B-158558, MAR. 28, 1966

B-158558: Mar 28, 1966

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TO VALLEY PAVING CO.: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1. AN 18 INCH DIAMETER SCALP WILL BE MADE WITH A HOLE NOT LESS THAN 2 INCHES BUT NOT MORE THAN 3 INCHES DEEP. PLANTING WILL BE DONE IN THE DIRT. SINCE THE CONTRACT IS SILENT AS TO ANY SPECIFIC PLANTING DEPTH. IT IS NOW YOUR CONTENTION. THAT ITEM NO. 5 IS CONTROLLING IN THIS RESPECT. EVEN THOUGH IT IS LABELED "SECTION OF PLANTING SPOTS.'. EACH SEEDLING WAS TO BE PLANTED IN A HOLE 2 TO 3 INCHES DEEP. YOUR CLAIM FOR EXTRA PAYMENT IS PREDICATED ON THE GOVERNMENT'S SUBSEQUENT INSTRUCTIONS REQUIRING 8-INCH PLANTING HOLES AS REFLECTIVE OF ITEMS NOS. 6 AND 8 OF THE CONTRACT. ROOTS SHALL BE FULLY EXTENDED BEFORE THE SOIL IS COMPACTED BY HAND.

B-158558, MAR. 28, 1966

TO VALLEY PAVING CO.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 1, 1966, REQUESTING RECONSIDERATION OF THE JANUARY 24, 1966, SETTLEMENT CERTIFICATE THAT DENIED YOUR CLAIM FOR ADDITIONAL PAYMENT OF $556.92 ALLEGEDLY DUE TO COVER EXTRA WORK UNDER CONTRACT NO. 09-99, AWARDED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, FOREST SERVICE, WHICH PROVIDED FOR THE HAND PLANTING OF NURSERY GROWN TREES ON APPROXIMATELY 70 ACRES OF LAND IN THE RIO GRANDE NATIONAL FOREST, COLORADO, AT A TOTAL PRICE OF $2,296.

IN AN EARLIER LETTER DATED NOVEMBER 22, 1965, YOU STATED THAT YOU HAD COMPUTED THE COST OF DIGGING THE HOLES, IN WHICH TO PLANT THE SEEDLINGS, IN ACCORDANCE WITH ITEM NO. 5 OF THE CONTRACT, WHICH STATES:

"5. SELECTION OF PLANTING SPOTS. AN 18 INCH DIAMETER SCALP WILL BE MADE WITH A HOLE NOT LESS THAN 2 INCHES BUT NOT MORE THAN 3 INCHES DEEP. PLANTING WILL BE DONE IN THE DIRT, AVOIDING DECOMPOSED WOOD AND EXCESSIVE ROCKY AREAS. TAKE ADVANTAGE OF SHADED AREAS WHENEVER POSSIBLE.'

SINCE THE CONTRACT IS SILENT AS TO ANY SPECIFIC PLANTING DEPTH, YOU ASSUMED, AND IT IS NOW YOUR CONTENTION, THAT ITEM NO. 5 IS CONTROLLING IN THIS RESPECT, EVEN THOUGH IT IS LABELED "SECTION OF PLANTING SPOTS.' HENCE, EACH SEEDLING WAS TO BE PLANTED IN A HOLE 2 TO 3 INCHES DEEP, AT A TOTAL ESTIMATED COST OF $685.44. YOUR CLAIM FOR EXTRA PAYMENT IS PREDICATED ON THE GOVERNMENT'S SUBSEQUENT INSTRUCTIONS REQUIRING 8-INCH PLANTING HOLES AS REFLECTIVE OF ITEMS NOS. 6 AND 8 OF THE CONTRACT. ITEM NO. 6 AND PART OF NO. 8 STATE THAT:

"6. PLACEMENT OF ROOTS. ROOTS SHALL BE FULLY EXTENDED BEFORE THE SOIL IS COMPACTED BY HAND. ROOTS SHOULD NOT BE TWISTED, TANGLED, OR CURLED AT THE ENDS. THE TREE SHALL BE SET IN THE GROUND WITH THE ROOT COLLAR AT THE GROUND LEVEL.

"8. FIRMNESS. * * * EACH PLANTED TREE SHALL BE SET IN THE GROUND SO THAT A PULL ON THE TIP CANNOT LOOSEN THE TREE.' THE LABOR INVOLVED IN COMPLYING WITH THESE INSTRUCTIONS WAS MORE THAN YOU HAD ORIGINALLY ANTICIPATED AND COST AN ADDITIONAL $556.92 WHICH IS THE AMOUNT OF YOUR CLAIM.

YOUR INTERPRETATION OF THE CONTRACT PRECLUDES SATISFACTORY COMPLIANCE WITH EITHER ITEM NO. 6 OR 8 IN THAT THEY CLEARLY AND LOGICALLY REQUIRE THAT THE SEEDLINGS BE PLANTED AT A DEPTH COMMENSURATE WITH THEIR SIZE AND KIND, WHICH IN ANY CASE WOULD BE DEEPER THAN IN 2 OR 3 INCHES OF LOOSE TOPSOIL. THE FACT THAT YOU DID NOT ACTUALLY FORESEE THIS WAS A WHOLLY UNILATERAL MISTAKE ON YOUR PART AND AFFORDS NO REASON TO CHARGE THE CONTRACTING OFFICER WITH NOTICE THEREOF. UNDER SUCH CIRCUMSTANCES, THERE IS NO BASIS FOR PAYMENT OF ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE. SEE 40 COMP. GEN. 326. THE FACT THAT THE CONTRACTING OFFICER'S REPRESENTATIVE INSTRUCTED YOU TO PLANT THE SEEDLINGS DEEPER THAN YOU HAD PLANNED WAS NOT A CHANGE IN THE SPECIFICATIONS BUT RATHER A MORE SPECIFIC STATEMENT OF YOUR OBLIGATION UNDER THE TERMS OF THE EXISTING CONTRACT AS READ IN ITS ENTIRETY.

IN OUR OPINION THE CONTRACT SPECIFICATIONS WERE SUFFICIENTLY CLEAR TO HAVE ENABLED YOU, AS A CONTRACTOR FAMILIAR WITH ACCEPTED TREE PLANTING PRACTICES, TO HAVE ANTICIPATED THAT A PLANTING DEPTH OF MORE THAN 2 OR 3 INCHES WOULD BE NECESSARY TO INSURE PROPER DEVELOPMENT AND GROWTH OF THE SEEDLINGS, AND TO HAVE COMPUTED YOUR BID ACCORDINGLY.