B-142841, MAY 25, 1960

B-142841, MAY 25, 1960

TO THE HONORABLE J. GEORGE STEWART, ARCHITECT OF THE CAPITOL:

REFERENCE IS MADE TO YOUR LETTER OF MAY 6, 1960, WITH ENCLOSURES, REQUESTING A DECISION ON THE CLAIM OF THE GEORGE HYMAN CONSTRUCTION COMPANY FOR EXTRA COMPENSATION IN THE AMOUNT OF $116,386.04 UNDER CONTRACT NO. ACSO-219, DATED SEPTEMBER 9, 1955, FOR THE CONSTRUCTION OF THE SUPERSTRUCTURE OF THE ADDITIONAL SENATE OFFICE BUILDING.

THE CONTRACT SPECIFICATIONS REQUIRED THE CONTRACTOR TO PROVIDE A SPECIFIC TYPE OF FLUORESCENT AND INCANDESCENT LIGHTING FIXTURES IN CERTAIN PARTS OF THE BUILDING BUT FIXTURES FOR CERTAIN SENATORS' OFFICES, COMMITTEE ROOMS AND CERTAIN OTHER DESIGNATED AREAS OF THE BUILDING WERE NOT DECIDED UPON AT THE TIME BIDS WERE REQUESTED. HENCE, THE PURCHASE OF THESE LATTER FIXTURES WAS COVERED BY A CASH ALLOWANCE PROVISION IN ARTICLE 44-36 OF THE CONTRACT WHICH READS AS FOLLOWS:

"/J) ALLOWANCE FOR MISCELLANEOUS AND SPECIAL FIXTURES

"/1) THE CONTRACT SHALL INCLUDE A CASH ALLOWANCE OF $380,000 FOR THE PURCHASE OF THE FOLLOWING FIXTURES WHICH ARE TO BE SELECTED BY THE ARCHITECT: * * *.'

ON MAY 29, 1957, THE ARCHITECT SUBMITTED DRAWINGS AND SPECIFICATIONS FOR THESE MISCELLANEOUS AND SPECIAL FIXTURES TO THE CONTRACTOR AND REQUESTED IT TO PREPARE INVITATIONS FOR BIDS AND TO FURNISH A LIST OF THE FIRMS FROM WHICH IT INTENDED TO SOLICIT BIDS. AFTER RECEIVING APPROVAL OF THE BID INVITATION FORMS AND PROSPECTIVE BIDDERS FROM THE ARCHITECT, THE CONTRACTOR REQUESTED QUOTATIONS FROM FIVE DESIGNATED FIRMS FOR MANUFACTURING THE SPECIAL FIXTURES. IN RESPONSE TWO BIDS WERE RECEIVED BY THE ARCHITECT AND OPENED ON SEPTEMBER 18, 1957. TWENTY-TWO FIRMS WERE DESIGNATED AS POTENTIAL SUPPLIERS AND BIDS REQUESTED FROM THEM FOR THE MISCELLANEOUS FIXTURES AND FOUR BIDS WERE RECEIVED AND OPENED BY THE ARCHITECT ON SEPTEMBER 10, 1957.

UPON EVALUATING THE BIDS THE ARCHITECT DETERMINED THAT THE BID OF STERLING BRONZE CO., INC., LONG ISLAND CITY, NEW YORK, IN THE AMOUNT OF $200,169 WAS THE LOWEST RESPONSIBLE ONE FOR THE SPECIAL FIXTURES. UNDER DATE OF SEPTEMBER 17, 1957, THE ARCHITECT AUTHORIZED THE CONTRACTOR TO ENTER INTO A CONTRACT WITH THIS FIRM FOR SAID FIXTURES.

THE BID OF WIEDENBACH-BROWN CO., INC., NEW YORK, NEW YORK, IN THE AMOUNT OF $70,090 WAS DETERMINED TO BE THE LOWEST RESPONSIBLE ONE FOR THE MISCELLANEOUS FIXTURES. ON SEPTEMBER 23, 1957, THE ARCHITECT AUTHORIZED THE CONTRACTOR TO CONTRACT WITH THIS FIRM FOR SAID FIXTURES.

THE CONTRACTOR MADE SEVEN PAYMENTS OVER THE PERIOD FROM FEBRUARY 1958 TO APRIL 1959, TO BOTH STERLING AND WIEDENBACH-BROWN. THE WORK OUTLINED ABOVE IS ALL THE WORK PERFORMED BY THE CONTRACTOR IN CONNECTION WITH THE PURCHASE OF THE ALLOWANCE FIXTURES.

BY CHANGE ORDER NO. 52, DATED SEPTEMBER 9, 1959, THE LUMP-SUM CONTRACT PRICE WAS DECREASED BY $109,741. THIS AMOUNT REPRESENTED THE EXACT DIFFERENCE BETWEEN THE TOTAL COST OF SPECIAL AND MISCELLANEOUS FIXTURES, $270,259, AND THE TOTAL CONTRACT FIXTURE ALLOWANCE OF $380,000. IN VIEW OF THIS CHANGE ORDER, THE ELECTRICAL SUBCONTRACTOR WHO INSTALLED BOTH THE SPECIAL AND MISCELLANEOUS FIXTURES INVOLVED, IN A LETTER DATED OCTOBER 2, 1959, TO THE CONTRACTOR, REQUESTED THAT A FORMAL CHANGE ORDER BE ISSUED TO ACCOMPLISH PAYMENT OF ITS CLAIM OF $105,806.40 REPRESENTING CHARGES FOR THE JOB EXPENSE, OVERHEAD AND PROFIT ON THE $270,259 WORTH OF FIXTURES PROVIDED UNDER THE ALLOWANCE. THEREAFTER,THE CONTRACTOR ADDED 10 PERCENT TO THE SUBCONTRACTOR'S CLAIM AND FILED ITS CLAIM ON OCTOBER 8, 1959, IN THE AMOUNT OF $116,386.04 TO COVER THE CHARGES FOR JOB EXPENSE, OVERHEAD AND PROFIT ON THE $270,259 WORTH OF FIXTURES PROVIDED UNDER THE ALLOWANCE.

THE SPECIFICATIONS ACCOMPANYING THE INVITATION FOR BIDS, WHICH BECAME A PART OF THE CONTRACT, REQUIRED THE CONTRACTOR TO INCLUDE IN ITS LUMP-SUM PRICE ALL COSTS INCIDENT TO THE FURNISHING AND INSTALLING OF LIGHTING FIXTURES. SPECIFICALLY, ARTICLE 44-02 OF THE SPECIFICATIONS REQUIRED THE CONTRACTOR TO PERFORM ALL WORK REQUIRED FOR THE "FURNISHING, DELIVERY, AND INSTALLATION OF ELECTRICAL WORK * * *; " ARTICLE 44-03 ALSO REQUIRED THE CONTRACTOR TO FURNISH "ALL LABOR, MATERIAL, AND ALL MISCELLANEOUS ACCESSORIES NECESSARY FOR THE COMPLETE INSTALLATION OF ALL ELECTRICAL WORK * * *," INCLUDING LIGHTING FIXTURES SPECIFICALLY CALLED FOR; AND ARTICLE 44-36 PROVIDED WITH PARTICULAR REFERENCE TO LIGHTING FIXTURES AS FOLLOWS:

"44-36.LIGHTING FIXTURES.--- (A) GENERAL--- LIGHTING FIXTURES OF THE VARIOUS TYPES HEREINAFTER SCHEDULED SHALL BE FURNISHED AND INSTALLED AT THE LOCATIONS INDICATED ON THE DRAWINGS. ALL FIXTURES SHALL BE COMPLETE IN PLACE, FULLY LAMPED. THE WORK UNDER THIS SECTION SHALL INCLUDE PLASTER RINGS OR OTHER SUITABLE SUPPORTS FOR ALL FIXTURES IN PLASTER CEILINGS AND FOR ANY TYPE OF HUNG CEILING SPECIFIED FOR ANY PARTICULAR LOCATION. THE CONTRACT SHALL INCLUDE ALL COSTS FOR HANDLING AND UNCRATING OF ALL FIXTURES AND ASSEMBLING AND WIRING OF ALL FIXTURES WHICH ARE DISASSEMBLED OR UNWIRED WHEN DELIVERED TO THE SITE.'

HAVING REGARD FOR THESE SPECIFIC PROVISIONS OF THE CONTRACT AND THE REASONS STATED BY YOU, WE AGREE THAT THE COSTS INCURRED BY THE CONTRACTOR IN PURCHASING THE MISCELLANEOUS AND SPECIAL LIGHTING FIXTURES SHOULD BE REGARDED AS INCLUDED IN THE LUMP-SUM CONTRACT PRICE. ALSO, FOR THE REASONS STATED BY YOU, WE AGREE THAT ONLY THE ACTUAL PURCHASE PRICE OF THE FIXTURES WAS INCLUDED IN THE CASH ALLOWANCE OF $380,000 SPECIFIED IN ARTICLE 44-36 (J) (1) AND THAT JOB EXPENSE FOR INSTALLATION, INCLUDING OVER HEAD AND PROFIT THEREFOR WERE INCLUDED IN THE CONTRACT LUMP-SUM PRICE OF $17,200,000.

ACCORDINGLY, IT IS OUR VIEW THAT, UNDER A PROPER CONSTRUCTION OF THE CONTRACT, THE CASH ALLOWANCE OF $380,000 WAS INTENDED TO BE SUBJECT TO ADJUSTMENT DEPENDING UPON THE ACTUAL COST OF THE FIXTURES IN QUESTION AND THAT, THEREFORE, NO LEGAL BASIS EXISTS FOR THE ALLOWANCE OF ANY PART OF THE CLAIM. THE COPY OF THE SPECIFICATIONS FURNISHED WITH YOUR LETTER IS RETURNED.