B-144999, FEB. 24, 1961

B-144999: Feb 24, 1961

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PROVIDED IN PARAGRAPH 15 OF THE TERMS AND CONDITIONS THAT "INSPECTION IS TO BE MADE PRIOR TO SHIPMENT AT CONTRACTOR'S EXPENSE.'. YOU FURNISHED A COPY OF A LETTER IN WHICH THE VETERANS ADMINISTRATION REQUESTED CONTINUOUS INSPECTION DURING PROCESSING AND YOU CONTEND THAT THIS METHOD OF INSPECTION IS SUBSTANTIALLY DIFFERENT FROM YOUR INTERPRETATION OF THE INSPECTION REQUIRED BY THE CONTRACT. IS DEFINED IN THE 1959 EDITION OF WEBSTER'S NEW INTERNATIONAL UNABRIDGED DICTIONARY AS "IN THE TIME OF. DURING THE SEASON OF THE YEAR" WAS FOUND NOT TO MEAN AT SOME PERIOD IN THE TURPENTINE SEASON BUT THROUGHOUT THE SEASON. WE HAVE BEEN FURNISHED NO REASON WHY THE WORD "DURING" SHOULD HAVE A DIFFERENT MEANING IN THE PRESENT CONTRACT THAN IT HAS IN ORDINARY USAGE OR IN THE DEFINITION USED BY THE COURTS.

B-144999, FEB. 24, 1961

TO FRIGID FOOD PRODUCTS, INCORPORATED:

WE REFER TO YOUR LETTERS OF JANUARY 4, 1961, AND FEBRUARY 3, 1961, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION'S SETTLEMENT OF OCTOBER 12, 1960, WHICH DISALLOWED YOUR CLAIM FOR $421 FOR ALLEGED ADDITIONAL INSPECTION COSTS UNDER VETERANS ADMINISTRATION PURCHASE ORDER NO. 60-HI- 40665.

INVITATION FOR BIDS NO. M4-3-61, ISSUED ON APRIL 14, 1960, PROVIDED IN PARAGRAPH 15 OF THE TERMS AND CONDITIONS THAT "INSPECTION IS TO BE MADE PRIOR TO SHIPMENT AT CONTRACTOR'S EXPENSE.' PARAGRAPH 19 OF THE TERMS AND CONDITIONS AMENDED PARAGRAPH 15 "TO INCLUDE THAT INSPECTION OF MINCEMEAT FURNISHED MUST BE MADE DURING THE PROCESS OF MANUFACTURE AS WELL AS ON THE FINISHED PRODUCT.'

YOU CONTEND THAT YOU INTERPRETED THOSE STATEMENTS TO MEAN THAT AN INSPECTOR WOULD "VISIT" YOUR PLANT DURING MANUFACTURE TO INSPECT SANITARY CONDITIONS, MATERIALS AND METHODS. YOU FURNISHED A COPY OF A LETTER IN WHICH THE VETERANS ADMINISTRATION REQUESTED CONTINUOUS INSPECTION DURING PROCESSING AND YOU CONTEND THAT THIS METHOD OF INSPECTION IS SUBSTANTIALLY DIFFERENT FROM YOUR INTERPRETATION OF THE INSPECTION REQUIRED BY THE CONTRACT.

THE WORD "DURING" HAS A WELL UNDERSTOOD MEANING IN ORDINARY USAGE. IMPLIES A DURATION OR CONTINUANCE IN TIME AND, IN FACT, IS DEFINED IN THE 1959 EDITION OF WEBSTER'S NEW INTERNATIONAL UNABRIDGED DICTIONARY AS "IN THE TIME OF; THROUGHOUT THE CONTINUANCE OR COURSE OF.' THE WORD ,DURING" HAS BEEN CONSTRUED AS EQUIVALENT TO "CONTINUOUSLY.' RIDELL V. HARRELL, 12 P. 67, 71 CAL. 254. IN A CONTRACT INVOLVING LABOR AND SERVICES FOR COLLECTING TURPENTINE, THE PHRASE ,DURING THE SEASON OF THE YEAR" WAS FOUND NOT TO MEAN AT SOME PERIOD IN THE TURPENTINE SEASON BUT THROUGHOUT THE SEASON. TAYLOR V. STATE, 53 S.E. 320, 124 GA. 798.

WE HAVE BEEN FURNISHED NO REASON WHY THE WORD "DURING" SHOULD HAVE A DIFFERENT MEANING IN THE PRESENT CONTRACT THAN IT HAS IN ORDINARY USAGE OR IN THE DEFINITION USED BY THE COURTS. CONTINUOUS INSPECTION WAS IN ACCORDANCE WITH THE REQUIREMENT FOR INSPECTION DURING THE PROCESS OF MANUFACTURE AND WE FIND NO BASIS FOR THE ASSUMPTION THAT A MERE VISIT BY AN INSPECTOR AT SOME TIME IN THE MANUFACTURING PROCESS WOULD SATISFY THE TERMS OF THE CONTRACT. WE CANNOT AGREE WITH YOUR CONTENTION THAT THE COSTS OF CONTINUOUS INSPECTION SHOULD BE CONSIDERED "ADDITIONAL INSPECTION COSTS.'

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 12, 1960, WHICH DISALLOWED YOUR CLAIM FOR REIMBURSEMENT FOR INSPECTION COSTS MUST BE AND IS SUSTAINED.