If the Grissinger patent is not given the broad interpretation involved in assuming the substitution of replica networks for the simple inductance shown, then the installation of the AEF containing, as it did, balancing replica networks, did not infringe the Grissinger French patent as narrowly construed. In fact, since D'Humy connects his balancing networks with the real lines through an inductive coupling, the AEF repeater construction approximates the D'Humy patent more closely in this aspect than it does the Grissinger French patent with its conductive coupling of the balancing networks. Accordingly, the Grissinger French patent is held to be invalid because of lack of patentable novelty, when interpreted with sufficient breadth and scope to include the AEF repeater installation. For the reasons stated, the plaintiff is not entitled to recovery on the ground that his French patent is invalid and the Italian, Belgium, and British patents have not been infringed, and the petition should be dismissed. Williams, Littleton, and Green concurring. Booth, C. J. took no part. О LEWYT CORP. JUNE 14, 1949.-Committed to the Committee of the Whole House and ordered to be printed Mr. KEATING, from the Committee on the Judiciary, submitted the following REPORT [To accompany H. R. 17951 The Committee on the Judiciary, to whom was referred the bill (H. R. 1795) for the relief of Lewyt Corp., having considered the same, report favorably thereon without amendment and recommend that the bill do pass. The purpose of the proposed legislation is to pay the sum of $12,172.37 to Lewyt Corp., of New York City, in full settlement of all claims against the United States for losses sustained by said corporation in the performance of fixed-price contract No. Cca-25755, dated June 27, 1947, for the manufacture for the Civil Aeronautics Administration of various monitor alarm receivers, which losses resulted from a bid based on a clerical error in transposing from one work sheet to another the figure representing the estimated cost of material. STATEMENT OF FACTS It appears that the Department of Commerce, Civil Aeronautics Administration, by invitation No. 3923, requested bids for furnishing certain quantities of monitor alarm receivers. The date for the opening of the bids was July 19, 1947, at 3 p. m. The invitation specified that the bidder should quote unit prices on each of the quantities mentioned in the invitation. In response to the invitation to bid the Lewyt Corp. submitted a bid dated June 11, 1947, wherein it offered to furnish 150 monitor alarm receivers under item 1 (a) for $107.08 each, 300 identical monitor alarm receivers under item 1 (b) for $98.17 each and 35 monitor alarm receivers for $107.08 each, the same as item 1 (a) with certain exceptions. The company submitted with its bid Standard Form No. 24, bid bond No. 5303268. On June 27, 1947, the bid was accepted and a contract and a performance bond were forwarded to the Lewyt Corp for signature. Upon receipt of the contract the corporation requested from the Administration the status of all bidders in order that it could determine the basis on which the award was made. There was wide range of prices submitted by the various bidders. As a result, the Lewyt Corp. immediately investigated all the details in connection with their quotation. According to the corporation, this review indicated that a very serious error had been made in transferring the value of material from the specification sheet to a form which they called their "Selling price determination sheet." The Lewyt Corp. then wrote to the Civil Aeronautics Administration on July 23, 1947, calling attention to the error which had been made and submitting in support of the alleged error their material specification sheet which they labeled "Exhibit 4," page 43 of file, and their "Selling price determination for quotation" which they labeled "Exhibit B," page 40 of file. The Lewyt Corp. alleges that $18,077.20, as indicated on page 44 of file, represents the total cost of all the material to be procured on the subject contract, and that in transferring this figure to their selling price determination for quotation, they erroneously brought forward the figure "$1,877.20" instead of "$18,077.20." The alleged error caused a discrepancy of $16,200 and the Lewyt Corp. claims that as a result of the error, material valued at $16,200 was not included in its quotation and that this omission reflected a unit price of $107.08 on item 1 (a) which is the price indicated on the attached bid whereas they claim that the correct unit price should have been $265.56 per unit. This alleged error results in a difference of $158.48 per unit, which, when multiplied by the quantity ordered, 273 units, results in an alleged potential loss of $43,265.04. In a letter of July 23, 1947, the Lewyt Corp. indicated that since the amount of money involved was so great, they had made arrangements to have their estimating department review the quotation with the possibility of bringing the cost down to a minimum and that their estimating department prepared a revised quotation, and that as a result of this revised estimate, they were able to reduce their material estimate from $18,077.20 to $13,257.82. They further reduced the number of direct labor hours by 500, the direct labor rate per hour from $1.35 to $1.10, and their general and administrative and sales and service expenses from 16 to 14 percent, and they omitted completely the elements of profit and contingency. Their revised estimate indicates that they could manufacture the required units, 273 at a cost of $154.11 per unit or a total cost of $42,072.03. This is $14,083.93 more than the amount awarded under the contract. The contracting officer of the Civil Aeronautics Administration made an administrative determination that the subject monitor alarm receivers were urgently needed. The Lewyt Corp. was encouraged to sign the contract and begin assembly of the receivers in order that early delivery could be had. The contract was executed and on August 27, 1947, the matter was submitted to the Comptroller General of the United States, and on September 17, 1947, a decision was rendered on the ground that no legal basis for modifying the contract existed. The Lewyt Corp. alleges an error of $43,265.04 based on a unit price of $265.04, including profits which they later scaled down. This price resulted in a difference of $158.48 per unit, or a potential loss of $43,265.04 on the 273 units contracted for. However, in arriving at this total the Lewyt Corp. did not give consideration to the intermediate sliding scale unit price actually used in awarding the contract. It should be noted that the Lewyt Corp., after deducting the profits, scaled down their alleged loss to $14,266.98, which as pointed out in the above paragraph, should be $14,083.93, whereas, the amount asked for in this bill is $12,172.37, or the difference between the price awarded to the Lewyt Corp. and the price of the next highest bidder based upon a commensurate unit price. Since the Lewyt Corp. signed the contract for delivery of the monitor alarm receivers with full knowledge of the error, it was not iegally possible for the Civil Aeronautics Administration to give it any relief. However, the corporation's action was apparently taken in good faith as a gesture of cooperation with the Administration in the securing of the urgently needed receivers at an early date, and accordingly it is felt that the bill merits favorable consideration. Hon. EARL C. MICHENER, THE SECRETARY OF COMMERCE, House of Representatives, Washington, D. C. DEAR MR. CHAIRMAN: This letter is in reply to your communication of January 30, 1948, requesting the comments of the Civil Aeronautics Administration with regard to H. R. 5056, a bill for the relief of Lewyt Corp., and the submission by the Administration of copies of any pertinent papers it may have on file material to the claim in question. In view of the facts indicated in the attached reports of the Civil Aeronautics Administration (exhibits A and B), the Department of Commerce recommends enactment of the proposed bill. The method used in determining the amount of relief that would be granted the corporation by the proposed bill is set forth in detail in exhibit B, and, in compliance with your request, copies of relevant papers from the Administration's files are enclosed as attachments to exhibit A. have been advised by the Bureau of the Budget that there is no objection to the submission of this report to the committee for its consideration. Sincerely yours, EXHIBIT A CHARLES SAWYER, To: Solicitor. DEPARTMENT OF COMMERCE, From: Acting Administrator of Civil Aeronautics. On January 30, 1948, the chairman of the Committee on the Judiciary, House of Representatives, requested of the Administration copies of pertinent papers on file that are material to the facts and a decision on H. R. 5056, Eightieth Congress, a bill for the relief of Lewyt Corp., New York, N. Y., for loss allegedly sustained by reason of an error in bid, as well as an opinion as to the merits of the bill. On February 6, 1948, we acknowledge receipt of the letter and stated that our comments would be transmitted through the Department of Commerce. The bill, if enacted into law, would authorize the payment of $12,172.37 to the Lewyt Corp. for loss allegedly incurred by the Lewyt Corp. pursuant to contract No. Cca-25755 dated June 27, 1947, for the manufacture of various monitor alarm receivers for the Administration. The Department of Commerce, Civil Aeronautics Administration, by invitation No. 3923 requested bids for furnishing certain quantities of monitor alarm receivers. The date for the opening of the bids was July 19, 1947, at 3 p. m. The invitation specified that the bidder should quote unit prices on each of the quantities mentioned in the invitation. In response to the invitation to bid the Lewyt Corp. submitted a bid dated June 11, 1947, wherein it offered to furnish 150 monitor alarm receivers under item 1 (a) for $107.08 each, 300 identical monitor alarm receivers under item 1 (b) for $98.17 each, and 35 monitor alarm receivers for $107.08 each, the same as item 1 (a) with certain exceptions. The company submitted with its bid Standard Form No. 24, bid bond No. 5303268. |