B-141671, JUN. 28, 1960

B-141671, JUN. 28, 1960

TO THE MANHATTAN LIGHTING EQUIPMENT COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 28, 1960, WITH ENCLOSURE, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 12, 1960, DISALLOWING YOUR CLAIM FOR $221.72 UNDER CONTRACT NO. N600/MIS/53166, DATED SEPTEMBER 17, 1959.

THE CONTRACT PROVIDED THAT YOU FURNISH 5,759 MULTIPLE FOLDING RULES AT $0.4495 EACH, OR FOR A TOTAL PRICE OF $2,588.67. APPLICABLE PACKING REQUIREMENTS OF THE CONTRACT CALLED FOR A UNIT PACKAGING QUANTITY OF ONE RULE IN EACH PAPERBOARD BOX. WITHIN A FEW DAYS AFTER THE CONTRACT WAS AWARDED YOUR SUPPLIER, THE DURALL TOOL CORPORATION, RAISED A QUESTION AS TO THE REQUIREMENT THAT THE RULES BE PACKED ONE TO A BOX AND, THEREFORE, PERMISSION WAS REQUESTED TO PACK 6 OR 12 RULES TO A BOX AS THE SUPPLIER CONTENDED WAS CUSTOMARY. THIS REQUEST ORIGINALLY WAS DENIED BY LETTER DATED OCTOBER 28, 1959, FROM THE CONTRACTING OFFICER, BUT LATER GRANTED BY THE ISSUANCE OF MODIFICATION NO. 1 ON NOVEMBER 17, 1959, TO THE CONTRACT WHICH PERMITTED SIX RULES TO BE PACKED IN ONE BOX, IT BEING CONTEMPLATED THAT THE CONTRACT PRICE WOULD BE REDUCED IN VIEW OF THE SAVINGS TO YOU. IT APPEARS, HOWEVER, THAT THE ORDER PRACTICALLY HAD BEEN COMPLETED BY THE DURALL TOOL CORPORATION AT THE TIME OF THE ISSUANCE OF MODIFICATION NO. 1. THIS MODIFICATION THEREFORE WAS RESCINDED BY MODIFICATION NO. 2, AND YOUR CLAIM OF $221.72 REPRESENTS THE ADDITIONAL COST INCURRED IN PACKING ONE RULE IN EACH BOX.

YOUR REQUEST FOR A REVIEW OF OUR SETTLEMENT IS BASED ON A COPY OF A LETTER DATED MAY 26, 1960, FROM THE DURALL TOOL CORPORATION WHEREIN THE SOLE CONTENTION SET FORTH APPEARS TO BE THAT THE PACKING REQUIREMENTS WERE MISLEADING AND NOT CLEAR.

PAGE 3 OF THE APPLICABLE INVITATION FOR BIDS, INCORPORATED IN AND MADE A PART OF CONTRACT NO. N600/MIS/53166, SHOWS, UNDER THE COLUMN DESIGNATED, UNIT PACKAGE QUANTITY,"1 (NOTE B).' NOTE B REQUIRED "PACKAGE IN PAPERBOARD BOXES CONFORMING TO SPEC. PPP-B-566 OR PPP-B 676.' HENCE, THERE WAS SET FORTH IN PLAIN AND UNAMBIGUOUS LANGUAGE THE REQUIREMENT THAT THE RULES BE PACKED IN UNITS OF ONE ONLY PER BOX. WE CAN FIND NOTHING ILLEGIBLE IN THE MANNER IN WHICH THE REQUIREMENT WAS SET FORTH NOR CAN WE SEE HOW IT COULD BE MISINTERPRETED. IN FACT, IT SEEMS TO US THAT ONLY A CASUAL EXAMINATION OF THE INVITATION WOULD HAVE DISCLOSED THE PERTINENT REQUIREMENT. IN ANY EVENT, WHETHER YOUR SUPPLIER OVERLOOKED IT--- AS HE CONCEDES IN HIS LETTER--- OR WHETHER HE CUSTOMARILY PACKS 6 OR 12 IN A BOX HAS NO BEARING ON THE MATTER. THE QUESTION AS TO WHO SHOULD BEAR THE COSTS IS ONE FOR SETTLEMENT BETWEEN YOU AND YOUR SUPPLIER. THE IMPORTANT FACT IS THAT THE OBLIGATIONS UNDER THE CONTRACT WERE IMPOSED ON YOU AND, AS ABOVE INDICATED, YOUR OBLIGATION WAS TO PACK THE SUPPLIES IN ACCORDANCE WITH THE CONTRACT TERMS. SINCE YOU DID SO, THERE IS NO LEGAL BASIS FOR PAYING YOU ANY ADDITIONAL AMOUNT.