B-151932, JUL. 16, 1963

B-151932, JUL. 16, 1963

TO OLIVER AND MANER:

WE REFER TO YOUR LETTER OF JUNE 24, 1963, IN WHICH YOU REQUEST THAT WE CONSIDER THE CLAIM OF YOUR CLIENT, THE JOHN G. BUTLER COMPANY, SAVANNAH, GEORGIA, FOR $1,782, FOR FURNISHING 54 EXTRA DOOR LOUVERS TO S. J. CURRY AND COMPANY OF ALBANY, GEORGIA, AS A RESULT OF A DISPUTED INTERPRETATION OF SPECIFICATIONS. S. J. CURRY AND COMPANY WAS THE PRICE CONTRACTOR, DOING CONSTRUCTION AT TURNER AIR FORCE BASE PURSUANT TO CONTRACT NO. DA-09 -133-ENG-3441 AND AT WARNER-ROBINS AIR FORCE BASE PURSUANT TO CONTRACT NO. DA-09-133-ENG-3440.

YOU ALLEGE THAT THE MISINTERPRETATION OF THE SPECIFICATIONS BY YOUR CLIENT WAS CAUSED BY THE GOVERNMENT. YOU STATE THAT WHILE THE SPECIFICATIONS FURNISHED THE PRIME CONTRACTOR BY THE GOVERNMENT PROVIDED THAT THE DOOR LOUVERS SHOULD BE FELT LINED, THE ACCOMPANYING DRAWINGS ON WHICH YOUR CLIENT'S BID TO THE PRIME CONTRACTOR WAS BASED, ORIGINALLY STATED THAT THE LOUVERS WERE TO BE FELT LINED, BUT HAD BEEN REVISED BY STRIKING OUT THAT STATEMENT BEFORE INVITATIONS TO BID WERE MAILED. THE DELETED REQUIREMENT FOR FELT LINED LOUVERS WAS STILL LEGIBLE AND THIS WAS CONSTRUED BY YOUR CLIENT TO MEAN THAT LOUVERS OF A PLAIN TYPE WERE TO BE FURNISHED. YOUR CLIENT SUBSEQUENTLY FURNISHED FELT LINED LOUVERS IN COMPLIANCE WITH THE GOVERNMENT'S DEMAND OF THE PRIME CONTRACTOR, AFTER BEING NOTIFIED BY THE PRIME CONTRACTOR THAT THE WORK HAD TOP DEFENSE PRIORITY AND THAT THE QUESTION OF PAYMENT SHOULD BE RESOLVED LATER. YOU ALLEGE THAT YOUR CLIENT'S SHOP DRAWINGS SHOWING PLAIN LOUVERS WERE APPROVED BY THE RESIDENT ENGINEERS AT THE SITE OF THE WORK, TO WHOM APPROVAL AUTHORITY HAD BEEN DELEGATED BY THE CORPS OF ENGINEERS, SAVANNAH, DISTRICT.

A CLAIM SUBMITTED BY THE PRIME CONTRACTOR TO THE GOVERNMENT FOR THE EXTRA COST FOR FURNISHING FELT LINED LOUVERS INSTEAD OF PLAIN LOUVERS WAS ADMINISTRATIVELY DENIED ON THE GROUND THAT THE ITEMS FURNISHED WERE REQUIRED BY THE SPECIFICATIONS OF THE PRIME CONTRACT. YOU STATE THAT IN DENYING THE CLAIM OF THE PRIME CONTRACTOR THE GOVERNMENT RELIED ON CLAUSE 2 OF THE GENERAL TERMS AND CONDITIONS OF THE PRIME CONTRACTS WHICH PROVIDES THAT ANYTHING MENTIONED IN THE SPECIFICATIONS AND NOT SHOWN ON THE DRAWINGS OR SHOWN ON THE DRAWINGS AND NOT MENTIONED IN THE SPECIFICATIONS SHALL BE OF LIKE EFFECT AS IF SHOWN AND MENTIONED IN BOTH. YOU ASSERT CLAUSE 2 IS NOT APPLICABLE BECAUSE THIS CASE INVOLVES THE EXPRESS DELETION OF A REQUIREMENT RATHER THAN THE OMISSION OF A REQUIREMENT.

WE HAVE REVIEWED YOUR LETTER AND FIND NO PRIVITY OF CONTRACT BETWEEN YOUR CLIENT AND THE GOVERNMENT. CONSEQUENTLY, THERE IS NO BASIS FOR OUR CONSIDERATION OF YOUR CLIENT'S CLAIM. IN REGARD TO PRIVITY IT IS WELL SETTLED THAT CONTRACTS OR AGREEMENTS TO FURNISH SUPPLIES TO PRIME CONTRACTORS ENGAGED IN THE PERFORMANCE OF CONTRACTS WITH THE GOVERNMENT ORDINARILY DO NOT RESULT IN PRIVITY OF CONTRACT BETWEEN THE SUBCONTRACTORS AND THE UNITED STATES. H. HERFURTH, JR., INC. V. UNITED STATES 89 CT.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. IT IS ESTABLISHED THAT UNLESS PRIVITY EXISTS BETWEEN A SUBCONTRACTOR AND THE GOVERNMENT TO SUPPORT AN INDEPENDENT CAUSE OF ACTION BY THE FORMER AGAINST THE LATTER ANY LEGAL RIGHTS OF THE SUBCONTRACTOR MUST BE ASSERTED ON HIS BEHALF BY THE PRIME CONTRACTOR. D. A. SULLIVAN AND SONS, INC. V. UNITED STATES 129 CT.CLS.