B-155380, NOV. 9, 1964

B-155380: Nov 9, 1964

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TO THE HONORABLE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO LETTER DATED OCTOBER 12. WAS AWARDED TO BACHNER AS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 1-64-4. THE AWARD WAS BASED ON PROPOSAL NO. 1. ONE OF WHICH WAS ITEM A-1. THE AWARD WAS MADE ON THE SIX BASIC ITEMS. 020.29 COVERS THE INSTALLATION OF A FIREPLACE WHICH HE WAS REQUIRED TO INSTALL. WHICH HE CONTENDS WAS AN ALTERNATE ITEM THAT WAS NOT INCLUDED IN THE CONTRACT. THIS CONTENTION IS BASED ON THE FACT THAT SHEET 2 OF PLAN 103A USED WITH THE INVITATION SHOWS NEXT TO AN OUTLINE OF A FIREPLACE IN THE LIVING ROOM OF THE DWELLING THIS NOTATION: " "ALTERNATE" W/PREFAB. FIREPLACE "UNI-BILT" OR EQUAL" BACHNER ALSO CONTENDS THAT NO PROVISION WAS MADE IN THE BID DOCUMENTS FOR QUOTING ON ALTERNATE ITEMS AND THAT IF IT WAS THE INTENT OF THE GOVERNMENT THAT A FIREPLACE BE INCLUDED UNDER THE SPECIFICATION RELATING TO HEATING.

B-155380, NOV. 9, 1964

TO THE HONORABLE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER DATED OCTOBER 12, 1964, FROM THE ASSISTANT SECRETARY FOR ADMINISTRATION, REQUESTING OUR DECISION REGARDING THE PROPRIETY OF PAYMENT OF A CLAIM FROM THE BACHNER COMPANY FOR AN INCREASE IN THE PRICE FOR WORK PERFORMED FOR THE FOREST SERVICE UNDER CONTRACT NO. 01-43.

THE CONTRACT, COVERING THE CONSTRUCTION OF A RANGER HEADQUARTERS AT YAKUTAT, ALASKA, WAS AWARDED TO BACHNER AS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 1-64-4. THE INVITATION SOLICITED BIDS ON THREE PROPOSALS, AND THE AWARD WAS BASED ON PROPOSAL NO. 1. THAT PROPOSAL CONSISTED OF SIX BASIC ITEMS, ONE OF WHICH WAS ITEM A-1, ONE 3-BEDROOM DWELLING, CONVENTIONAL CONSTRUCTION, PLAN 103A, AND ONE ALTERNATE ITEM, ITEM A-7, ONE 3-BEDROOM DWELLING, PREFABRICATED CONSTRUCTION, PLAN 103A. BACHNER BID $37,321 FOR THE SIX BASIC ITEMS, A-1 THROUGH A-6 AND THE SAME AMOUNT FOR BASIC ITEMS A-2 THROUGH A-6 PLUS ALTERNATE ITEM A-7. THE AWARD WAS MADE ON THE SIX BASIC ITEMS.

BACHNER'S CLAIM FOR $1,020.29 COVERS THE INSTALLATION OF A FIREPLACE WHICH HE WAS REQUIRED TO INSTALL, BUT WHICH HE CONTENDS WAS AN ALTERNATE ITEM THAT WAS NOT INCLUDED IN THE CONTRACT. THIS CONTENTION IS BASED ON THE FACT THAT SHEET 2 OF PLAN 103A USED WITH THE INVITATION SHOWS NEXT TO AN OUTLINE OF A FIREPLACE IN THE LIVING ROOM OF THE DWELLING THIS NOTATION:

" "ALTERNATE" W/PREFAB. FIREPLACE

"UNI-BILT" OR EQUAL"

BACHNER ALSO CONTENDS THAT NO PROVISION WAS MADE IN THE BID DOCUMENTS FOR QUOTING ON ALTERNATE ITEMS AND THAT IF IT WAS THE INTENT OF THE GOVERNMENT THAT A FIREPLACE BE INCLUDED UNDER THE SPECIFICATION RELATING TO HEATING, THE WORD "ALTERNATE" SHOULD NOT HAVE APPEARED ANYWHERE IN THE BID DOCUMENTS. BACHNER CITES A SIMILAR PROCUREMENT AT CORDOVA, ALASKA, IN WHICH THE SAME PLAN WAS USED BUT SPECIFIC FIREPLACE ALTERNATE ADDITIVES WERE REQUESTED.

THE CONTRACTOR'S CLAIM WAS REJECTED BY THE CONTRACTING OFFICER, AND THE CONTRACTOR HAS APPEALED TO YOU PURSUANT TO THE DISPUTES CLAUSE OF THE CONTRACT. SINCE IT IS YOUR VIEW THAT THERE IS NO DISPUTE BETWEEN THE CONTRACTOR AND THE FOREST SERVICE AS TO FACTS, THE CASE HAS BEEN SUBMITTED DIRECTLY TO OUR OFFICE FOR DECISION ON THE LEGAL ISSUE OF INTERPRETATION OF THE CONTRACT RATHER THAN TO YOUR BOARD OF CONTRACT APPEALS.

THE CONTRACTING OFFICER'S DECISION WAS THAT, NOTWITHSTANDING THE NOTATION ON THE PLAN, THE FIREPLACE IS REQUIRED BECAUSE (1) IT IS MENTIONED IN THE SPECIFICATIONS, (2) THE CONTRACT PROVIDES THAT ANYTHING MENTIONED IN THE SPECIFICATIONS PREVAILS OVER THE PLAN, AND (3) HAD THE GOVERNMENT CONSIDERED THE FIREPLACE AS AN ALTERNATE ITEM, THE GOVERNMENT WOULD HAVE LISTED THE ITEM ON THE BID SCHEDULE AS AN ALTERNATE ITEM.

REGARDING PLAN NO. 103A, THE CONTRACTING OFFICER STATES THAT IT IS A STANDARD PLAN THAT IS USED WHENEVER A DWELLING OF THE SIZE AND TYPE INVOLVED IN THIS CONTRACT IS BUILT. THE PLAN WAS USED FOR THE DWELLING CONSTRUCTED AT CORDOVA IN 1961, BUT THE FIREPLACE WAS A SEPARATE ITEM UNDER THE CORDOVA CONTRACT. IT IS FURTHER STATED THAT HAD IT BEEN THE GOVERNMENT'S INTENT TO HAVE THE FIREPLACE AT YAKUTAT AS AN ALTERNATE ITEM, THE BID SCHEDULE WOULD HAVE SHOWN ITEM A-1 AS THE DWELLING LESS FIREPLACE AND ITEM A-1A AS ONE PREFABRICATED METAL FIREPLACE WITH FACTORY BUILT FLUE. ALSO, THE CONTRACTING OFFICER HAS CALLED ATTENTION TO THE FACT THAT SHEET 3 OF PLAN 103A SHOWS TWO PREFABRICATED FLUES EXTENDING THROUGH THE ROOF OF THE DWELLING.

THE HEADING ON THE BID SCHEDULE OF THE CONTRACT READS AS FOLLOWS:

"ITEM A--- CONSTRUCTION AT YAKUTAT ADMINISTRATIVE SITE, ONE 3 BEDROOM SINGLE-STORY FRAME CONSTRUCTION TYPE DWELLING, INCLUDING ELECTRICAL, HEATING AND PLUMBING WITH ATTACHED GARAGE ON A 25 FT. BY 58 FT. CONCRETE FOUNDATION WITH WATER AND SEWER LINES STUBBED OUT FIVE FEET FROM BUILDING, DRILL AND CASE ONE WATER WELL, WATER PRESSURE SYTEM, SEWER SYSTEM, ELECTRICAL, POWER DISTRIBUTION SERVICE, CLEARING, DRAINAGE, AND GRADING 200 LINEAR FEET OF ROADWAY AND 110 FT. BY 110 FT. OF BUILDING LOT AREA, LESS AREA OF THE DWELLING IN STRICT ACCORDANCE WITH THE SPECIFICATIONS AND THE FOLLOWING PLANS: PLAN 103A, YAKUTAT ADMINISTRATIVE SITE DEVELOPMENT PLAN APPROVED OCTOBER 29, 1963 AND SITE DEVELOPMENT LAYOUT AND DETAILS, YAKUTAT ADMINISTRATIVE SITE. SHEETS 1, 2, AND 3 APPROVED OCTOBER 31, 1963.'

PARAGRAPH 2 OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACT), STANDARD FORM 23-A, WHICH WERE INCORPORATED IN THE CONTRACT, CONTAINS THE FOLLOWING LANGUAGE: "2. SPECIFICATIONS AND DRAWINGS

THE CONTRACTOR SHALL KEEP ON THE WORK A COPY OF THE DRAWINGS AND SPECIFICATIONS AND SHALL AT ALL TIMES GIVE THE CONTRACTING OFFICER ACCESS THERETO. 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 OR MENTIONED IN BOTH. IN CASE OF DIFFERENCE BETWEEN DRAWINGS AND SPECIFICATIONS, THE SPECIFICATIONS SHALL GOVERN. IN CASE OF DISCREPANCY EITHER IN THE FIGURES, IN THE DRAWINGS, OR IN THE SPECIFICATIONS, THE MATTER SHALL BE PROMPTLY SUBMITTED TO THE CONTRACTING OFFICER, WHO SHALL PROMPTLY MAKE A DETERMINATION IN WRITING.'

SECTION 13 OF THE SPECIFICATIONS RELATING TO HEATING AND VENTILATING OF THE STRUCTURE PROVIDES, IN PART, AS FOLLOWS:

"13-01. SCOPE THE WORK COVERED BY THIS SECTION OF THE SPECIFICATIONS CONSISTS OF FURNISHING ALL PLANT, LABOR, EQUIPMENT, APPLIANCES AND MATERIALS AND IN PERFORMING ALL OPERATIONS IN CONNECTION WITH THE INSTALLATION OF HEATING AND VENTILATING EQUIPMENT, COMPLETE, IN STRICT ACCORDANCE WITH THIS SECTION OF THE SPECIFICATIONS AND SUBJECT TO THE PROVISIONS AND REQUIREMENTS OF THE CONTRACT.

WORK INCLUDED: HEATING UNITS, DISTRIBUTION MEANS, FUEL SUPPLY, VENTS, FACTORY-BUILT CHIMNEYS, MECHANICAL AND ELECTRICAL CONTROLS AND ALL CONNECTIONS REQUIRED TO PUT THE HEATING PLANT IN OPERATION.

WORK NOT INCLUDED: KITCHEN AND BATHROOM EXHAUST FANS SHOWN ON THE PLANS AND SPECIFIED IN SECTION 14--- ELECTRICAL WORK.' "13-05. FIREPLACE

A. PREFABRICATED FIREPLACE AND FLUE SHALL CONSIST OF AN INTERMEDIATE AND EXTERIOR CHIMNEY HOUSING AND A FIREPLACE HAVING AN APPROXIMATE DIMENSION OF 38 INCHES IN WIDTH; 24 INCHES IN DEPTH, WITH HIGH TEMPERATURE CERAMIC FIREBOX, CANTILEVERED HEARTH, FIREPLACE GRATE, AND SCREEN. THE FIREPLACE AND THE CHIMNEY SHALL BEAR THE UNDERWRITERS LABEL OF APPROVAL FOR ZERO CLEARANCE INSTALLATION AGAINST ANY SURFACE REGARDLESS OF WHETHER IT IS COMBUSTIBLE OR NOT. INSTALLATION SHALL BE ACCORDING TO THE MANUFACTURER'S RECOMMENDATIONS. FIREPLACE UNIT TO BE "UNI-BILT" NO. 5-532, OR EQUAL.'

THESE SPECIFICATIONS, STANDING ALONE, WOULD CLEARLY REQUIRE THE INSTALLATION OF A FIREPLACE, AND BUT FOR THE WORD "ALTERNATE" ON SHEET 2 OF PLAN 103A, NO QUESTION WOULD HAVE ARISEN CONCERNING WHETHER THE FIREPLACE IS A BASIC CONTRACT ITEM.

IT IS A RULE OF CONTRACT CONSTRUCTION THAT THE INTENT AND MEANING OF A CONTRACT ARE NOT TO BE DETERMINED BY THE CONSIDERATION OF AN ISOLATED SECTION OR PROVISION THEREOF BUT THAT THE CONTRACT IS TO BE CONSIDERED IN ITS ENTIRETY AND EACH PROVISION IS TO BE CONSTRUED IN ITS RELATION TO OTHER PROVISIONS AND IN THE LIGHT OF THE GENERAL PURPOSES INTENDED TO BE ACCOMPLISHED BY THE CONTRACTING PARTIES. 30 COMP. GEN. 275, 277.

BY THE TERMS OF PARAGRAPH 2 OF THE GENERAL PROVISIONS OF THE CONTRACT, QUOTED ABOVE, THE PARTIES AGREED THAT THE SPECIFICATIONS WOULD BE CONTROLLING IN CIRCUMSTANCES SUCH AS THESE. IT IS THEREFORE OUR CONCLUSION THAT BY THE SPECIFICATIONS, THE CONTRACTOR WAS OBLIGATED TO INSTALL THE FIREPLACE IN THE DWELLING AS PART OF THE BASIC CONTRACT WORK UNDER ITEM NO. A-1. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF HIS CLAIM FOR ADDITIONAL COMPENSATION.

THE FILE WHICH WAS FORWARDED BY THE ASSISTANT SECRETARY IS RETURNED.