B-134182, DEC. 4, 1957

B-134182, DEC. 4, 1957

TO TILECRAFTS:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 12, 1957, RELATIVE TO YOUR CLAIM FOR $1,534, REPRESENTING ADDITIONAL COSTS ALLEGED INCURRED AS A SUBCONTRACTOR IN CERTAIN CONSTRUCTION WORK AT THE NAVAL AUXILIARY LANDING FIELD, PORT ISABEL, TEXAS, UNDER CONTRACT NO. NOY 91220, ENTERED INTO ON NOVEMBER 30, 1956, BY THE UNITED STATES OF AMERICA AND THENOSER CONSTRUCTION COMPANY. IN YOUR LETTER YOU STATE THAT YOU MISINTERPRETED THE SPECIFICATIONS AND ERRONEOUSLY QUOTED THE NOSER CONSTRUCTION COMPANY THE PRICE FOR INSTALLING TILE IN ONE MEN'S DORMITORY INSTEAD OF TWO DORMITORIES AS REQUIRED BY THE SPECIFICATIONS; AND THAT THE COMPANY USED THE PRICE QUOTED FOR ONE DORMITORY IN THE COMPUTATION OF ITS BID ON WHICH THE ABOVE-REFERRED TO CONTRACT IS BASED.

YOU ALLEGE THAT SINCE THE PLANS AND SPECIFICATIONS REFERRED TO THE DORMITORY IN THE SINGULAR YOU WERE LEAD TO BELIEVE ONLY ONE DORMITORY WAS REQUIRED WHEN IN FACT TWO DORMITORIES WERE REQUIRED. THE PRIME CONTRACTOR STATED IN HIS LETTER OF OCTOBER 17, 1957, TO THIS OFFICE, THAT TWO DORMITORIES ARE SHOWN ON THE PLOT PLAN, GRADING PLAN, SOIL BORING PLAN, AND UTILITY PLANS. THUS, IT IS APPARENT THAT THE PRIME CONTRACTOR WAS AWARE THAT THE SPECIFICATIONS REQUIRED TWO DORMITORIES AT THE TIME YOU PLACED YOUR BID WITH HIM AND, PRESUMABLY, IF YOU HAD MADE A COMPLETE STUDY OF THE SPECIFICATIONS YOU WOULD HAVE KNOWN THAT TWO DORMITORIES WERE REQUIRED.

IT IS WELL SETTLED THAT CONTRACTS OR AGREEMENTS TO PERFORM WORK OR TO FURNISH SUPPLIES TO PRIME CONTRACTORS ENGAGED IN THE PERFORMANCE OF CONTRACTS WITH THE GOVERNMENT DO NOT RESULT IN PRIVITY OF CONTRACT BETWEEN THE SUBCONTRACTOR AND THE UNITED STATES. SEE H. HERFURTH, JR., INC., V. UNITED STATES, 89 C.CLS. 122; JOSEPH PETRIN, ET AL. V. UNITED STATES, 90 ID. 670; UNITED STATES V. DRISCOLL, 96 U.S. 421; AND MERRITT V. UNITED STATES, 267 ID. 338.

YOU ARE NOT A PARTY TO THE CONTRACT AND HAVE NO RIGHTS AGAINST THE GOVERNMENT THEREUNDER. THE CONSIDERATION PAID BY THE GOVERNMENT UNDER THE CONTRACT APPARENTLY WILL NOT IN ANY WAY BE AFFECTED BY THE AMOUNT THE PRIME CONTRACTOR PAYS TO YOU FOR PERFORMANCE OF THE WORK COVERED BY YOUR SUBCONTRACT. THEREFORE, AND SINCE THE GOVERNMENT'S ONLY OBLIGATION IN THE MATTER IS TO EFFECT PAYMENT AS PROVIDED IN THE PRIME CONTRACT, YOUR REQUEST FOR PAYMENT OF ADDITIONAL COMPENSATION IS FOR CONSIDERATION BY THE PRIME CONTRACTOR RATHER THAN BY THE GOVERNMENT.