B-143127, JAN. 25, 1961
Highlights
LTD.: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9. THE FACTS IN THIS CASE ARE SET OUT IN OUR DECISION OF JANUARY 3. WILL NOT BE REPEATED HERE. IN YOUR LETTER YOU STATE THAT WE HAVE USED THE WORD "RANDOM" IMPROPERLY IN OUR DECISION WHEN WE STATED THAT "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. IT IS NOTED THAT THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS OF OCTOBER 22. WHAT THE CONTRACTING OFFICER AND OUR OFFICE REFERRED TO IN USING THE EXPRESSION "RANDOM LENGTHS" WAS THAT IN THE INDUSTRY LUMBER MIGHT BE SUPPLIED WITH A TOLERANCE OF A NUMBER OF INCHES.
B-143127, JAN. 25, 1961
TO LOW BROS. LUMBER CO., LTD.:
REFERENCE IS MADE TO YOUR LETTER OF JANUARY 9, 1961, RELATIVE TO OUR DECISION OF JANUARY 3, 1961, WHICH SUSTAINED SETTLEMENT DATED MAY 16, 1960, DISALLOWING 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.
THE FACTS IN THIS CASE ARE SET OUT IN OUR DECISION OF JANUARY 3, 1961, AND WILL NOT BE REPEATED HERE.
IN YOUR LETTER YOU STATE THAT WE HAVE USED THE WORD "RANDOM" IMPROPERLY IN OUR DECISION WHEN WE STATED THAT "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.' THE CONTRACTING OFFICER, IN HIS FINDING OF FACT DATED DECEMBER 22, 1958, STATED IN PARAGRAPH NUMBERED 5 OF THE FINDING, THAT THE PRECISE LANGUAGE OF THE CONTRACT SPECIFICATION IN REQUIRING TIMBER TO BE CUT TO SPECIFIED SIZES PRIOR TO TREATMENT CONTROLS "OVER ANY INDUSTRY PRACTICE OF NORMALLY SUPPLYING RANDOM LENGTHS.' IT IS NOTED THAT THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS OF OCTOBER 22, 1959, DISMISSING YOUR CLAIM FOR LACK OF JURISDICTION ALSO REFERS TO THE FACT THAT "THE APPELLANT HAD URGED THAT INDUSTRY PRACTICE ALLOWED THE FURNISHING OF RANDOM LENGTHS.' WHAT THE CONTRACTING OFFICER AND OUR OFFICE REFERRED TO IN USING THE EXPRESSION "RANDOM LENGTHS" WAS THAT IN THE INDUSTRY LUMBER MIGHT BE SUPPLIED WITH A TOLERANCE OF A NUMBER OF INCHES, DEPENDING ON THE SIZE OF THE PIECES.
AS TO YOUR STATEMENT THAT YOUR FIRM "DIDN-T BRING UP THE MATTER OF THE EFFECT OF WCLA RULES, YOU BROUGHT THEM UP," IT IS NOTED THAT ON PAGE 4 OF YOUR LETTER DATED JULY 23, 1959, YOU REFER TO THE "WEST COAST LUMBERMEN'S ASSOCIATION RULES.' CONSEQUENTLY, THESE RULES WERE REFERRED TO IN THE SETTLEMENT OF MAY 16, 1960. THEREAFTER, IN THE THIRD PARAGRAPH OF YOUR LETTER OF NOVEMBER 17, 1960, REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT "THE RULES OF THE WEST COAST LUMBERMEN'S ASSOCIATION ARE REFERRED TO IN THE ORIGINAL INVITATION TO BID.' ASIDE FROM THE FOREGOING AND AS STATED IN OUR DECISION OF JANUARY 3, 1961, THE STATEMENT THAT THE LUMBER WAS "TO BE CUT TO SIZES LISTED BELOW PRIOR TO PRESSURE TREATMENT" MEANT FURNISHING OF THE DESIGNATED SIZES ONLY. THE CONTRACTING OFFICER HAS STATED THAT THE LENGTHS OF THE LUMBER FURNISHED RANGED FROM TWO INCHES SHORT TO NINE INCHES OVER THE SPECIFIED LENGTHS WHICH WAS NOT REGARDED AS COMPLYING WITH THE SPECIFICATIONS.
NOTHING HAS BEEN FURNISHED WHICH WOULD WARRANT A CHANGE IN THE CONCLUSION HERETOFORE REACHED IN THIS MATTER AND ACCORDINGLY OUR DECISION OF JANUARY 3, 1961, IS AFFIRMED.