B-159384, JUL. 22, 1966

B-159384, JUL. 22, 1966

TO ITT EXPORT CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 26, 1966, REQUESTING RECONSIDERATION OF THE PARTIAL DISALLOWANCE OF YOUR CLAIM FOR $20,978, WHICH REPRESENTS THE AMOUNT ALLEGEDLY DUE YOU FOR SERVICES PERFORMED UNDER CONTRACT NO. FA-WA-4346, THAT INVOLVED THE SUPPLY AND INSTALLATION OF AN AUTOMATIC TELEPHONE SYSTEM AT THE KIMPO AIRPORT CONTROL TOWER, SEOUL, KOREA. THE TWO ITEMS IN QUESTION, WITH THE RATES TO BE PAID, ARE DESCRIBED BELOW.

CHART

UNIT ITEM TITLE QUANTITY PRICE EXTENSION ----- ----- -------- ----- -----

2 TECHNICIAN FIELD SERVICES FOR

INSTALLATION OF EQUIPMENT MAN-DAYS MAN-DAY

THREE MEN FOR A TOTAL OF .... 480 $17 $8,160

3 SUPERVISORY INSTALLATION

FIELD SERVICES, FOR

INSTALLATION OF EQUIPMENT

ONE MAN FOR A TOTAL OF ...... 160 $21 $3,488

ONE MAN-DAY WAS CONTRACTUALLY DEFINED AS "EIGHT (8) HOURS OF WORK IN ONE DAY BY ONE EMPLOYEE OF THE CONTRACTOR.'

THE CONTRACT, ENTERED INTO ON MAY 29, 1963, WAS TO BE ORIGINALLY COMPLETED IN 180 DAYS, OR BY NOVEMBER 23, 1963; HOWEVER, IN OCTOBER 1963, YOU REQUESTED A 60-DAY EXTENSION DUE TO FIELD DIFFICULTIES ENCOUNTERED IN CONNECTION WITH LOCAL KOREAN LABOR. THE EQUIPMENT AND INSTALLATION WERE COMPLETED AND ACCEPTED DURING THE MONTH OF APRIL 1964 BUT DURING THE LATTER PART OF 1964 YOU WERE ADVISED THAT A RETEST WOULD BE REQUIRED. APRIL 16, 1965, THE CONTRACT WAS FINALLY ACCEPTED.

THE RECORD INDICATES THAT ON SEPTEMBER 24, 1965, YOU WERE PAID IN FULL FOR THE EQUIPMENT AND PERSONNEL TRAVEL (ITEMS NOS. 1 AND 4 OF THE CONTRACT) AND THAT YOU FILED A CLAIM FOR ADDITIONAL COMPENSATION WITH THIS OFFICE PURSUANT TO THE CONTRACTING OFFICER'S INSTRUCTION. THE FOLLOWING IS A LIST OF PERSONNEL YOU ASSIGNED TO THE CONTRACT AND THE AMOUNTS ALLEGEDLY DUE UNDER ITEMS NOS. 2 AND 3.

CHART

DAYS

NAME WORKED PER DIEM TOTAL DOLLARS

---- ------- -------- ------------- C. A. HIRSCHBERG 139

$92 $12,788 W. ROQUE 10 76

760 L. A. NORWICH 66 76 5,016 F. STRATTON

17 76 1,292 CHI ILL NAM 66 17 1,122

TOTALS FOR ITEMS NOS. 2 AND 3 $20,978

ON JUNE 26, 1963, YOU SIGNED AN AMENDMENT TO THE CONTRACT WHICH CONTAINED THE FOLLOWING STATEMENT:

"ITEM 2 - TECHNICIAN FIELD SERVICES:

UNDER THE DESCRIPTION, DELETE "THREE (3) MEN FOR A TOTAL OF.'

CHANGE THE QUANTITY, UNIT PRICE AND EXTENSION COLUMNS TO READ AS FOLLOWS:

CHART

QUANTITY UNIT PRICE EXTENSION

EST. TOTAL $17.00 PER NOT TO EXCEED

MAN DAYS MAN DAY $8,160.00 480

"ITEM 3 - SUPERVISORY INSTALLATION FIELD SERVICES:

UNDER THE DESCRIPTION, DELETE "ONE (1) MAN FOR A TOTAL OF.'

CHANGE THE QUANTITY, UNIT PRICE, AND EXTENSION COLUMNS TO READ AS FOLLOWS:

CHART

QUANTITY UNIT PRICE EXTENSION

EST. TOTAL $21.00 PER NOT TO EXCEED

MAN DAYS MAN DAY $3,488.00 160

"EXCEPT AS HEREBY AMENDED, ALL OTHER TERMS AND CONDITIONS OF THE CONTRACT REMAIN UNCHANGED.'

SETTLEMENT CERTIFICATE NO. 93538, DATED APRIL 18, 1966, DISALLOWED A PORTION OF THE CLAIM AMOUNTING TO $15,356, AND ALLOWED PAYMENT FOR FOUR TECHNICIANS, COVERING 159 DAYS, AT $17 PER DAY, AND ONE SUPERVISOR FOR 139 DAYS, AT $21 PER DAY, TOTALING $5,622.

THE GENERAL RULE WITH RESPECT TO THE PERFORMANCE OF CONTRACTS IS THAT IF A PARTY, BY HIS CONTRACT, CHARGE HIMSELF WITH AN OBLIGATION POSSIBLE TO BE PERFORMED, HE MUST MAKE IT GOOD, UNLESS ITS PERFORMANCE IS RENDERED IMPOSSIBLE BY THE ACT OF GOD, THE LAW, OR THE OTHER PARTY, AND UNFORESEEN DIFFICULTIES, HOWEVER GREAT, WILL NOT EXCUSE HIM. IN THIS CONNECTION, SEE FRITZ-RUMER-COOKE CO. V. UNITED STATES, 279 F.2D 200, AND THE ARUNDEL CORPORATION V. UNITED STATES, 121 CT.CL. 741.

IT IS ALSO WELL SETTLED THAT A WRITTEN CONTRACT IS PRESUMED TO EXPRESS THE INTENTION OF THE PARTIES TO IT, AND IF IT IS CLEAR AND UNAMBIGUOUS ON ITS FACE IT MAY NOT BE CHALLENGED FOR UNCERTAINTY, AND WILL BE ENFORCED AS WRITTEN. BRAWLEY V. UNITED STATES, 96 U.S. 168. THIS PRESUMPTION, HOWEVER, MAY BE REBUTTED BY A SHOWING THAT THE CONTRACT AS WRITTEN DID NOT EXPRESS THE TRUE INTENTION OF THE PARTIES. MACDOUGALD CONSTRUCTION COMPANY V. UNITED STATES, 122 CT.CL. 210.

IN THE INSTANT CASE THE REQUEST FOR PROPOSALS CLEARLY CALLED FOR A MAN- DAY BID AND THE FACT, AS YOU ALLEGE, THAT YOU WERE "COMPELLED" TO ARRIVE AT THE "UNREALISTIC" SUMS OF $17 AND $21 PER MAN-DAY BY SELECTING 160 MAN- DAYS WITHIN WHICH TO PERFORM THE CONTRACT, AND DIVIDING THAT INTO YOUR LUMP-SUM BID, CANNOT OPERATE TO RELIEVE YOU OF YOUR OBLIGATION TO PERFORM AT THE RATES AGREED UPON. WHILE YOU MAY HAVE HAD SOME RESERVATIONS CONCERNING THE DAILY RATE TO BE PAID UNDER THE TWO ITEMS, AS REFLECTED IN YOUR JUNE 14, 1963, LETTER TO FEDERAL AVIATION AGENCY, YOU CANNOT LOGICALLY CONTEND THAT THERE WAS A LACK OF UNDERSTANDING BETWEEN THE CONTRACTING PARTIES, BECAUSE THE PRICE CLAUSES OF THE CONTRACT WERE DEALT WITH ON TWO SEPARATE OCCASIONS, AND WERE CHALLENGED ON NEITHER. THE ONLY CONCLUSION THAT CAN BE DRAWN FROM YOUR CONCURRENCE WITH THE AMENDMENT IS THAT YOU AGREED TO THE TERMS STATED THEREIN. LIKEWISE, THE CLAIM CANNOT BE PREDICATED UPON THE FACT THAT IT WAS TO COVER AN ADDITIONAL PERIOD OF TIME BECAUSE YOUR ABOVE-MENTIONED REQUEST TO EXTEND THE TIME FOR PERFORMANCE WAS ADMINISTRATIVELY DENIED.

THEREFORE, YOU ARE ENTITLED TO BE PAID ONLY AT THE RATE REFLECTED IN THE AMENDMENT AND, ACCORDING TO YOUR FIGURES, THAT SUM IS $5,622, WHICH WAS REMITTED TO YOU PURSUANT TO THE SETTLEMENT CERTIFICATE.