B-161789, SEPT. 20, 1968

B-161789: Sep 20, 1968

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TO GENERAL HEDLUND: REFERENCE IS MADE TO A LETTER DATED MAY 21. FOR VALUE OF THE PROPERTY WARRANTED AS -REMAINING AT THE SITE FOR THE PURCHASER- AND WHICH WAS NOT FOUND TO BE THERE OR WAS ORDERED SHIPPED TO THE GOVERNMENT BY CHANGE ORDER. "2. WERE TO BE PROVIDED BY THE GOVERNMENT.'. IT IS REPORTED THAT THE DEPARTMENT OF THE AIR FORCE DETERMINED THAT ATLAS "E" AND "F" AND TITAN I MISSILE SITES LOCATED THROUGHOUT THE UNITED STATES WERE OBSOLETE. WAS ACCOMPLISHED BY SEVERAL "EXCESS LISTS" IDENTIFYING THE PROPERTY AVAILABLE FROM THE VARIOUS SITES. THE LISTS WERE DESIGNED TO IDENTIFY SUBSTANTIALLY ALL OF THE PROPERTY CONTAINED IN ALL OF THE VARIOUS TYPES OF SITES BY A "TAG NUMBER.'. THE ATLAS "E" SITES WERE THE FIRST CONSTRUCTED AND WERE NOT SUBSTANTIALLY IDENTICAL TO EACH OTHER AS WERE THE ATLAS "F" AND TITAN I SITES.

B-161789, SEPT. 20, 1968

TO GENERAL HEDLUND:

REFERENCE IS MADE TO A LETTER DATED MAY 21, 1968, FROM THE ASSISTANT COUNSEL, FORWARDING A REPORT ON THE CLAIM OF A - TO Z PILE, INC., FOR ADDITIONAL COMPENSATION UNDER SALES CONTRACT NO. DSA 01-6009-004.

THE ATTORNEY FOR THE CLAIMANT STATES THAT THE CLAIM IN THE AMOUNT OF $519,680 FALLS WITHIN THE FOLLOWING CATEGORIES:

"1. FOR VALUE OF THE PROPERTY WARRANTED AS -REMAINING AT THE SITE FOR THE PURCHASER- AND WHICH WAS NOT FOUND TO BE THERE OR WAS ORDERED SHIPPED TO THE GOVERNMENT BY CHANGE ORDER.

"2. FOR VALUE OF THE PROPERTY NOTED IN THE INVITATION FOR BID THAT THE CONTRACTOR -CAN EXPECT TO GENERATE FOR HIMSELF,- SAID PROPERTY BEINGMIS- DESCRIBED.

"3. FOR THE ADDITIONAL AND UNFORESEEN COST OF RETURNING TO THE GOVERNMENT -SAVE LIST- ITEMS WHICH VARIED SUBSTANTIALLY AND MATERIALLY FROM THE WARRANTED DESCRIPTION IN THE INVITATION FOR BID.

"4. FOR THE ADDITIONAL EXPENSE INCURRED TO COMPLY WITH THE CHANGE ORDERS OF THE CONTRACTING OFFICER, DURING THE EXECUTION OF THE CONTRACT.

"5. FOR THE COST OF SERVICES BILLED THE CONTRACTOR FOR MATERIAL AND SERVICES WHICH, BY THE CONTRACT, WERE TO BE PROVIDED BY THE GOVERNMENT.'

IT IS REPORTED THAT THE DEPARTMENT OF THE AIR FORCE DETERMINED THAT ATLAS "E" AND "F" AND TITAN I MISSILE SITES LOCATED THROUGHOUT THE UNITED STATES WERE OBSOLETE. INTERAGENCY SCREENING OF THE PROPERTY PRIOR TO DISPOSAL, PURSUANT TO THE FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949, AS AMENDED, WAS ACCOMPLISHED BY SEVERAL "EXCESS LISTS" IDENTIFYING THE PROPERTY AVAILABLE FROM THE VARIOUS SITES. THE LISTS WERE DESIGNED TO IDENTIFY SUBSTANTIALLY ALL OF THE PROPERTY CONTAINED IN ALL OF THE VARIOUS TYPES OF SITES BY A "TAG NUMBER.' THE ATLAS "E" SITES WERE THE FIRST CONSTRUCTED AND WERE NOT SUBSTANTIALLY IDENTICAL TO EACH OTHER AS WERE THE ATLAS "F" AND TITAN I SITES. ACCORDINGLY, ON OCCASION, THE LISTS PERTAINING TO ATLAS "E" SITES ACKNOWLEDGED SUCH FACT BY DESCRIBING ALTERNATIVES WITHIN A SINGLE TAG NUMBER. A SUBSTANTIAL QUANTITY OF PERSONAL PROPERTY IN THE SITES WAS DETERMINED TO BE REQUIRED FOR OTHER PROGRAMS OF THE AIR FORCE AND OTHER GOVERNMENT AGENCIES AS THE RESULT OF THE SCREENING.

WHEN THE UTILIZATION REQUIREMENTS FOR PROPERTY LOCATED AT THE ATLAS "E" SITES NEAR FORBES AIR FORCE BASE WERE KNOWN, AN INVITATION FOR BIDS FOR THE SALE OF EQUIPMENT AND MATERIALS AT THE MISSILE SITES WAS PREPARED. THE INVITATION REQUIRED THAT SPECIFICALLY IDENTIFIED "SAVE LIST" PROPERTY BE REMOVED FROM THE SITES AND RETURNED TO GOVERNMENT CONTROL. THE REMAINING PROPERTY LISTED IN THE INVITATION WAS TO BECOME THE PROPERTY OF THE CONTRACTOR EXCEPT THOSE ITEMS SPECIFICALLY EXCLUDED FROM THE SALE. INVITATION FOR BIDS NO. 01-6009 WAS ISSUED ON DECEMBER 13, 1965, AND BIDS WERE OPENED ON JANUARY 12, 1966.

THE INVITATION CAUTIONED ALL BIDDERS TO INSPECT THE SITES PRIOR TO BIDDING AND CONTAINED AN ACKNOWLEDGMENT THAT THE BIDDER HAD SATISFIED HIMSELF AS TO THE NATURE AND LOCATION OF THE WORK TO BE PERFORMED. THE INSPECTION PERIOD BEGAN ON DECEMBER 13, 1965, AND CONTINUED THROUGH THE BID OPENING DATE. BIDDERS WERE REQUESTED TO MAKE PRIOR ARRANGEMENTS WITH FORBES AIR FORCE BASE AT LEAST 48 HOURS PRIOR TO INSPECTION OF THE PROPERTY. THE DEFENSE SUPPLY AGENCY (DSA) HAS ADVISED OUR OFFICE THAT AT THE TIME OF INSPECTION, A - TO Z PILE, INC., AND OTHER BIDDERS WERE SHOWN COPIES OF DRAWINGS OF THE SITES -- PREPARED IN MARCH 1959 -- AS ACTUALLY CONSTRUCTED. WE ARE FURTHER ADVISED THAT COPIES OF THESE DRAWINGS, INCLUDING DRAWINGS NOS. 3115-1 X1-A-1 AND 3115-1-X1-M-12, WERE FURNISHED A - TO Z PILE AND PRESUMABLY TO OTHER BIDDERS. THERE IS NO INFORMATION IN THE FILE BEFORE US AS TO WHETHER THESE DRAWINGS REPRESENTED ACCURATE DESCRIPTIONS OF THE SITES AT THE TIME OF THE SALE. IN ANY EVENT, A - TO Z PILE HAS CATEGORICALLY DENIED THAT IT WAS FURNISHED THESE DRAWINGS, STATING TO US THAT:

"* * * THIS CONTRACTOR WAS NEVER PROVIDED WITH THESE DRAWINGS IF THESE WERE IN FACT THE CONSTRUCTION DRAWINGS. THESE DRAWINGS OR NO OTHERS WERE PROVIDED (ONLY SKETCH-S) WHEN REQUESTED BY THE CONTRACTOR SOME TWO WEEKS AFTER THE WORK ACTUALLY COMMENCED. IF THESE DRAWINGS WERE IN FACT CONSTRUCTION DRAWINGS AND IN GENERAL CIRCULATION AS CONTENDED BY THE CO PRIOR TO THE LETTING OF THE CONTRACT, THIS WAS CLEARLY WITHIN THE KNOWLEDGE OF THE CO AND THE FACT THAT THEY VARIED GREATLY FROM THE SPECIFICATIONS AND INFORMATION CONTAINED IN THE IFB. THE CO MADE NO EFFORT TO WITHDRAW THE IFB OR TO CHANGE IT AT THAT TIME. APPARENTLY THE CO IS NOW ATTEMPTING TO RELIEVE HIMSELF OF RESPONSIBILITY BY CLAIMING AVAILABILITY OF THESE DRAWINGS AND THE OBLIGATION OF THE CONTRACTOR TO INSPECT. THIS IS CONTRARY TO U.S. V SPEARIN, 248 US137, 39 S.CT. 61, AS CITED IN ALLIED CONTRACTORS INC. V U.S. 381 F2D 905, 1000 (1967) WHICH STATES: -THIS IMPLIED WARRANTY IS NOT OVERCOME BY THE GENERAL CLAUSES REQUIRING THE CONTRACTOR TO EXAMINE THE SITE, TO CHECK UP THE PLANS, AND TO ASSUME RESPONSIBILITY FOR THE WORK UNTIL COMPLETION AND ACCEPTANCE.- THIS CITED CASE CLEARLY HOLDS THAT THE CONTENTIONS OF THE CO REGARDING THE ALLEGED PLANS DOES NOT RELIEVE THE GOVERNMENT OF THE IMPLIED WARRANTY IN THAT CASE, THE GUARANTEED DESCRIPTIONS' IN THIS CASE, OF PROPERLY SUBMITTING THE PROPERTY FOR BID.'

THE INVITATION IDENTIFIED THE "SAVE LIST" PROPERTY BY A SIMPLE NOUN NOMENCLATURE WITH ITS LOCATION AND "TAG NUMBER.' THE "TAG NUMBER" IDENTIFICATION WAS THE SAME AS THAT USED IN THE INTERAGENCY EXCESS LISTS. ARTICLE "O" OF THE SPECIAL CONDITIONS OF THE INVITATION PROVIDED: ,PUBLICATIONS AND TECHNICAL MANUALS. A COPY OF EACH OF THE FOLLOWING PUBLICATIONS IS AVAILABLE FOR INSPECTION AT EACH SITE TO PROVIDE ADDITIONAL INFORMATION REGARDING THE MISSILE SITE TO PROSPECTIVE BIDDER:

"1. T.O. 21 M-CGM 16E-1-, ATLAS -E- OPERATIONAL

"2. SBAMA INTERIM TECHNICAL PROCEDURE A-100

"3. ATLAS -E- DOD/DLSC BROCHURE AEROSPACE GROUND EQUIPMENT CONTROL NUMBER UF0005 LIST NUMBER 65-B11.

"4. ATLAS -E- DOD/DLSC BROCHURE COMMUNICATIONS, ELECTRONICS AND METEOROLOGICAL EQUIPMENT CONTROL NUMBER UF0006 LIST NUMBER 65-B12.

"5. ATLAS -E- DOD/DLSC BROCHURE REAL PROPERTY INSTALLED EQUIPMENT VOL IIIA CONTROL NUMBER UF0007 LIST NUMBER 65-B13.

"6. ATLAS -E- DOD/DLSC BROCHURE REAL PROPERTY INSTALLED EQUIPMENT VOL IIIB CONTROL NUMBER UF0010 LIST NUMBER 65-B16.'

THE PUBLICATION IDENTIFIED UNDER ITEM 3, ABOVE, IS AN EXCESS LISTING OF AEROSPACE GROUND EQUIPMENT USED IN DIRECT OR INDIRECT SUPPORT OF ATLAS "E" MISSILES. THE PURPOSE OF THIS PUBLICATION IS STATED AS FOLLOWS:

"DISSEMINATE TO MILITARY SERVICE APPROVED DEPARTMENT OF DEFENSE ACTIVITIES, SELECTED FEDERAL AGENCY ACTIVITIES AND ELIGIBLE FOREIGN GOVERNMENTS, INFORMATION CONCERNING AVAILABLE EXCESS PERSONAL PROPERTY REPORTED BY THE AIR FORCE TO DLSC FOR CENTRALIZED CONCURRENT DOD/GSA SCREENING. THE ACQUISITION COST OF THESE MISSILE SYSTEM COMPONENTS REPRESENTS A SIGNIFICANT PORTION OF PREVIOUS DEFENSE EXPENDITURES AND WARRANTS EXTRAORDINARY ACTIONS TO INSURE THAT WHEREVER POSSIBLE THIS PROPERTY BE USED OR CONVERTED TO SATISFY OTHER PROGRAMS BOTH WITHIN THE DEPARTMENT OF DEFENSE AND FEDERAL AGENCIES. THUS PHOTOGRAPHS AND FUNCTIONAL DETAILS ARE CONTAINED HEREIN TO ASSIST YOU IN REVIEWING THE ACCEPTABILITY OF THE LISTED ITEMS OF EXCESS.'

THE PROVISIONS OF THE INVITATION AND RESULTING CONTRACT WHICH ARE RELEVANT TO OUR CONSIDERATION OF THE CLAIM ARE SUMMARIZED AS FOLLOWS:

1. ARTICLE U -- BURIED ITEMS. UNDER THIS ARTICLE, THE PURCHASER "WILL HAVE SALVAGE RIGHTS TO ALL BURIED ITEMS LOCATED ON THE PROPERTY OTHER THAN THOSE ITEMS IDENTIFIED ON THE "SAVE LIST.'

2. ARTICLE AB -- STRIPPING OF "SAVE LIST ITEMS.' HERE THE PURCHASER REPRESENTS, WARRANTS AND CERTIFIES THAT THE PROPERTY SPECIFICALLY DESIGNATED IN THE INVITATION AS "SAVE LIST" ITEMS WILL BE REMOVED FROM THE SITE AND DELIVERED TO THE GOVERNMENT.

3. ARTICLE AK -- WITHDRAWAL OF PROPERTY AFTER AWARD. THIS RESERVED TO THE GOVERNMENT THE RIGHT TO WITHDRAW FOR ITS USE ANY OR ALL PROPERTY COVERED BY THE SALES CONTRACT AND, IF WITHDRAWAL IS EFFECTED, THE GOVERNMENT IS LIABLE FOR THE REASONABLE VALUE OF THE PROPERTY.

IN PARTICULAR,"ARTICLE AQ: CHANGE IN CONTRACT REQUIREMENTS," PROVIDES: "THE SALES CONTRACTING OFFICER MAY, AT ANY TIME, BY WRITTEN ORDER AND WITH NOTICE ONLY TO THE PERSON OR FIRM TO WHOM THE CONTRACT WAS AWARDED, MAKE CHANGES IN THE METHOD BY OR THE EXTENT TO WHICH THE PROPERTY IS TO BE SCRAPPED, MUTILATED, OR DEMILITARIZED; THE METHOD BY OR THE EXTENT TO WHICH GOVERNMENT PROPERTY IS TO BE STRIPPED FROM THE SUBJECT MATTER OF THE CONTRACT (TO INCLUDE THE ADDITION OR DELETION OF PROPERTY TO BE STRIPPED); OR THE DISPOSITION TO BE MADE OF THE STRIPPED PROPERTY. IF ANY SUCH CHANGE CAUSES AN INCREASE OR DECREASE IN THE CONTRACTOR'S COST OF PERFORMANCE OF THE CONTRACT OR CAUSES AN INCREASE OR DECREASE IN THE MARKET VALUE OF THE PROPERTY BEING DISPOSED OF, AN EQUITABLE ADJUSTMENT SHALL BE MADE IN THE PURCHASE PRICE AND THE CONTRACT SHALL BE MODIFIED IN WRITING ACCORDINGLY. ANY CLAIM BY THE CONTRACTOR FOR AN ADJUSTMENT UNDER THIS CLAUSE MUST BE ASSERTED IN WRITING WITHIN 30 DAYS FROM THE DATE OF RECEIPT BY THE CONTRACTOR OF THE NOTIFICATION OF CHANGE UNLESS THE SALES CONTRACTING OFFICER GRANTS A FURTHER PERIOD OF TIME BEFORE THE FINAL DATE FOR PERFORMANCE UNDER THE CONTRACT. IF THE PARTIES FAIL TO AGREE UPON THE ADJUSTMENT TO BE MADE, THE DISPUTE SHALL BE DETERMINED AS PROVIDED IN THE -DISPUTES' CLAUSE OF THE CONTRACT; BUT NOTHING PROVIDED IN THIS CLAUSE SHALL EXCUSE THE CONTRACTOR FROM PROCEEDING WITH PERFORMANCE AS REQUIRED UNDER THE CHANGE.'

ALSO, INCLUDED IN THE CONTRACT DOCUMENTS ARE THE STANDARD DISPUTES CLAUSE AND A PROVISION THAT TITLE TO THE PROPERTY SOLD VESTS IN THE PURCHASER AS AND WHEN FULL AND FINAL PAYMENT IS MADE.

CONTRACT NO. 01-6009-004 WAS AWARDED TO A - TO Z PILE ON JANUARY 13, 1966, AND FULL PAYMENT THEREUNDER WAS RECEIVED BY THE GOVERNMENT ON FEBRUARY 18, 1966. PRIOR TO BEGINNING ANY WORK UNDER THE CONTRACT, THE SUCCESSFUL BIDDER WAS REQUIRED TO FURNISH A PERFORMANCE BOND TO PROTECT THE ,SAVE LIST" PROPERTY, CERTAIN INSURANCE CERTIFICATES AND EVIDENCE OF WORKMEN'S COMPENSATION INSURANCE. SPECIAL CONDITION ARTICLE AB, STRIPPING OF "SAVE LIST ITEMS," PAGE 39, REQUIRES THAT THE CONTRACTOR AND A REPRESENTATIVE OF THE SALES CONTRACTING OFFICER CERTIFY THAT ALL OF THE ,SAVE LIST" ITEMS WERE ON THE SITE PRIOR TO COMMENCING WORK. A - TO Z PILE, INC., STATES THAT THIS WAS CERTIFIED AS REQUIRED BEFORE WORK WAS STARTED, BUT THAT THIS CERTIFICATION WAS PERFUNCTORY SINCE THE "SAVE LIST" ITEMS WERE BURIED AND NOT SUSCEPTIBLE TO VISUAL INSPECTION AND COUNT.

DURING PERFORMANCE IT BECAME APPARENT TO THE CONTRACTOR THAT THE SITES WERE NOT AS ADVERTISED AND IT THEREFORE INQUIRED OF THE CONTRACTING OFFICER'S REPRESENTATIVE AS TO THE AVAILABILITY OF CONSTRUCTION DRAWINGS. THE CONTRACTOR FURTHER STATES THAT IT WAS ADVISED THAT NO CONSTRUCTION DRAWINGS WERE AVAILABLE FOR REFERENCE. HOWEVER, THE CONTRACTOR WAS PROVIDED WITH SKETCHES OF THE INSTALLATIONS AND LATER RECEIVED FURTHER COPIES OF THE SKETCHES WITH THE ELEVATIONS LISTED.

THE PRINCIPAL AMOUNT OF THE CLAIM ($477,500) IS FOR THE ALLEGED VALUE OF 18 OXYGEN, HELIUM OR NITROGEN VESSELS (STORAGE TANKS) WHICH WERE BURIED AT EACH OF THE FIVE MISSILE SITES. THE CONTRACTOR STATES THAT THESE VESSELS WERE NOT ON THE "SAVE LIST" WHEN THE CONTRACT WAS AWARDED AND THAT IT IS ENTITLED TO COMPENSATION FOR THESE VESSELS AS CONSTITUTING PROPERTY REMAINING AT THE SITE FOR THE PURCHASER WITHIN THE MEANING OF THE CONTRACT. THREE A-11, FIVE A-18 AND FIVE A-19 VESSELS WERE FOUND AT THE SITES WHICH WERE NOT LISTED IN THE CONTRACT UNDER EITHER "MAJOR ITEMS OF PROPERTY AND EQUIPMENT REMAINING AT THE SITE FOR THE PURCHASER" OR AS "SAVE LIST" ITEMS SPECIFICALLY IDENTIFIED AS "GOVERNMENT PROPERTY TO BE REMOVED FOR THE GOVERNMENT BY THE CHASER.' DSA IS OF THE OPINION THAT THESE VESSELS WERE IN ADDITION TO SUCH LISTED ITEMS AND WERE EITHER SIMILAR TO OR SUBSTITUTES FOR THE "SAVE LIST" ITEMS. THE 13 ADDITIONAL VESSELS WERE PLACED ON THE "SAVE LIST" FOR THE GOVERNMENT BY CHANGE ORDER PURSUANT TO ARTICLE AQ AND AN EQUITABLE PRICE ADJUSTMENT WAS TENDERED. - TO Z PILE, INC., REFUSED TO ACCEPT THE OFFERED EQUITABLE PRICE ADJUSTMENT.

DSA CONCURS IN THE CENTER'S POSITION THAT THE BIDDER HAD AN OBLIGATION TO RESOLVE WITH THE GOVERNMENT THE DISCREPANCY BETWEEN THE CONTRACT LISTS AND THE MARCH 1959 DRAWINGS. IN THIS REGARD, THE ASSISTANT COUNSEL STATES IN THE MAY 21 LETTER THAT: "AT THE TIME OF THE CHANGE ORDERS THE CONTRACTING OFFICER STILL DID NOT KNOW OF THE EXISTENCE OF THE DRAWING WHICH SHOWED THE ACTUAL NUMBER OF VESSELS AT THE SITES. IT IS NOW EVIDENT THAT THE CONTRACTOR HAD INSPECTED THE DRAWINGS PRIOR TO BIDDING AND SHOULD HAVE KNOWN OF THE NUMBER OF VESSELS. THE FACT THAT SOME OF THOSE SUBSEQUENTLY UNEARTHED VARIED IN DIMENSION OR TYPE FROM THE DESCRIPTION IN EXCESS LIST 65-B11 IS OF LITTLE SIGNIFICANCE TO THE CLAIM FOR THE COST OF A HYDROGEN, HELIUM OR NITROGEN VESSEL. THIS OFFICE CONCURS IN THE CENTER'S POSITION, SUPPORTED BY CITED LEGAL PRECEDENT, THAT THE BIDDER HAD AN OBLIGATION TO RESOLVE WITH THE GOVERNMENT THE DISCREPANCY BETWEEN THE CONTRACT LISTS AND THE DRAWINGS. "THE CONTRACT ITSELF INDICATES THAT WITH RESPECT TO MAJOR ITEMS OF EQUIPMENT THE -SAVE LIST- OF GOVERNMENT PROPERTY WAS INTENDED TO BE MUTUALLY EXCLUSIVE WITH THE LIST OF PROPERTY FOR THE PURCHASER. THIS IS ILLUSTRATED BY THE A-11 VESSELS WHICH WERE LISTED IN THE CONTRACT FOR THE CONTRACTOR AT SITES 1 AND 5 AND FOR THE GOVERNMENT AT SITES 2, 3 AND 4. IN EACH CASE THEY WERE ERRONEOUSLY LISTED AS 1 EACH WHEREAS THE DRAWING CORRECTLY DEPICTS 2 VESSELS, WITH THE TOTAL CAPACITY DESCRIBED IN EXCESS LIST 65-B11. SO IN FACT THE CONTRACTOR HAS RECEIVED FOUR A-11 STORAGE TANKS FROM 2 SITES, BUT HE CLAIMS THREE FROM SITES WHERE THE CONTRACT LISTED ONE FOR THE GOVERNMENT. "THE CONTRACTOR'S CLAIM FOR THE VALUE OF THE THIRTEEN VESSELS NOT LISTED IN THE CONTRACT PRESUMABLY RESTS UPON ARTICLE U: BURIED ITEMS. THAT ARTICLE WAS INTENDED TO COVER SMALL UNKNOWN ACCESSORY ITEMS AND NOT MAJOR ITEMS OF EQUIPMENT. IN LESCO AUTOMOTIVE, 67-1 BCA PAR. 6113, THE ASBCA REFUSED TO INTERPRET IT TO APPLY TO AN ITEM CLEARLY NOT INTENDED, NAMELY INTERSITE CABLE. THE INTENT OF THE CONTRACT INVOLVED IN THE A TO Z PILE, INC. CLAIM WAS TO LIST ALL MAJOR PROPERTY AND EQUIPMENT, AND IF THE CONTRACTOR HAD FULFILLED HIS DUTY TO BRING THE DISCREPANCY SHOWN IN THE DRAWINGS TO THE GOVERNMENT'S ATTENTION, THE INVITATION WOULD HAVE BEEN AMENDED.'

THE CASE OF ALLIED CONTRACTORS, INC. V UNITED STATES, 381 F.2D 995, IS CITED IN SUPPORT OF THE VIEW THAT THE CONTRACTOR HAD A DUTY TO CALL TO THE GOVERNMENT'S ATTENTION THE DISPARITY BETWEEN THE DRAWINGS AND THE "SAVE LISTS" AND THAT, HAVING FAILED TO DO SO OR TO REQUEST CLARIFICATION PRIOR TO BIDDING, IT CANNOT SUCCESSFULLY CONTEND THAT IT WAS MISLED BY THE "SAVE LISTS.' IN THE ALLIED CASE, THE COURT OF CLAIMS HELD THAT THE CONTRACTOR KNEW OR SHOULD HAVE KNOWN OF THE OBVIOUS AND RECOGNIZED ERRORS IN THE PLANS OR SPECIFICATIONS SUPPLIED BY THE GOVERNMENT AND, THEREFORE, THE CONTRACTOR HAD A DUTY TO CALL THE OBVIOUS AND RECOGNIZED ERRORS TO THE ATTENTION OF THE APPROPRIATE GOVERNMENT REPRESENTATIVE SO THAT PROPER STEPS COULD BE TAKEN AND, HAVING FAILED TO DO SO, THE CONTRACTOR COULD NOT CLAIM SUCCESSFULLY THAT HE WAS MISLED BY THE ERRONEOUS OR FAULTY PLANS OR SPECIFICATIONS. HOWEVER, THE ALLIED CASE IS CLEARLY DISTINGUISHABLE AND, IN OUR OPINION, AFFORDS NO BASIS FOR IMPOSING A SIMILAR DUTY UPON THE CONTRACTOR INVOLVED HERE. IT IS TO BE NOTED THAT THE "OBVIOUS AND RECOGNIZED ERRORS" INVOLVED IN ALLIED WERE INCLUDED IN THE CONTRACT SPECIFICATIONS AND THAT AN EXPERIENCED CONTRACTOR WOULD KNOW, OR SHOULD HAVE KNOWN, THAT THE DESIRED RESULTS COULD NOT BE ACCOMPLISHED BY ADHERING STRICTLY TO THOSE SPECIFICATIONS. HOWEVER, IN THE CLAIM BEFORE US, THERE WERE NO "OBVIOUS AND RECOGNIZED ERRORS" IN THE CONTRACT DOCUMENTS RESPECTING THE "SAVE LIST" ITEMS. WITHIN THE FOUR CORNERS OF THE CONTRACT, BURIED SALVAGE ITEMS OF THE CONTRACTOR AND/OR THE GOVERNMENT WERE IDENTIFIED AS BEST THEY COULD BE UNDER THE CIRCUMSTANCES. HOWEVER, DSA BELIEVES THAT BY RESORT TO THE SITE DRAWINGS THE ACTUAL EXISTENCE OF ALL BURIED VESSELS COULD HAVE BEEN ASCERTAINED AND RESERVED FOR THE GOVERNMENT ON THE "SAVE LISTS.' BUT THESE DRAWINGS WERE NOT A PART OF THE CONTRACT; NEITHER WERE THEY INCORPORATED BY REFERENCE. IN OUR OPINION, OTHER THAN THE CONTRACTOR'S DENIAL, QUOTED ABOVE, THE PROBATIVE VALUE OF THE DRAWINGS IS OTHERWISE DOUBTFUL BECAUSE OF THEIR AGE AND BECAUSE IT IS UNCERTAIN WHETHER THE DRAWINGS DID, IN FACT, REFLECT THE EXACT LOCATIONS AND TYPES OF VESSELS ACTUALLY BURIED AT THE MISSILE SITES AT THE DATE OF THE SALE. WE THEREFORE CANNOT IMPUTE TO THE CONTRACTOR ANY DUTY OR RESPONSIBILITY TO BRING SUPPOSED "SAVE LISTS" AND DRAWINGS DISCREPANCIES TO THE ATTENTION OF THE GOVERNMENT.

WE BELIEVE THAT THE PROPER RATIONALE APPLICABLE HERE IS THAT EXPRESSED IN THE CASE OF WPC ENTERPRISES, INCORPORATED V UNITED STATES, 163 CT. CL. 1, 6-7, WHERE THE COURT HELD:

"* * * ALTHOUGH THE POTENTIAL CONTRACTOR MAY HAVE SOME DUTY TO INQUIRE ABOUT A MAJOR PATENT DISCREPANCY, OR OBVIOUS OMISSION, OR A DRASTIC CONFLICT IN PROVISIONS (SEE CONSOLIDATED ENG-R. CO. V UNITED STATES, 98 CT. CL. 256, 280 (1943); RING CONSTR. CORP. V UNITED STATES, 142 CT. CL. 731, 734, 162 F.SUPP. 190, 192 (1958); JEFFERSON CONSTR. CO. V UNITED STATES, 151 CT. CL. 75, 89-91 (1960) (, HE IS NOT NORMALLY REQUIRED (ABSENT A CLEAR WARNING IN THE CONTRACT) TO SEEK CLARIFICATION OF ANY AND ALL AMBIGUITIES, DOUBTS, OR POSSIBLE DIFFERENCES IN INTERPRETATION. THE GOVERNMENT, AS THE AUTHOR, HAS TO SHOULDER THE MAJOR TASK OF SEEING THAT WITHIN THE ZONE OF REASONABLENESS THE WORDS OF THE AGREEMENT COMMUNICATE THE PROPER NOTIONS -- AS WELL AS THE MAIN RISK OF A FAILURE TO CARRY THAT RESPONSIBILITY. IF THE DEFENDANT CHAFES UNDER THE CONTINUED APPLICATION OF THIS CHECK, IT CAN OBTAIN A LOOSER REIN BY A MORE METICULOUS WRITING OF ITS CONTRACTS AND ESPECIALLY OF THE SPECIFICATIONS. OR IT CAN SHIFT THE BURDEN OF AMBIGUITY (TO SOME EXTENT) BY INSERTING PROVISIONS IN THE CONTRACT CLEARLY CALLING UPON POSSIBLE CONTRACTORS AWARE OF A PROBLEM-IN- INTERPRETATION TO SEEK AN EXPLANATION BEFORE BIDDING. SEE BEACON CONSTR. CO. V UNITED STATES, 161 CT. CL. 1, 6-7, 314 F.2D 501, 504 (1963); GUYLER V UNITED STATES, 161 CT. CL. 159, 168, 314 F.2D 506, 510-511 (1963) (CONCURRING OPINION).'

SOME RELIANCE IS PLACED ON THE FACT THAT COMPARISON BETWEEN THE "SAVE LISTS" AND EXCESS LIST NO. 65-B11 -- IDENTIFIED IN ARTICLE "O" OF THE CONTRACT -- REASONABLY RESOLVES THE DISCREPANCIES AS TO THE TYPES, CAPACITIES AND DIMENSIONS OF THE VARIOUS VESSELS WHICH THE GOVERNMENT DESIRED TO EXCLUDE FROM THE SALE. HOWEVER, THIS EXCESS LIST WAS MADE AVAILABLE FOR INSPECTION AT EACH SITE ,TO PROVIDE ADDITIONAL INFORMATION REGARDING THE MISSILE SITE TO PROSPECTIVE BIDDER.' IT WAS NOT MADE A PART OF THE INVITATION DESCRIPTIONS OF THE "SAVE LIST" OR THE CONTRACTOR'S LISTS. WE FIND NOTHING IN THE CONTRACT DOCUMENTS WHICH WOULD REQUIRE THAT SUCH EXCESS LIST BE USED TO RESOLVE DESCRIPTION DISCREPANCIES OR BE USED AS AN ADDENDUM TO THE "SAVE LISTS.' WE THEREFORE DO NOT FEEL THAT ANY SIGNIFICANT WEIGHT SHOULD BE GIVEN TO EXCESS LIST NO. 65-B11 IN THE INTERPRETATION OF THE SALES CONTRACT INSOFAR AS IT RELATES TO THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO THE BURIED VESSELS.

IT APPEARS TO US THAT THE CLEAR INTENT OF THE SALES CONTRACT IS TO RESERVE TO THE GOVERNMENT THOSE VESSELS WHICH ARE IDENTIFIED AND SEGREGATED BY THE "SAVE LISTS.' IN A LETTER TO OUR OFFICE DATED AUGUST 23, 1968, THE ATTORNEY FOR THE CLAIMANT STATES AS FOLLOWS:

"THE IFB, IN DECLARING THE -SAVE LIST- ITEMS, WAS VERY SPECIFIC AS TO THE PARTICULAR ITEMS THAT HAD TO BE -SAVED.- AT EACH SITE THERE WAS A SPECIFIC -SAVE LIST.- AT EACH SITE THERE WAS A LISTING OF WHAT WAS DESCRIBED AS - MAJOR ITEMS' REMAINING AT THE SITE FOR THE PURCHASER. THERE WAS THE EMPHASIZED ADMONITION IN THE LISTING FOR EACH SITE THAT THESE ITEMS REMAINING FOR THE PURCHASER WERE INCOMPLETE. THE INFERENCE BEING THAT THE CONTRACTOR WAS TO RECEIVE EVERYTHING THAT WAS NOT -SAVE LIST- OR OTHERWISE RESERVED. THE SPECIFIC -SAVE LIST- LISTED INDIVIDUALLY WHAT WAS TO BE RETURNED. IT DID NOT CONTAIN ANY BLANKET DESIGNATIONS SUCH AS ALL OF ONE TYPE OF PROPERTY OR NONE OF THIS TYPE OF PROPERTY. IT SPELLED OUT PER EACH PER ITEM. ON THE OTHER HAND, GENERAL OR BLANKET DESIGNATIONS WERE NOTED FOR -ITEMS REMAINING FOR THE PURCHASER.-"

DSA IS OF THE VIEW THAT THE CONTRACTOR'S CLAIM FOR THE VALUE OF THE 13 BURIED VESSELS -- NOT OTHERWISE IDENTIFIED IN THE CONTRACT FOR THE GOVERNMENT'S ACCOUNT -- MAY NOT BE BASED ON CONTRACT ARTICLE "U," "BURIED ITEMS.' IT IS CONTENDED THAT ARTICLE "U" WAS INTENDED TO COVER SMALL UNKNOWN ACCESSORY ITEMS AND NOT MAJOR ITEMS OF EQUIPMENT, CITING LESCO AUTOMOTIVE CORPORATION, 67-1 BCA, PARAGRAPH 6113. HOWEVER, A CAREFUL ANALYSIS OF THE BOARD'S OPINION DOES NOT LEAD US TO A CONCLUSION THAT ARTICLE "U" APPLIES TO ONLY SMALL, UNKNOWN ACCESSORY ITEMS.

THE LESCO CASE INVOLVED A CLAIM FOR INTERSITE CABLE, THAT IS, CABLE THAT CONNECTED SITES TOGETHER AND WHICH WAS OUTSIDE THE PERIMETER OF THE DESIGNATED SITE. IN THAT CASE, THE GOVERNMENT HAD PREVIOUSLY TRANSFERRED THE CLAIMED CABLE TO ANOTHER AGENCY AND THERE WAS NO SUBJECTIVE INTENT TO INCLUDE THE CABLE IN THE INVITATION. THE LESCO CASE HELD THAT THE "BURIED ITEMS" CLAUSE, IDENTICAL TO THE ONE BEFORE US, HAD REFERENCE ONLY TO "ITEMS LOCATED ON THE PROPERTY," AND, HENCE, THE CLAUSE DID NOT INCLUDE MISSILE INTERSITE CABLE WHICH WAS LOCATED OUTSIDE OF THE BOUNDARIES OF THE MISSILE SITE. CLEARLY, THIS IS NOT A SIMILAR CASE. THE PLAIN TERMS OF ARTICLE "U" VEST SALVAGE RIGHTS IN THE PURCHASER OF ALL BURIED ITEMS "OTHER THAN THOSE ITEMS IDENTIFIED ON THE -SAVE LIST.-" SINCE THE 13 VESSELS WERE, IN FACT, BURIED ITEMS NOT IDENTIFIED ON THE "SAVE STS," THE CONTRACTOR ACQUIRED VESTED SALVAGE RIGHTS TO THOSE VESSELS WHICH MAY NOT BE INFRINGED WITHOUT THE PAYMENT OF THE EQUITABLE AND FAIR VALUE OF THE VESSELS. CF. EAST TENNESSEE IRON AND METAL COMPANY V UNITED STATES, 218 F.SUPP. 377. ACCORDINGLY, WE HOLD THAT A - TO Z PILE HAD BENEFICIAL OWNERSHIP AND TITLE TO THESE VESSELS.

THE CONTRACTING OFFICER RECOMMENDS THAT THE CLAIM BE DISALLOWED IN ITS ENTIRETY BECAUSE IN ISSUING CHANGE ORDERS UNDER ARTICLE AQ -- CONTEMPLATING AN EQUITABLE PRICE ADJUSTMENT IN THE CASE OF PROPERTY DELETED FROM THE CONTRACTOR'S ACCOUNT -- HE ACTED UNDER A MISTAKE OF FACT, CITING 35 COMP. GEN. 63. HOWEVER, WE FIND NO EVIDENCE OF A MISTAKE OF FACT IN ISSUING THE CHANGE ORDERS (NOT ACCEPTED BY A - TO Z PILE) SINCE DOUBTS AS TO THE OWNERSHIP OF THE SUBJECT VESSELS DID NOT ARISE UNTIL AFTER THE CHANGES WERE ISSUED. HENCE, THE APPLICABILITY TO THE INSTANT CASE OF 35 COMP. GEN. 63, WHICH DEALT IN PART WITH THE RIGHT OF THE GOVERNMENT TO RECOVER FUNDS ERRONEOUSLY OR WRONGFULLY PAID, IS NOT APPARENT.

THE BALANCE OF THE CLAIMED 18 VESSELS CONSISTS OF FIVE A-10-S; HOWEVER, THE "SAVE LIST" FOR EACH OF THE FIVE SITES LISTS TWO VESSELS EACH. THE CONTRACTOR CLAIMS THAT THREE A-10'S HAD BEEN FOUND AT ANOTHER AIR FORCE BASE AND, THEREFORE, IT THOUGHT THAT THERE SHOULD BE THREE OF EACH AT FORBES AIR FORCE BASE. HENCE, A - TO Z PILE BELIEVES THAT IT IS ENTITLED TO ONE ADDITIONAL A-10 VESSEL FROM EACH OF THE FIVE SITES AT FORBES. STATED BY THE ASSISTANT COUNSEL, UNDER THE CONTRACT, A - TO Z PILE IS NOT ENTITLED TO ANY AMOUNT FOR FIVE A-10 VESSELS SINCE THE "SAVE LIST" FOR EACH SITE CORRECTLY LISTS TWO VESSELS. WE AGREE WITH SUCH POSITION.

A - TO Z PILE, INC., CONTENDS THAT "COPPER WIRE AND CABLE" WHICH WAS LISTED UNDER ,MISCELLANEOUS PROPERTY AND EQUIPMENT" OFFERED WITH EACH SITE WAS MISDESCRIBED IN THAT IT WAS COPPER-COVERED WIRE AND COPPER-COVERED CABLE. THE CONTRACTOR BY LETTER DATED AUGUST 17, 1966, COMPLAINED THAT:

"CERTAIN ITEMS WERE NOT AS REPRESENTED OR AS ONE WOULD NORMALLY EXPECT TO FIND. NAMELY, VARIOUS LENGTHS OF CABLE, INSULATED, LIGHTING, POWER AND CONTROL. * * *"

THERE WAS NOTHING IN THE INVITATION DESCRIPTION TO INDICATE THAT THE CABLE CONTAINED ANY COPPER OR THAT IT WOULD BE FREE FROM STEEL. IT WAS DESCRIBED AS "CABLE, INSULATED, LIGHTING, POWER AND CONTROL" WITHOUT REFERENCE TO BASIC MATERIAL CONTENT. THEREFORE, THE SALES AGENCY ADVISED THE CONTRACTOR THAT ITS REQUEST FOR REFUND IN THE AMOUNT OF $9,600 COULD NOT BE ALLOWED. ASSUMING THAT THE CONTRACTOR IS REFERRING TO THE SAME PROPERTY, NO BASIS EXISTS UNDER THE CONTRACT FOR AN ADJUSTMENT OF PRICE SINCE A - TO Z PILE DID NOT GIVE THE REQUIRED 20 DAY WRITTEN NOTICE PURSUANT TO THE GUARANTEED DESCRIPTIONS CLAUSE. SEE B-158303 DATED JANUARY 21, 1966; 41 COMP. GEN. 97.

THE BALANCE OF THE CLAIM APPEARS TO BE FOR EXTRA WORK, DEMURAGE, ADJUSTMENTS BETWEEN THE GOVERNMENT AND CONTRACTOR LIST PROPERTY, ETC., WHICH COULD MORE READILY BE DETERMINED UNDER THE CHANGES AND DISPUTES CLAUSES OF THE CONTRACT. ACCORDINGLY, AS RECOMMENDED, THESE CLAIMS ARE RETURNED TO THE CONTRACTING OFFICER FOR ADMINISTRATIVE DETERMINATION OF ANY AMOUNTS DUE, SUBJECT, OF COURSE, TO THE PROVISIONS OF THE DISPUTES CLAUSE.