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B-144094, APR. 27, 1961

B-144094 Apr 27, 1961
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MERRY: REFERENCE IS MADE TO YOUR REQUEST THAT THE DECISION OF OCTOBER 14. YOU CONTEND NOW THAT THE CONTRACT WAS AMBIGUOUS AS TO THE COURSE OF PERFORMANCE THE CONTRACTOR WAS TO PURSUE IN THAT IT DID NOT PROVIDE SPECIFIC LOCATIONS AT WHICH REPAIRS WOULD BE REQUIRED TO BE DONE IN THE DIKE AREA. EVEN THOUGH THE EXACT POINTS AT WHICH THE REPAIRS WERE TO BE MADE WERE NOT SPECIFIED IN THE CONTRACT. IT IS CLEAR FROM AN EXAMINATION OF THE SPECIFICATIONS AND DRAWING INCORPORATED THEREIN THAT THE PLACES WERE TO BE LEFT TO THE OPTION OF THE CONTRACTING OFFICER WITHIN CERTAIN GEOGRAPHICAL LIMITS. A REASONABLE DEGREE OF DEFINITENESS WAS PRODUCED. EVEN THOUGH YOU MAY HAVE ANTICIPATED THAT THE CONTRACT WAS FOR THE REPAIR OF THE MAIN BREAKTHROUGH IN THE DIKE.

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B-144094, APR. 27, 1961

TO MR. HENRY W. MERRY:

REFERENCE IS MADE TO YOUR REQUEST THAT THE DECISION OF OCTOBER 14, 1960, DISALLOWING YOUR CLAIM UNDER CONTRACT DA-19-016-CIVENG-57-259, AND THE DECISION OF MARCH 1, 1961, SUSTAINING THE DISALLOWANCE, BE RECONSIDERED.

YOU CONTEND NOW THAT THE CONTRACT WAS AMBIGUOUS AS TO THE COURSE OF PERFORMANCE THE CONTRACTOR WAS TO PURSUE IN THAT IT DID NOT PROVIDE SPECIFIC LOCATIONS AT WHICH REPAIRS WOULD BE REQUIRED TO BE DONE IN THE DIKE AREA. HOWEVER, EVEN THOUGH THE EXACT POINTS AT WHICH THE REPAIRS WERE TO BE MADE WERE NOT SPECIFIED IN THE CONTRACT, IT IS CLEAR FROM AN EXAMINATION OF THE SPECIFICATIONS AND DRAWING INCORPORATED THEREIN THAT THE PLACES WERE TO BE LEFT TO THE OPTION OF THE CONTRACTING OFFICER WITHIN CERTAIN GEOGRAPHICAL LIMITS. BY PROVIDING SUCH A METHOD OF IDENTIFYING THE LOCATIONS, A REASONABLE DEGREE OF DEFINITENESS WAS PRODUCED, ALTHOUGH THE CONTRACTOR ASSUMED A RISK THAT THE WORK AREA HE CONTEMPLATED WOULD NOT CORRESPOND TO THE CONTRACTING OFFICER'S ULTIMATE CHOICE.

EVEN THOUGH YOU MAY HAVE ANTICIPATED THAT THE CONTRACT WAS FOR THE REPAIR OF THE MAIN BREAKTHROUGH IN THE DIKE, THE CONTRACT DID NOT SO PROVIDE. AND EVEN IF, AS YOU CONTEND, THE FIELD ENGINEER REPRESENTED THAT THIS WAS THE PRIME CONTRACTUAL PURPOSE, THE CONTRACT IS CLEAR THAT SUCH ORAL REPRESENTATIONS ARE NOT BINDING UPON THE GOVERNMENT. IN THIS CONNECTION, PARAGRAPH GC-2 OF THE SPECIFICATIONS STATES:

"* * * THE GOVERNMENT ASSUMES NO RESPONSIBILITY FOR ANY CONCLUSIONS OR INTERPRETATIONS MADE BY THE CONTRACTOR ON THE BASIS OF THE INFORMATION MADE AVAILABLE BY THE GOVERNMENT. THE GOVERNMENT ALSO ASSUMES NO RESPONSIBILITY FOR ANY UNDERSTANDING OR REPRESENTATION MADE BY ITS OFFICERS OR AGENTS DURING OR PRIOR TO THE EXECUTION OF THE CONTRACT; UNLESS (I) SUCH UNDERSTANDING OR REPRESENTATIONS ARE EXPRESSLY STATED IN THE CONTRACT, AND (II) THE CONTRACT EXPRESSLY PROVIDES THAT THE RESPONSIBILITY THEREFOR IS ASSUMED BY THE GOVERNMENT. * * *"

THE INTENT OF THE CONTRACT, AS WE INTERPRET IT, WAS TO COVER PERFORMANCE OF WORK, ESTIMATED AT 10,000 TONS OF STONE SETTING AND 100 HOURS OF STONE RESETTING, IN THE AREAS SUBSEQUENTLY DESIGNATED BY THE CONTRACTING OFFICER, WITH THE FURTHER LIMITATION THAT THE COST OF THE DIRECTED WORK WOULD NOT EXCEED $88,000. IT IS UNFORTUNATE THAT YOU ANTICIPATED THAT THE CONTRACTING OFFICER WOULD CHOOSE A DIFFERENT WORK LOCATION THAN HE DID, BUT THE OPTION TO MAKE THE CHOICE SPECIFICALLY WAS RESERVED TO HIM UNDER THE CONTRACT.

UPON FURTHER REVIEW OF THE CLAIM, WE ARE CONSTRAINED TO FOLLOW OUR PRIOR POSITION.

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