B-168825, MAR. 11, 1970

B-168825, MAR. 11, 1970

CONTRACTS--INCREASED COSTS--COST GREATER THAN CONTEMPLATED--NO BASIS FOR ADDITIONAL COMPENSATION CONTRACTOR'S REQUEST FOR ADDITIONAL COMPENSATION UNDER FIXED-PRICE CONTRACT FOR FURNISHING 5,000 POUNDS OF ANTIMONY METAL IS DENIED, AS UNDER APPLICABLE PRINCIPLES OF LAW FACT THAT PERFORMANCE WAS MORE EXPENSIVE THAN CONTRACTOR HAD ANTICIPATED DOES NOT ENTITLE IT TO ADDITIONAL COMPENSATION OTHER THAN AS PROVIDED BY CONTRACT. WHILE IT IS RECOGNIZED THAT METAL'S PRICE FLUCTUATES FREQUENTLY, DEALERS ARE PRESUMED ABLE TO ESTIMATE PRICE AT WHICH THEY CAN SUPPLY IT AT REASONABLE PROFIT, AND IF THEY FAIL TO ESTIMATE CORRECTLY, GOVT. CANNOT FOR THAT REASON BE HELD FOR RESULTING LOSS. CONTRACT, AS EXECUTED, REPRESENTED FINAL UNDERSTANDING OF PARTIES AND FIXED ALL RIGHTS AND LIABILITIES THEREUNDER. SEE COMP. GEN. DEC. AND CT. CASES CITED.

TO AMERICAN SMELTING AND REFINING COMPANY: REFERENCE IS MADE TO LETTER DATED JANUARY 14, 1970, WITH ATTACHMENTS, FROM MR. R. P. BRADY, ASSISTANT TO THE GENERAL MANAGER, EASTERN DEPARTMENT, FEDERATED METALS DIVISION, REQUESTING ADDITIONAL COMPENSATION FOR ANTIMONY METAL FURNISHED UNDER GOVERNMENT PRINTING OFFICE (GPO) PURCHASE ORDER NO. 3529, ISSUED OCTOBER 29, 1969.

THE INVITATION FOR BIDS, ISSUED OCTOBER 3, 1969, SOLICITED OFFERS FOR FURNISHING 5,000 POUNDS OF ANTIMONY METAL, GRADE "A," 99.8 PERCENT, DELIVERY F.O.B. GOVERNMENT PRINTING OFFICE. YOUR FIRM SUBMITTED A BID OF $1.40 PER POUND ON OCTOBER 21, 1969. TWO OTHER BIDS, NEITHER RESPONSIVE, WERE $1.50 AND $1.965 PER POUND. AN AWARD IN THE TOTAL AMOUNT OF $7,000 WAS MADE TO YOUR FIRM ON OCTOBER 29, 1969. THE PURCHASE ORDER PROVIDED FOR DELIVERY OF THE METAL BY DECEMBER 15, 1969.

YOUR COMPANY ACKNOWLEDGED RECEIPT OF THE PURCHASE ORDER ON NOVEMBER 7, 1969, AND ADVISED THE CONTRACTING OFFICE THAT UPON ENTERING THE MARKET FOR THE PURCHASE OF THE ANTIMONY METAL THE QUOTED PRICE WAS FOUND TO BE $220 PER HUNDREDWEIGHT. RELIEF FROM PERFORMANCE WAS REQUESTED OR IN LIEU THEREOF PERMISSION TO SUPPLY THE METAL IN AN ALLOY OF 95 PERCENT ANTIMONY AND 5 PERCENT LEAD AT THE TOTAL PRICE OF $133.145 PER HUNDREDWEIGHT. GPO REJECTED BOTH PROPOSALS AND REQUESTED COMPLIANCE WITH THE TERMS OF THE CONTRACT.

IN LETTER OF JANUARY 14, 1970, TO OUR OFFICE, IT IS STATED THAT YOUR COMPANY HAS SUPPLIED 4,874 POUNDS OF ANTIMONY METAL TO GPO AT THE CONTRACT PRICE. IT IS STATED THAT THE TOTAL COST TO FULFILL THE ORDER WAS AS FOLLOWS:

"ANTIMONY 4,874 LBS. AT $2.00 $9,748.00

INCOMING FREIGHT 4874 LBS. AT ?54 26.32

OUTGOING FREIGHT81.29

TOTAL COST $9,855.61

TOTAL REVENUE 6,823.60

OUR DEFICIT $3032.01 " IT IS REQUESTED THAT WE REVISE THE UNIT PRICE IN TH PURCHASE ORDER TO $2.02 AND THE TOTAL CONTRACT PRICE TO $9,845.48.

IT IS A WELL-SETTLED RULE THAT WHERE ONE AGREES TO DO, FOR A FIXED SUM, A THING POSSIBLE TO BE PERFORMED, HE WILL NOT BE EXCUSED OR BECOME ENTITLED TO ADDITIONAL COMPENSATION BECAUSE UNFORESEEN DIFFICULTIES ARE ENCOUNTERED. COLUMBUS RAILWAY & POWER CO. V. COLUMBUS, 249 U.S. 399, 412 (1919); DAY V. UNITED STATES, 245 U.S. 159, 161 (1917). ALSO WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. BRAWLEY V. UNITED STATES, 96 U.S. 168 (1877); SIMPSON V. UNITED STATES, 172 ID. 372 (1899). FURTHER, THE RESPONSIBILITY FOR FURNISHING AN ARTICLE WHICH COMPLIES WITH THE ADVERTISED SPECIFICATIONS IS SOLELY THAT OF THE BIDDER WHO, BY THE MERE ACT OF SUBMITTING A BID, UNDERTAKES TO FURNISH THE ITEM DESCRIBED IN THE ADVERTISED SPECIFICATIONS OR ITS EQUIVALENT. 36 COMP. GEN. 143, 145 (1956), AND COURT CASES THEREIN CITED.

UNDER SUCH PRINCIPLES, THE FACT THAT THE PERFORMANCE OF THE FIXED PRICE CONTRACT WAS MORE EXPENSIVE THAN YOUR COMPANY HAD EXPECTED DOES NOT ENTITLE IT TO ADDITIONAL COMPENSATION OTHER THAN AS PROVIDED BY THE CONTRACT. ACCORDINGLY, THE EXPENSES CLAIMED NOT BEING OCCASIONED BY ANY CHANGES IN THE SPECIFICATIONS WITHIN THE PURVIEW OF THE CHANGES CLAUSE OF THE CONTRACT, AND THERE BEING NO OTHER PROVISION IN THE CONTRACT AUTHORIZING ADJUSTMENT OF THE CONTRACT PRICE, THERE IS NO LEGAL BASIS FOR PAYMENT OF THE INCREASED EXPENSES.

WHILE IT IS RECOGNIZED THAT THE COMMODITY IS ONE WHICH FLUCTUATES FREQUENTLY IN PRICE IN THE MARKETPLACE, DEALERS THEREIN ARE PRESUMED TO BE QUALIFIED TO ESTIMATE THE PRICE AT WHICH THEY CAN SUPPLY THE METAL AT A REASONABLE PROFIT. IF THEY FAIL TO DO THIS, THE GOVERNMENT CANNOT FOR THAT REASON BE HELD FOR THE RESULTING LOSS. THE CONTRACT, AS EXECUTED, REPRESENTED THE FINAL UNDERSTANDING OF THE PARTIES AND FIXED ALL RIGHTS AND LIABILITIES THEREUNDER.

GPO HAS REPROTED THAT ITS RELATIONS WITH YOUR FIRM HAVE BEEN MOST SATISFACTORY FOR MANY YEARS AND YOU POINT OUT THAT IN PREVIOUS PURCHASES THAT OFFICE HAS SAVED MONEY FOR THE GOVERNMENT BY PURCHASING FROM YOUR FIRM. THIS, OF COURSE, IS THE RESULT OF THE PURCHASES HAVING BEEN MADE FROM THE LOWEST RESPONSIVE AND RESPONSIBLE BIDDER. MOREOVER, THE FACT THAT YOUR COMPANY'S PRICES HAVE BEEN LOWER THAN OTHER BIDDER'S PRICES ON PREVIOUS PROCUREMENTS HAS NO BEARING UPON THE RIGHTS AND LIABILITIES UNDER THE INSTANT CONTRACT.

FOR THE REASONS STATED, THE REQUEST FOR ADDITIONAL COMPENSATION IS DENIED.