B-128968, SEP. 14, 1956

B-128968, SEP. 14, 1956

TO KING TYPOGRAPHIC SERVICE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 1, 1956, WITH ENCLOSURE, REQUESTING REVIEW OF OUR SETTLEMENT DATED JULY 17, 1956, WHICH DISALLOWED YOUR CLAIM FOR $4,478 REPRESENTING ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR THE PERFORMANCE OF CONTRACT NO. CST-4107, DATED MARCH 9, 1955, WITH THE DEPARTMENT OF COMMERCE, NATIONAL BUREAU OF STANDARDS. YOUR CLAIM COMPRISES THE AMOUNTS OF $2,303, $825, AND $1,350, REPRESENTING HANDMADE CHARACTERS FURNISHED IN ADDITION TO THE ESTIMATED AMOUNT, INCREASED LABOR COSTS DUE TO REVISED UNION PAY CLAUSE, AND CHARACTERS RESET AND REPRINTED, RESPECTIVELY.

UNDER THE CONTRACT YOU AGREED TO SUPPLY SIX COPIES, IN PRINTED FORM, OF THE TEN-THOUSAND CHARACTERS AND CORRESPONDING CODE NUMBERS AS FOUND IN THE CHINESE TELECODE BOOK AND IN ACCORDANCE WITH PERTINENT SPECIFICATIONS. THE CONTRACT PROVIDED FOR PAYMENT AT $0.85 PER UNIT OR A TOTAL OF $8,500. THE RECORD SHOWS THE WORK WAS COMPLETED ON APRIL 24, 1956, AND THAT THE AGREED CONTRACT PRICE WAS PAID TO YOU DURING MAY 1956.

THE RECORD ALSO SHOWS THAT YOU ORIGINALLY PRESENTED YOUR CLAIM FOR THE ADDITIONAL AMOUNT BY LETTER DATED NOVEMBER 7, 1955, AND, IN REPLY THERETO, YOU WERE ADVISED BY THE CONTRACTING OFFICER IN HIS LETTER DATED NOVEMBER 23, 1955, AS TO THE REASONS WHY YOUR CLAIM DID NOT APPEAR COGNIZABLE UNDER THE TERMS OF YOUR CONTRACT. HOWEVER, A SUGGESTION WAS MADE IN THE LETTER AS TO THE POSSIBILITY FOR PAYMENT OF A PORTION OF THE COSTS IN CONNECTION WITH THE MISPLACEMENT OF THE FIDUCIAL MARKS. THIS PROPOSAL BY THE CONTRACTING OFFICER WAS NEVER ACCEPTED BY YOU. THE CONTRACTING OFFICER IN HIS SUBSEQUENT LETTER DATED MARCH 12, 1956, ADVISED YOU AS TO THE ADMINISTRATIVE DISAPPROVAL OF YOUR ENTIRE CLAIM AND EXPLAINED THAT THE MATTER WOULD BE TRANSMITTED TO OUR OFFICE FOR DIRECT SETTLEMENT. IN HIS LETTER HE PARTICULARLY POINTED OUT THAT AS TO THE WORK OF REDOING 2,700 CHARACTERS, THE CLAIM FOR THE ADDITIONAL COMPENSATION COULD NOT BE ALLOWED SINCE THE MARKS ON THE SAMPLES SUBMITTED FOR APPROVAL WERE NOT IN ACCORDANCE WITH THE SPECIFICATIONS.

THE ACTION IN THE SETTLEMENT DATED JULY 17, 1956, WAS TAKEN PURSUANT TO THE GENERAL AUTHORITY VESTING IN OUR OFFICE TO CONSIDER ALL CLAIMS FOR OR AGAINST THE UNITED STATES. SEE SECTION 236 OF THE REVISED STATUTES, AS AMENDED BY SECTION 305 OF THE ACT OF JUNE 10, 1921, 42 STAT. 24. ALSO IN THIS CONNECTION, SEE ILLINOIS SURETY CO. V. PEELER, 240 U.S. 214, 219- 220.

IN YOUR REQUEST FOR REVIEW, WHILE ADDING NO MATERIAL ADDITIONAL EVIDENCE NOT HERETOFORE CONSIDERED BY THE ADMINISTRATIVE OFFICE AND OUR OFFICE, YOU STRESS APPLICATION OF THE ADMINISTRATIVE SUGGESTION MADE IN THE LETTER OF NOVEMBER 23, 1955, AS EMPHASIZING THE MERIT OF YOUR CLAIM AND YOU INDICATE THE DIFFICULTY YOU ENCOUNTERED IN PREPARING AN ESTIMATE ON THE COMPLETED WORK. IT MAY BE, AS YOU CONTEND, THAT MORE COMPLETE KNOWLEDGE OF THE SPECIFICATION DETAILS AT THE TIME OF YOUR PREPARATION OF THE BID WOULD HAVE PROMPTED THE SUBMISSION OF A DIFFERENT QUOTATION. NEVERTHELESS, THE ELECTION TO PRESENT YOUR PROPOSAL ON THE INFORMATION AVAILABLE WAS YOUR OWN AND THE FACT THAT CERTAIN CHARACTERS WERE NOT AVAILABLE AS ANTICIPATED AND NECESSITATED YOUR PRODUCTION OF THE SAME IN NOWISE AFFECTS YOUR LEGAL RIGHTS AND OBLIGATIONS UNDER THE CONTRACT.

THE RESPONSIBILITY FOR THE ACTUAL PREPARATION OF THE PROPOSAL WAS UPON YOU AS BIDDER AND FOR THAT REASON THE CASE OF FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163, APPEARS FOR DIRECT APPLICATION. THE RIGHT WHICH VESTED IN THE GOVERNMENT UPON THE ACCEPTANCE OF YOUR BID TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT SO FORMED CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335. BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645. AS TO YOUR CLAIM FOR $1,350, THE CONTRACTING OFFICER HAS REPORTED THAT THE SPECIFICATIONS AND DRAWINGS WERE DEEMED ADEQUATE TO INDICATE THE CORRECT LOCATION OF THE REQUIRED FIDUCIAL MARKS. IF YOU CONSIDERED THE WORK NOT COVERED BY THE SPECIFICATIONS AND DRAWINGS, YOU SHOULD HAVE FOLLOWED THE PROCEDURE SET FORTH IN PARAGRAPH 2 OF GENERAL PROVISIONS OF THE CONTRACT. SINCE THAT PROCEDURE WAS NOT FOLLOWED, OUR OFFICE MAY NOT GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM FOR $1,350.

FURTHERMORE, IT IS A SETTLED PRINCIPLE OF LAW THAT VALID CONTRACTS ARE TO BE ENFORCED AS WRITTEN AND THAT THE FACT THAT SUPERVENING OR UNFORESEEN CAUSES RENDER PERFORMANCE MORE BURDENSOME OR LESS PROFITABLE, OR EVEN OCCASION A LOSS, IS NOT SUFFICIENT TO EXCUSE PERFORMANCE OR TO ENTITLE CONTRACTOR TO ADDITIONAL COMPENSATION, UNLESS SPECIFICALLY PROVIDED IN THE CONTRACT. COLUMBUS RAILWAY, POWER AND LIGHT COMPANY V. COLUMBUS 249 U.S. 399; PENN BRIDGE COMPANY V. UNITED STATES, 59 C.CLS. 892; DAY V. UNITED STATES, 245 U.S. 159. THE FACT, THEREFORE, THAT YOU ERRONEOUSLY ASSUMED THAT THE WORK REQUIRED THE MAKING OF ONLY 300 CHARACTERS INSTEAD OF 2,603 CHARACTERS OR THAT YOU WERE REQUIRED TO PAY HIGHER WAGES THAN YOU CONTEMPLATED DOES NOT ENTITLE YOU TO THE ADDITIONAL COMPENSATION CLAIMED.

ACCORDINGLY, THE DISALLOWANCE OF YOUR CLAIM IN THE SETTLEMENT OF JULY 17, 1956, IS SUSTAINED.