B-7439, DECEMBER 21, 1939, 19 COMP. GEN. 599

B-7439, DECEMBER 21, 1939, 19 COMP. GEN. 599

CONTRACTS - AMOUNTS - INDEFINITE - EFFECT OF QUALIFYING WORDS USED WITH SPECIFIED QUANTITIES GENERALLY, WHERE A CONTRACT PROVIDES FOR THE FURNISHING OF A SPECIFIED QUANTITY OF SUPPLIES, SUBJECT TO QUALIFYING WORDS SUCH AS "MORE OR LESS" "ABOUT," "APPROXIMATELY," AND THE LIKE, AND THERE IS NO SUPPLEMENTAL LANGUAGE THEREIN FROM WHICH IT MIGHT BE INFERRED THE PARTIES DID NOT INTEND TO BE BOUND BY THE QUANTITY SPECIFIED, THE QUALIFYING WORDS WILL EXCUSE ONLY MINOR OR ACCIDENTAL VARIATIONS IN QUANTITY, BUT WHERE THE QUALIFYING WORDS ARE SUBJECT TO FURTHER STIPULATIONS AND CONDITIONS, NEITHER THE DESIGNATED QUANTITY NOR SUCH QUANTITY WITH SLIGHT VARIATIONS WILL BE REGARDED AS CONTROLLING. WHERE, UNDER AN INVITATION FOR BIDS STATING THE ESTIMATED QUANTITIES SHOWN ARE FOR INFORMATION ONLY AND MAY BE INCREASED OR DECREASED IN ACCORDANCE WITH ACTUAL REQUIREMENTS DURING A DEFINITE PERIOD, A BIDDER PLACED " APP" (APPROXIMATELY) BEFORE THE ESTIMATED QUANTITIES, THE ACCEPTANCE OF THE BID FORMED A BINDING CONTRACT, AND THE MERE QUALIFICATION OF THE ESTIMATED QUANTITY MAY NOT BE ACCEPTED AS A DEFINITE LIMITATION OF THE QUANTITY TO BE DELIVERED, THE OBVIOUSLY DOMINANT MEASURE OF THE QUANTITY REQUIRED TO BE FURNISHED UNDER THE CONTRACT BEING THE ACTUAL REQUIREMENT FOR THE DEFINITE PERIOD SPECIFIED.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 21, 1939:

I HAVE YOUR LETTER OF DECEMBER 1, 1939, IN PERTINENT PART AS FOLLOWS:

ATTENTION IS INVITED TO CONTRACT NO. VA9H-2260 BETWEEN THE VETERANS' ADMINISTRATION, LOS ANGELES, CALIFORNIA, AND W. A. BALLINGER AND CO., 2145 SACRAMENTO ST., LOS ANGELES, CALIFORNIA, COVERING PADDING, COTTON, TO BE FURNISHED THAT FACILITY AS REQUIRED DURING THE PERIOD JULY 1 TO DECEMBER 31, 1939.

INVITATION NO. 40-22, ON PAGE 1, INDICATES "AS IT IS IMPOSSIBLE TO DETERMINE THE EXACT QUANTITIES THAT WILL BE REQUIRED DURING THE CONTRACT PERIOD, THE ESTIMATED QUANTITIES SHOWN HEREIN ARE FURNISHED FOR INFORMATION ONLY AND MAY BE INCREASED OR DECREASED IN ACCORDANCE WITH ACTUAL REQUIREMENTS * * * AND SHALL NOT IN ANY CASE RELIEVE THE CONTRACTOR OF HIS OBLIGATION TO FILL SUCH ORDERS UNLESS IN SUBMITTING HIS BID HE DEFINITELY LIMITS THE TOTAL QUANTITY HE AGREES TO FURNISH.'

THE W. A. BALLINGER AND CO., IN ITS BID DATED MAY 29, 1939, RECEIVED IN RESPONSE TO INVITATION NO. 40-22, PLACED " APP.' BEFORE THE QUANTITIES INDICATED FOR ITEMS 15 AND 16, BUT DID NOT LIMIT THE QUANTITY OF NETS, ITEM 14, THAT IT AGREED TO FURNISH. THE FOLLOWING QUANTITIES HAVE BEEN ORDERED TO DATE:

CHART

PURCHASE ORDER NO. ITEM NO. ITEM QUANTITY PURCHASED --- -----------------

1052 --------------- 15 PADDING, COTTON 200 YARDS.

2335 --------------- 15 PADDING, COTTON 300 YARDS.

2334 --------------- 14 NETS, LAUNDRY 100 EACH. ------------------------

THERE IS SUBMITTED FOR YOUR CONSIDERATION LETTER FROM W. A. BALLINGER AND CO., DATED OCTOBER 13, 1939, WITH REQUEST FOR ADVICE AS TO WHETHER THIS CONTRACTOR IS REQUIRED TO FURNISH THE 300 YARDS OF COTTON PADDING, ITEM 15, AND ANY FUTURE QUANTITY OF THIS ITEM THAT MAY BE ORDERED, AND ALSO AS TO WHAT QUANTITY OF PADDING COVERED BY ITEM 16 THE CONTRACTOR MAY BE REQUIRED TO FURNISH.

UNDER THE TERMS OF ITS BID, W. A. BALLINGER AND CO. AGREED TO FURNISH, DURING THE PERIOD JULY 1 TO DECEMBER 31, 1939, THE FACILITY'S ACTUAL REQUIREMENTS OF COVERED COTTON PADDING, DESCRIBED IN ITEMS 15 AND 16 OF THE INVITATION FOR BIDS. SINCE THE GOVERNMENT IN TURN AGREED TO PURCHASE FROM SAID COMPANY ALL OF SUCH PADDING WHICH MIGHT BE REQUIRED DURING THAT PERIOD, THE BID PROVIDED A BASIS FOR A VALID CONTRACT, EVEN THOUGH THE EXACT QUANTITIES WHICH MIGHT BE REQUIRED THEREUNDER WERE NOT DEFINITELY ASCERTAINED AT THE TIME THE BID WAS SUBMITTED. COLD BLAST TRANSPORTATION CO. V. KANSAS CITY BOLT AND NUT CO., 114 FED. 77 ( C.C.A. 8TH); CF. WILLARD, SUTHERLAND AND CO. V. UNITED STATES, 262 U.S. 489. THEREFORE, THE ACCEPTANCE OF THE BID RESULTED IN A CONTRACT BINDING UPON THE BIDDER. UNITED STATES V. NEW YORK AND PORTO RICO STEAMSHIP CO., 239 U.S. 88.

THE CONTRACTOR SUGGESTS, IN ITS LETTER OF OCTOBER 13, 1939, THAT ITS BID SHOULD BE REGARDED AS ONE FOR FURNISHING APPROXIMATELY THE ESTIMATED QUANTITIES LISTED IN THE INVITATION, AND THAT SINCE IT ALREADY HAS FURNISHED THE 200 YARDS OF PADDING ESTIMATED AS THE REQUIREMENT UNDER ITEM 15 (PURCHASE ORDER NO. 1052), IT SHOULD NOT BE REQUIRED TO FURNISH AN ADDITIONAL 300 YARDS UNDER THAT ITEM (PURCHASE ORDER NO. 2335). HOWEVER, THE CONTRACTING OFFICER DID NOT SO REGARD THE BID, AND BY LETTER OF OCTOBER 16, 1939, HE INFORMED THE CONTRACTOR AS FOLLOWS:

* * * YOU ARE ADVISED THAT A REVIEW OF YOUR CONTRACT FAILS TO INDICATE THAT YOU HAVE DEFINITELY LIMITED THE QUANTITIES WHICH WOULD BE FURNISHED AGAINST THE INSTANT CONTRACT. THE " APP.' WHICH YOU PLACED BEFORE THE QUANTITY LISTED ON OUR BID WAS INTERPRETED TO AMEND OUR QUANTITIES SO THAT YOUR COMPANY WOULD NOT BE TIED DOWN TO FURNISH EXACT YARDAGE SINCE IT IS A KNOWN PRACTICE THAT YARDAGE GOODS DO NOT AS A RULE RUN TO A SPECIFIED NUMBER OF YARDS PER BOLT.

IN VIEW OF THE FACT THAT THERE IS URGENT NEED FOR THE MATERIAL COVERED BY THE INSTANT ORDERS, IT IS REQUESTED THAT YOU DELIVER THE QUANTITIES ORDERED IN ACCORDANCE WITH THE TERMS OF YOUR CONTRACT.

GENERALLY, WHERE A CONTRACT PROVIDES FOR THE FURNISHING OF A SPECIFIED QUANTITY OF SUPPLIES, SUBJECT TO QUALIFYING WORDS SUCH AS "MORE OR LESS," "ABOUT," "APPROXIMATELY," AND THE LIKE, AND THERE IS NO SUPPLEMENTAL LANGUAGE THEREIN FROM WHICH IT MIGHT BE INFERRED THE PARTIES DID NOT INTEND TO BE BOUND BY THE QUANTITY SPECIFIED, THE QUALIFYING WORDS WILL EXCUSE ONLY MINOR OR ACCIDENTAL VARIATIONS IN QUANTITY, SUCH AS MAY ARISE FROM SLIGHT AND UNIMPORTANT EXCESSES OR DEFICIENCIES IN NUMBER, MEASURE, OR WEIGHT. SEE 15 COMP. GEN. 386, CITING MOORE V. UNITED STATES, 196 U.S. 157, AND OTHER CASES. BUT WHERE, AS IN THIS CASE, THE QUALIFYING WORDS ARE SUBJECT TO FURTHER STIPULATIONS AND CONDITIONS, NEITHER THE DESIGNATED QUANTITY NOR SUCH QUANTITY WITH SLIGHT VARIATIONS WILL BE REGARDED AS CONTROLLING. BRAWLEY V. UNITED STATES, 96 U.S. 168; NATIONAL PUBLISHING CO. V. INTERNATIONAL PAPER CO., 269 FED. 903 ( C.C.A. 2D), AND CASES THERE CITED; ROYAL PAPER BOX CO. V. E. R. APT SHOE CO. ( MASS.), 195 N.E. 96.

ILLUSTRATING THE RULE LAST STATED, IT HAS BEEN HELD THAT A CONTRACT TO SUPPLY ALL OF THE BUYER'S REQUIREMENTS OF MALT FOR A CERTAIN PERIOD WAS NOT COMPLIED WITH BY DELIVERY OF 20,000 BUSHELS OF MALT, NOTWITHSTANDING THE CONTRACT PROVIDED THAT THE "AMOUNT OF MALT TO BE USED WILL BE BETWEEN 15,000 AND 20,000 BUSHELS," WHERE THE ACTUAL REQUIREMENTS OF THE BUYER'S BUSINESS WERE IN EXCESS OF 20,000 BUSHELS. MARX V. AMERICAN MALTING CO., 169 FED. 582 ( C.C.A. 6TH). AND IN WOLFF V. WELLS, FARGO AND CO., 115 FED. 32 ( C.C.A. 9TH), WHERE THE CONTRACT WAS TO FURNISH ALL THE CEMENT THE BUYER SHOULD REQUIRE FOR THE CONSTRUCTION OF A BUILDING,"ABOUT 5,000 BARRELS, MORE OR LESS," AND THE SELLER DELIVERED 5 BARRELS OF CEMENT BUT REFUSED TO MAKE FURTHER DELIVERIES, THE BUYER WAS AWARDED DAMAGES FOR THE SELLER'S FAILURE TO FURNISH 2,925 ADDITIONAL BARRELS OF CEMENT REQUIRED FOR USE IN THE CONSTRUCTION OF THE BUILDING.

THE INSTANT CASE FALLS SQUARELY WITHIN THE RULE APPLIED IN THE MARX AND WOLFF CASES, DESCRIBED ABOVE. THE AGREEMENT IN THE BID WAS TO FURNISH THE SUPPLIES "SUBJECT TO ALL THE CONDITIONS" OF THE INVITATION FOR BIDS, AND THE BIDDER THEREBY AGREED TO FURNISH SUCH QUANTITIES AS THE FACILITY MIGHT REQUIRE DURING THE CONTRACT PERIOD, UNLESS SUCH QUANTITIES WERE DEFINITELY LIMITED BY THE BID. THE MERE QUALIFICATION OF THE ESTIMATED QUANTITIES MAY NOT BE ACCEPTED AS A DEFINITE LIMITATION, FOR THE REASON THAT THE ESTIMATES THEMSELVES ARE WITHOUT CONTROLLING EFFECT. THE "OBVIOUSLY DOMINANT MEASURE" OF THE QUANTITY REQUIRED TO BE FURNISHED UNDER THE CONTRACT IS THE QUANTITY REQUIRED TO SUPPLY THE FACILITY'S NEEDS. SMOOT V. UNITED STATES, 237 U.S. 38, 42.

ACCORDINGLY, YOU ARE INFORMED THAT IF THE 300 ADDITIONAL YARDS OF COTTON PADDING ALREADY ORDERED UNDER ITEM 15 CONSTITUTE ACTUAL REQUIREMENTS OF THE FACILITY, THE CONTRACTOR SHOULD BE REQUIRED TO FURNISH SUCH PADDING UNDER THE TERMS OF THE CONTRACT, SUBJECT TO MINOR OR ACCIDENTAL VARIATIONS. ON THE FACTS NOW APPEARING THE SAME CONCLUSION WOULD BE APPLICABLE TO ANY PADDING WHICH THE FACILITY MIGHT REQUIRE UNDER ITEM 16, WITHIN THE PERIOD COVERED BY THE CONTRACT.