B-143703, DEC. 14, 1960

B-143703: Dec 14, 1960

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INC: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3. THE SPECIFICATIONS FOR THE PRODUCT YOU WERE TO FURNISH TO THE GOVERNMENT UNDER CONTRACT 42 (600) 19885 REQUIRED THE USE OF NR. 302A STAINLESS STEEL FOR CERTAIN COMPONENT PARTS. YOU INDICATE THAT THE SUBCONTRACTOR ASSUMED THAT THE PROPERTIES OF NR. 302A STAINLESS STEEL WERE THE SAME OR SIMILAR TO NR. 302 WITH WHICH IT HAD CONSIDERABLE MACHINING EXPERIENCE. IT IS A WELL SETTLED PRINCIPLE 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. THE MATTER OF THE SUBCONTRACTOR'S CLAIM IS ONE OVER WHICH WE HAVE NO JURISDICTION.

B-143703, DEC. 14, 1960

TO KILGORE, INC:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 3, 1960, PRESENTING ON BEHALF OF YOUR SUBCONTRACTOR, APCO FABRICATING COMPANY, A CLAIM FOR COMPENSATION FOR ADDITIONAL EXPENSE INCURRED IN FABRICATING MATERIAL FOR YOU UNDER CONTRACT AF 42 (600) 19885.

THE SPECIFICATIONS FOR THE PRODUCT YOU WERE TO FURNISH TO THE GOVERNMENT UNDER CONTRACT 42 (600) 19885 REQUIRED THE USE OF NR. 302A STAINLESS STEEL FOR CERTAIN COMPONENT PARTS. YOU INDICATE THAT THE SUBCONTRACTOR ASSUMED THAT THE PROPERTIES OF NR. 302A STAINLESS STEEL WERE THE SAME OR SIMILAR TO NR. 302 WITH WHICH IT HAD CONSIDERABLE MACHINING EXPERIENCE. HOWEVER, APPARENTLY BECAUSE OF THE DIFFERENCE IN THE PROPERTIES OF THE TWO METALS, THE SUBCONTRACTOR HAD CONSIDERABLE DIFFICULTY IN MACHINING AND MAINTAINING THE TOLERANCES REQUIRED BY THE SPECIFICATIONS. THIS RESULTED IN THE SUBCONTRACTOR EXPERIENCING ADDITIONAL COSTS THAT IT HAD NOT ORIGINALLY ANTICIPATED.

IT IS A WELL SETTLED PRINCIPLE 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 KELLOGG V. UNITED STATES, 7 WALL. 361; UNITED STATES V. DRISCOLL, 96 U.S. 421; MERRITT V. UNITED STATES, 267 U.S. 338; H. HERFURTH, JR., INC. V. UNITED STATES, 89 CT.CL. 122; PETRIN V. UNITED STATES, 90 CT.CL. 670. THERE BEING NO SUCH PRIVITY OF CONTRACT, THE MATTER OF THE SUBCONTRACTOR'S CLAIM IS ONE OVER WHICH WE HAVE NO JURISDICTION.

FURTHER, THE OBLIGATIONS OF THE UNITED STATES AS FIXED BY CONTRACT CANNOT BE CHANGED BY A SUBSEQUENT AMENDMENT UNLESS A COMPENSATING BENEFIT OR VALUABLE CONSIDERATION PASSES TO THE GOVERNMENT. SEE J. J. PREIS AND CO. V. UNITED STATES, 58 CT.CL. 81, AND VULCANITE CEMENT CO. V. UNITED STATES, 74 CT.CL. 692. THEREFORE, SINCE UNDER THE GOVERNMENT'S CONTRACT WITH YOU IT RECEIVED NO MORE THAN IT WAS ENTITLED TO, THERE WOULD BE NO LEGAL BASIS UPON WHICH TO ADJUST YOUR FIXED-PRICE CONTRACT TO PROVIDE FOR THE SUBCONTRACTOR'S ADDITIONAL EXPENSE.

ACCORDINGLY, THE REQUEST FOR THE ADDITIONAL COMPENSATION MUST BE DENIED.