DENIED: January 27, 1995 GSBCA 12432 AMERICAN TOOL & SUPPLY, INC. Appellant, v. GENERAL SERVICES ADMINISTRATION Respondent. James P. Rome, Chicago, IL, counsel for Appellant. David L. Frecker, Office of General Counsel, General Services Administration, Washington, DC, counsel for Respondent. Before Board Judges PARKER, DEVINE, and GOODMAN. DEVINE, Board Judge. Appellant entered into a contract with the Government to supply its requirements for certain wrench sets over a period of approximately a year and a half. The seven wrenches in the sets were required to increase uniformly in length as the wrench head size increased. Appellant could not deliver wrenches meeting this requirement, and its contract was terminated for default. Appellant contests the termination for default as improper under the circumstances. Findings of Fact The facts are undisputed. American Tool & Supply, Inc. (American) is a distributor of industrial tools. On October 21, 1992, it entered into a contract with the General Services Administration (GSA), an agency of the United States Government, to supply the Government's requirements, during a period of approximately eighteen months, for "Wrench Sets: Open End Box." These sets contained seven hand-held, double headed wrenches, increasing in size from one-quarter inch to thirteen-sixteenths of an inch, wrapped in a plastic roll. Complaint 2; Appeal File, Exhibit 1. Appellant priced the sets at $123.85 each. Appeal File, Exhibit 1. All wrenches were required by the contract to increase uniformly in length as they increased in head size. Id. 5; Appeal File, Exhibit 1. The wrenches themselves could be the products of no more than two manufacturers and had to be domestically made. Complaint 2. The contract term extended from the date of award (October 21, 1992) through March 31, 1994. Id. Wrench sets were to be delivered 120 days after receipt of an order. Complaint 10. The wrench sets that appellant proposed to supply to fill GSA's eight initial purchase orders (781 sets) contained two wrenches that were approximately .02 inches thicker than the contract allowed. Complaint 4. Appellant sought and obtained a specification deviation for these wrenches, paying a consideration therefore of $1,117.26. Complaint, Exhibit 1. Thereafter appellant discovered that its proposed wrench sets did not increase uniformly in length as the wrench heads increased in size. Complaint 5. On March 2, 1993, appellant sought a second deviation, offering a 2 percent price reduction and $150 to defray administrative costs. Id. On March l9, 1993 GSA turned appellant down on the ground that "[t]he tools do not have a 'professional' appearance when this requirement is deleted, and the tools are not in accordance with the specifications." Complaint 7; id., Exhibit 3. On March 22, l993, appellant sought reconsideration of this denial, giving the following reasons why it should be reversed: (i) all individual wrenches in the Set meet all the standards of the Respondent Purchase Description 5120- 01-102-4474 cited in the Contract; (ii) manufacturers use the same "blanks" for this type of wrench, but which are combined in varying mixes to form "sets," thereby making it impossible to have uniform length increases as sizes increase; (iii) two vendors were required to supply product for the "Sets" because some of one vendor's wrenches did not meet applicable Contract specifications, and had to be supplemented with another vendor's product; (iv) the Set specified by the Contract did not include all sizes normally included in that size range (the Contract called for seven sizes, versus the nine sizes normally included in commercial market sets); and (v) using photo-copy picture of the wrenches to conclude they did not have a professional appearance was totally inappropriate. As the term does not appear anywhere in the Contract requirements, nor the specifications incorporated therein, it represents Respondent's subjective opinion, not an objective one. Its use as the basis for denying the request for deviation is an impermissible, unilateral addition of a substantive requirement to the Contract, after award. Complaint 8. The "Purchase Description" mentioned in the above quote, describes the disputed wrenches in some detail. It does not specify their length, but does specify the lengths that the various sized wrenches may not exceed. Appeal File, Exhibit 8. The requirement that these wrenches increase uniformly in length with increases in head size is found elsewhere in the contract. The following table sets out, in the left hand column, the wrench sizes by size of openings as set out in the contract specifications; in the next column, the corresponding overall maximum length (from the Purchase Item Description) appears; the third column lists the lengths of appellant's proposed wrenches; and the final column sets out the length differentials among appellant's proposed wrenches. (1) 1/4 and 5/16 4.50 4.13 (2) 5/16 and 3/8 5.50 5.00 .87 (3) 3/8 and 7/16 6.50 5.25 .25 (4) 7/16 and 1/2 7.00 6.91 1.66 (5) 1/2 and 9/16 7.50 6.19 (.72) (6) 5/8 and 11/16 8.50 7.13 .94 (7) 3/4 and 13/16 9.50 8.91 1.78 Appeal File, Exhibit 1. The first five wrenches on the above list exhibit a pattern. Each succeeding wrench adopts as its smaller opening the dimension of the preceding wrench's larger opening. This pattern continues through the fifth wrench on the above list. If we continue the pattern, the wrench next in order should have a head size of 9/16 as the smaller opening and 5/8 as the larger. A wrench with these sizes, however, does not appear on the above list. The wrench next in order under the pattern does appear. It is the sixth wrench on the above list. Continuing the pattern, the wrench next in order should have a head size of 11/16 as the smaller opening and 3/4 as the larger. A wrench with these sizes also does not appear on the above list. The final wrench next in order following this pattern would match the seventh wrench on the above list. Thus, if the pattern of the first five wrenches had been followed in the specifications to produce a set of wrenches extending in size from 1/4 inch to 13/16ths of an inch, and increasing in size by 1/16th of an inch, there would be a total of nine wrenches in the series. The two wrenches necessary to the pattern but not included in the specification are 9/16 x 5/8, and 11/16 x 3/4. The Government denied appellant's second deviation request, to waive the uniformly increasing length requirement, because "It is not considered to be in the best interest of the Government to accept this deviation. Id. 9. On April 22, l993, the Government issued a letter directing appellant to show cause why its contract should not be terminated for default for failure to deliver the specified tool sets within the 120 day period allowed by the contract. Complaint 10. Appellant's response to the show cause letter stated that the purchase description did not reflect a requirement that the wrenches increase uniformly in length as they increased in head size, and added that the form, fit, and function of the wrenches would in no way be adversely affected by accepting sets which did not uniformly increase in length with increases in head size. Complaint 11. The contract itself, under the description of Item No. 50, which dealt with the tool sets in question, contained the following statement: "The overall length of the wrenches shall increase uniformly in length as the wrench sizes increase." The Government rejected appellant's position and terminated the contract for default because of appellant's failure to deliver in accordance with the contract schedule, by a final decision dated May 7, l993. Complaint 12. In this appeal appellant asks that we reinstate the contract and direct the Government to grant the requested length deviation, or in the alternative, to convert the default termination to a termination for the convenience of the Government, and direct the Government to enter into settlement negotiations with appellant for an amount not less than $96,884.65, the value of its received orders. Failing the above, appellant asks the Board to find that the contract is impossible for appellant to perform, and to award appellant the sum of $591,317.90, representing appellant's estimate of the value of the contract if appellant had been allowed to perform it. Complaint 14. Discussion The table set out above shows that none of appellant's wrenches increase uniformly in length as the wrench openings increase in size. The length actually decreases between wrench #4 and wrench #5. None of the length increments between any of the other wrenches are even close to being uniform. Appellant's contention that commercial wrench sets of this type and covering the same range of openings, usually contain nine wrenches rather than seven does not explain why none of appellant's wrenches increase uniformly in length. The addition of two more wrenches of appropriate head size to this set would not fill in any length gaps. They would be simply two more wrenches that did not fit the specification. None of appellant's wrenches can meet the length requirement except wrench #1, and then only because it is the first in the series. We find no merit in appellant's defense of commercial impossibility, which is, of necessity, based on the fact that no manufacturer produces wrenches that can satisfy the Government's specification. There is simply no evidence in the record that this is the case. The theory fails for want of proof. The Government was entitled to the wrenches contracted for and quite properly defaulted appellant when it could not produce them. Decision For the reasons stated the appeal is DENIED. ___________________ DONALD W. DEVINE Board Judge We concur: ____________________ ____________________ ROBERT W. PARKER ALLAN H. GOODMAN Board Judge Board Judge