B-153276, FEB. 14, 1964
Highlights
TO COLUMBIA REPORTING COMPANY: REFERENCE IS MADE TO LETTERS OF SEPTEMBER 9 AND NOVEMBER 29. THE INVITATION PROVIDED THAT WHEN TRANSCRIPTS WERE FURNISHED THE PUBLIC THE CONTRACTOR COULD CHARGE AT A RATE NOT TO EXCEED 15 CENTS PER PAGE. OR WHERE THE PARTY ORDERING TRANSCRIPTS REQUESTED DAILY COPIES THE SAME WERE TO BE FURNISHED AT THE RATE FIXED BY THE CONTRACTOR AND SUCH PARTY. FIVE BIDS WERE RECEIVED AND IT HAS BEEN INFORMALLY ASCERTAINED FROM A REPRESENTATIVE OF THE DEPARTMENT THAT EACH BIDDER STATED THAT THERE WOULD BE NO CHARGE TO THE GOVERNMENT FOR THE SERVICES AND. 375 WHICH WAS THE HIGHEST AMOUNT BID. THIS AMOUNT WAS PAID BY CERTIFIED CHECK AFTER YOU WERE AWARDED THE CONTRACT. THE RECORD SHOWS THAT THE FOOD AND DRUG ADMINISTRATION DID NOT HOLD ANY HEARINGS DURING THE CONTRACT PERIOD AND HENCE YOU WERE UNABLE TO SELL ANY TRANSCRIPTS.
B-153276, FEB. 14, 1964
TO COLUMBIA REPORTING COMPANY:
REFERENCE IS MADE TO LETTERS OF SEPTEMBER 9 AND NOVEMBER 29, 1963, FROM YOUR ATTORNEYS, REQUESTING A REFUND OF THE AMOUNT OF $4,375 UNDER CONTRACT NO. OS 63-14 ENTERED INTO ON JULY 3, 1962, WITH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE.
THE INVITATION IN THIS CASE SOLICITED BIDS FOR FURNISHING "STENOGRAPHIC OR OTHER MANUAL FORM OF REPORTING HEARINGS AND OTHER PROCEEDINGS BEFORE THE SECRETARY, DEPT. OF HEALTH, EDUCATION, AND WELFARE, OR OTHERS DESIGNATED BY HIM, AND THE FURNISHING OF TRANSCRIPTS THEREOF, AND THE PERFORMANCE OF CERTAIN SERVICES IN CONNECTION THEREWITH UNDER THE FOOD, DRUG, AND COSMETIC ACT OF 1938, AT WASHINGTON, D.C., WITHIN THE TIME HEREINAFTER SPECIFIED AND IN ACCORDANCE WITH THE ATTACHED SPECIFICATIONS AND GENERAL PROVISIONS, FOR THE PERIOD FROM JULY 1, 1962, TO JUNE 30, 3.' THE INVITATION PROVIDED THAT WHEN TRANSCRIPTS WERE FURNISHED THE PUBLIC THE CONTRACTOR COULD CHARGE AT A RATE NOT TO EXCEED 15 CENTS PER PAGE, OR WHERE THE PARTY ORDERING TRANSCRIPTS REQUESTED DAILY COPIES THE SAME WERE TO BE FURNISHED AT THE RATE FIXED BY THE CONTRACTOR AND SUCH PARTY. FIVE BIDS WERE RECEIVED AND IT HAS BEEN INFORMALLY ASCERTAINED FROM A REPRESENTATIVE OF THE DEPARTMENT THAT EACH BIDDER STATED THAT THERE WOULD BE NO CHARGE TO THE GOVERNMENT FOR THE SERVICES AND, IN ADDITION, OFFERED A BONUS FOR BEING PERMITTED TO DO THE WORK. YOU OFFERED A BONUS OF $4,375 WHICH WAS THE HIGHEST AMOUNT BID. THIS AMOUNT WAS PAID BY CERTIFIED CHECK AFTER YOU WERE AWARDED THE CONTRACT.
THE RECORD SHOWS THAT THE FOOD AND DRUG ADMINISTRATION DID NOT HOLD ANY HEARINGS DURING THE CONTRACT PERIOD AND HENCE YOU WERE UNABLE TO SELL ANY TRANSCRIPTS. YOU NOW SEEK A REFUND OF THE AMOUNT OF $4,375 BECAUSE YOU "OBTAINED NO CONSIDERATION" FOR PAYMENT OF SAID AMOUNT.
IT HAS BEEN CONSISTENTLY HELD BY THE COURTS THAT "REQUIREMENTS" CONTRACTS ARE VALID CONTRACTS. SEE 1A CORBIN ON CONTRACTS 156; 1 WILLISTON ON CONTRACTS 104A; AND 2 WILLISTON ON SALES 464. THIS IS BASED ON THE THEORY THAT WHERE ONE PARTY AGREES TO LET ANOTHER PARTY FILL ITS ACTUAL REQUIREMENTS DURING A CERTAIN PERIOD AND THE SECOND PARTY AGREES TO FILL SUCH REQUIREMENTS, THESE PROMISES CONSTITUTE A VALID CONSIDERATION. THE QUANTITY OF THE GOODS INVOLVED OR THE AMOUNT OF THE SERVICES TO BE RENDERED IS NEVER AT ISSUE UNLESS THE AGREEMENT BETWEEN THE PARTIES SO LIMITS THE QUANTITY OR AMOUNT. NOR MAY ANY VARIATION IN THE CONTEMPLATED REQUIREMENTS BE CONSIDERED THE PROPER SUBJECT FOR ANY LEGAL OR EQUITABLE RELIEF UNLESS THERE HAS BEEN BAD FAITH IN ESTIMATING THE REQUIREMENTS. SEE 37 COMP. GEN. 688, AND COURT CASES CITED THERE, PARTICULARLY BRAWLEY V. UNITED STATES, 96 U.S. 168, WHERE THE ACTUAL REQUIREMENTS WERE ABOUT 5 PERCENT OF THE ESTIMATED REQUIREMENTS. WE HELD IN 37 COMP. GEN. 688, THAT WHERE THE PERFORMANCE OF THE CONTRACT WITH THE REQUIREMENTS REDUCED TO ABOUT 20 PERCENT OF THE ESTIMATED QUANTITY RESULTED IN A CONSIDERABLE LOSS TO THE CONTRACTOR OUR OFFICE COULD NOT FIND ANY BASIS FOR REGARDING THE CONTRACTOR'S CLAIM AS CONTAINING SUCH ELEMENTS OF EQUITY AS TO JUSTIFY ITS SUBMISSION TO THE CONGRESS PURSUANT TO THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.
IN THIS CASE THERE WAS NOTHING FURNISHED TO PROSPECTIVE BIDDERS REGARDING THE ESTIMATED WORK THAT THE SUCCESSFUL BIDDER MIGHT BE CALLED UPON TO PERFORM. IT HAS BEEN INFORMALLY ASCERTAINED FROM A REPRESENTATIVE OF THE DEPARTMENT THAT YOU DID NOT HAVE THE CONTRACT FOR REPORTING WORK FOR THE PRIOR FISCAL YEAR AND NOTHING HAS BEEN FURNISHED BY YOU TO INDICATE THAT THERE WAS AN OFFICIAL ESTIMATE OF THE MINIMUM AND MAXIMUM REQUIREMENTS. IF THE REQUIREMENTS HAD GREATLY EXCEEDED THOSE ESTIMATED BY YOU AND YOU HAD MADE PROFITS FAR BEYOND YOUR EXPECTATION BY REASON THEREOF, THE GOVERNMENT WOULD HAVE HAD NO LEGAL OR EQUITABLE BASIS TO RECOVER ANY PART OF SAID PROFITS. BY THE SAME TOKEN, THE FACT THAT THE REQUIREMENTS FELL FAR SHORT OF THE REQUIREMENTS CONTEMPLATED BY YOU FURNISHES NO LEGAL OR EQUITABLE BASIS FOR ADJUSTMENT OF THE CONTRACTUAL AGREEMENT. THESE RISKS WERE VOLUNTARILY ASSUMED BY THE BIDDERS IN THIS CASE AND THERE IS NO SHOWING OF BAD FAITH IN ANY ACT OF THE GOVERNMENT.
WE DO NOT FIND THAT YOUR CLAIM CONTAINS SUCH ELEMENTS OF EQUITY AS TO JUSTIFY SUBMISSION OF IT TO THE CONGRESS PURSUANT TO THE ACT OF APRIL 10, 1928, 31 U.S.C. 236.