B-22438, APRIL 30, 1942, 21 COMP. GEN. 961

B-22438: Apr 30, 1942

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CONTRACT PERIOD A GENERAL SCHEDULE OF SUPPLIES CONTRACT PROVIDING THAT SUPPLIES WILL BE ORDERED AS NEEDED DURING THE CONTRACT PERIOD SHOULD BE REGARDED AS COVERING ONLY THOSE SUPPLIES WHICH REPRESENT THE ACTUAL AND BONA FIDE NEEDS OF THE GOVERNMENT DURING THE SPECIFIC CONTRACT PERIOD RATHER THAN ANTICIPATED OR OTHER NEEDS FOR WHICH THE GOVERNMENT MAY CHOOSE TO ORDER. UNDER SUCH A CONTRACT THE CONTRACTOR IS NOT OBLIGATED TO FILL ORDERS FOR SUPPLIES SCHEDULED FOR DELIVERY AFTER THE EXPIRATION OF THE CONTRACT PERIOD PLUS THE DELIVERY PERIOD SPECIFIED IN THE CONTRACT. 1942: REFERENCE IS MADE TO MY LETTER OF JANUARY 8. IT IS SUGGESTED THAT YOU ADVISE THE ORDERING OFFICER OR OFFICERS THAT THE TIRES AND TUBES SPECIFIED IN THE ORDERS WILL BE DELIVERED AS ORDERED.

B-22438, APRIL 30, 1942, 21 COMP. GEN. 961

CONTRACTS - GENERAL SUPPLY SCHEDULES - SUPPLIES ORDERED DURING, BUT FOR DELIVERY AFTER, CONTRACT PERIOD A GENERAL SCHEDULE OF SUPPLIES CONTRACT PROVIDING THAT SUPPLIES WILL BE ORDERED AS NEEDED DURING THE CONTRACT PERIOD SHOULD BE REGARDED AS COVERING ONLY THOSE SUPPLIES WHICH REPRESENT THE ACTUAL AND BONA FIDE NEEDS OF THE GOVERNMENT DURING THE SPECIFIC CONTRACT PERIOD RATHER THAN ANTICIPATED OR OTHER NEEDS FOR WHICH THE GOVERNMENT MAY CHOOSE TO ORDER, AND UNDER SUCH A CONTRACT THE CONTRACTOR IS NOT OBLIGATED TO FILL ORDERS FOR SUPPLIES SCHEDULED FOR DELIVERY AFTER THE EXPIRATION OF THE CONTRACT PERIOD PLUS THE DELIVERY PERIOD SPECIFIED IN THE CONTRACT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF WAR, APRIL 30, 1942:

REFERENCE IS MADE TO MY LETTER OF JANUARY 8, 1942, TO YOU, RELATING TO THE PROTEST OF THE FALLS RUBBER CO., FINDLAY, OHIO, AGAINST THE PLACEMENT OF ORDERS BY THE WAR DEPARTMENT, ROCK ISLAND ARSENAL, UNDER ITS CONTRACT NO. TPS-38176, FOR FURNISHING TIRES AND TUBES TO THE VARIOUS GOVERNMENT ESTABLISHMENTS FOR THE PERIOD APRIL 1 TO SEPTEMBER 30, 1941, WHICH ORDERS CALL FOR THE DELIVERY OF A QUANTITY OF TIRES AND TUBES ON DATES CONSIDERABLY AFTER THE EXPIRATION OF THE CONTRACT PERIOD; AND TO FIFTH ENDORSEMENT, DATED MARCH 4, 1942, FROM THE OFFICE OF THE UNDER SECRETARY OF WAR, TRANSMITTING A REPORT AND CERTAIN PAPERS WITH RESPECT THERETO.

BY LETTER OF DECEMBER 6, 1941, TO THIS OFFICE, THE FALLS RUBBER CO. PROTESTED THE PLACING BY THE WAR DEPARTMENT AND THE POST OFFICE DEPARTMENT OF ORDERS AGAINST CONTRACT NO. TPS-38176 REQUIRING DELIVERIES AFTER THE EXPIRATION OF THE CONTRACT PERIOD. IN THAT LETTER, THE CONTRACTOR ADVISED, IN BRIEF, THAT IT RECEIVED FROM THE ROCK ISLAND ARSENAL ON MAY 5, 1941, ORDER NO. 41-16900 CALLING FOR THE DELIVERY OF 6,000 6.00-16 TRUCK AND BUS TIRES AND TUBES ON A DELIVERY SCHEDULE EXTENDING AS FAR IN THE FUTURE AS MAY, 1942; THAT ON SEPTEMBER 29, 1941, IT RECEIVED ORDER NO. 42- 803 CALLING FOR THE FURNISHING OF 12,538 TIRES AND TUBES OF THE SAME TYPE UPON A DELIVERY SCHEDULE EXTENDING TO SEPTEMBER, 1942; THAT THE PERIOD COVERED BY THE CONTRACT IN QUESTION EXPIRED ON SEPTEMBER 30, 1941; AND THAT, CONSEQUENTLY, THE TIRES AND TUBES REQUIRED TO BE DELIVERED LATER THAN SEPTEMBER 30, 1941, SHOULD BE REGARDED AS COMING UNDER THE PROVISIONS OF CONTRACT NO. TPS 42352, ALSO HELD BY THE FALLS RUBBER CO., FOR FURNISHING SIMILAR TIRES AND TUBES DURING THE PERIOD OCTOBER 1, 1941, THROUGH MARCH 31, 1942, AT SOMEWHAT HIGHER PRICES.

BY LETTERS OF OCTOBER 10, 1941, THE FALLS RUBBER CO. ADVISED BOTH THE ROCK ISLAND ARSENAL AND THE DIRECTOR OF PROCUREMENT, TREASURY DEPARTMENT, THAT IT DID NOT CONSIDER THE ORDERS AS BEING REASONABLY WITHIN THE PROVISIONS OF CONTRACT NO. TPS-38176; AND BY LETTER OF NOVEMBER 25, 1941, THE DIRECTOR OF PROCUREMENT, TREASURY DEPARTMENT, REPLIED IN PERTINENT PART AS FOLLOWS:

AS REGARDS THE ROCK ISLAND ARSENAL ORDERS, IN ORDER THAT THERE MAY BE NO POSSIBLE INTERFERENCE WITH THE DEFENSE PROGRAM, IT IS SUGGESTED THAT YOU ADVISE THE ORDERING OFFICER OR OFFICERS THAT THE TIRES AND TUBES SPECIFIED IN THE ORDERS WILL BE DELIVERED AS ORDERED, BUT THAT YOU RESERVE THE RIGHT TO FILE CLAIM AT A LATER DATE FOR THE DIFFERENCE BETWEEN THE PRICES STIPULATED IN THE ABOVE-MENTIONED CONTRACT AND THE INCREASED PRICES STIPULATED IN YOUR CURRENT GENERAL SCHEDULE CONTRACT. YOU MAY THEN FILE SUCH CLAIM OR CLAIMS AS MAY BE APPROPRIATE WITH THE WAR DEPARTMENT OR THE COMPTROLLER GENERAL OF THE UNITED STATES. SUCH PROCEDURE WOULD ENABLE YOU TO OBTAIN A DECISION AS TO YOUR RIGHTS IN THE MATTER WITHOUT INTERVENING DELAY IN FILLING THE ORDERS. IT IS NOT THE FUNCTION OF THE CONTRACTING OFFICER TO DETERMINE THE LEGAL RIGHTS OF ORDERING ACTIVITIES UNDER SUCH ORDERS AS MAY BE PLACED BY THEM, AND I CAN SUGGEST NO OTHER PROCEDURE THAT WOULD BE PRACTICAL.

THE ACTION OF THE CONTRACTOR IN FOLLOWING THE PROCEDURE SUGGESTED BY THE DIRECTOR OF PROCUREMENT CANNOT FAIRLY BE REGARDED AS AN ACQUIESCENCE IN THE VIEW THAT THE DISPUTED DELIVERIES ARE COVERED BY CONTRACT NO. TPS- 38176, OR AS A WAIVER OF ANY RIGHT TO CLAIM PAYMENT FOR ANY DELIVERIES SO MADE AT THE PRICES STIPULATED IN THE CONTRACT FOR THE SUCCEEDING PERIOD.

THE FACTS IN THE MATTER, AS REPORTED BY THE COMMANDING GENERAL, ROCK ISLAND ARSENAL, IN THIRD ENDORSEMENT OF FEBRUARY 10, 1942, TO THE CHIEF OF ORDNANCE, ARE AS FOLLOWS:

1. IN COMPLIANCE WITH THE INSTRUCTIONS OF THE SECOND INDORSEMENT, HE IS ADVISED THAT PURCHASE ORDER 41-16900 WAS PLACED WITH THE FALLS RUBBER COMPANY, FINDLAY, OHIO, FOR 6,000 EACH TIRES AND TUBES, SIZE 6.00 X 16 INCHES--- THE AWARD BEING PLACED IN ACCORDANCE WITH THE QUOTATION AS LISTED IN THE GENERAL SCHEDULE OF SUPPLIES 1941, TPS 38176. THIS ORDER IS DATED APRIL 29, 1941. THE ORIGINAL ORDER INCLUDED THE FOLLOWING PARAGRAPH IN REGARD TO DELIVERY:

"100 SETS MAY 1; 150 SETS JUNE 1; 200 SETS JULY 1; 250 SETS AUG. 1; 300 SETS SEPT. 1; 350 SETS OCT. 1; 300 SETS NOV., DEC. 1, 300 SETS JAN., FEB., MARCH 1, 1942; 150 SETS APRIL 1.'

LATER CHANGE ORDER "B" INCREASED THE RATE SO THAT DELIVERY WOULD BE COMPLETED BY MARCH, 1942. AFTER ISSUANCE OF THE PURCHASE ORDER, NO COMMENT WAS OFFERED BY THE FALLS RUBBER COMPANY AS TO DELIVERY UNTIL JUNE 11, 1941, AT WHICH TIME TWO LETTERS WERE RECEIVED REQUESTING INFORMATION AS TO DELIVERY AND STATING IN PART AS FOLLOWS: "ON THE BASIS OF YOUR SCHEDULE, IT WOULD TAKE APPROXIMATELY 20 MONTHS TO COMPLETE THE ORDER OF 6000 TIRES AND 6000 TUBES, AND WE DO NOT BELIEVE THAT IT IS THE INTENTION OF THE TREASURY DEPARTMENT PROCUREMENT DIVISION, THAT SHIPMENTS ON THIS ORDER BE CARRIED ON FOR 20 MONTHS.' OUR REPLY OF JUNE 14, 1941, CLARIFIED THE QUESTION IN REGARD TO DELIVERY AND NO FURTHER ACTION WAS TAKEN UNTIL OCT. 10, 1941, AT WHICH TIME THE COMPANY MADE A COMPLAINT TO THE EFFECT THAT THIS ORDER, WITH THE DELIVERIES AS OUTLINED, COULD NOT BE REGARDED AS BEING WITHIN THE PROVISIONS OF THE CONTRACT. BY LETTER OF OCT. 28, 1941, THIS ARSENAL ADVISED THE FALLS RUBBER COMPANY THAT AS THE ORDERS WERE ACCEPTED AND NO EXCEPTIONS TAKEN, THE TIRES AND TUBES MUST BE FURNISHED AT THE PRICES SHOWN ON THE ORDER OR PROCUREMENT WOULD BE MADE IN THE OPEN MARKET AND THE DIFFERENCE IN COST CHARGED TO THE COMPANY. THIS LETTER OF OCT. 28, 1941 IS ALSO APPLICABLE TO PURCHASE ORDER 42-803, WHICH IS DISCUSSED IN THE FOLLOWING PARAGRAPH.

2. PURCHASE ORDER 42-803 WAS PLACED ON SEPT. 19, 1941, WITH THE FALLS RUBBER COMPANY BASED ON GENERAL SCHEDULE OF SUPPLIES 1941, TPS 38176. THIS ORDER COVERS 8 ITEMS OF TIRES AND TUBES FOR DELIVERY TO DUPLEX PRINTING PRESS COMPANY, BATTLE CREEK, MICHIGAN; MUNCIE GEAR WORKS, MUNCIE, INDIANA, ROCK ISLAND ORDNANCE DEPOT AND ROCK ISLAND ARSENAL, ILL. THIS ORDER LISTED A DELIVERY RUNNING UNTIL SEPTEMBER, 1942. A CHANGE ORDER INCREASED THE RATE SO THAT DELIVERY WOULD BE COMPLETED BY AUGUST, 1942. ON THIS ORDER NO COMMENT RELATIVE TO DELIVERY WAS RECEIVED UNTIL OCT. 10, 1941 AT WHICH TIME THEY ADVISED THAT THE ORDER WAS NOT RECEIVED UNTIL 2 DAYS PRIOR TO THE EXPIRATION OF THE CONTRACT PERIOD AND POINTED OUT THE FACT THAT THE NEW TREASURY DEPARTMENT CONTRACT PROVIDED FOR HIGHER PRICES THAN THE PREVIOUS CONTRACT. THE FOLLOWING PARAGRAPH ALSO APPEARED IN THIS LETTER: "THIS COMPANY HAS TAKEN UP WITH THE DIRECTOR OF PROCUREMENT, TREASURY DEPARTMENT, THE MATTER OF HAVING THIS ORDER FILLED UNDER THE TERMS OF THE AWARDS MADE FOR THE TERM BEGINNING OCTOBER ST, 1941.' OCTOBER 22, 1941 ANOTHER LETTER WAS RECEIVED ACKNOWLEDGING A PREVIOUS LETTER OF OCT. 14 FROM THIS ARSENAL. SUBSEQUENTLY THIS ARSENAL'S LETTER OF OCTOBER 28, REFERRED TO IN PARAGRAPH 1, WAS FORWARDED TO THE FALLS RUBBER COMPANY.

3. PHOTOSTATS OF THE ABOVE MENTIONED PURCHASE ORDERS AND LETTERS ARE ENCLOSED FOR HIS INFORMATION.

4. HE IS ADVISED THAT ORDERS FOR TIRES AND TUBES HAVE BEEN PLACED WITH OTHER RUBBER COMPANIES ON THE SAME BASIS, THAT IS, DELIVERIES EXTENDING INTO LATER 1941 AND 1942, AND NO EXCEPTIONS HAVE BEEN TAKEN TO OUR DELIVERY REQUIREMENTS.

THE QUESTION THUS PRESENTED BY THE CONTRACTOR'S PROTEST IS WHETHER, BY THE TERMS OF CONTRACT NO. TPS-38176 AND UNDER THE CIRCUMSTANCES HEREINBEFORE STATED, IT IS OBLIGATED TO DELIVER TIRES AND TUBES ORDERED WITHIN THE PERIOD ACTUALLY COVERED BY THE CONTRACT, BUT DIRECTED TO BE DELIVERED OVER A CONSIDERABLE PERIOD THEREAFTER.

THE SAID CONTRACT NO. TPS-38176, DATED MARCH 12, 1941, WITH THE FALLS RUBBER CO., COVERS THE FURNISHING OF VARIOUS TYPES OF TIRES AND TUBES, AT SPECIFIED PRICES, DURING THE PERIOD APRIL 1 TO SEPTEMBER 30, 1941. SEE ARTICLE 1 OF THE CONTRACT. THE SPECIFICATIONS INDICATE THAT THE CONTRACT IS "FOR USE BY THE EXECUTIVE DEPARTMENTS AND OTHER ESTABLISHMENTS OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA WITHIN THE CONTINENTAL LIMITS OF THE UNITED STATES (NOT INCLUDING ALASKA) * * *," AND IT IS NOT QUESTIONED THAT THE ROCK ISLAND ARSENAL IS INCLUDED WITHIN THE CATEGORY SO DESCRIBED. THE SCOPE OF THE CONTRACT IS DESCRIBED IN PARAGRAPH 3 OF THE GENERAL CONDITIONS AS FOLLOWS:

SCOPE OF CONTRACT. SUPPLIES WILL BE ORDERED FROM TIME TO TIME IN SUCH QUANTITIES AS MAY BE NEEDED. AS IT IS IMPOSSIBLE TO DETERMINE THE PRECISE QUANTITIES OF DIFFERENT KINDS OF ARTICLES AND MATERIALS DESCRIBED IN THE SPECIFICATIONS AND PROPOSALS FOR SUPPLIES THAT WILL BE REQUIRED DURING THE CONTRACT TERM, EACH BIDDER WHOSE BID IS ACCEPTED WILL BE OBLIGATED TO DELIVER ALL SUPPLIES OF THE KIND CONTRACTED FOR THAT MAY BE ORDERED DURING THE CONTRACT TERM. THE STATEMENTS AS TO MONEY VALUE OF PREVIOUSLY REPORTED ANNUAL PURCHASES ARE GIVEN FOR INFORMATION ONLY, AND WILL NOT RELIEVE THE AGENCIES AND ACTIVITIES (AS NOTED IN THE SPECIFICATIONS) OF THE UNITED STATES AND DISTRICT OF COLUMBIA GOVERNMENTS, FOR THE USE OF WHICH THE CONTRACT IS MADE, OF THE OBLIGATION TO ORDER FROM THE CONTRACTOR ALL ARTICLES OR SERVICES COVERED BY THE CONTRACT THAT MAY, IN THE JUDGMENT OF THE ORDERING OFFICERS, BE NEEDED; AND SHALL NOT RELIEVE THE CONTRACTOR ON HIS OBLIGATION TO FILL ALL SUCH ORDERS.

PARAGRAPHS 1 AND 2 OF THE SPECIAL CONDITIONS, INSOFAR AS PERTINENT, ARE AS FOLLOWS:

1. ORDERS FOR TIRES AND TUBES WILL BE PLACED DIRECT WITH THE CONTRACTOR BY THE VARIOUS GOVERNMENT AGENCIES WHEN AND AS NEEDED. PAYMENT THEREFOR WILL BE MADE DIRECT BY THE ORDERING OFFICES.

2. AS IT IS IMPOSSIBLE TO DETERMINE ACCURATELY THE QUANTITIES OF DIFFERENT SIZES OF TIRES AND TUBES, ETC., DESCRIBED IN THE SPECIFICATIONS THAT WILL BE REQUIRED DURING THE CONTRACT PERIOD, EACH BIDDER WHOSE PROPOSAL IS ACCEPTED WILL BE REQUIRED TO DELIVER ALL TIRES AND TUBES WHICH HE AGREES TO FURNISH AND THAT MAY BE ORDERED DURING THE CONTRACT TERM, WITHIN FOUR CALENDAR DAYS AFTER RECEIPT OF ORDER, F.O.B. RAILROAD FREIGHT STATION IN THE CONTINENTAL UNITED STATES, EXCEPT ALASKA, NEAREST TO THE POINT OF DESTINATION STATED IN THE SHIPPING INSTRUCTIONS OR PURCHASE ORDER. * * *

INASMUCH AS IT APPEARS THAT THE REQUIREMENTS OF THE ROCK ISLAND ARSENAL FOR TIRES AND TUBES COVERED BY THE CONTRACT, SO FAR AS THEY FALL WITHIN THE CONTRACT PERIOD, ARE INCLUDED AMONG THE SERVICES WHOSE REQUIREMENTS ARE COVERED BY THE CONTRACT, THAT PART OF PARAGRAPH 6 OF THE GENERAL CONDITIONS GIVING THE CONTRACTOR THE PRIVILEGE OF ACCEPTING OR REJECTING ORDERS PLACED BY FIELD SERVICES NOT SPECIFICALLY COVERED BY THE CONTRACT HAS NO APPLICATION TO PROPER ORDERS FOR TIRES AND TUBES REQUIRED BY THE ROCK ISLAND ARSENAL.

IN CONSIDERING THE SCOPE OF THE CONTRACT INVOLVED, AS STATED IN PARAGRAPH 3 OF THE GENERAL CONDITIONS QUOTED ABOVE, IT IS PERTINENT THAT THE CONTRACTOR IS INFORMED, FIRST, THAT SUPPLIES WILL BE ORDERED AS NEEDED; SECONDLY, THAT SINCE IT CANNOT BE DETERMINED HOW MUCH OF THE VARIOUS ARTICLES WILL BE REQUIRED DURING THE CONTRACT TERM, THE BIDDER WHOSE BID IS ACCEPTED WILL BE OBLIGATED TO DELIVER ALL THAT MAY BE ORDERED DURING THE TERM; AND, THIRD, THAT THE OBLIGATION OF THE VARIOUS AGENCIES INCLUDED IN THE CONTRACT SHALL BE TO ORDER FROM THE CONTRACTOR ALL OF THE ARTICLES COVERED BY THE CONTRACT WHICH MAY, IN THE JUDGMENT OF THE ORDERING OFFICERS, BE NEEDED; AND THE CONTRACTOR'S OBLIGATION SHALL BE TO FILL SUCH ORDERS. IT THUS APPEARS THAT SUPPLIES ARE TO BE ORDERED AS NEEDED OR REQUIRED DURING THE CONTRACT TERM, AND IT IS EVIDENT THAT ONLY SUCH ORDERS AS COVER ACTUAL NEEDS OR REQUIREMENTS DURING THE SPECIFIC CONTRACT PERIOD ARE TO BE INCLUDED IN THE CONTRACT.

AGREEMENTS OF THE TYPE HERE INVOLVED, OBLIGATING THE SELLER TO FURNISH AND THE BUYER TO PROCURE FROM THE SELLER ALL THE NEEDS OF HIS BUSINESS FOR A COMMODITY FOR A SPECIFIED PERIOD, HAVE MANY TIMES BEEN CONSIDERED BY THE COURTS AND HAVE ALMOST WITHOUT EXCEPTION BEEN FOUND TO BE VALID AND BINDING CONTRACTS. BRAWLEY V. UNITED STATES, 96 U.S. 168, 171; MANHATTAN OIL COMPANY V. RICHARDSON LUBRICATING COMPANY, 113 FED. 923; H. D. WILLIAMS COOPERAGE COMPANY V. SCOFIELD, 115 FED. 119; LIMA LOCOMOTIVE AND MACHINE COMPANY V. NATIONAL STEEL CASTINGS COMPANY, 155 FED. 77; MILLS MORRIS CO. V. CHAMPION SPARK PLUG CO., 7 F./2D) 38; IN RE UNITED CIGAR STORES CO., 8 FED.SUPP. 243. ALSO, ANNOTATIONS, 7 A.L.R. 498, 27 A.L.R. 127. ALSO, IT HAS BEEN HELD THAT SUCH CONTRACTS FOR THE REQUIREMENTS OR NEEDS OF A VENDEE FOR A PARTICULAR COMMODITY WILL COVER ONLY THE ACTUAL AND BONA FIDE NEEDS OF THE BUYER'S BUSINESS DURING THE PERIOD IN QUESTION, AND NOT ANY QUANTITY WHICH HE MAY CHOOSE TO ORDER, EITHER FOR OTHER PURPOSES OR FOR NEEDS NOT REASONABLY RELATED TO THE CONTRACT PERIOD. SEE, IN ADDITION TO THE ABOVE-CITED DECISIONS, DOWD V. HERCULES POWDER COMPANY, 181 PAC. 767; ARMSTRONG PAINT AND VARNISH WORKS V. CONTINENTAL CAN CO., 133 N.E. 711. CF. STAVER CARRIAGE CO. V. PARK STEEL CO., 77 N.E. 174; MCLEAN COUNTY COAL COMPANY V. BLOOMINGTON, 84 N.E. 624; 1 COMP. GEN. 115, 118; 2 ID. 825. WHILE PARAGRAPH 3 OF THE GENERAL CONDITIONS OF CONTRACT NO. TPS-38176 LEAVES TO THE JUDGMENT OF THE ORDERING OFFICER THE QUANTITY OF ANY COMMODITY WHICH MAY BE NEEDED AND ORDERED DURING THE CONTRACT TERM, ANY REASONABLE INTERPRETATION THEREOF WOULD NOT APPEAR TO GIVE THE ORDERING OFFICER THE RIGHT TO PLACE ORDERS FOR THE PURPOSE OF MEETING PROSPECTIVE NEEDS CONTEMPLATED TO ARISE LONG AFTER EXPIRATION OF THE ACTUAL CONTRACT PERIOD. ALSO, PARAGRAPH 3 RESTRICTS THE CONTRACTOR'S OBLIGATION TO THE FILLING OF ORDERS PLACED DURING THE CONTRACT PERIOD; AND PARAGRAPH 2 OF THE SPECIAL CONDITIONS PROVIDES FOR A DELIVERY PERIOD OF FOUR DAYS AFTER THE RECEIPT OF AN ORDER. CONSEQUENTLY, WHEN THE ORDERING OFFICER PLACES ORDERS CALLING FOR THE DELIVERY OF TIRES AND TUBES AT A TIME MORE THAN FOUR DAYS (OR SUCH DELIVERY PERIOD AS MAY BE STATED IN THE CONTRACT) AFTER THE EXPIRATION OF THE CONTRACT PERIOD, IT IS EVIDENT THAT THE ARTICLES TO BE DELIVERED DO NOT COVER NEEDS OR REQUIREMENTS EXISTING WITHIN THE CONTRACT PERIOD, AS CONTEMPLATED BY PARAGRAPH 3 OF THE GENERAL CONDITIONS, BUT RATHER A NEED WHICH IT IS ANTICIPATED WILL ARISE IN THE FUTURE, AND WHICH SHOULD BE ORDERED FROM GENERAL SCHEDULE OF SUPPLIES CONTRACTS COVERING THE REQUIREMENTS OF THE FUTURE PERIOD INVOLVED.

THEREFORE, AS TO THE INSTANT ORDERS, SUCH DELIVERIES AS ARE SCHEDULED TO TAKE PLACE AFTER SEPTEMBER 30, 1941, BY A GREATER LENGTH OF TIME THAN THE DELIVERY PERIOD ALLOWED IN CONTRACT NO. TPS-38176, SHOULD BE CONSIDERED AS COMING UNDER THE PROVISIONS OF CONTRACT NO. TPS 42352 COVERING THE PERIOD OCTOBER 1, 1941, TO MARCH 31, 1942; AND IT NECESSARILY FOLLOWS, OF COURSE, THAT DELIVERIES SCHEDULED AFTER MARCH 31, 1942, BY A PERIOD GREATER THAN THE DELIVERY PERIOD SPECIFIED IN CONTRACT NO. TPS-42352, MUST BE CONSIDERED AS FALLING UNDER SUCH CONTRACT, IF ANY, AS COVERS THE NEEDS FOR SUCH ARTICLES DURING ANY PARTICULAR PERIOD IN QUESTION.