B-134788, FEB. 3, 1958

B-134788, FEB. 3, 1958

TO WAUKEGAN TRUCK SALES, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 12, 1957, RELATIVE TO YOUR CLAIM ON ACCOUNT OF REPAIRS MADE TO A TRUCK INCIDENT TO PURCHASE ORDER NO. 09-4603-57, ISSUED BY THE UNITED STATES COAST GUARD.

IN RESPONSE TO AN INVITATION BY A UNITED STATES COAST GUARD OFFICIAL FOR A BID ESTIMATE FOR REPAIRING A DAMAGED COAST GUARD TRUCK, YOUR FIRM SUBMITTED A HANDWRITTEN BID ESTIMATE OF $278.34 MAXIMUM FOR REPAIRS TO THE TRUCK. A SECOND BID IN THE MAXIMUM ESTIMATED AMOUNT OF $305.65 WAS RECEIVED. YOUR BID, BEING THE LOWER, WAS ACCEPTED AND PURCHASE ORDER NO. 09-4603-57, DATED JUNE 24, 1957, WAS ISSUED ON THE BASIS OF YOUR BID OF $278.34 MAXIMUM FOR THE JOB, WHICH CONTEMPLATED INSTALLATION OF A REBUILT ENGINE ASSEMBLY AT $202.14, $71.20 FOR LABOR, AND $5 FOR GASKETS AND OIL. UNDER DATE OF JULY 3, 1957, UPON COMPLETION AND DELIVERY OF THE JOB, YOU SUBMITTED INVOICE NO. J-3043 IN THE TOTAL AMOUNT OF $547.21 FOR THE REPAIRS. YOU STATED THAT, NOTWITHSTANDING YOUR ORIGINAL QUOTATION WAS ON A REBUILT ENGINE, YOU INSTALLED A NEW ENGINE ASSEMBLY BECAUSE YOU WERE UNABLE TO PROCURE A REBUILT ENGINE. YOU STATED ALSO THAT YOU FELT THAT A REBUILT ENGINE WOULD NOT GIVE ADEQUATE SERVICE AND THAT IT WAS ADVISABLE TO INSTALL A NEW ENGINE ASSEMBLY WHICH WOULD GIVE BETTER PERFORMANCE AND SERVICE FOR A LONGER PERIOD AND AT THE SAME TIME WOULD BE GUARANTEED BY YOU. YOU FURTHER STATED THAT YOU KNOW FROM LONG EXPERIENCE OF DOING BUSINESS WITH THE GOVERNMENT THAT IT IS NOT A POLICY TO INSTALL PARTS WHICH ARE NOT ORIGINALLY QUOTED ON IN ESTIMATES.

IN A LETTER DATED JULY 26, 1957, YOU WERE ADVISED BY THE COAST GUARD PAY AND VOUCHER SECTION AT CLEVELAND THAT, SINCE THERE WAS NO AGREEMENT BETWEEN YOU AND ANY AUTHORIZED COAST GUARD REPRESENTATIVE TO ALTER THE SPECIFICATIONS AND/OR THE PRICE AS ORIGINALLY QUOTED IN YOUR BID AND MUTUALLY AGREED UPON AND SPECIFIED IN THE PURCHASE ORDER, ONLY THE BID PRICE WOULD BE PAID. THEREFORE, PAYMENT TO YOU OF $278.34 ONLY WAS EFFECTED BY DISBURSING OFFICER VOUCHER NO. 416, DATED JULY 26, 1957.

BY LETTER DATED AUGUST 14, 1957, YOU REQUESTED PAYMENT OF THE UNPAID BALANCE OF $268.87--- THE DIFFERENCE BETWEEN YOUR TOTAL INVOICED AMOUNT OF $547.21 AND THE CONTRACT PRICE OF $278.34 PREVIOUSLY PAID TO YOU--- AND IN SUPPORT OF YOUR CLAIM YOU FORWARDED YOUR SUPPLIER'S ORIGINAL INVOICE SHOWING A CHARGE TO YOU OF $286 FOR THE NEW ENGINE. YOUR CLAIM FOR THE ADDITIONAL AMOUNT WAS DISALLOWED BY UNITED STATES GENERAL ACCOUNTING OFFICE SETTLEMENT CERTIFICATE DATED NOVEMBER 19, 1957, FOR THE REASONS THAT YOUR INVOICE IN THE AMOUNT OF $547.21 INCLUDED $301.25 FOR A NEW ENGINE ASSEMBLY, $123.50 FOR LABOR, AND VARIOUS OTHER AMOUNTS FOR PARTS AND SERVICES NOT CONTEMPLATED IN YOUR BID FOR THE REPAIRS, AND THAT THERE WAS NO LEGAL AUTHORITY FOR PAYMENT TO YOU OF ANY AMOUNT IN EXCESS OF THE ESTIMATED MAXIMUM AMOUNT OF $278.34 MUTUALLY AGREED UPON AND SPECIFIED IN THE PURCHASE ORDER.

IN LETTER OF DECEMBER 12, 1957, YOU REDUCED YOUR CLAIM TO $99.11, THE DIFFERENCE BETWEEN YOUR ORIGINAL CLAIM OF $301.25 FOR THE NEW ENGINE ASSEMBLY INSTALLED AND THE AMOUNT OF $202.14 ESTIMATED IN YOUR BID FOR A REBUILT ENGINE, AND YOU REQUESTED REIMBURSEMENT OF THIS ADDITIONAL AMOUNT BECAUSE YOU FEEL THAT THE NEW ENGINE INSTALLATION WAS GOOD BUSINESS AND BECAUSE THE COAST GUARD HAS THE BENEFIT OF A NEW ENGINE.

THERE SEEMS TO BE NO CONTROVERSY BETWEEN YOU AND THE COAST GUARD AS TO WHAT YOU WERE REQUIRED TO FURNISH UNDER YOUR BID AND PURCHASE ORDER NO. 09 -4603-57 BASED THEREON. THE RECORD INDICATES THAT YOU INSTALLED A NEW ENGINE ASSEMBLY BECAUSE YOU WERE UNABLE TO PROCURE A REBUILT ENGINE WHICH WAS CALLED FOR BY THE CONTRACT. THERE IS NOTHING IN THE PURCHASE ORDER THAT WOULD PERMIT AN UPWARD ADJUSTMENT OF THE CONTRACT PRICE IN CASE YOU FURNISHED A NEW ENGINE ASSEMBLY.

IT IS A FAMILIAR RULE THAT WHEN A PARTY ENTERS INTO A CONTRACT FOR THE FURNISHING OF GOODS AND SERVICES TO THE GOVERNMENT IT IS INCUMBENT UPON HIM TO HAVE ON HAND THE GOODS NECESSARY TO PERFORMANCE, OR PROPER COMMITMENTS WHICH WILL ENABLE HIM TO FURNISH THE GOODS WHEN AND WHERE REQUIRED. SEE 22 COMP. GEN. 1129. ALSO, A CONTRACTOR IS OBLIGATED TO FURNISH MATERIALS AT LEAST MEETING AND NOT FALLING BELOW THE MINIMUM SPECIFICATION REQUIREMENTS, BUT THERE IS NO PROHIBITION AGAINST A CONTRACTOR FURNISHING, OR THE GOVERNMENT ACCEPTING, MATERIALS EXCEEDING THE MINIMUM REQUIREMENTS, SO LONG AS THEY WILL SERVE AS WELL, OR EVEN BETTER, THE NEEDS OF THE GOVERNMENT AT NO ADDITIONAL COST. SEE 16 COMP. GEN. 923. IT IS ALSO THE RULE THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF RECOVERY FOR PERFORMANCE. SEE 5 COMP. GEN. 605.

SO, IN THE PRESENT INSTANCE, THE FACT THAT YOU VOLUNTARILY INSTALLED A NEW ENGINE ASSEMBLY UNDER A CONTRACT WHICH ONLY REQUIRED THE INSTALLATION OF A REBUILT ENGINE ASSEMBLY WAS NO RESPONSIBILITY OF THE GOVERNMENT, WHICH WAS AT LIBERTY TO ACCEPT, AT THE SAME PRICE, MATERIALS SUPERIOR TO THOSE REQUIRED BY THE CONTRACT. SUCH ACCEPTANCE COULD NOT SERVE TO IMPOSE UPON THE GOVERNMENT AN OBLIGATION TO PAY ANY AMOUNT IN EXCESS OF THE STIPULATED CONTRACT PRICE. SEE WALKER V. UNITED STATES, 143 F. 685; PITTSBURGH AND MIDWAY COAL MINING COMPANY V. UNITED STATES, 77 C.CLS. THE ALASKA MATANUSKA COAL COMPANY V. UNITED STATES, 80 C.CLS. 755; 36 COMP. GEN. 469 AND DECISIONS CITED THEREIN.

IN THE LIGHT OF THE FOREGOING, THERE IS NO LEGAL AUTHORITY FOR PAYMENT TO YOU OF ANY AMOUNT IN EXCESS OF THE CONTRACT PRICE OF $278.34. CONSEQUENTLY, YOUR REQUEST FOR RELIEF MAY NOT BE GRANTED.