B-125173, MAY 9, 1957

B-125173: May 9, 1957

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INC.: RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED APRIL 2. REPRESENTING THE LOSSES ALLEGED TO HAVE BEEN SUSTAINED BY YOU IN THE PERFORMANCE OF CONTRACTS NOS. THE SUBJECT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION BY SETTLEMENT DATED MAY 23. UPON RECONSIDERATION OF THAT SETTLEMENT SUCH ACTION WAS SUSTAINED BY OUR DECISION OF AUGUST 16. THE TWO CONTRACTS WERE AWARDED TO YOU. THE PRICES YOU QUOTED WERE IN LINE WITH THOSE OF OTHER BIDDERS. THE CONTRACTS THUS EXECUTED IN GOOD FAITH VESTED IN THE GOVERNMENT THE RIGHT TO HAVE THE ARTICLES FURNISHED AT THE STIPULATED PRICES AND IN ACCORDANCE WITH THE TERMS OF THE AGREEMENTS. CASES INVOLVING SIMILAR CIRCUMSTANCES HAVE BEEN CONSIDERED BY THE COURTS AND IT HAS BEEN CONSISTENTLY HELD THAT SUPERVENING OR UNFORESEEN EVENTS WHICH RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE.

B-125173, MAY 9, 1957

TO MORGAN STEEL PRODUCTS, INC.:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED APRIL 2, 1957, CONCERNING YOUR CLAIM FOR $20,249.57, REPRESENTING THE LOSSES ALLEGED TO HAVE BEEN SUSTAINED BY YOU IN THE PERFORMANCE OF CONTRACTS NOS. DA 20-113-ORD-11091 AND DA-20-113-ORD-11895, COVERING A QUANTITY OF ENGINE OVERHAUL STANDS FABRICATED FOR THE DEPARTMENT OF THE ARMY. YOU STATE THAT YOUR PETITION FOR RELIEF UNDER THE PROVISIONS OF THE FIRST WAR POWERS ACT OF 1941, 55 STAT. 838, AS AMENDED, HAS BEEN DENIED BY THE DEPARTMENT OF THE ARMY, AND THEREFORE, YOU REQUEST THAT WE AGAIN REVIEW YOUR CLAIM IN ORDER TO CORRECT THE INEQUITY OF SUCH ACTION.

THE SUBJECT CLAIM WAS DISALLOWED BY OUR CLAIMS DIVISION BY SETTLEMENT DATED MAY 23, 1955, AND UPON RECONSIDERATION OF THAT SETTLEMENT SUCH ACTION WAS SUSTAINED BY OUR DECISION OF AUGUST 16, 1955, B-125173, FOR THE REASONS STATED THEREIN. THE TWO CONTRACTS WERE AWARDED TO YOU, BEING THE LOWEST CORRECT BIDS RECEIVED, BY THE CONTRACTING OFFICER WITHOUT EITHER ACTUAL OR CONSTRUCTIVE KNOWLEDGE THAT YOU HAD FAILED TO PROPERLY COMPUTE YOUR PRODUCTION COSTS IN THE PREPARATION OF THE BIDS. THE PRICES YOU QUOTED WERE IN LINE WITH THOSE OF OTHER BIDDERS, AND THE CONTRACTS THUS EXECUTED IN GOOD FAITH VESTED IN THE GOVERNMENT THE RIGHT TO HAVE THE ARTICLES FURNISHED AT THE STIPULATED PRICES AND IN ACCORDANCE WITH THE TERMS OF THE AGREEMENTS. BRAWLEY V. UNITED STATES, 96 U.S. 168. CASES INVOLVING SIMILAR CIRCUMSTANCES HAVE BEEN CONSIDERED BY THE COURTS AND IT HAS BEEN CONSISTENTLY HELD THAT SUPERVENING OR UNFORESEEN EVENTS WHICH RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, ARE NOT SUFFICIENT TO AFFORD A CONTRACTOR RELIEF. AMONG THE MANY DECISIONS RENDERED, SEE SUN PUBLISHING CO. V. MOORE, 183 U.S. 642; PENN BRIDGE CO. V. UNITED STATES, 59 C.CLS. 244; AND PACIFIC HARDWARE CO. V. UNITED STATES, 49 C.CLS. 327. IT IS FUNDAMENTAL THAT NO OFFICER OR AGENT OF THE GOVERNMENT HAS THE AUTHORITY TO WAIVE VESTED CONTRACTUAL RIGHTS.

THE FILE DISCLOSES THAT YOU HAVE BEEN PAID IN FULL AT THE CONTRACT RATES FOR ALL OF THE STANDS FURNISHED; AND, SINCE NO NEW AND MATERIAL EVIDENCE OR CONTENTIONS HAVE BEEN SUBMITTED, THERE EXISTS NO LEGAL AUTHORITY, UNDER THE FACTS OF RECORD AND APPLICABLE LAW, FOR OUR OFFICE TO CERTIFY FOR PAYMENT FROM APPROPRIATED MONIES ANY AMOUNT IN EXCESS OF THE CONTRACT PRICES.