B-126927, JUN. 8, 1956

B-126927, JUN. 8, 1956

TO THE QUEEN CITY MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 2, 1956, REQUESTING REVIEW OF THAT PORTION OF OUR SETTLEMENT OF OCTOBER 3, 1955, WHICH DISALLOWED $9,860.09 OF YOUR TOTAL CLAIM IN THE AMOUNT OF $11,628.22 IN CONNECTION WITH THE PERFORMANCE OF DEPARTMENT OF ARMY CONTRACT NO. DA 20-113-ORD- 8129, DATED MAY 29, 1952. ALSO, YOU REQUEST A CONFERENCE IN THE MATTER WITH REPRESENTATIVES OF OUR OFFICE FOR THE PURPOSE OF CLARIFYING THE ISSUES AND POSSIBLY AVOIDING LITIGATION.

IT IS OUR ESTABLISHED PRACTICE THAT CLAIMS PRESENTED HERE NECESSARILY MUST BE SETTLED ON THE BASIS OF THE WRITTEN RECORD. YOU ARE FREE, HOWEVER, TO PRESENT ANY ADDITIONAL EVIDENCE OF 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, MONDAY THROUGH FRIDAY, WITH THE UNDERSTANDING THAT THE SUBSTANCE OF ANY MATTERS PRESENTED ORALLY MUST BE REDUCED TO WRITING TO RECEIVE CONSIDERATION.

AS EXAMINATION OF THE CLAIM FILE DISCLOSES THAT YOUR CONTENTIONS ORIGINALLY WERE SET FORTH IN YOUR LETTERS DATED APRIL 12 AND MAY 26, 1954, TO OUR OFFICE WHICH INCLUDED YOUR DETAILED STATEMENTS OF THE ADDITIONAL COSTS IN QUESTION. THESE CONTENTIONS, WHILE FULLY CONSIDERED BY THE ADMINISTRATIVE OFFICE AND OUR OFFICE IN THE SETTLEMENT OF YOUR CLAIM, ARE, WITH SOME AMPLIFICATION, AGAIN PRESENTED IN YOUR LETTER OF APRIL 2, 1956. AS YOU HAVE REQUESTED, YOUR CLAIM HAS BEEN REVIEWED; HOWEVER, FOR REASONS HEREINAFTER SET FORTH, THERE APPEARS TO BE NO PROPER BASIS FOR ALLOWANCE OF ANY AMOUNT IN ADDITION TO THE SUM OF $1,768.13 PAID UNDER THE SETTLEMENT.

YOU HAVE IDENTIFIED YOUR CLAIM FROM THE OUTSET AS COMPRISING CLAIMS NOS. 2, 3, 4, 5, 11, 14, 47, 48 AND 49 AND THESE ITEMS ARE REFLECTED IN THE DISPOSITION OF YOUR CLAIM NUMBERS UNDER THE SETTLEMENT OF OCTOBER 3, 1955. IT APPEARS TO BE YOUR CONTENTION THAT CERTAIN FACTORS WERE OVERLOOKED IN CONSIDERING CLAIMS NOS. 2 THROUGH 11, CONCERNING THE NONAVAILABILITY OF CERTAIN CONTRACT DRAWINGS AT THE TIME YOU PREPARED YOUR BID AND THE LATE ARRIVAL OF THE PILOT MODEL WHICH INCLUDED CURTAINS AND HANGERS NOT MENTIONED IN THE CONTRACT SCHEDULES. A CAREFUL REVIEW HAS BEEN MADE OF THE REPORTED CONDITIONS UNDER WHICH YOUR BID WAS PREPARED. IT IS NOT DENIED THAT THE DETAILED DRAWINGS COVERING THE ITEMS REFLECTED IN CLAIMS NOS. 2, 3, 4, 5 AND 11 WERE NOT SUPPLIED YOU AT THE TIME OF THE BID PREPARATION OR THAT TIMELY AVAILABILITY WAS MADE OF OTHER DRAWINGS SUCH AS REFERRED TO IN PARAGRAPH 1/A) OF SCHEDULE "B" OF THE CONTRACT. THERE IS NO EVIDENCE OF RECORD, HOWEVER, OF YOUR HAVING REQUESTED THE PARTICULAR DRAWINGS, OR ANY OTHER DRAWINGS NOT INITIALLY FURNISHED, PRIOR TO THE SUBMISSION OF YOUR BID. THUS IT MUST BE PRESUMED THAT YOU WERE FULLY ACQUAINTED WITH THE MATTER UPON WHICH YOU PREPARED THE BID PRICE SINCE YOU DID HAVE THE BASIC DRAWINGS IN YOUR POSSESSION AT THE TIME AND OTHERWISE HAD OPPORTUNITY TO INSPECT THE SAMPLE CAB AND NOTE ANY RESERVATION OR EXCEPTION IN YOUR BID. THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO THE GOVERNMENT'S INVITATION WAS UPON YOU. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. YOUR BID WAS SUBMITTED AT YOUR OWN ELECTION AND APPEARED REGULAR ON ITS FACE WITHOUT INDICATION THAT THE PRICES OFFERED BY YOU--- ON THE ITEMS FOR WHICH YOU NOW MAKE CLAIM FOR AN ADDITIONAL AMOUNT- -- WERE NOT SO INTENDED. A CONTRACTOR MAY NOT ESCAPE LIABILITY UNDER A BID, SUCH AS HERE, ACCEPTED IN GOOD FAITH AND WITHOUT NOTICE OF ANY ERROR HE MAY HAVE MADE BY FAILURE TO ASCERTAIN THE FULL REQUIREMENTS OF ALL PERTINENT SPECIFICATIONS. THE RIGHT WHICH VESTED IN THE GOVERNMENT UPON THE ACCEPTANCE OF YOUR BID TO HAVE PERFORMANCE IN STRICT ACCORD WITH THE TERMS THEREOF CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645.

WITH RESPECT TO YOUR CLAIM ITEM NO. 14, IN ADDITION TO THE FACT THAT THE CONTRACT DOES NOT PROVIDE FOR FURNISHING A SAMPLE CAB, IN TELEGRAM OF JULY 7, 1952, YOU STATED "WILL ACCEPT TRANSPORTATION CHARGES M26A1 SAMPLE CAB LIMA TO CINCINNATI ESTIMATED COST APPROXIMATELY EIGHTY DOLLARS AS ARRANGED BY THE QUEEN CITY MFG CO W. E. SARRAN.' THE TELEGRAM WAS ADDRESSED TO R. B. OTTO, CARE OF ORDNANCE TANK AUTOMOTIVE CENTER BEARING THE CAPTION "EWUD113 CTD017 CT. LLQ14 PD FAX CINCINNATI OHIO 7 916A.'

IN THE SETTLEMENT OF OCTOBER 3, 1955, YOUR CLAIM ITEM NO. 47, IN THE ADDITIONAL AMOUNT OF $4,210.71 WAS ALLOWED IN THE AMOUNT OF $1,768.13, THE BALANCE BEING DISALLOWED FOR THE REASONS STATED THEREIN. IN YOUR REQUEST FOR REVIEW YOU HAVE FURNISHED NO ADDITIONAL MATERIAL INFORMATION NOT PREVIOUSLY CONSIDERED AND REFLECTED IN THE ADJUSTMENT MADE AND ALLOWED YOU UNDER THE SETTLEMENT. IT FOLLOWS THAT IN THE REVIEW OF THIS ITEM NO BASIS IS FOUND UPON WHICH A CHANGE IN THE PRIOR ADJUSTMENT MAY BE AUTHORIZED. THIS REASONING IS FOUND EQUALLY APPLICABLE TO THE MATTER REVIEWED WITH REGARD TO YOUR CLAIM ITEM NO. 48.

YOUR CLAIM ITEM NO. 49, COVERING THE DISCOUNT DEDUCTED FROM THE PAYMENT MADE IN CONNECTION WITH CONTRACT MODIFICATION NO. 2, WAS DISALLOWED FOR THE REASONS STATED IN THE SETTLEMENT OF OCTOBER 3, 1955. SINCE THE PAYMENT IN QUESTION WAS MADE WITHIN THE DISCOUNT PERIOD OFFERED, COMPUTED FROM THE DATE OF THE RECEIPT OF THE CORRECT INVOICE, THE AMOUNT OF THE DISCOUNT IN QUESTION PROPERLY WAS DEDUCTED PURSUANT TO THE DISCOUNT PROVISIONS CONTAINED IN THE CONTRACT.

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING, IT MUST BE CONCLUDED THAT NO ADDITIONAL AMOUNT IS DUE YOU UNDER THE ABOVE-CITED CONTRACT, AND THE SETTLEMENT OF OCTOBER 3, 1955, IS SUSTAINED.