B-156602, MAY 17, 1965

B-156602: May 17, 1965

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TO THE HONORABLE SECRETARY OF AGRICULTURE: REFERENCE IS MADE TO LETTER DATED APRIL 21. WAS AWARDED TO MCDANIEL AS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 10-64-35. THE AWARD WAS MADE TO MCDANIEL ON THE BASIS OF THE FIRST PROPOSAL. WHICH HE CONTENDS WERE NOT CONTEMPLATED BY THE CONTRACT. THIS CONTENTION APPARENTLY IS BASED ON THE FACT THAT THE INVITATION FOR BIDS CALLS FOR "CONSTRUCTION OF A 6-UNIT TOILET" AND THE NOMENCLATURE USED ON THE BLUE PRINT DRAWING B-47701. FURNISHED MCDANIEL WAS ENTITLED "STANDARD 6 UNIT FLUSH TOILET WITH DRESSING ROOMS.'. THE CONTRACTOR'S CLAIM WAS REJECTED BY THE CONTRACTING OFFICER. SINCE IT IS YOUR VIEW THAT THERE IS NO DISPUTE BETWEEN THE CONTRACTOR AND THE FOREST SERVICE AS TO FACTS.

B-156602, MAY 17, 1965

TO THE HONORABLE SECRETARY OF AGRICULTURE:

REFERENCE IS MADE TO LETTER DATED APRIL 21, 1965, FROM THE ASSISTANT SECRETARY, REGARDING THE PROPRIETY OF PAYMENT OF A CLAIM BY THE MCDANIEL SUPPLY COMPANY FOR AN INCREASE IN PRICE FOR WORK PERFORMED FOR THE FOREST SERVICE UNDER CONTRACT NO. 14-399.

THE CONTRACT, COVERING THE CONSTRUCTION OF A 6-UNIT TOILET WITH DRESSING ROOMS AT HORSEHEAD LAKE, ARKANSAS, WAS AWARDED TO MCDANIEL AS THE LOW BIDDER UNDER INVITATION FOR BIDS NO. 10-64-35. THE INVITATION SOLICITED BIDS ON TWO PROPOSALS, ITEM 1 - 6-UNIT TOILET WITH DRESSING ROOMS COMPLETE; OR ITEM 1A - 6-UNIT TOILET WITH DRESSING ROOMS EXCLUDING TOILET FIXTURES. THE AWARD WAS MADE TO MCDANIEL ON THE BASIS OF THE FIRST PROPOSAL, ITEM 1 OF THE INVITATION.

MCDANIEL'S CLAIM FOR $1,702.59 COVERS THE MATERIALS AND LABOR REQUIRED IN INSTALLING TWO WATER CLOSETS (WITH ACCESSORIES), TWO URINALS (WITH ACCESSORIES), AND CERTAIN SEWER CONNECTIONS, ETC., WHICH HE DID INSTALL, BUT WHICH HE CONTENDS WERE NOT CONTEMPLATED BY THE CONTRACT. THIS CONTENTION APPARENTLY IS BASED ON THE FACT THAT THE INVITATION FOR BIDS CALLS FOR "CONSTRUCTION OF A 6-UNIT TOILET" AND THE NOMENCLATURE USED ON THE BLUE PRINT DRAWING B-47701, FURNISHED MCDANIEL WAS ENTITLED "STANDARD 6 UNIT FLUSH TOILET WITH DRESSING ROOMS.' ON THE BASIS OF THE FOREGOING THE CONTRACTOR CONTENDS THAT THE CONTRACT REQUIRED ONLY SIX PLUMBING UNITS, RATHER THAN THE TEN UNITS HE ACTUALLY INSTALLED.

THE CONTRACTOR'S CLAIM WAS REJECTED BY THE CONTRACTING OFFICER, AND AND THE CONTRACTOR HAS APPEALED 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 THE NOMENCLATURE--- STANDARD 6 UNIT FLUSH TOILET--- USED IN THE BID INVITATION DOES NOT MEAN JUST SIX PLUMBING FIXTURES, BUT ENCOMPASSES THE FIXTURES SPECIFIED IN DRAWING B- 47701 SHOWING THE LAYOUT OF THE 6-UNIT FLUSH TOILET, AND THE CONTRACTOR WAS TOLD IN ADVANCE THAT THE CONTRACT WOULD REQUIRE SIX FLUSH UNITS, TWO LAVATORIES, AND TWO SHOWER STALLS AS SHOWN IN DRAWING B-47701.

IN OUR EXAMINATION OF THE DOCUMENTS SUBMITTED CONCERNING THE CONTRACTOR'S CLAIM, WE NOTE THAT DRAWING B-47701, WHILE ENTITLED "STANDARD 6 UNIT FLUSH TOILET WITH DRESSING ROOMS," SPECIFICALLY INCLUDES A TABLE SHOWING THE NUMBER OF FIXTURES REQUIRED, IN THE FOLLOWING MANNER:

TABLE FIXTURE TYPE SUPPLY NUMBER WT. EACH TOTAL WT. IN

CONTROL REQUIRED FIX. UNIT FIXTURE UNITS ------------------------------- ---------------------------------- ----- WATER CLOSET FLUSH VALVE

2 10 20 ----------------------------------- ----------------------------- ------ URINAL FLUSH VALVE

4 10 40 --------------------------------- ------------------------------- ------ LAVATORY FAUCET

2 2 4 --------------------------------- --------------------------------- ---- SHOWER VALVE

2 2 4 --------------------------------- ---------------------------------

68 FIXTURE UNITS EQUAL 58 G.P.M. DEMAND TOTAL 68

(REF REPORT OF THE COORDINATING COMMITTEE

FOR A NATIONAL PLUMBING CODE)

IT IS READILY APPARENT FROM THIS TABLE THAT TEN FIXTURES WERE REQUIRED. MOREOVER, EVEN CONCEDING THAT THE NOMENCLATURE REFERRING TO A "6-UNIT TOILET" WAS MISLEADING, PARAGRAPH 2 OF THE GENERAL PROVISIONS (CONSTRUCTION CONTRACT), STANDARD FORM 23-A, WHICH WAS 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

SECTION 9 OF THE SPECIFICATIONS RELATING TO PLUMBING OF THE STRUCTURE, PROVIDES, IN PART, AS FOLLOWS:

"9.00 SCOPE OF WORK--- THE WORK TO BE PERFORMED UNDER THIS SECTION CONSISTS OF FURNISHING ALL MATERIAL, EQUIPMENT, LABOR AND OTHER THINGS NECESSARY FOR THE COMPLETE INSTALLATION OF ALL PLUMBING WORK AS SHOWN ON THE DRAWINGS AND/OR SPECIFIED HEREIN.'

SECTION 9 THEN GOES ON TO SPECIFICALLY SPELL OUT THE INSTALLATION OF WATER CLOSETS, URINALS, LAVATORIES, AND SHOWER FIXTURES, IN COMPLETE DETAIL, AND THESE SPECIFICATIONS EVEN STANDING ALONE, SHOULD DISPEL ANY DOUBT AS TO WHAT FIXTURES WERE REQUIRED TO BE INSTALLED.

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.

EVEN ACCEPTING THAT THE DESCRIPTION OF THE STRUCTURE IN QUESTION COULD HAVE BEEN STATED IN CLEARER TERMS, THE FACT REMAINS THAT 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 THE CONTRACTOR WAS OBLIGATED TO INSTALL THE 10 FIXTURES IN QUESTION AS PART OF THE BASIC CONTRACT WORK UNDER ITEM 1. ACCORDINGLY, THERE IS NO AUTHORITY FOR PAYMENT OF HIS CLAIM FOR ADDITIONAL COMPENSATION.

THE DOCUMENTS AND CORRESPONDENCE FORWARDED BY YOUR OFFICE ARE RETURNED HEREWITH.