST RESULTING FROM COMPLIANCE WITH THE CHANGED REQUIREMENTS SHOULD BE BORNE BY THE GOVERNMENT.

THE HAUGHTON ELEVATOR COMPANY HAS ADVISED YOUR OFFICE THAT INSTALLATION OF THE HOISTWAY ACCESS SWITCH WILL INVOLVE AN ADDITIONAL COST OF $425 PER ELEVATOR, OR A TOTAL OF $1,275 FOR THE THREE ELEVATORS. BEING DESIROUS OF ADOPTING THE REVISED REQUIREMENTS OF THE SAFETY CODE ISSUED AFTER THE CONTRACT WAS ENTERED INTO, YOU REQUEST OUR DECISION AS TO WHETHER YOU MAY ISSUE A CHANGE ORDER TO THE HAUGHTON ELEVATOR COMPANY FOR THE ADDITIONAL WORK NECESSARY TO OBTAIN THE SAFETY DEVICE AT THE INCREASED PRICE REQUIRED.

PARAGRAPH 40 OF THE INVITATION TO BID INCORPORATED BY REFERENCE THE SPECIFICATIONS OF THE " ,AMERICAN STANDARD SAFETY CODE FOR ELEVATORS, DUMBWAITERS AND ESCALATORS" OF THE LATEST ISSUE.' IN THE ABSENCE OF CLEAR EXPRESSION TO THE CONTRARY, THE WORDS "OF THE LATEST ISSUE," WOULD ORDINARILY BE TAKEN TO RELATE TO THE TIME OF THE BID. HERE THERE IS NO GROUND TO INFER THAT THE CONTRACTOR INTENDED TO BID ON ANY REQUIREMENTS EXCEPT THOSE OF THE OLD CODE; YOUR OFFICE APPARENTLY INTENDED THE OLD CODE TO APPLY; AND YOUR OFFICE APPROVED PLANS PREPARED UNDER THE OLD CODE. THEREFORE, IT DOES NOT APPEAR THAT THE SAFETY CODE ISSUED SUBSEQUENT TO THE AWARD OF THE CONTRACT WAS WITHIN THE CONTEMPLATION OF THE PARTIES, AND EVEN IF THE LANGUAGE OF THE SPECIFICATIONS WERE CONSIDERED TO BE AMBIGUOUS, THE RESPONSIBILITY FOR THE AMBIGUITY WOULD REST UPON THE UNITED STATES AND ACCORDING TO GENERAL CONTRACT PRINCIPLES THE LANGUAGE WOULD BE INTERPRETED AGAINST THE GOVERNMENT AND IN FAVOR OF THE CONTRACTOR. WILLISTON ON CONTRACTS SEC 621 (1936 ED.)

IN THE CIRCUMSTANCES, WE PERCEIVE NO LEGAL OBJECTION TO AMENDMENT OF CONTRACT NUMBER GP-17932-A AND PURCHASE ORDER NUMBER 14770 TO PROVIDE FOR INSTALLATION OF THE HOISTWAY ACCESS SWITCHES AND FOR PAYMENT OF SUCH ADDITIONAL COMPENSATION AS MAY BE DETERMINED BY YOU TO BE PROPER.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE AMENDMENT.