B-134898, FEB. 13, 1958

B-134898, FEB. 13, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 10, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY FOR LOGISTICS, REQUESTING OUR DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF SOUGHT BY HAMSCHOENINGH UNDER CONTRACT NO. DA-04-398-AS-18, DATED APRIL 29, 1957.

IN RESPONSE TO INVITATION NO. AS-04-398-57-21, ISSUED ON APRIL 8, 1957, BY THE DEPARTMENT OF THE ARMY, HAM SCHOENINGH SUBMITTED A BID DATED APRIL 25, 1957, OFFERING TO FURNISH ALL LABOR, EQUIPMENT, AND MATERIALS, AND TO PERFORM ALL WORK, FOR THE SEALING AND WATERPROOFING OF NINE BUILDINGS AND QUARTERS AT THE TWO ROCK RANCH STATION, PETALUMA, CALIFORNIA, IN STRICT ACCORDANCE WITH THE SPECIFICATIONS, DRAWINGS, ETC., FOR A TOTAL PRICE OF $7,230. SINCE MR. SCHOENINGH WAS THE LOWEST QUALIFIED BIDDER, CONTRACT NO. DA-04-398-AS-18, WAS AWARDED TO HIM ON APRIL 29, 1957. ON OR ABOUT JUNE 14, 1957, THE POST ENGINEER OF THE TWO ROCK RANCH STATION NOTICED THAT MR. SCHOENINGH WAS NOT PAINTING THE METAL WINDOW SASH. THIS MATTER WAS BROUGHT TO HIS ATTENTION AND IN THE CORRESPONDENCE THAT FOLLOWED MR. SCHOENINGH ALLEGED, AMONG OTHER THINGS, THAT A MISTAKE HAD BEEN MADE IN HIS BID IN THAT HE HAD NOT INTERPRETED THE SPECIFICATIONS AS REQUIRING THE METAL WINDOW SASH TO BE PAINTED AND,THEREFORE, DID NOT INCLUDE ANY AMOUNT IN THE BID TO COVER THE COST THEREOF. SUBSEQUENTLY, AT THE DIRECTION OF THE CONTRACTING OFFICER, MR. SCHOENINGH PAINTED ALL OF THE SASH AND REQUESTED THE ADDITIONAL AMOUNT OF $3,753.45 FOR SUCH WORK. UPON REQUEST, A SUMMARY STATEMENT OF ACTUAL COSTS FOR THE COMPLETE JOB LATER WAS FURNISHED BY MR. SCHOENINGH WHICH SHOWS A REDUCTION IN THE ORIGINAL CLAIM FROM $3,753.45 TO $2,754.53.

IT APPEARS FROM THE RECORD SUBMITTED AND FROM THE LETTER DATED JUNE 21, 1957, OF THE GOVERNMENT CONTRACTING OFFICER, THAT THE DEPARTMENT OF THE ARMY RELIED SOLELY UPON PARAGRAPH 1-05 ,APPLICATION OF PAINT," SUBPARAGRAPHS C (2) AND C (3) OF THE TECHNICAL SPECIFICATIONS OF CONTRACT NO. DA-04-398-AS-18, AS THE BASIS FOR REQUIRING PAINTING OF THE METAL WINDOW SASH. AN EXAMINATION OF PARAGRAPH 1-05 SHOWS A HEADING UNDER SUBPARAGRAPH C AS "GUTTERS AND DOWNSPOUTS," AND WHILE REFERENCE IS MADE UNDER SUBPARAGRAPH C (2) TO UNDERCOATING OF ALL METAL, SINCE THE HEADING FOR SUBPARAGRAPH C MAKES REFERENCE ONLY TO THE "GUTTERS AND DOWNSPOUTS" IT WOULD APPEAR THAT SUCH DESCRIPTIVE LIMITATION CAN REASONABLY BE INTERPRETED AS REQUIRING THE PAINTING ONLY OF ALL METAL AS PERTAINED TO THE GUTTERS AND DOWNSPOUTS, AND THAT THIS PART OF THE SPECIFICATIONS HAD NO RELATION TO METAL WINDOW SASH. MOREOVER, EXAMINATION OF ALL OTHER PROVISIONS OF CONTRACT NO. DA-04 398-AS-18, INCLUDING THE GENERAL AND SPECIAL CONDITIONS, FAILS TO REVEAL ANY CLEAR REQUIREMENT FOR THE PAINTING OF THE WINDOW SASH. CONSTRUING THE CONTRACT AGAINST THE GOVERNMENT WE CANNOT SAY THAT THE CONTRACTOR'S INTERPRETATION WAS NOT FULLY JUSTIFIED, AND IT MUST BE CONCLUDED THAT WHEN HAM SCHOENINGH WAS ORDERED TO, AND DID, PAINT ALL OF THE METAL WINDOW SASH HE WAS PERFORMING WORK NOT CALLED FOR BY THE SPECIFICATIONS.

ACCORDINGLY, SINCE THERE DOES NOT APPEAR TO HAVE BEEN INCLUDED IN THE COST BREAKDOWN OF MR. SCHOENINGH'S ORIGINAL BID OF $7,230, AS SET FORTH IN HIS LETTER OF JULY 2, 1957, TO THE GOVERNMENT CONTRACTING OFFICER, ANY AMOUNT TO COVER THE COST OF PAINTING THE METAL WINDOW SASH, AND SINCE THE RECOMMENDATION IN THE PURCHASING AND CONTRACTING OFFICER'S COMMUNICATION OF OCTOBER 25, 1957, FOR PAYMENT OF THE CLAIM IN THE AMOUNT OF $2,754.53-- - REPORTED AS REPRESENTING ACTUAL COST ONLY--- IS ACCEPTED AS REFLECTING AN AMOUNT WHICH IS FAIR AND REASONABLE FOR THE ADDITIONAL WORK THAT WAS PERFORMED, OUR OFFICE WILL HAVE NO OBJECTION TO THE PAYMENT OF THE CLAIM IN THAT AMOUNT AS AN EQUITABLE ADJUSTMENT UNDER THE CHANGES ARTICLE.

A REFERENCE TO THIS DECISION SHOULD BE MADE ON THE VOUCHER UNDER WHICH PAYMENT OF THE CLAIM IS MADE.

THE PAPERS, WITH THE EXCEPTION OF THE COMMUNICATION DATED OCTOBER 25, 1957, OF THE PURCHASING AND CONTRACTING OFFICER, ARE RETURNED HEREWITH.