B-128822, SEP. 10, 1956

B-128822, SEP. 10, 1956

TO WERTZ ENGINEERING COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 13, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 6, 1956, WHICH DISALLOWED YOUR CLAIM FOR $750, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE UNDER CONTRACT NO. DA-36-237-SC-54, DATED JUNE 6, 1955, WITH THE DEPARTMENT OF THE ARMY.

THE CONTRACT REQUIRED YOU TO PERFORM ALL WORK FOR THE INSTALLATION OF ELECTRICAL WIRING SYSTEMS AT THE TOBYHANNA SIGNAL DEPOT FOR THE CONSIDERATION OF $23,264.99. DURING PERFORMANCE OF THE WORK IT APPEARS THAT YOU WERE REQUIRED TO REMOVE CERTAIN BUS DUCTS WHICH YOU BELIEVED BECAME YOUR PROPERTY. HOWEVER, THE SIGNAL DEPOT REFUSED TO RELEASE THE BUS DUCTS UPON REMOVAL AND YOU HAVE FILED CLAIM FOR THE ALLEGED FAIR VALUE OF THESE DUCTS.

YOU STATE YOU CANNOT UNDERSTAND OUR DECISION--- THE SETTLEMENT OF JUNE 6, 1956--- IN THIS MATTER AS YOU CAN FIND NOTHING IN THE CONTRACT OR SPECIFICATIONS THAT WOULD INDICATE THAT THE MATERIAL WHICH YOU REMOVED WAS NOT TO BECOME YOUR PROPERTY. YOU IMPLY THAT THERE IS NOTHING IN THE CONTRACT THAT INDICATES YOU SHOULD HAVE REMOVED THE BUS DUCTS AND STORED OR PLACED THEM FOR THE USE OF THE GOVERNMENT. YOU CONTEND THAT IT WAS, AND IS, YOUR CONSIDERED OPINION THAT "REMOVE" MEANS JUST WHAT IT SAYS--- TAKE IT AWAY COMPLETELY.

GENERAL CONDITIONS 8 MADE A PART OF THE CONTRACT PROVIDES AS FOLLOWS:

"GG-8 PROTECTION OF MATERIAL AND WORK. THE CONTRACTOR SHALL AT ALL TIMES PROTECT AND PRESERVE ALL MATERIALS, SUPPLIES AND EQUIPMENT OF EVERY DESCRIPTION (INCLUDING PROPERTY WHICH MAY BE GOVERNMENT-FURNISHED OR OWNED) AND ALL WORK PERFORMED. ALL REASONABLE REQUESTS OF THE CONTRACTING OFFICER TO INCLOSE OR SPECIALLY PROTECT SUCH PROPERTY SHALL BE COMPLIED WITH. IF, AS DETERMINED BY THE CONTRACTING OFFICER, MATERIAL, EQUIPMENT, SUPPLIES AND WORK PERFORMED ARE NOT ADEQUATELY PROTECTED BY THE CONTRACTOR SUCH PROPERTY MAY BE PROTECTED BY THE GOVERNMENT AND THE COST THEREOF MAY BE CHARGED TO THE CONTRACTOR OR DEDUCTED FROM ANY PAYMENTS DUE HIM.'

THERE IS NOTHING IN THE INVITATION OR IN THE CONTRACT EITHER EXPRESSED OR IMPLIED, TO WARRANT YOU IN INTERPRETING AND CONCLUDING THE CONTRACT TO MEAN THAT YOU WERE ENTITLED TO REMOVE FROM THE PREMISES AND APPROPRIATE TO YOUR OWN USE AND BENEFIT ANY MATERIAL MERELY BECAUSE OF THE NECESSITY OF ITS DETACHMENT FROM SOME PART OF THE BUILDINGS IN ORDER TO FURTHER PROCEED WITH THE CONTRACT WORK. ON THE CONTRARY, THE ABOVE-QUOTED LANGUAGE OF THE GENERAL CONDITIONS NOT ONLY PRECLUDES THE INTERJECTION OF TRADE CUSTOM BUT CLEARLY INDICATES THAT YOU WERE CHARGED WITH THE DUTY OF PRESERVING AND PROTECTING ALL GOVERNMENT PROPERTY SO DETACHED AS WELL AS PRESERVING AND PROTECTING THE WORK PERFORMED. IN THE EVENT YOU FAILED TO DO SO, SUCH PROPERTY WOULD BE PROTECTED BY THE GOVERNMENT AND THE COST THEREOF CHARGED TO YOUR ACCOUNT. IT APPEARS FROM THE FOREGOING THAT YOUR INTERPRETATION OF THE CONTRACT PROVISIONS IS NOT WARRANTED.

THE GOVERNMENT HAS RECEIVED IN THE PRESENT CASE ONLY THAT WHICH THE CONTRACT PROVIDED IT SHOULD RECEIVE AND HAVING PAID THE AGREED PRICE THEREFOR, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF AN AMOUNT IN ADDITION THERETO.