B-135371, APR. 24, 1958

B-135371, APR. 24, 1958

TO THE ADVANCED VACUUM PRODUCTS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1958, REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 23, 1958, WHICH, FOR THE REASONS SET OUT THEREIN, DISALLOWED YOUR CLAIM IN THE AMOUNT OF $230 FOR ADDITIONAL COMPENSATION FOR 500 TERMINALS FURNISHED BY YOU TO THE DEPARTMENT OF THE ARMY, REDSTONE ARSENAL, HUNTSVILLE, ALABAMA, UNDER PURCHASE ORDER NO. 16498-B57 DATED MARCH 18, 1957.

UNDER DATE OF FEBRUARY 26, 1957, REDSTONE ARSENAL ISSUED A REQUEST FOR PROPOSALS (FORM 746) FOR FURNISHING 500 CERAMIC TERMINALS. THE REQUEST INCLUDED THE FOLLOWING PROVISIONS AS TO DELIVERY:

"5. DELIVERY TIME--- WHEN NOT OTHERWISE SPECIFIED, OFFEROR MUST DEFINITELY STATE TIME OF PROPOSED DELIVERY.

"REQUIRED DELIVERY DATE 1 APRIL 1957.

"TIME OF DELIVERY IS IMPORTANT AND MAY BE A DETERMINING FACTOR IN MAKING AN AWARD.

"CONTRACTOR PROMISES TO COMPLETE DELIVERY ON OR BEFORE:

"SHOW MONTH, DAY, AND YEAR

"IN THE ABSENCE OF A DEFINITE STATEMENT BY BIDDER, IT IS UNDERSTOOD AND AGREED THAT DELIVERY WILL BE MADE AS SPECIFIED;,

UNDER DATE OF MARCH 5, 1957, YOU SUBMITTED A BID OF $0.73 EACH FOR THE TERMINALS, SUCH AMOUNT BEING PLACED ON BOTH FORM 746 AND YOUR PRINTED QUOTATION FORM. ON THE REVERSE SIDE OF YOUR QUOTATION FORM, CERTAIN CONDITIONS WERE PRINTED, INCLUDING THE FOLLOWING:

"OUR QUOTATIONS AND PRICES ARE SUBJECT TO CHANGE WITHOUT NOTICE. RESERVE THE RIGHT THAT PRICES CHARGED WILL BE THOSE IN EFFECT AT TIME OF SHIPMENT. THE PRICES QUOTED HERE ARE BASED UPON SHIPMENT OF THE QUANTITIES SHOWN AND ON THE BASIS OF THE DELIVERY SCHEDULE DESCRIBED.

"DELIVERY DATES ARE GIVEN TO THE BEST OF OUR KNOWLEDGE BASED ON CONDITIONS EXISTING AT TIME OF INFORMATION. WE WILL USE OUR BEST EFFORTS TO SHIP WITHIN THE TIMES ESTIMATED, BUT DO NOT GUARANTEE TO DO SO.'

HOWEVER, YOU DID NOT STATE ANY DELIVERY DATE AS REQUIRED BY FORM 746. THEREFORE, ON MARCH 11, 1957, THE CONTRACTING OFFICER REQUESTED YOU BY TELEGRAM TO "WIRE DELIVERY DATE IMMEDIATELY.' IN YOUR TELEGRAPHIC REPLY DATED MARCH 12, 1957, YOU STATED: "DELIVERY 5 WEEKS FROM DATE OF FIRM ORDER.'

YOUR BID WAS ACCEPTED BY PURCHASE ORDER NO. 16498-B57 ISSUED MARCH 18, 1957, IN WHICH THE DELIVERY DATE WAS STATED TO BE APRIL 29, 1957. YOU ACKNOWLEDGED THE ORDER AT YOUR BID PRICE OF $0.73 EACH ON YOUR FORM ACKNOWLEDGMENT DATED MARCH 27, 1957, ON WHICH IT WAS STATED: "DELIVERY ESTIMATED WEEK OF 6/10/57.'

UNDER DATE OF JUNE 4, 1957, YOU ADVISED REDSTONE ARSENAL THAT BECAUSE OF THE INCREASE IN THE COST OF MATERIALS THE PRICE OF THE TERMINALS HAD BEEN INCREASED TO $1.19 EACH EFFECTIVE MAY 3, 1957, AND YOU ATTACHED A REVISED FORM ACKNOWLEDGMENT SHOWING THE PRICE AS $1.19 EACH AND STATING: "DELIVERY ESTIMATED WEEK OF 7/1/57.'

IT IS REPORTED THAT REDSTONE ARSENAL RECEIVED 100 TERMINALS ON JUNE 17, 1957, AND 400 ON JULY 1, 1957, AND THAT PAYMENT HAS BEEN MADE TO YOU AT THE RATE OF $0.73 EACH, PLUS $1.54 SHIPPING CHARGE, IN ACCORDANCE WITH THE PURCHASE ORDER. YOUR CLAIM IN THE AMOUNT OF $230 REPRESENTS THE DIFFERENCE BETWEEN THE PRICE OF $0.73 EACH STATED IN THE PURCHASE ORDER AND THE PRICE OF $1.19 EACH STATED IN YOUR REVISED ACKNOWLEDGMENT DATED JUNE 4, 1957.

THE BID SUBMITTED BY YOU ON GOVERNMENT FORM 746 WAS IN THE DEFINITE AMOUNT OF $0.73 EACH FOR THE TERMINALS. ALSO, YOUR TELEGRAM OF MARCH 12, 1957, STATED UNCONDITIONALLY THAT DELIVERY WOULD BE 5 WEEKS FROM DATE OF FIRM ORDER. IT IS TO BE NOTED THAT THE DATE OF DELIVERY WAS REGARDED BY THE CONTRACTING OFFICER AS IMPORTANT. UNDER SUCH CIRCUMSTANCES, THE ISSUANCE OF THE PURCHASE ORDER DATED MARCH 18, 1957, CONSUMMATED A CONTRACT BASED ON THE SPECIFIC TERMS OF YOUR BID AS SHOWN ON FORM 746 AND YOUR TELEGRAM. THE ESTABLISHED RULE IS THAT WHERE A CONTRACT CONTAINS AN EXPRESS STIPULATION AS TO THE AMOUNT OF COMPENSATION OR PRICE TO BE PAID, SUCH STIPULATION IS CONCLUSIVE ON THE PARTIES AND MEASURES THE AMOUNT OF THE RECOVERY FOR PERFORMANCE. SEE BRAWLEY V. UNITED STATES, 96 U.S. 168; SIMPSON V. UNITED STATES, 172 U.S. 372.

MOREOVER, IF SHIPMENT HAD BEEN MADE BY YOU WITHIN THE TIME LIMIT FIXED BY YOUR TELEGRAM AND ACCEPTED BY THE CONTRACTING OFFICER, IT WOULD HAVE BEEN MADE PRIOR TO MAY 3, 1957, THE EFFECTIVE DATE OF YOUR PRICE INCREASE. THE PURCHASE ORDER ACCEPTING YOUR PROPOSAL WAS DATED MARCH 18, 1957, THUS MAKING APRIL 22, 1957, THE AGREED DELIVERY DATE IN ACCORDANCE WITH YOUR TELEGRAM ("5 WEEKS FROM DATE OF FIRM ORDER"). HOWEVER, THE PURCHASE ORDER ALLOWED AN ADDITIONAL WEEK, STATING THE DELIVERY DATE AS APRIL 29, 1957. IT IS WELL ESTABLISHED THAT EVEN IF A CONTRACTOR WITH THE GOVERNMENT WERE OTHERWISE ENTITLED TO AN INCREASED PRICE, HE IS NOT SO ENTITLED IF DELIVERY IS DELAYED FOR REASONS NOT EXCUSABLE UNDER THE CONTRACT AND THE REQUESTED PRICE INCREASE AROSE AFTER THE FIXED DELIVERY DATE. 34 COMP. GEN. 565.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 23, 1958, DISALLOWING YOUR CLAIM, APPEARS CORRECT AND HEREBY IS SUSTAINED.