B-129606, DECEMBER 19, 1956, 36 COMP. GEN. 469

B-129606, DECEMBER 19, 1956, 36 COMP. GEN. 469

CONTRACTS - SPECIFICATIONS - EQUIPMENT EXCEEDING CONTRACT REQUIREMENTS - ADDITIONAL PAYMENT A CONTRACTOR WHO FURNISHED THE GOVERNMENT EQUIPMENT WHICH EXCEEDED THE REQUIREMENTS OF THE CONTRACT IS NOT ENTITLED TO ADDITIONAL PAYMENT.

TO THE SECRETARY OF THE ARMY, DECEMBER 19, 1956:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 19, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY ( LOGISTICS), REQUESTING A DECISION AS TO WHETHER THE CONTRACT PRICE OF 40 GAS RANGES FURNISHED BY WALKER'S FURNITURE AND APPLIANCE CENTER, HIGHLAND FALLS, NEW YORK, UNDER PURCHASE ORDER NO. 56-B7758 BE INCREASED BY $200 TO COVER THE COST OF AN ACCESSORY, THE COST OF WHICH THE COMPANY ALLEGES WAS NOT INCLUDED IN ITS BID PRICE. RECEIPT IS ALSO ACKNOWLEDGED OF THE ASSISTANT SECRETARY'S LETTER OF DECEMBER 5, 1956.

BY INVITATION NO. MA 30-145-56-256, THE CONTRACTING OFFICER, UNITED STATES MILITARY ACADEMY, WEST POINT, NEW YORK, REQUESTED BIDS TO BE OPENED JUNE 15, 1956, FOR FURNISHING 40 GAS RANGES IN CONFORMITY WITH THE GOVERNMENT'S DETAILED SPECIFICATIONS. PROSPECTIVE BIDDERS WERE REQUESTED TO SUBMIT DESCRIPTIVE LITERATURE WITH THEIR BIDS. IN RESPONSE, WALKER'S FURNITURE AND APPLIANCE CENTER SUBMITTED A BID DATED JUNE 14, 1956, OFFERING TO FURNISH FOUR TYPES OF CALORIC GAS RANGES, WHICH WERE DESIGNATED AS RANGES "A," "B," "C," AND "D," AT THE PRICES SPECIFIED THEREIN. THE COMPANY SPECIFIED A PRICE OF $148.65 FOR RANGE "B.' ATTACHED TO THE BID OF THE COMPANY WAS A LETTERHEAD ON WHICH WAS TYPED THE FOLLOWING INFORMATION:

RANGE "B"

MANUFACTURER ------------------------------------- CALORIC

MODEL -------------------------------------------- WB-4

SPECIFICATIONS ARE THE SAME AS THOSE ABOVE LISTED WITH THE FOLLOWING EXCEPTIONS: BACK GUARD OF RANGE DOES NOT CONTAIN CLOCK OR LIGHT. A MINUTE -MINDER IS INCLUDED. HANDLES ARE NOT THE "SNAP-ON" TYPE. OVEN RACKS ARE PORCELAIN INSTEAD OF CHROME PLATED. THERE IS NO APPLIANCE OUTLET IN BACK GUARD.

PRICE PER RANGE IN UNITS OF 40 ------------------- $148.65 EACH

IN HIS FINDING OF FACT DATED SEPTEMBER 13, 1956, THE CONTRACTING OFFICER STATED THAT AFTER A STUDY OF THE FOUR BIDS RECEIVED ON THE RANGES, AWARD WAS MADE TO WALKER'S FURNITURE AND APPLIANCE CENTER, WHO OFFERED TO FURNISH A MODEL NO. WB-4 CALORIC RANGE (RANGE "B") AT A PRICE OF $148.65 EACH; THAT WITH THE COMPANY'S BID WAS A PAGE FROM A CALORIC CATALOG SHOWING THE VARIOUS FEATURES OF THE RANGES OFFERED; THAT THE PAGE SHOWED THAT RANGE OFFERED AS RANGE "B" WOULD BE SUPPLIED WITH A LIGHT AND A MINUTE-MINDER AND THAT THE CUT OF THE RANGE DID NOT SHOW THE LOCATION OF THE LIGHT; AND THAT, WHILE THE GOVERNMENT'S SPECIFICATION DID NOT INCLUDE EITHER A LIGHT OR A MINUTE-MINDER, SINCE THE RANGE, OFFERED BY THE COMPANY AS RANGE "B" OTHERWISE MET SPECIFICATIONS, ITS BID AS TO THAT RANGE WAS ACCEPTED ON JUNE 27, 1956. ON JULY 25, 1956, THE COMPANY DELIVERED THE GAS RANGES, AND PAYMENT THEREFOR AT THE CONTRACT PRICE WAS MADE ON AUGUST 1, 1956.

IN A LETTER DATED AUGUST 13, 1956, IN WHICH WALKER'S FURNITURE AND APPLIANCE CENTER REFERRED TO A PREVIOUS TELEPHONE CONVERSATION WITH THE CONTRACTING OFFICER WHICH, THE RECORD INDICATES, OCCURRED AFTER DELIVERY OF THE RANGES, THE COMPANY STATED THAT IT HAD "INADVERTENTLY QUOTED ON A MODEL NOT SHOWN ON THE SPECIFICATION SHEET INCLUDED WITH THE BID, BUT INSTEAD ON THE SAME RANGE WITHOUT THE LIGHT AND TIMER.' BY LETTER DATED SEPTEMBER 5, 1956, THE COMPANY ADVISED AS FOLLOWS:

REFERENCE IS MADE TO YOUR ORDER NO. 56-B7758 COVERING 40 CALORIC GAS RANGES DELIVERED TO WEST POINT IN JULY. THIS LETTER IS BEING WRITTEN TO EXPLAIN THE REASONS FOR OUR REQUESTING A PRICE ADJUSTMENT AGAINST THIS BID.

ON JUNE 14TH WE FORWARDED TO YOUR OFFICE A BID QUOTING ON FORTY GAS RANGES. WE WERE AWARDED THIS BID AGAINST OUR QUOTATION ON A RANGE DESIGNATED AS " RANGE "B" " ON OUR ATTACHED SPECIFICATION SHEET. THE RANGE WAS MARKED AS MODEL WB-4 AND WE REFERRED TO AN ENCLOSED PAGE FROM A CALORIC CATALOG SHOWING TWO MODELS ONE OF WHICH RESEMBLED THE RANGE WE WERE TO DELIVER. THE DIFFICULTY AROSE WHEN, AFTER THE BID HAD BEEN AWARDED, THE CALORIC FACTORY ADVISED US THAT THE RANGE WAS MANUFACTURED ONLY WITH BOTH A MINUTE-MINDER AND LIGHT IN THE BACK RAIL AND NOT A MINUTE -MINDER ALONE. UNFORTUNATELY NO PICTURE OF THE EXACT MODEL OF WHICH WE QUOTED WAS AVAILABLE ALTHOUGH THE ONLY DIFFERENCE LAY IN THE BACK RAILS. ALL OTHER SPECIFICATIONS WERE EXACTLY AS QUOTED.

WE APPEALED THIS MATTER TO THE CALORIC COMPANY WHO, IN TURN, ADVISED US THAT THE RANGES COULD ONLY BE SUPPLIED WITH BOTH A TIMER AND LIGHT AT AN INCREASED COST OF $5.00 PER RANGE ABOVE OUR ORIGINAL NET COST.

INASMUCH AS OUR QUOTATIONS TO WEST POINT HAVE ALWAYS BEEN FIGURED JUST AS CLOSELY AS POSSIBLE RESULTING IN OUR NET PROFIT ON EACH TRANSACTION BEING REDUCED TO AN ABSOLUTE MINIMUM WE WISH TO APPEAL FOR AN ADDITIONAL REMITTANCE OF $211 REPRESENTING THE ADDITIONAL COST TO US FOR THE 40 RANGES. MAY WE ALSO POINT OUT THAT THIS ADDITIONAL EXPENSE DOES ADD TO THE VALUE RECEIVED IN THE PRODUCT ITSELF INASMUCH AS THE RANGES NOW ARE EQUIPPED WITH A LIGHTED BACK RAIL IN ADDITION TO THE MINUTE MINDER.

BY LETTER DATED NOVEMBER 26, 1956, THE COMPANY FURNISHED A PRINTED PRICE LIST OF ITS SUPPLIER, CALORIC APPLIANCE CORPORATION, TOPTON, PENNSYLVANIA, WHICH PRICE LIST WAS EFFECTIVE JULY 1, 1955--- MORE THAN 11 MONTHS PRIOR TO THE DATE ON WHICH THE COMPANY SUBMITTED ITS BID. THE PRICE LIST SPECIFIES FOR A MODEL WB4LM STANDARD 40 INCH GAS RANGE EQUIPPED WITH A LIGHT AND A MINUTE MINDER, A BASIC PRICE OF $136.65, F.O.B. TOPTON, PENNSYLVANIA. THE PRICE LIST CONTAINED A STATEMENT THAT ALL PRICES WERE SUBJECT TO THE FEDERAL EXCISE TAX. ON THE PRICE LIST IT IS STATED THAT IF A MODEL RANGE WITHOUT A LIGHT AND MINUTE MINDER WAS DESIRED, THE SUFFIX " LM" SHOULD BE DELETED FROM THE MODEL NUMBER WHEN ORDERING AND THE SUM OF $5 SHOULD BE DEDUCTED FROM THE BASIC PRICE OF $136.65. IT THUS APPEARS FROM THE PRICE LIST THAT GAS RANGES MAY BE ORDERED WITH OR WITHOUT THE LIGHT AND MINUTE MINDER BUT THAT THEY MAY NOT BE ORDERED EQUIPPED WITH ONLY ONE OF THESE ACCESSORIES. IN ITS LETTER OF NOVEMBER 26, 1956, THE COMPANY STATED THAT TO THE BASIC PRICE OF $136.65 SHOWN ON ITS SUPPLIER'S PRICE LIST, THERE SHOULD BE ADDED FIVE PERCENT TO COVER THE APPLICABLE FEDERAL EXCISE TAX, MAKING THE TOTAL F.O.B. ORIGIN PRICE $143.48.

THE OBLIGATION OF WALKER'S FURNITURE AND APPLIANCE CENTER UNDER THE CONTRACT IS CLEAR. THE CONTRACTOR WAS OBLIGATED TO FURNISH CALORIC 40 INCH MODEL WB-4 GAS RANGES EQUIPPED WITH A MINUTE MINDER. IT WAS NOT OBLIGATED TO FURNISH THE GAS RANGES WITH A BACK GUARD LIGHT, BUT DID SO SOLELY FOR ITS OWN CONVENIENCE, AND FOR THE REASON THAT IT COULD NOT OBTAIN THE RANGE WITH MINUTE MINDER, WHICH IT HAD OFFERED, WITHOUT INCLUDING THE LIGHT ALSO. THERE WAS, HOWEVER, NO PROHIBITION AGAINST THE CONTRACTOR FURNISHING, OR THE GOVERNMENT ACCEPTING, GAS RANGES EXCEEDING THE REQUIREMENTS OF THE CONTRACT, SO LONG AS THEY MET THE NEEDS OF THE GOVERNMENT, AT NO ADDITIONAL COST. THE FACT THAT THE GAS RANGES FURNISHED BY THE CONTRACTOR INCLUDED AN EXTRA CONVENIENCE NOT SPECIFIED IN THE CONTRACT AND NOT REQUIRED BY THE GOVERNMENT AFFORDS NO LEGAL BASIS FOR THE PAYMENT OF ADDITIONAL COMPENSATION. SEE WALKER V. UNITED STATES, 143 F. 685; PITTSBURGH AND MIDWAY COAL MINING COMPANY V. UNITED STATES, 77 C.1CLS. 8; THE ALASKA MATANUSKA COAL COMPANY V. UNITED STATES, 80 C.1CLS. 775; 4 COMP. DEC. 399; 16 COMP. GEN. 922; A 51674, DATED OCTOBER 30, 1933; AND A-85727, DATED NOVEMBER 17, 1937.

THE ABSTRACTS OF BIDS, THE CONTRACTING OFFICER'S FINDING OF FACTS DATED SEPTEMBER 13, 1956, AND HIS STATEMENT OF NOVEMBER 27, 1956, ARE BEING RETAINED. THE OTHER PAPERS ARE RETURNED.