B-129468, NOV. 19, 1956

B-129468, NOV. 19, 1956

TO BAYSWATER CRAFTSMEN, INC.:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 21, 1956, REQUESTING REVIEW OF THE GOVERNMENT'S CLAIM AGAINST YOU IN THE AMOUNT OF $755.75, REPRESENTING EXCESS COSTS INCURRED BY THE GOVERNMENT DUE TO YOUR DEFAULT UNDER CONTRACT NO. DA-36-039-SC-36457, DATED JUNE 13, 1952.

UNDER THE TERMS OF THE CONTRACT YOU AGREED TO FURNISH AND DELIVER 220 CHESTS AT THE UNIT PRICE OF $31.92 OR A TOTAL CONSIDERATION OF $7,022.40, LESS ONE-HALF OF ONE PERCENT DISCOUNT IN THE SUM OF $35.11 OR FOR A NET TOTAL OF $6,987.29. PARAGRAPH 18 OF THE CONTRACT INCORPORATED THEREIN STANDARD FORM 32, GENERAL PROVISIONS (SUPPLY CONTRACT), PRESCRIBED BY THE GENERAL SERVICES ADMINISTRATION, NOVEMBER 1949 EDITION. PARAGRAPH 11 OF STANDARD FORM 32 PROVIDED THAT IF YOU FAILED TO DELIVER THE SUPPLIES WITHIN THE TIME SPECIFIED OR ANY EXTENSION THEREOF THE GOVERNMENT MIGHT TERMINATE THE WHOLE OR ANY PART OF THE CONTRACT AND PROCURE THE SUPPLIES ELSEWHERE. IN THE EVENT THE REPURCHASE OF THE SUPPLIES RESULTED IN EXCESS COSTS TO THE GOVERNMENT YOU WERE TO BE LIABLE THEREFOR, UNLESS YOUR FAILURE TO PERFORM THE CONTRACT AROSE OUT OF CAUSES BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT OR NEGLIGENCE. PARAGRAPH 12 OF THESE GENERAL PROVISIONS PROVIDED THAT ALL DISPUTES OF FACT NOT DISPOSED OF BY AGREEMENT WERE TO BE DECIDED BY THE CONTRACTING OFFICER, WHOSE DECISION WAS TO BE FINAL AND CONCLUSIVE, UNLESS YOU APPEALED WITHIN 30 DAYS FROM THE DATE OF RECEIPT OF AN ADVERSE FINDING OF THE CONTRACTING OFFICER, TO THE SECRETARY OF THE ARMY.

THE RECORD SHOWS THAT BY LETTER OF JULY 8, 1952, YOU REQUESTED A CHANGE IN ALUMINUM ANGLE SPECIFICATIONS, DUE TO THE UNAVAILABILITY OF THE SPECIFIED MATERIAL, TO WHICH THE SIGNAL CORPS ENGINEERING LABORATORIES AT FORT MONMOUTH REPLIED ON AUGUST 15, 1952, SUGGESTING A SOURCE OF SUPPLY FOR THE ALUMINUM ANGLES NECESSARY FOR PRODUCTION OF THE CONTRACT ARTICLES. FOLLOWING YOUR SUBSEQUENT TELEPHONE CALL, THE GOVERNMENT GRANTED YOU AUTHORITY ON SEPTEMBER 29, 1952, TO USE ALUMINUM ALLOY ANGLES OF A DIFFERENT SIZE PROVIDED IT WOULD NOT RESULT IN AN INCREASE OF COST TO THE GOVERNMENT. THEREAFTER, ON OCTOBER 17, 1952, YOU REQUESTED A PRICE INCREASE OF $6.90 PER UNIT AS A RESULT OF THE CHANGE SET FORTH ABOVE, WHICH THE SIGNAL CORPS ENGINEERING LABORATORIES AT FORT MONMOUTH DENIED ON OCTOBER 31, 1952, FOR THE REASON THAT THE DEVIATION WAS FOR YOU CONVENIENCE. AGAIN, ON JANUARY 14, 1953, YOU REQUESTED AN INCREASE IN THE CONTRACT PRICE AND SUBMITTED A COST BREAKDOWN SHOWING THE "PRESENT-DAY COSTS OF THE BILL OF MATERIAL" AS $38.28 PER UNIT WHICH REQUEST WAS DENIED. ON OCTOBER 8, 1953, THE CONTRACT WAS TERMINATED DUE TO YOUR FAILURE TO FURNISH THE CHESTS INVOLVED AND THE REQUIRED CHESTS WERE PURCHASED ELSEWHERE AT AN EXCESS COST TO THE UNITED STATES OF $755.75.

IN SUPPORT OF YOUR CONTENTION THAT YOU SHOULD NOT BE CHARGED WITH THE AMOUNT OF THE REPORTED INDEBTEDNESS YOU CONTEND THAT CERTAIN PARTS INDICATED ON THE BLUEPRINT WERE REPRESENTED AS STOCK ITEMS, ACTUALLY WERE NOT STOCK ITEMS AND THAT THE ALCOA COMPANY NOTIFIED YOU THAT THIS WAS NOT A STOCK ITEM WITH THEM. ALTHOUGH THE BLUEPRINT INVOLVED IS NOT PRESENTLY AVAILABLE, THE ADMINISTRATIVE AGENCY HAS ADVISED OUR OFFICE THAT THE DRAWINGS AGAIN HAVE BEEN REVIEWED AND IT HAS BEEN DETERMINED THAT THE DRAWINGS COVERING THE REQUIREMENTS OF THE ITEM ON ORDER DO NOT INDICATE THAT ANY OF THE "METAL WORK IS A STOCK ITEM WITH THE ALCOA COMPANY" AND THAT IN ALL THE ACTIONS TAKEN BY THE GOVERNMENT AN ATTEMPT WAS MADE TO AID YOU IN YOUR PROBLEM OF SATISFYING THE MATERIAL REQUIREMENTS OF THE CONTRACT. IN THIS REGARD YOU WERE GIVEN APPROVAL FOR DEVIATION FROM THE SPECIFICATIONS AND ALSO WERE INFORMED OF A SOURCE OF SUPPLY FOR THE REQUIRED ALUMINUM ANGLES IN RESPONSE TO YOUR SEVERAL REQUESTS. IT IS REPORTED THAT AT NO TIME WAS ANY STATEMENT MADE THAT CERTAIN REQUIRED METAL WORK WAS A STOCK ITEM WITH THE ALCOA COMPANY.

WITH REGARD TO YOUR CONTENTION THAT THE GOVERNMENT HAD MISLED YOU IN REPRESENTING THAT CERTAIN METAL WORK WAS A STOCK ITEM OF THE ALCOA COMPANY IT MAY BE STATED THAT OUR OFFICE HAS NO FIRSTHAND KNOWLEDGE OF THE FACTS AND NECESSARILY MUST RELY UPON THE REPORT OF THE ADMINISTRATIVE AGENCY RELATIVE TO THE MATTER. THE AGENCY HAS STATED THAT NO COMMITMENT WAS MADE IN THE REQUIREMENTS REGARDING METAL WORK BEING "STOCK ITEMS WITH ALCOA COMPANY" AND IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE CORRECTNESS OF SUCH REPORT, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS. FURTHERMORE, THE CONTRACTING OFFICER IN HIS FINDINGS OF FACT DATED OCTOBER 8, 1953, FOUND THAT YOUR FAILURE TO DELIVER COULD NOT BE CONSIDERED BEYOND YOUR CONTROL AND WITHOUT YOUR FAULT OR NEGLIGENCE. THERE IS NO SHOWING THAT YOU APPEALED FROM THESE ADVERSE FINDINGS TO THE SECRETARY OF THE ARMY. UNDER THE TERMS OF THE CONTRACT THE FINDINGS OF THE CONTRACTING OFFICER ARE FINAL AND CONCLUSIVE.

ACCORDINGLY, THERE EXISTS NO LEGAL BASIS UPON WHICH YOU MAY BE RELIEVED OF THE EXCESS COSTS INCURRED BY THE GOVERNMENT BY REASON OF THE DEFAULT UNDER YOUR CONTRACT. ARRANGEMENTS TO SATISFY ..END :