B-127552, APR. 20, 1956

B-127552, APR. 20, 1956

TO W. LEROY STILES, AUTHORIZED CERTIFYING OFFICER, UNITED STATES DEPARTMENT OF AGRICULTURE:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1956, TRANSMITTING FOR ADVANCE DECISION VOUCHER FOR $72.96, IN FAVOR OF KOPPERS COMPANY, INC., PHILADELPHIA, PENNSYLVANIA, REPRESENTING AN ADDITIONAL AMOUNT CLAIMED FOR CREOSOTED FIR LUMBER FURNISHED THE U.S. FOREST SERVICE, MIDDLEBURY, VERMONT, PURSUANT TO CONTRACT NO. 12-11-007-7730, DATED JUNE 21, 1954.

THE BASIS FOR THE INSTANT CLAIM IS THAT IN LISTING THE TOTAL BOARD FOOT MEASUREMENT OF LUMBER SCHEDULED TO BE FURNISHED UNDER THE CONTRACT, THE GOVERNMENT ALLEGEDLY FAILED TO FOLLOW THE STANDARD TRADE PRACTICE OF CALCULATING THE BOARD MEASUREMENT TO THE NEXT LARGER FOOT FOR ALL PIECES OF LUMBER OUT TO "FOOT AND INCH" DIMENSIONS, BUT RATHER, FIGURED THE ESTIMATED QUANTITIES OF BOARD FOOTAGE SCHEDULED TO BE FURNISHED ON THE EXACT FOOT AND FRACTIONAL DIMENSIONS SHOWN IN THE BID SCHEDULES, THUS ACCOUNTING FOR THE REPORTED UNDERPAYMENT OF $72.96 NOW BEING CLAIMED BY THE CONTRACTOR.

A REFERENCE TO CONTRACT NO. 12-11-007-7730 DISCLOSES THAT THE TOTAL BOARD FOOTAGE OF LUMBER SCHEDULES TO BE DELIVERED UNDER EACH ITEM WAS COMPUTED UPON THE BASIS OF THE EXACT DIMENSIONS SPECIFIED FOR EACH PIECE OF LUMBER LISTED, AND THAT THE CONTRACTOR FIGURED HIS TOTAL BID PRICE FOR EACH ITEM UPON THE BASIS OF THE EXACT BOARD MEASUREMENTS LISTED BY THE GOVERNMENT OPPOSITE EACH ITEM WHICH, AS STATED, WERE FIGURED ON THE "FOOT AND INCH" DIMENSION SPECIFIED FOR EACH PIECE. IF IT HAD BEEN THE INTENTION OF THE CONTRACTOR TO FIGURE THE TOTAL BOARD FOOTAGE ON A DIFFERENT BASIS, WHEREBY EACH FRACTION OF A FOOT WOULD BE CONSIDERED AS ONE FOOT, SUCH INTENT SHOULD HAVE BEEN INDICATED IN ITS ORIGINAL PROPOSAL.

CONCERNING THE CONTRACTOR'S CONTENTION THAT IT IS ENTITLED TO THE ADDITIONAL AMOUNT CLAIMED UPON THE BASIS OF AN ALLEGED TRADE CUSTOM, WHEREBY FRACTIONS OF A FOOT REPORTEDLY ARE TREATED AS ONE FOOT IN COMPUTING BOARD MEASUREMENTS ON LUMBER OF THIS KIND, THE LAW IS WELL SETTLED THAT TRADE CUSTOM OR PRACTICE PROPERLY MAY BE RESORTED TO FOR THE PURPOSE OF CLARIFYING SOME DOUBT OR MAKING DEFINITE THAT WHICH IS UNCERTAIN, BUT IT CANNOT BE INVOKED TO VARY OR CHANGE THE PLAIN AND UNAMBIGUOUS TERMS OF A VALID AND BINDING CONTRACT. SEE MOORE V. UNITED STATES. 196 U.S. 157, 166-167; NATIONAL BANK V. BURKHARDT, 100 ID. 686, 692; 18 COMP. GEN. 60, 65; ID. 933. SINCE THE TERMS OF THE INSTANT CONTRACT ARE CLEAR AND UNEQUIVOCAL IN THEIR INTENT AND MEANING, THERE EXISTS NO AUTHORITY FOR MODIFYING THEM, WITHOUT CONSIDERATION, TO THE PREJUDICE OF THE UNITED STATES.

THE VOUCHER AND RELATED PAPERS ARE RETURNED WITH THE ADVICE THAT PAYMENT THEREON IS NOT AUTHORIZED.