B-143127, JAN. 3, 1961

B-143127, JAN. 3, 1961

TO THE LOW BROS. LUMBER CO., LTD.:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 17, 1960, WITH ENCLOSURE, REQUESTING REVIEW OF SETTLEMENT DATED MAY 16, 1960, WHICH DISALLOWED YOUR CLAIM FOR $699.44, REPRESENTING ADDITIONAL CHARGES FOR TRIMMING AND BANDING LUMBER FURNISHED THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N604-25899, DATED JUNE 9, 1958.

UNDER THE TERMS OF THE CONTRACT YOU AGREED TO DELIVER, F.O.B., PEARL HARBOR, T.H., 122,400 BOARD FEET OF LUMBER, IN SIZES AND IN ACCORDANCE WITH CERTAIN SPECIFICATIONS, AS FOLLOWS:

"TIMBER, COMMON, ROUGH, COAL-TAR CREOSOTE 122,400 B.F.

TREATED, DOUGLAS FIR, STRUCTURAL 1200C

GRADE. TIMBERS TO BE CUT IN SIZES LISTED

BELOW PRIOR TO PRESSURE TREATMENT:

TABLE

"12 INCHES BY 12 INCHES BY 4 FEET (850 PIECES)

12 INCHES BY 12 INCHES BY 10 FEET (136 PIECES)

12 INCHES BY 12 INCHES BY 20 FEET (272 PIECES)

"CREOSOTE TREATMENT TO BE MINIMUM NET RETENTION

OF 14 LB./CU.FT. CONFORMING TO FEDERAL SPECIFICATION

TT-W-571D DATED 12 MARCH 1956.'

UPON THE RECEIPT OF THE FIRST SHIPMENT OF LUMBER AT DESTINATION, THE GOVERNMENT REFUSED THE LUMBER ON THE GROUNDS THAT IT WAS NOT SQUARE CUT ON THE ENDS AND NOT CUT TO THE LENGTHS SPECIFIED IN THE CONTRACT. SOME OF THIS LUMBER WHICH WAS SHORTER THAN THE LENGTHS SPECIFIED IN THE CONTRACT WAS ACCEPTED BY THE GOVERNMENT IN AN EFFORT TO MINIMIZE EXPENSES WHICH YOU WOULD HAVE INCURRED IF THE LUMBER HAD BEEN REJECTED. AS TO SOME OF THE LUMBER IN THIS SHIPMENT WHICH WAS LONGER THAN THE CONTRACT LENGTHS, IT IS REPORTED THAT YOU WERE PERMITTED TO TRIM THE OVERSIZE PIECES AND APPLY A SURFACE COAT OF CREOSOTE OVER THE EXPOSED END CUT WITHOUT PRESSURE. AS A RESULT OF ACTION ON THE FIRST SHIPMENT YOU INSTRUCTED YOUR SUPPLIER ON THE MAINLAND TO TRIM THE LUMBER TO EXACT LENGTHS AND TO SQUARE CUT THE ENDS OF THE LUMBER. YOU ALLEGE THAT THE COSTS INCURRED TO PERFORM THIS SERVICE ARE $699.44 AND SINCE THE CONTRACT DID NOT REQUIRE THIS WORK YOU SHOULD BE REIMBURSED THEREFOR.

ON DECEMBER 22, 1958, THE CONTRACTING OFFICER DENIED YOUR CLAIM FOR REIMBURSEMENT AND YOUR APPEAL TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS WAS DISMISSED AS BEING UNTIMELY. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MAY 16, 1960.

IN YOUR REQUEST FOR REVIEW YOU HAVE STRESSED THE RULES OF THE WEST COAST LUMBERMEN'S ASSOCIATION WHICH YOU STATE ARE A PART OF THE CONTRACT. SUPPORT OF YOUR POSITION YOU HAVE FURNISHED A LETTER DATED NOVEMBER 16, 1960, FROM THE WEST COAST LUMBER INSPECTION BUREAU TO THE EFFECT THAT UNDER PARAGRAPH 2-I OF ITS GRADING RULES IT IS PROVIDED THAT "LUMBER NOT CONFORMING TO STANDARD SIZES OR GRADES, OR INTENDED FOR SPECIAL USES, SHOULD BE GOVERNED BY SPECIAL CONTRACT.' AND WITH REFERENCE TO THE CONTRACT REQUIREMENT IN THIS CASE THAT THE LUMBER IS "TO BE CUT TO SIZES LISTED BELOW PRIOR TO PRESSURE TREATMENT," IT IS STATED IN THE LETTER THAT "IN OUR OPINION" THIS REQUIREMENT DOES NOT CONSTITUTE A SPECIAL CONTRACT UNLESS THE "SIZES LISTED BELOW" WERE OF A SIZE AT VARIANCE WITH COMMONLY NAMED SIZES. ALSO, IT IS STATED IN THE LETTER THAT---

"UNLESS THE TERM "PRECISION TRIMMED" OR "EXACT LENGTH" WERE USED, PRECISION TRIMMING SHOULD NOT BE EXPECTED. IN INDUSTRY PRACTICE, ACTUAL LENGTHS GENERALLY RUN FROM A FRACTION OF ONE INCH TO ABOUT THREE INCHES OVER THE NOMINAL LENGTH ON ITEMS OF FOUR INCH THICKNESS OR LESS, BUT ON TIMBERS (5 INCHES AND THICKER) IT IS QUITE COMMON FOR THE LENGTHS TO RUN OVER AS MUCH AS EIGHT OR TEN INCHES, OR EVEN MORE, WHICH IS PERFECTLY ACCEPTABLE UNDER THE RULES.'

INSOFAR AS IT APPEARS FROM SPECIFICATIONS REFERRED TO IN THE CONTRACT, THE RULES OF THE WEST COAST LUMBERMEN'S ASSOCIATION WERE NOT MADE A PART OF THE CONTRACT. THE FACT THAT IT MAY HAVE BEEN INDUSTRY PRACTICE TO SUPPLY RANDOM LENGTHS OF LUMBER EXCEPT WHEN THE WORDS "EXACT LENGTH," ,PRECISION TRIM" OR WORDS OF SIMILAR IMPORT WERE USED IS NOT DETERMINATIVE OF THE DISPUTE HERE SINCE IT HAS BEEN HELD THAT NOTHING IN THE NATURE OF A TRADE CUSTOM, PRACTICE OR USAGE MAY BE INVOKED TO VARY OR CONTRADICT THE TERMS OF A CONTRACT WITH THE UNITED STATES. MOORE V. UNITED STATES, 196 U.S. 517; 27 COMP. GEN. 724. ASIDE FROM THE FOREGOING, THE NAMING OF THE SIZES OF THE VARIOUS PIECES OF LUMBER IN THE CONTRACT WOULD OF ITSELF REQUIRE CUTTING IN ORDER TO OBTAIN THESE SIZES SO THAT A STATEMENT THAT THE LUMBER WAS "TO BE CUT TO SIZES LISTED BELOW PRIOR TO PRESSURE TREATMENT" WOULD HAVE BEEN SUPERFLUOUS UNLESS IT WOULD BE INTERPRETED AS REQUIRING THE FURNISHING OF THE DESIGNATED SIZES ONLY.