B-141072, NOV. 16, 1959

B-141072: Nov 16, 1959

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED OCTOBER 21. IT APPEARS THAT CHAMPLAIN HAD REQUESTED PITTSBURGH PLATE GLASS COMPANY TO DELIVER GLASS WITHIN TWO TO FOUR WEEKS IN ORDER TO ADHERE TO THE CONSTRUCTION SCHEDULE OF THE PRIME CONTRACTOR BUT IT WAS INFORMED THAT DUE TO THE SCARCITY OF WINDOW GLASS. PITTSBURGH TRANSFERRED THE ORDER TO ITS CANADIAN BRANCH AND CHAMPLAIN WAS INFORMED THAT THE COST WOULD BE INCREASED BY SEVEN PERCENT. THE PRIME CONTRACTOR WAS NOT AWARE THAT CANADIAN GLASS WAS BEING INSTALLED AND APPROXIMATELY $9. 900 IS BEING WITHHELD FROM PAYMENTS DUE UNDER THE CONTRACT. THERE APPEARS TO BE NO BASIS FOR AN EXCEPTION TO THE REQUIREMENT THAT ONLY DOMESTIC GLASS WAS TO BE USED.

B-141072, NOV. 16, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 21, 1959, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING OUR DECISION AS TO WHETHER, UNDER THE CIRCUMSTANCES INDICATED IN THE ENCLOSED REPORT, PAYMENT MAY BE MADE FOR GLASS OF FOREIGN MANUFACTURE INSTALLED UNDER CONTRACT NO. DA-30- 075-ENG-6956 ENTERED INTO WITH ARTHUR VENNERI COMPANY FOR THE CONSTRUCTION OF A HOSPITAL AT PLATTSBURGH AIR FORCE BASE, PLATTSBURGH, NEW YORK.

PURSUANT TO THE PROVISIONS OF THE BUY AMERICAN ACT (41 U.S.C. 10A D), THE CONTRACT CONTAINED A PROVISION THAT THE CONTRACTOR SHOULD USE IN THE PERFORMANCE OF THE WORK ONLY SUPPLIES MANUFACTURED IN THE UNITED STATES. IN THE COURSE OF PERFORMANCE OF ITS SUBCONTRACT, CHAMPLAIN VALLEY PAINT AND GLASS COMPANY INSTALLED CANADIAN WINDOW GLASS IN THE BUILDING, WITHOUT ANY PRIOR AUTHORIZATION.

IT APPEARS THAT CHAMPLAIN HAD REQUESTED PITTSBURGH PLATE GLASS COMPANY TO DELIVER GLASS WITHIN TWO TO FOUR WEEKS IN ORDER TO ADHERE TO THE CONSTRUCTION SCHEDULE OF THE PRIME CONTRACTOR BUT IT WAS INFORMED THAT DUE TO THE SCARCITY OF WINDOW GLASS, THE FACTORY COULD NOT MAKE DELIVERY WITHIN THE REQUIRED TIME. CONSEQUENTLY, PITTSBURGH TRANSFERRED THE ORDER TO ITS CANADIAN BRANCH AND CHAMPLAIN WAS INFORMED THAT THE COST WOULD BE INCREASED BY SEVEN PERCENT. INSOFAR AS THE RECORD SHOWS, THE PRIME CONTRACTOR WAS NOT AWARE THAT CANADIAN GLASS WAS BEING INSTALLED AND APPROXIMATELY $9,900 IS BEING WITHHELD FROM PAYMENTS DUE UNDER THE CONTRACT. THERE APPEARS TO BE NO BASIS FOR AN EXCEPTION TO THE REQUIREMENT THAT ONLY DOMESTIC GLASS WAS TO BE USED. IT IS REPORTED THAT THE APPROXIMATE COST OF THE GLASS INVOLVED IS $1,200 AND THAT THE APPROXIMATE COST OF REMOVING THE CANADIAN GLASS AND REPLACING IT WITH DOMESTIC GLASS IS $9,900.

IT DOES NOT APPEAR FROM THE REPORTED FACTS THAT THE INSTALLATION OF FOREIGN GLASS RATHER THAN DOMESTIC GLASS WAS PROMPTED BY A DESIRE TO SECURE MORE PROFITS SINCE GREATER COSTS WERE INCURRED IN THE PURCHASE OF FOREIGN GLASS. RATHER, IT APPEARS THAT THE SOLE MOTIVE WAS TO ASSURE ADHERENCE TO THE CONSTRUCTION SCHEDULE AND THERE WAS NO INTENT TO VIOLATE THE PROVISIONS OF THE BUY AMERICAN ACT.

IN THE CIRCUMSTANCES, ESPECIALLY THE FACT THAT IT WOULD BE UNDULY HARSH, FROM A MONETARY STANDPOINT, TO REQUIRE THE REMOVAL OF THE FOREIGN GLASS AND THE INSTALLATION OF DOMESTIC GLASS, PAYMENT MAY BE MADE TO THE PRIME CONTRACTOR FOR THE CONTRACT WORK. COMPARE 36 COMP. GEN. 718.