B-124900, OCT. 12, 1955

B-124900, OCT. 12, 1955

TO TRUE QUALITY SHOE CO., INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 27, 1955, REQUESTING REVIEW OF SETTLEMENT DATED MAY 10, 1955, WHICH DISALLOWED YOUR CLAIM FOR $10,056, REPRESENTING AN ADDITIONAL AMOUNT ALLEGED TO BE DUE IN CONNECTION WITH THE FABRICATION OF HOSPITAL SLIPPERS FOR THE DEPARTMENT OF THE ARMY UNDER CONTRACTS NOS. DA30-280-QM-27083 AND DA30 280-QM-27086, BOTH DATED JUNE 6, 1952.

UNDER THE TERMS OF THE CONTRACTS YOU AGREED TO FABRICATE CANVAS HOSPITAL SLIPPERS FOR CERTAIN UNIT PRICES PER PAIR AND IN ACCORDANCE WITH CERTAIN GOVERNMENT SPECIFICATIONS. ALL MATERIAL NECESSARY FOR THE MANUFACTURE OF THE SLIPPERS WAS TO BE SUPPLIED BY YOU. THE GOVERNMENT SPECIFICATIONS REQUIRED THAT THE SOLE AND HEEL OF THE SLIPPERS BE FILLED WITH 100 PERCENT FLEECED WOOL OR PULLED BLANKET MATERIAL FREE FROM IMPURITIES. ALSO, THE SPECIFICATIONS PROVIDED THAT BLANKET MATERIAL CLASSED AS "SECONDS" COULD BE USED, PROVIDED ITS IMPERFECTIONS WERE NOT SUCH THAT THEY WOULD IMPAIR ITS SERVICEABILITY.

YOU CONTEND THAT SUCH SPECIFICATIONS ARE SO VAGUE AS TO AMOUNT TO AN AMBIGUITY IN THAT YOUR SUPPLIER OF FILLING MATERIAL WAS ABLE TO COMPLY WITH THE SPECIFICATIONS BY DELIVERING MATERIAL IN A FORM THAT REQUIRED EXTENSIVE REPROCESSING BEFORE IT COULD BE USED FOR THE PURPOSE INTENDED, THEREBY INCREASING YOUR COST OF PRODUCTION.

THE GOVERNMENT DID NOT WARRANT IN THE SPECIFICATIONS THAT THE MATERIAL ORDERED BY YOU FROM YOUR SUPPLIER, ALTHOUGH IN COMPLIANCE WITH THE GOVERNMENT'S SPECIFICATIONS, WOULD BE IN A FORM CAPABLE OF SERVING THE INTENDED PURPOSE WITHOUT YOUR HAVING TO PERFORM SOME OPERATION THEREON TO PLACE IT IN A DESIRED STATE. IT WAS YOUR DUTY TO SECURE MATERIAL MEETING THE GOVERNMENT'S REQUIREMENTS AND WHICH WOULD BE CONSISTENT WITH YOUR MANUFACTURING CAPABILITIES. THIS, APPARENTLY YOU DID NOT DO. CONSEQUENTLY, SUCH MISTAKE AS WAS MADE WAS NOT THE FAULT OF THE GOVERNMENT.

WITH RESPECT TO YOUR CONTENTION THAT THE PHILADELPHIA QUARTERMASTER LABORATORIES HAD PASSED USED MATERIAL CLASSIFIED AS "SECONDS," THE ADMINISTRATIVE OFFICE REPORTS THAT A THOROUGH EXAMINATION WAS MADE OF NUMEROUS LABORATORY REPORTS OF TESTS ON THE FILLING MATERIAL SUBMITTED. THESE REPORTS INDICATED THAT NO USED MATERIAL WAS INVOLVED AND THAT THE MATERIAL COMPLIED IN FULL WITH THE SPECIFICATION REQUIREMENTS.

YOU STATE THAT PRIOR TO AWARD YOU WERE REQUESTED TO REDUCE YOUR BID PRICE, WHICH YOU DID, AND LEARNED LATER YOU WERE ALREADY THE LOW BIDDER. YOU ALLEGED THAT "THIS IS CONTRARY TO GOOD PROCUREMENT PRACTICES.' YOUR ATTENTION IS INVITED TO THE REQUEST FOR BIDS, WHEREIN IT WAS STATED THAT AWARD WOULD NORMALLY BE MADE TO THE LOW BIDDER, BUT THAT THE GOVERNMENT RESERVED THE RIGHT TO NEGOTIATE WITH ANY BIDDER. HENCE, THE GOVERNMENT WAS NOT OBLIGATED TO AWARD THE CONTRACT TO THE LOW BIDDER, BUT WAS REQUIRED TO NEGOTIATE FURTHER, IF THE CONTRACTING OFFICER FELT THAT THE BIDS RECEIVED DID NOT REPRESENT A REASONABLE OFFER.

IT APPEARS FROM A CAREFUL EXAMINATION OF THE CONTRACTS THAT THEY DO NOT CONTAIN ANY QUALIFICATION OF YOUR ABSOLUTE UNDERTAKING TO PERFORM THE REQUIRED SERVICES, AND NO PROVISION IS MADE IN THE CONTRACTS BY WHICH THE GOVERNMENT IS OBLIGATED TO BEAR ANY INCREASED COST TO YOU IN FURNISHING THE SERVICES. IT IS A WELL SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AND PERFORMED AS WRITTEN, AND THE FACT THAT INTERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR ENTITLE A CONTRACTOR TO COMPENSATION IN ADDITION TO THAT PROVIDED IN THE CONTRACTS. COLUMBUS RY. POWER AND LIGHT CO. V. COLUMBUS, 249 U.S. 399, 412; BLAUNER CONSTRUCTION COMPANY V. UNITED STATES, 94 C.CLS. 503, 511; 19 COMP. GEN. 902. SINCE THE CONTRACTS CONTAINED NO PROVISION FOR ADDITIONAL COMPENSATION IN CASE OF INCREASED COST OF PERFORMANCE, YOU WERE BOUND TO PERFORM THE CONTRACTS IN ACCORDANCE WITH THEIR TERMS AND AT THE PRICES STIPULATED THEREIN. AS YOU HAVE BEEN PAID THE FULL CONTRACT PRICES FOR THE SERVICES PERFORMED, THERE IS NO LEGAL BASIS FOR PAYMENT OF ANY AMOUNT IN ADDITION TO SUCH PRICES.