B-127376, AUG. 31, 1956

B-127376: Aug 31, 1956

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TO OHIO CHEMICAL AND SURGICAL EQUIPMENT CO.: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6. YOU STATED IN THIS LETTER THAT NO LABOR TIME ESTIMATES HAD BEEN INCLUDED IN THE BID PRICE AND THAT "IF THERE ARE ANY PIPE FITTINGS. THEY ARE TO BE SUPPLIED BY OTHERS.'. YOU HAVE BEEN PAID THE CONTRACT PRICE FOR THE PARTS FURNISHED AND BY THE SETTLEMENT OF JANUARY 17. YOU WERE ALLOWED $187.50. AS YOU WERE ADVISED IN OUR LETTER OF APRIL 24. A FURTHER REPORT RELATIVE TO YOUR CLAIM WAS REQUESTED FROM THE VETERANS ADMINISTRATION. SUCH REPORT NOW RECEIVED STATES THAT THE PARTS FOR WHICH CLAIM IS MADE ARE NORMALLY INCLUDED IN SETS OF PARTS FOR WHICH YOU QUOTED A PRICE OF $2. IT WAS STATED IN THE REPORT THAT AFTER REVIEWING THE FILES OF THE RESIDENT ENGINEER.

B-127376, AUG. 31, 1956

TO OHIO CHEMICAL AND SURGICAL EQUIPMENT CO.:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 6, 1956, REQUESTING REVIEW OF THAT PART OF OUR SETTLEMENT DATED JANUARY 17, 1956, WHICH DISALLOWED $783.73 OF THE AMOUNT CLAIMED FOR ALLEGED ADDITIONAL PARTS FURNISHED IN CONNECTION WITH THE PERFORMANCE OF CONTRACT NO. V5236P-37, DATED OCTOBER 1, 1954.

BY INVITATION NO. 55-35, THE VETERANS ADMINISTRATION HOSPITAL, ST. LOUIS, MISSOURI, REQUESTED BIDS FOR PARTS REQUIRED TO CONVERT CERTAIN RAPID PRESSURE INSTRUMENT STERILIZERS TO AUTOMATIC STERITROL OPERATION. LETTER OF SEPTEMBER 9, 1954, YOU OFFERED TO FURNISH THE PARTS FOR $2,090. YOU STATED IN THIS LETTER THAT NO LABOR TIME ESTIMATES HAD BEEN INCLUDED IN THE BID PRICE AND THAT "IF THERE ARE ANY PIPE FITTINGS, SUCH AS NIPPLES, ELBOWS, TEES OR UNIONS NEEDED, THEY ARE TO BE SUPPLIED BY OTHERS.' ALSO, YOU STATED THAT ANY SUPERVISORY ASSISTANCE WOULD BE SUPPLIED BY YOU AT A COST OF $7.50 PER HOUR. YOU HAVE BEEN PAID THE CONTRACT PRICE FOR THE PARTS FURNISHED AND BY THE SETTLEMENT OF JANUARY 17, 1956, YOU WERE ALLOWED $187.50, THE AMOUNT CLAIMED FOR THE SUPERVISORY SERVICES.

AS YOU WERE ADVISED IN OUR LETTER OF APRIL 24, 1956, A FURTHER REPORT RELATIVE TO YOUR CLAIM WAS REQUESTED FROM THE VETERANS ADMINISTRATION. SUCH REPORT NOW RECEIVED STATES THAT THE PARTS FOR WHICH CLAIM IS MADE ARE NORMALLY INCLUDED IN SETS OF PARTS FOR WHICH YOU QUOTED A PRICE OF $2,090. ALSO, IT WAS STATED IN THE REPORT THAT AFTER REVIEWING THE FILES OF THE RESIDENT ENGINEER, THE STATION FISCAL DIVISION, THE STATION SUPPLY DIVISION, AS WELL AS INTERVIEWING MR. E. B. WRIGHT, THE REPRESENTATIVE OF THE OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY, WHO CHECKED IN THE MATERIAL AND SUPERVISED THE CONVERSION OF THE STERILIZERS FROM MANUAL CONTROL TO AUTOMATIC CONTROL, THE FOLLOWING COMMENT WAS OFFERED:

"/1) DUE TO THE FACT THAT MR. WRIGHT WAS NOT TECHNICALLY ABLE TO ASSEMBLE AND USE THE PARTS CONTRACTED FOR AND FURNISHED BY THE COMPANY IN THE ORIGINAL SHIPMENT OF CONVERSION PARTS, HE DID REQUEST THE OHIO CHEMICAL AND SURGICAL EQUIPMENT COMPANY TO SHIP THE PARTS AS LISTED ON SERVICE ORDER REPORT NO. S 07672, ON OR ABOUT MARCH 17, 1955. THE PARTS WERE APPARENTLY DELIVERED TO MR. WRIGHT ON APRIL 25, 1955. THE SECOND SHIPMENT WOULD CAUSE A DUPLICATION OF THE PARTS INASMUCH AS THERE WAS AN OVERAGE OF FOUR 3/8 INCH NEW SOLENOID VALVES, TWO 1/2 INCH NEW SOLENOID VALVES, FOUR 1/2 INCHES BY 3/8 INCH NEW EJECTORS, THREE 1/2 INCH NEW CHECK VALVES, ALSO THREE 1/2 INCH USED STEAM TRAPS AND THREE USED MANUAL CONTROL EJECTOR LINES. THESE ITEMS WERE ABANDONED BY THE CONTRACTOR AND NOW ARE IN THE CUSTODY OF THE STATION SUPPLY OFFICER.'

ALSO, THE RECORD SHOWS THAT IN CONNECTION WITH THE CONVERSION OF THE STERILIZERS, THE GOVERNMENT FURNISHED ELBOWS, TEES, UNIONS AND NIPPLES WITHOUT CHARGE TO YOU, IN ACCORDANCE WITH YOUR LETTER OF SEPTEMBER 9, 1954.

THUS, IT APPEARS THAT BY FURNISHING THE PARTS INVOLVED YOU WERE DOING NOTHING MORE THAN WAS REQUIRED BY THE CONTRACT. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT INTERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO ENTITLE A CONTRACTOR TO COMPENSATION IN ADDITION TO THAT PROVIDED IN THE CONTRACT. COLUMBUS RY. POWER AND LIGHT COMPANY V. COLUMBUS, 249 U.S. 399, 412; BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503, 511; 19 COMP. GEN. 903, AND CASES THERE CITED. SINCE THE CONTRACT CONTAINED NO PROVISION FOR ADDITIONAL COMPENSATION IN CASE OF INCREASED COST OF PERFORMANCE, YOU WERE BOUND TO PERFORM THE CONTRACT IN ACCORDANCE WITH ITS TERMS AND AT THE PRICES STIPULATED. YOU HAVE BEEN PAID THE FULL CONTRACT PRICE FOR THE PARTS FURNISHED, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH PRICES.