B-159194, JUL. 13, 1966

B-159194: Jul 13, 1966

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ON THE GROUNDS THAT CERTAIN INSTRUCTIONS GIVEN THE CONTRACTOR WERE CONTRARY TO THE TERMS OF THE CONTRACT. THE SUBJECT CONTRACT WHICH PROVIDED FOR MATTRESS REHABILITATION AND CLEANING AT FORT LEONARD WOOD AND WHITEMAN AIR FORCE BASE WAS AWARDED ON DECEMBER 3. ITS LOW BID WAS ACCORDINGLY PREDICATED UPON BEING ABLE TO PROVIDE THE SERVICE AT THE SITE OF USE. MARTINOUS WAS INFORMED THAT THE SERVICES WOULD HAVE TO BE PERFORMED AT ITS PLANT. THAT THE ELECTION WAS HIS. THE LAW APPEARS TO BE WELL ESTABLISHED THAT ANY AMBIGUITY IN A CONTRACT IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY. IF THE CONTRACT REMAINS IN EXISTENCE THE AMBIGUITY WILL BE CONSTRUED AGAINST THE GOVERNMENT. THERE ARE NO FACILITIES AVAILABLE EITHER AT FORT LEONARD WOOD OR WHITEMAN AIR FORCE BASE FOR PERFORMANCE OF THE REQUIRED SERVICES.'.

B-159194, JUL. 13, 1966

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

WE REFER TO LETTER DATED JUNE 20, 1966, FROM YOUR GENERAL COUNSEL, RELATIVE TO THE REQUEST OF MR. SAM F. HAMRA, JR., 1988B SOUTH GLENSTONE AVENUE, SPRINGFIELD, MISSOURI, THAT HIS CLIENT, THE MARTINOUS MATTRESS COMPANY, BE RELIEVED OF ITS OBLIGATION UNDER CONTRACT NO. GS-06S-9270, ON THE GROUNDS THAT CERTAIN INSTRUCTIONS GIVEN THE CONTRACTOR WERE CONTRARY TO THE TERMS OF THE CONTRACT.

THE SUBJECT CONTRACT WHICH PROVIDED FOR MATTRESS REHABILITATION AND CLEANING AT FORT LEONARD WOOD AND WHITEMAN AIR FORCE BASE WAS AWARDED ON DECEMBER 3, 1965, AND CONTAINED THE FOLLOWING STATEMENT UNDER THE SECTION ENTITLED SPECIFICATIONS:

"TYPE I SERVICE. PER MILITARY STANDARD 653A, DATED MARCH 2, 1960.

"MATTRESSES SHALL BE SURFACE CLEANED, STERILIZED AND REPAIRED BY THE CONTRACTOR EITHER AT THE SITE OF USE (CAMP) BY A MOBILE CLEANING UNIT OR AT THE CONTRACTOR'S PLANT.'

ITEM NO. 24 OF THE CONTRACT PROVISIONS PROVIDED THAT,"SUCCESSFUL BIDDERS SHALL BE REQUIRED TO PROVIDE PICKUP AND DELIVERY SERVICES, OR PERFORM WORK AT SITE (CAMP) * * *.'

MARTINOUS INTERPRETED THESE PROVISIONS TO MEAN THAT THE MATTRESSES COULD BE CLEANED AND REPAIRED EITHER AT ITS PLANT, OR IN THE FIELD, AND THAT THE CHOICE WOULD BE ENTIRELY THEIRS. ITS LOW BID WAS ACCORDINGLY PREDICATED UPON BEING ABLE TO PROVIDE THE SERVICE AT THE SITE OF USE. HOWEVER, ON FEBRUARY 2, 1966, MARTINOUS WAS INFORMED THAT THE SERVICES WOULD HAVE TO BE PERFORMED AT ITS PLANT.

THE FIRST OF THE ABOVE-QUOTED PROVISIONS MUST BE INTERPRETED TO MEAN THAT THE CONTRACTOR HAD A CHOICE OF PERFORMANCE SITES, AND THAT THE ELECTION WAS HIS, BUT THE LANGUAGE OF THE SECOND PROVISION MAY BE REASONABLY CONSTRUED TO MEAN THAT THE GOVERNMENT RESERVED THE RIGHT TO MAKE THAT CHOICE ITSELF.

THE LAW APPEARS TO BE WELL ESTABLISHED THAT ANY AMBIGUITY IN A CONTRACT IS TO BE CONSTRUED AGAINST THE PARTY WHO CREATED THE AMBIGUITY. WILLISTON, CONTRACTS, SECTIONS 37 AND 621; WUNDERLICH CONTRACTING COMPANY V. UNITED STATES, 143 CT.CL. 876; AND 16 COMP. GEN. 569. AS SUGGESTED IN THE LETTER OF JUNE 20, 1966, IF THE CONTRACT REMAINS IN EXISTENCE THE AMBIGUITY WILL BE CONSTRUED AGAINST THE GOVERNMENT, AND THE CONTRACTOR MUST BE ALLOWED TO PERFORM AT THE SITE OF USE. HOWEVER, THIS WOULD ULTIMATELY LEAD TO A BREACH OF THE CONTRACT BY THE GOVERNMENT BECAUSE, AS STATED IN THAT LETTER,"AT THE PRESENT TIME, THERE ARE NO FACILITIES AVAILABLE EITHER AT FORT LEONARD WOOD OR WHITEMAN AIR FORCE BASE FOR PERFORMANCE OF THE REQUIRED SERVICES.'

WE THEREFORE CONCUR IN THE GENERAL COUNSEL'S RECOMMENDATION THAT IT WOULD BE IN THE BEST INTERESTS OF THE GOVERNMENT TO ACCEPT MR. HAMRA'S OFFER OF A MUTUAL NO-COST CANCELLATION OF THE CONTRACT.