B-155129, DEC. 24, 1964, 44 COMP. GEN. 359

B-155129: Dec 24, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

THE MATTER FALLS WITHIN THE RULE THAT WHEN A GOVERNMENT DRAWN AGREEMENT IS SUSCEPTIBLE OF A CERTAIN CONSTRUCTION AND THE CONTRACTOR REASONABLY SO CONSTRUES IT. THAT INTERPRETATION WILL BE ADOPTED. 1964: FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 8. HAVE A MAXIMUM DIFFERENTIAL BETWEEN OFF AND ON OF 0.1 IN. THE EQUIPMENT FURNISHED WAS TO BE THE MANUFACTURER'S CURRENT PRODUCTION MODEL. SPACES WERE PROVIDED THEREIN WITHIN WHICH BIDDERS WERE TO SHOW THE MANUFACTURER'SNAME. HE WAS REQUIRED TO (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. THE INVITATION PROVIDED: THE SUCCESSFUL BIDDER WILL BE REQUIRED TO SUBMIT SHOP DRAWINGS FOR APPROVAL.

B-155129, DEC. 24, 1964, 44 COMP. GEN. 359

CONTRACTS - SPECIFICATIONS - CHANGES, REVISIONS, ETC. - INCREASED COST LIABILITY AN ADDITIONAL AMOUNT TO COVER THE DIMENSIONAL AND WIRING CHANGES IN FILTER ASSEMBLIES MADE BY THE CONTRACTING OFFICER ON THE DRAWINGS SUBMITTED TO HIM FOR APPROVAL OF THE CHANGES PROPOSED BY THE MANUFACTURER IN ITS STANDARD MODEL TO MEET THE SPECIALIZED SPECIFICATION REQUIREMENTS MAY NOT BE PAID TO THE MANUFACTURER, CONTRACT INTERPRETATION AND CONSTRUCTION, A QUESTION OF LAW FOR RESOLUTION BY THE GENERAL ACCOUNTING OFFICE, OR THE COURTS, AS THE CASE MAY BE, EVIDENCING THE REQUIREMENT OF COMPLIANCE BY THE CONTRACTOR WITH THE DIMENSIONS OF THE REVISED DRAWINGS; HOWEVER, THE CONTRACT MAY BE MODIFIED TO AUTHORIZE AN INCREASE IN UNIT PRICE TO COVER THE COST OF WIRING THE ASSEMBLIES, THE CONTRACTING OFFICER HAVING HAD NOTICE PRIOR TO BID OPENING OF THE CONFLICTING INTERPRETATION BY BIDDERS OF WIRING THE ASSEMBLIES, THE MATTER FALLS WITHIN THE RULE THAT WHEN A GOVERNMENT DRAWN AGREEMENT IS SUSCEPTIBLE OF A CERTAIN CONSTRUCTION AND THE CONTRACTOR REASONABLY SO CONSTRUES IT, THAT INTERPRETATION WILL BE ADOPTED, UNLESS THE PARTIES AFFIRMATIVELY REVEAL OTHERWISE.

TO THE SECRETARY OF AGRICULTURE, DECEMBER 24, 1964:

FURTHER REFERENCE IS MADE TO LETTER DATED SEPTEMBER 8, 1964, FROM THE ACTING ADMINISTRATOR OF THE AGRICULTURAL RESEARCH SERVICE, WITH ENCLOSURES, REQUESTING OUR DECISION WHETHER A BASIS EXISTS FOR PAYMENT TO THE CAMBRIDGE FILTER MANUFACTURING CORPORATION OF THE ADDITIONAL AMOUNTS SET FORTH IN THE ACTING ADMINISTRATOR'S LETTER UNDER THE TERMS OF A CONTRACT ENTERED INTO WITH CAMBRIDGE BY THE AGRICULTURAL RESEARCH SERVICE ON MAY 27, 1964 (INVITATION NO. 114-N-ARS-64), FOR THE FURNISHING OF AUTOMATIC FILTER ASSEMBLIES.

INVITATION NO. 114-N-ARS-64, ISSUED BY THE AGRICULTURAL RESEARCH SERVICE, NORTHERN ADMINISTRATIVE DIVISION, INVITED BIDS TO BE OPEN MAY 26, 1964, FOR FURNISHING 20 "COMPLETE UNITS" OF THE FOLLOWING ITEM:

AUTOMATIC FILTER ASSEMBLIES--- SIZE 2 FT. 6 IN. BY 1 FT. 3 IN. HORIZONTAL, INCLUDING ROLL OF MEDIA WITH EACH UNIT, SHALL BE FABRICATED OF GALVANIZED MATERIAL. STRUCTURAL MEMBERS MUST BE A MINIMUM OF 12 GAGE WITH 9 GAGE WIRE GRID. EACH FILTER ASSEMBLY SHALL INCLUDE AN AUTOMATIC CONTROL SYSTEM FOR CONSTANT STATIC CONTROL, WITH ELECTRIC CONTROL BOX MEDIA RUN OUT SWITCH, SIGNAL LIGHT AND PRESSURE SWITCH WITH ADJUSTING RANGE OF 0.1 IN. W.G. TO 1.1 IN. W.G., AND HAVE A MAXIMUM DIFFERENTIAL BETWEEN OFF AND ON OF 0.1 IN. W.G., TO OPERATE ON 115 VOLT, 60 CYCLE, 1 PHASE ALTERNATING CURRENT.

THE INVITATION PROVIDED, UNDER THE HEADING "SPECIFICATIONS," IN PERTINENT PART AS FOLLOWS:

DUE TO SPACE AVAILABLE THE FILTER ASSEMBLY MUST NOT EXCEED 48 IN. (INCHES) LONG, 30 IN. (INCHES) WIDE AND 6 IN. (INCHES) IN DEPTH INDIRECTION AND AT POINT OF AIR FLOW OF 15 IN. (INCHES) IN DEPTH INCLUDING THE MEDIA COVERS.

THE INVITATION FURTHER PROVIDED THAT THE SPECIFICATIONS REFLECTED THE MINIMUM REQUIREMENTS OF THE GOVERNMENT, BUT THE EQUIPMENT FURNISHED WAS TO BE THE MANUFACTURER'S CURRENT PRODUCTION MODEL. SPACES WERE PROVIDED THEREIN WITHIN WHICH BIDDERS WERE TO SHOW THE MANUFACTURER'SNAME, AS WELL AS THE BRAND NAME AND NUMBER, OF THE PRODUCT BEING OFFERED. IN THIS CONNECTION, THE INVITATION PROVIDED THAT, IF THE BIDDER PROPOSED TO MODIFY A PRODUCT SO AS TO MAKE IT CONFORM TO THE REQUIREMENTS OF THE INVITATION, HE WAS REQUIRED TO (I) INCLUDE IN HIS BID A CLEAR DESCRIPTION OF SUCH PROPOSED MODIFICATIONS AND (II) CLEARLY MARK ANY DESCRIPTIVE MATERIAL TO SHOW THE PROPOSED MODIFICATIONS. ALSO, THE INVITATION PROVIDED:

THE SUCCESSFUL BIDDER WILL BE REQUIRED TO SUBMIT SHOP DRAWINGS FOR APPROVAL. IT IS UNDERSTOOD THAT APPROVAL WILL BE GENERAL ONLY AND WILL NOT BE CONSTRUED TO RELIEVE THE SUCCESSFUL BIDDER FROM THE RESPONSIBILITY FOR PROPER FITTING, DESIGN, PERFORMANCE, AND CONSTRUCTION OF THE WORK OR EQUIPMENT, NOR FROM FURNISHING MATERIALS AND WORK SPECIFIED BY THE CONTRACT.

THE ABSTRACT OF BIDS SHOWS THAT FOUR BIDS WERE RECEIVED IN RESPONSE TO THE INVITATION, NAMELY, THAT OF DORNBACK FURNACE AND FOUNDRY COMPANY, IN THE UNIT-PRICE AMOUNT OF $242, LESS 2 PERCENT DISCOUNT FOR PAYMENT WITHIN 30 DAYS; THAT OF CAMBRIDGE FILTER MANUFACTURING CORPORATION, IN THE UNIT- PRICE AMOUNT OF $322.40; THAT OF THE GORGEN COMPANY, IN THE UNIT-PRICE AMOUNT OF $346; AND THAT OF MECHANICAL PRODUCTS COMPANY, IN WHAT AMOUNTS TO A UNIT PRICE OF $450, LESS 1 PERCENT DISCOUNT FOR PAYMENT WITHIN 10 DAYS.

IN THE STATEMENT AND CERTIFICATE OF AWARD FORM (STANDARD FORM NO. 1036), WHICH WAS PREPARED BY THE CONTRACTING OFFICER IN CONNECTION WITH THE PROCUREMENT UNDER DATE OF MAY 27, 1964, IT IS STATED THAT DORNBACK'S BID WAS REJECTED BECAUSE IT OFFERED A COMPLETELY DIFFERENT TYPE OF AIR FILTER THAN THAT REQUIRED BY THE SPECIFICATIONS AND ONE WHICH DID NOT MEET THE DIMENSIONAL REQUIREMENTS OF THE INVITATION, AND THAT CAMBRIDGE FILTER MANUFACTURING CORPORATION WAS AWARDED THE CONTRACT AS THE NEXT LOW BIDDER "MEETING THE ADVERTISED SPECIFICATIONS.' IN HIS LETTER OF SEPTEMBER 8, 1964, THE ACTING ADMINISTRATOR ADVISES THAT THE AIR FILTER OFFERED BY THE GORGEN COMPANY ALSO FAILED TO MEET SPECIFICATIONS IN THAT IT EXCEEDED "THE 15 INCH DEPTH DIMENSION INCLUDING MEDIA COVERS," AS NOTED IN ITS BID.

IN ITS BID DATED MAY 22, 1964, CAMBRIDGE FILTER MANUFACTURING CORPORATION OFFERED TO FURNISH THE FILTER ASSEMBLY DESCRIBED IN THE INVITATION AT THE UNIT PRICE OF $322.40, OR FOR A TOTAL CONSIDERATION OF $6,448. CAMBRIDGE'S BID SHOWED THAT IT PROPOSED TO FURNISH A FILTER ASSEMBLY OF ITS OWN MANUFACTURE OF THE BRAND NAME "SPECIAL POWERED HORIZONTAL MANU- ROLL," NUMBERED HMR-2-40. IN THE SPACE PROVIDED IN THE BID FORM WITHIN WHICH BIDDERS WERE REQUIRED TO INDICATE IN WHICH PARTICULARS THE EQUIPMENT OR MATERIAL OFFERED TO BE FURNISHED DEVIATED FROM THE SPECIFICATION REQUIREMENTS, CAMBRIDGE WROTE THE WORD "NONE," BUT FOLLOWED IT IMMEDIATELY WITH THE EXPLANATION THAT "OUR STANDARD MODEL WILL BE MODIFIED TO MEET SPECIFICATIONS AS WRITTEN.' THE BID STATED THAT CAMBRIDGE WOULD REQUIRE 60 DAYS WITHIN WHICH TO MAKE DELIVERY.

BY PURCHASE ORDER NO. N-8879-ARS-64, DATED MAY 27, 1964, ISSUED BY THE CONTRACTING OFFICER FOR THE PROCURING ACTIVITY, CAMBRIDGE FILTER MANUFACTURING CORPORATION WAS ADVISED THAT IT HAD BEEN AWARDED THE CONTRACT, AS THE LOWEST RESPONSIBLE BIDDER, AND BY MEMORANDUM OF JUNE 9, 1964, THE CONTRACTOR TRANSMITTED TO THE PROCURING ACTIVITY FIVE COPIES OF ITS DRAWINGS B-1273-C AND 3001715 FOR APPROVAL, AS REQUIRED BY THE TERMS OF THE INVITATION, SUPRA. THE MEMORANDUM STATED:

* * * YOU WILL NOTE THAT WE ARE TAKING THE FIRST OPTION IN THE DEPTH DIMENSION AND NOT EXCEEDING 6 IN. IN DIRECTION AND AT THE POINT OF AIR FLOW INSTEAD OF MEETING THE ALTERNATE DEPTH OF 15 IN. INCLUDING THE MEDIA COVERS.

UPON RECEIPT OF ONE EACH OF THE ABOVE PRINTS MARKED "APPROVED" OR WRITTEN NOTIFICATION OF APPROVAL, WE WILL ADVISE YOU OF A SHIPPING DATE.

BY LETTER OF JULY 2, 1964, THE CONTRACTING OFFICER RETURNED A COPY OF EACH OF THE REFERRED-TO DRAWINGS TO THE CONTRACTOR "WITH CORRECTIONS AS NOTED.' THE REVISIONS THUS MADE TO THE DRAWINGS ARE REFERRED TO AND DESCRIBED IN THE CONTRACTOR'S LETTER OF JULY 15, 1964, TO THE CONTRACTING OFFICER. THE REVISIONS FOR WHICH THE CONTRACTOR CONTENDS IT IS ENTITLED TO BE PAID THE EXTRA AMOUNTS SHOWN, AND THE BASES THEREFOR, ARE SET FORTH IN THE LETTER AS FOLLOWS:

5. IF UNIT IS TO BE COMPLETELY WIRED AT FACTORY, THE NET INCREASE IN PRICE PER UNIT IS $30.00 SINCE SPECIFICATION DID NOT INCLUDE THIS REQUIREMENT. PLEASE ADVISE.

6. * * * IT IS NOTED THAT YOU HAVE MARKED THE 1 FT 9 1/2 IN. DEPTH DIMENSION "15 IN. MIN. SPECS.' HOWEVER, IN OUR TRANSMITTAL OF JUNE 9, 1964, WE INDICATED THAT WE WERE TAKING THE FIRST OPTION IN THE DEPTH DIMENSION BY NOT EXCEEDING 6 IN. AT THE POINT OF AIRFLOW.

IN LINE THREE IN THE SECOND PARAGRAPH UNDER "SPECIFICATIONS" ON PAGE 4 OF 114-N-ARS-64 IT INDICATES "OR 15 IN. (INCHES) IN DEPTH INCLUDING THE MEDIA COVERS.' THE "OR" INDICATES AN OPTION. THE OTHER DIMENSIONS WERE PRECEDED BY "AND.' THEREFORE, SINCE IT REQUIRES SPECIAL ENGINEERING AND CONSTRUCTION, WE ARE NOT ABLE TO CHANGE THIS DIMENSION WITHOUT AN INCREASE IN PRICE OF $25.00 PER UNIT. PLEASE ADVISE.

IN REPLYING TO THE ABOVE LETTER BY LETTER OF AUGUST 10, 1964, THE CONTRACTING OFFICER INFORMED THE CONTRACTOR THAT HE COULD NOT AGREE THAT THE SPECIFICATIONS DID NOT REQUIRE THE FILTER ASSEMBLY UNITS TO BE WIRED AT THE FACTORY AND ALL READY FOR INSTALLATION UPON DELIVERY TO THE LABORATORY. IN SUPPORT OF THIS CONCLUSION, THE CONTRACTING OFFICER POINTED OUT THAT THE FILTER ASSEMBLY, AS DESCRIBED IN THE INVITATION, WAS REQUIRED TO OPERATE ON 115 VOLT, 60 CYCLE, 1 PHASE ALTERNATING CURRENT, AND STATED THAT, IF THE UNIT WAS TO BE OPERABLE ON DELIVERY, IT NECESSARILY WAS REQUIRED TO BE PREWIRED AT THE FACTORY. THE CONTRACTING OFFICER POINTED OUT THAT THE INVITATION SPECIFIED 20 COMPLETE UNITS, STATING THAT "THIS WOULD INCLUDE PRE-WIRING.' MOREOVER, THE CONTRACTOR WAS INFORMED IN THE LETTER THAT THE CONTRACTING OFFICER DID NOT AGREE WITH ITS CONTENTION THAT THE SPECIFICATIONS DID NOT REQUIRE THE FILTER ASSEMBLY TO BE A MINIMUM OF 15 INCHES IN DEPTH INCLUDING MEDIA COVER AT THE POINT OF AIR FLOW. THE CONTRACTING OFFICER STATED THAT, UNDER THE SPECIFICATIONS, THE 15 INCH LIMIT MUST BE HELD TO INCLUDE BOTH MEDIA COVER AND THE 6-INCH DEPTH AT THE POINT OF AIR FLOW. ACCORDINGLY, THE CONTRACTOR WAS REQUESTED TO PROCEED WITH THE MANUFACTURE OF THE FILTER ASSEMBLIES "IN ACCORDANCE WITH THE CONTRACT," AND ADVISED THAT IT WOULD BE PAID THE CONTRACT PRICE THEREFOR UPON DELIVERY. HOWEVER, THE LETTER STATED THAT, IF THE CONTRACTOR FELT THAT IT HAD A JUST CLAIM FOR AN AMOUNT IN ADDITION TO THE CONTRACT PRICE, A SEPARATE INVOICE SHOULD BE SUBMITTED THEREFOR, IN WHICH EVENT THE CASE WOULD BE FORWARDED TO THE GENERAL COUNSEL OF THE AGRICULTURAL RESEARCH SERVICE FOR A DECISION AS TO WHETHER THE CLAIM COULD BE ALLOWED.

UNDER DATE OF AUGUST 12, 1964, THE CONTRACTOR WROTE THE CONTRACTING OFFICER AS FOLLOWS:

* * * WE FEEL * * * THAT THE TWO ITEMS REQUESTED IN YOUR LETTER, NAMELY COMPLETE FACTORY WIRING AND AN OVERALL DEPTH OF 15 IN., ARE NOT ALLOWABLE, EXCEPT AT EXTRA COST FOR THE FOLLOWING REASONS:

1. FACTORY WIRING OF ROLL FILTERS IS VERY UNUSUAL IN THE AIR FILTER INDUSTRY. THE MAIN REASON IS THAT IN MOST LARGE CITIES THE ELECTRICAL UNIONS WILL NOT ALLOW PRE-WIRED UNITS TO BE INSTALLED. I AM ENCLOSING PRICE SHEETS OR WIRING DIAGRAM FROM FOUR OF THE FIVE PAST OR PRESENT MANUFACTURERS OF ROLL FILTERS IN THIS COUNTRY. YOU WILL NOTE THAT IN ALL THESE CASES, FACTORY WIRING IS A SPECIAL OPTIONAL FEATURE OR IS NOT DONE IN ANY CASE. CERTAIN MANUFACTURERS SUCH AS FARR, DO NOT EVEN MOUNT THE CONTROL BOXES ON THE FILTER, BUT SHIP THEM LOOSE. THEREFORE ANY ENGINEER SPECIFYING A ROLL FILTER, IF IT IS TO BE FACTORY WIRED, SPECIFICALLY INCLUDES THIS IN HIS SPECIFICATION. YOUR CONTENTION THAT THE WORDS "TO OPERATE ON 115 VOLT, 60 CYCLE SINGLE PHASE, ALTERNATING CURRENT" MEAN THAT THE UNIT NEED ONLY BE PLUGGED IN IS NOT CONVINCING. IF YOU WERE PURCHASING A FURNACE FOR YOUR HOME YOU WOULD PURCHASE IT TO OPERATE ON THE VOLTAGE WHICH YOU ARE SUPPLIED WITH. HOWEVER, THE FURNACE WOULD NOT COME WITH WIRING INSTALLED TO THE THERMOSTAT AND OTHER PORTIONS OF THE SYSTEM. WE CAN SEE HOW A DIFFERENCE OF OPINION ON THIS WIRING COULD DEVELOP HOWEVER.

2. ON THE DIMENSIONAL QUESTION, WE CANNOT SEE HOW THERE CAN BE ANY DIFFERENCE OF OPINION. YOUR SPECIFICATION IS EVERY CLEAR AND STATES THAT WE MUST MEET YOUR REQUIREMENTS OF NOT EXCEEDING 48 IN. LENGTH,30 IN. WIDTH AND 6 IN. DEPTH IN DIRECTION AND AT THE POINT OF AIR FLOW OR 15 IN. IN DEPTH INCLUDING THE MEDIA COVERS. THIS VERY CLEARLY CALLS FOR MEETING REQUIREMENTS 1 AND 2 AND EITHER 3 OR 4. THERE IS JUST NO WAY THIS CAN BE READ TO REQUIRE THAT ALL FOUR REQUIREMENTS BE MET. IF YOUR ENGINEERING PEOPLE INTENDED THIS, THEY DID NOT STATE THEIR INTENTION AND THEREFORE, WE MUST NOT BE HELD TO REQUIREMENTS THAT WERE NOT IN THE ORIGINAL SPECIFICATION. WE CHOSE TO MEET THE 6 IN. IN DEPTH IN DIRECTION AND AT POINT OF AIR FLOW RATHER THAN THE 15 IN. IN DEPTH INCLUDING THE MEDIA COVERS. IF WE MUST MEET BOTH REQUIREMENTS, THE EXTRA CHARGE IS $25.00 PER UNIT, RATHER THAN THE $30.00 MENTIONED IN YOUR LETTER.

IN MY DISCUSSION WITH MR. THOMSON THE POSSIBILITY OF YOUR REFERRING THIS TO YOUR LEGAL SECTION FOR AN OPINION WAS DISCUSSED. WE WOULD LIKE VERY MUCH TO HAVE THIS DONE. AS MENTIONED ABOVE, WE CAN SEE HOW A DIFFERENCE OF OPINION CAN OCCUR ON THE WIRING QUESTION, BUT CANNOT SEE HOW THERE CAN BE THE SLIGHTEST QUESTION ON THE DIMENSIONAL PROBLEM IF ANYONE LOOKS AT THE SPECIFICATION OBJECTIVELY. NEVERTHELESS, WE WOULD APPRECIATE THE OPINION OF YOUR LEGAL SECTION ON BOTH SECTIONS.

AS AN ALTERNATE PROPOSAL TO GET THESE UNITS UNDER CONSTRUCTION, WE WOULD BE WILLING TO SUBMIT THE WIRING QUESTION TO YOUR GENERAL COUNSEL AFTER DELIVERY OF THE UNITS. ON THE DIMENSIONAL QUESTION, THOUGH YOU WOULD HAVE TO DECIDE TO ACCEPT THE 21 1/2 IN. DEPTH OR INCREASE THE CONTRACT IN THE AMOUNT OF $25.00 PER UNIT FOR US TO CUT IT DOWN TO 15 IN.

SUBMITTED WITH THE ABOVE LETTER IN SUPPORT OF THAT PORTION OF THE CLAIM RELATING TO THE WIRING OF THE UNITS ARE THE FOLLOWING:

(1) CAMBRIDGE FILTER MANUFACTURING CORPORATION'S "CONFIDENTIAL PRICE LIST VERTICAL AUTO-ROLL FILTERS" DATED NOVEMBER 1, 1963, WHICH SETS FORTH VARIOUS PRICES FOR "COMPLETE UNITS," ACCORDING TO HEIGHT AND WIDTH DESIGNATED, AND, UNDER THE HEAD "OPTIONS AND ACCESSORIES," THE FOLLOWING INFORMATION:

FOR FACTORY WIRING IN CONDUIT----------------------------- ADD $50.00

(2) ELECTRO-AIR CLEANER COMPANY'S "PRICE LIST PL-70-B," EFFECTIVE OCTOBER 6, 1961, FOR ,ELECTRO-AIR AUTO-ROLL AUTOMATIC RENEWABLE MEDIA FILTERS," WHICH SETS FORTH VARIOUS PRICES FOR FILTERS, ACCORDING TO HEIGHT AND WIDTH DESIGNATION, AND CONTAINS THE FOLLOWING INFORMATION:

FOR FACTORY WIRING IN CONDUIT---------- ADD $50 PER NET PER SYSTEM. (3) AMERICAN AIR FILTER COMPANY'S "PRICE LIST AF-40-B" FOR "ROLL-O MATIC FILTER MODEL A AUTOMATIC RENEWABLE," ISSUED (ILLEGIBLE), WHICH CONTAINS THE FOLLOWING INFORMATION:

1. EACH FILTER IS TO BE PRICED INDIVIDUALLY ACCORDING TO THE FOLLOWING LIST PRICES WHICH INCLUDE: ONE MEDIA RUN-OUT SWITCH PER FILTER BANK IRRESPECTIVE OF NUMBER OF SECTIONS, INITIAL FILLING OF MEDIA, DRIVE MOTOR/S) AND CONTROL PANEL FOR 110 TO 220 VOLT, 60 CYCLE, SINGLE PHASE CURRENT ONLY. (NOTE: ALL ELECTRICAL WIRING BY OTHERS.)

(4) FARR COMPANY'S DRAWING NO. B-16635, REV. F, WHICH DEPICTS A WIRING DIAGRAM FOR ITS "FILTER AUTOMATIC ROLL-KLEEN TYPE--- V7H5" AND CONTAINS THE FOLLOWING NOTE: 2. WIRING DONE BY OTHERS ARE SHOWN BY BROKEN LINES THUS (----------- -----------) SUGGESTED WIRE SIZE NO. 14 -- DIELECTRIC AND ENCLOSURES SHOULD BE PER LOCAL CODE

SIMILAR INFORMATION TO THAT CONTAINED IN THE ABOVE QUOTE IS SUPPLIED IN FARR COMPANY'S BROCHURE ON "ROLL-KLEEN H-5 AIR FILTERS," A COPY OF WHICH WAS FURNISHED WITH THE BID SUBMITTED BY MECHANICAL PRODUCTS COMPANY--- WHICH PROPOSED TO FURNISH THAT PRODUCT--- UNDER THE INVITATION INVOLVED. IN NOTE 9, THE BROCHURE STATES: "FACTORY ASSEMBLED UNITS DO NOT INCLUDE WIRING.'

IN THE CASE OF EXHIBITS (1) AND (2), ABOVE, ADDITIONAL UNIT CHARGES WERE THUS QUOTED FOR WIRING FILTERS AT THE FACTORY. HOWEVER, THERE WAS NOTHING IN CAMBRIDGE FILTER MANUFACTURING CORPORATION'S BID TO INDICATE THAT THE CONTRACTOR DID NOT INTEND TO FURNISH FILTER ASSEMBLIES WHICH HAD BEEN WIRED AT THE FACTORY FOR THE PRICE QUOTED THEREIN.

THE QUESTION WHETHER THE ABOVE-QUOTED LANGUAGE OF THE SPECIFICATIONS RELATING TO THE MINIMUM DEPTH OF THE FILTER ASSEMBLY REQUIRES THE UNIT TO BE A MINIMUM OF 15 INCHES IN DEPTH, INCLUDING MEDIA COVER, AT THE POINT OF AIR FLOW--- INVOLVING, AS IT DOES, CONTRACT INTERPRETATION AND CONSTRUCTION--- IS A QUESTION OF LAW, THE RESOLUTION OF WHICH IS PROPERLY WITHIN THE JURISDICTION OF OUR OFFICE, OR THE COURTS, AS THE CASE MAY BE, UNDER WELL-ESTABLISHED PRINCIPLES OF LAW. SEE KAYFILED CONSTRUCTION CORP. V. UNITED STATES (C.C.A. 2D CIR., 1960), 278 F.2D 217; ASSOCIATED TRADERS, INC. V. UNITED STATES (1959), 144 CT.CL. 744, 169 F.SUPP. 506, 507; WINGATE CONSTRUCTION COMPANY V. UNITED STATES, COURT OF CLAIMS NO. 394-60, DECIDED JANUARY 24, 1964; 34 COMP. GEN. 565, 567; 39 ID. 668. IN OUR OPINION, THE LANGUAGE IN QUESTION CANNOT REASONABLY BE INTERPRETED IN THE MANNER CONTENDED BY THE CONTRACTOR. THE WORDING "MUST NOT EXCEED * * * 6 IN. (INCHES) IN DEPTH * * * OR 15 IN. (INCHES) IN DEPTH INCLUDING THE MEDIA COVERS" CLEARLY PROHIBITS ANY EXCESS OVER EITHER DIMENSION, AND THE WORK "OR" IN THIS PHRASEOLOGY CANNOT BE READ AS PERMITTING AN EXCESS OVER ONE OR THE OTHER. HENCE, NO LEGAL BASIS EXISTS FOR PAYMENT TO THE CONTRACTOR OF ANY AMOUNT IN ADDITION TO THE CONTRACT PRICE FOR MODIFYING ITS STANDARD FILTER ASSEMBLY UNIT SO THAT IT WILL COMPLY WITH THE SPECIFICATIONS IN THIS RESPECT.

HOWEVER, AS TO THE CONTRACTOR'S CLAIM FOR EXTRA COMPENSATION IF THE UNITS ARE REQUIRED TO BE FURNISHED COMPLETELY WIRED, WE CONCLUDE THAT THE REQUIREMENTS OF THE INVITATION ARE NOT SUFFICIENTLY CLEAR TO SUPPORT THE CONTRACTING OFFICER'S POSITION IN THE CIRCUMSTANCES OF THIS CASE. THE LANGUAGE "TO OPERATE ON 115 VOLTS, 60 CYCLE, 1 PHASE ALTERNATING CURRENT" IS NOT, IN OUR VIEW, EQUIVALENT TO A DEFINITE STATEMENT THAT THE UNITS AS DELIVERED SHALL BE READY TO OPERATE WHEN PLUGGED INTO SUCH A CURRENT SUPPLY, BUT IS INTENDED TO DEFINE A DESIGN REQUIREMENT TO BE MET BY THE SEVERAL ELECTRICAL COMPONENTS--- CONTROL BOX, MEDIA RUN OUT SWITCH, SIGNAL LIGHT AND PRESSURE SWITCH--- REFERRED TO IN THE PRECEDING SENTENCE. EVEN THOUGH IT MAY NOT HAVE OCCURRED TO THE CONTRACTING OFFICER AT THE TIME THE INVITATION WAS ISSUED THAT THERE WAS ANY QUESTION AS TO WHAT WAS INTENDED, HE WAS PUT ON NOTICE UPON THE BID OPENING THAT THERE WAS AN APPARENT DIFFERENCE BETWEEN THE BIDDER'S INTERPRETATIONS. OF THE THREE BIDDERS WHO OFFERED UNITS OF THE TYPE CALLED, FOR ONE FURNISHED DESCRIPTIVE MATERIAL STATING "FACTORY ASSEMBLED UNITS DO NOT INCLUDE WIRING; " THE LITERATURE SUBMITTED BY ANOTHER STIPULATED "FACTORY ASSEMBLED, COMPLETELY WIRED AND "HIGH POTENTIAL" TESTED BEFORE SHIPMENT; " WHILE THE THIRD, WHOSE BID WAS ACCEPTED, SUBMITTED NO DESCRIPTIVE MATERIAL AND MADE NO STATEMENT AS TO WHETHER OR NOT WIRING WAS INCLUDED. IF THE QUESTION HAD BEEN RAISED BEFORE AWARD AND THE CAMBRIDGE COMPANY HAD SHOWN THAT ITS BID PRICE HAD BEEN BASED UPON UNWIRED UNITS WE FEEL THAT IT SHOULD HAVE BEEN PERMITTED TO WITHDRAW ON THE BASIS OF MISTAKE, EVEN IF THE CONTRACTING OFFICER'S INTERPRETATION OF THE INVITATION REQUIREMENT WERE ACCEPTED AS CORRECT. PROCEEDING WITH THE AWARD WITHOUT FURTHER INQUIRY, IN THE FACE OF THE CONFLICTING INTERPRETATIONS OF THE OTHER TWO BIDDERS, THE CONTRACTING OFFICER IN EFFECT ASSUMED THE RISK THAT THE CAMBRIDGE BID WAS NOT INTENDED TO INCLUDE WIRING AND THAT ITS INTERPRETATION WOULD BE FOUND TO BE REASONABLE.

IN THESE CIRCUMSTANCES WE FEEL THAT THE CASE FALLS SQUARELY WITHIN THE RULE THAT "IF SOME SUBSTANTIVE PROVISION OF A GOVERNMENT-DRAWN AGREEMENT IS FAIRLY SUSCEPTIBLE OF A CERTAIN CONSTRUCTION AND THE CONTRACTOR ACTUALLY AND REASONABLY SO CONSTRUES IT, IN THE COURSE OF BIDDING OR PERFORMANCE, THAT IS THE INTERPRETATION WHICH WILL BE ADOPTED--- UNLESS THE PARTIES' INTENTION IS OTHERWISE AFFIRMATIVELY REVEALED.' WPC ENTERPRISES, INC. V. UNITED STATES, (CT.CL.) 323 F.2D 874 (1963), AND CASES THEREIN CITED.

YOU ARE THEREFORE ADVISED THAT THE CONTRACT MAY BE MODIFIED BY CHANGE ORDER OR AMENDMENT DIRECTING THE WIRING TO BE DONE AND INCREASING THE UNIT PRICE BY $30, IF THAT AMOUNT IS DETERMINED TO BE REASONABLE. IF THE CONTRACTOR REFUSES TO PERFORM ON THAT BASIS, ACTION UNDER THE DEFAULT CLAUSE OF THE CONTRACT WOULD APPEAR TO BE IN ORDER.