B-140792, NOV. 10, 1959
Highlights
THAT THE DISCOUNT WAS IMPROPERLY TAKEN BECAUSE THE INVOICE WAS DELIVERED TO THE ACCOUNTING AND FINANCE OFFICE IN NEW YORK ON NOVEMBER 21. SINCE PAYMENT WAS NOT MADE UNTIL DECEMBER 3. THE PROMPT PAYMENT DISCOUNT WAS NOT EARNED BY PAYMENT MADE WITHIN 10 DAYS. THAT THE PROMPT PAYMENT DISCOUNT WAS EARNED SINCE. IT WAS NOT RECEIVED UNTIL NOVEMBER 24. A COPY OF THAT CERTIFICATE WAS FURNISHED TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER. THE SETTLEMENT CERTIFICATE WAS AFFIRMED IN OUR LETTER OF SEPTEMBER 29. THAT A DISPUTE EXISTS AS TO A FACT WHICH IS PROPERLY FOR SETTLEMENT UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT. UNDER WHICH THE CONTRACTING OFFICER IS REQUIRED TO DECIDE SUCH MATTERS AND TO FURNISH A COPY OF A WRITTEN DECISION TO THE CONTRACTOR WHO MAY THEN EXERCISE A RIGHT OF APPEAL.
B-140792, NOV. 10, 1959
TO THE SECRETARY OF THE AIR FORCE:
BY LETTER OF JUNE 29, 1959, THE AIR FORCE ACCOUNTING AND FINANCE CENTER HEADQUARTERS FORWARDED TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT A CLAIM BY PLAIKINS, INCORPORATED, FOR $6,498.78, REPRESENTING THE PROMPT PAYMENT DISCOUNT TAKEN ON VOUCHER NO. 6828-29 UNDER CONTRACT NO. AF 36 (600/-5313.
THE CLAIMANT CONTENDS, AND HAS FURNISHED EVIDENCE IN SUPPORT THEREOF, THAT THE DISCOUNT WAS IMPROPERLY TAKEN BECAUSE THE INVOICE WAS DELIVERED TO THE ACCOUNTING AND FINANCE OFFICE IN NEW YORK ON NOVEMBER 21, 1958, AND, SINCE PAYMENT WAS NOT MADE UNTIL DECEMBER 3, 1958, THE PROMPT PAYMENT DISCOUNT WAS NOT EARNED BY PAYMENT MADE WITHIN 10 DAYS, PURSUANT TO PARAGRAPH 7 OF THE TERMS AND CONDITIONS. THE ACCOUNTING AND FINANCE OFFICER CONTENDS, ON THE OTHER HAND, THAT THE PROMPT PAYMENT DISCOUNT WAS EARNED SINCE, ACCORDING TO THE PERFORATED DATE STAMPED ON THE INVOICE, IT WAS NOT RECEIVED UNTIL NOVEMBER 24, 1958.
ON JULY 29, 1959, OUR OFFICER ISSUED A SETTLEMENT CERTIFICATE TO THE CLAIMANT DENYING HIS CLAIM. A COPY OF THAT CERTIFICATE WAS FURNISHED TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER. THE SETTLEMENT CERTIFICATE WAS AFFIRMED IN OUR LETTER OF SEPTEMBER 29, 1959, TO THE CLAIMANT.
IT NOW APPEARS, HOWEVER, THAT A DISPUTE EXISTS AS TO A FACT WHICH IS PROPERLY FOR SETTLEMENT UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT, UNDER WHICH THE CONTRACTING OFFICER IS REQUIRED TO DECIDE SUCH MATTERS AND TO FURNISH A COPY OF A WRITTEN DECISION TO THE CONTRACTOR WHO MAY THEN EXERCISE A RIGHT OF APPEAL. THE RECORD FURNISHED TO OUR OFFICE CONTAINS NO INDICATION THAT THE CONTRACTING OFFICER EVER REDUCED HIS DECISION TO WRITING (OTHER THAN IN AN INTER OFFICE MEMORANDUM) OR FURNISHED A COPY THEREOF TO THE CONTRACTOR.
WHERE, AS IN THIS INSTANCE, A CONTRACT PROVIDES FOR A DECISION WITH RESPECT TO SPECIFIED MATTERS BY A DESIGNATED OFFICIAL, THE CONTRACTOR IS ENTITLED TO HAVE SUCH DECISIONS MADE BY THE DESIGNATED OFFICIAL. SEE UNITED STATES V. NORTH AMERICAN COMMERCIAL CO., 74 F. 145; PHOENIX BRIDGE CO. V. UNITED STATES, 85 C.CLS. 603, 629; SAMUEL PLATO V. UNITED STATES, 86 C.CLS. 665, 667. FURTHER, WHERE AS HERE THE CONTRACT SETS OUT A PROCEDURE UNDER WHICH DISPUTES AS TO FACT ARE TO BE SETTLED ADMINISTRATIVELY, THE ADMINISTRATIVE REMEDY THEREBY PROVIDED MUST BE EXHAUSTED BY THE CONTRACTOR BEFORE A CLAIM MATERIALLY RELEVANT TO A FACTUAL QUESTION FOR DETERMINATION PURSUANT TO THE PROCEDURE IS COGNIZABLE EITHER BY THE COURTS OR BY OUR OFFICE. UNITED STATES V. JOSEPH A. HOLPUCH CO., 328 U.S. 234; UNITED STATES V. BLAIR, 321 U.S. 730; UNITED STATES V. CALLAHAN WALKER CONST. CO., 317 U.S. 56; B 98784, NOVEMBER 28, 1950; B- 122849, MARCH 21, 1955.
ACCORDINGLY, THE PERTINENT DOCUMENTS FORWARDED WITH THE CLAIM ARE BEING RETURNED, SO THAT THE ADMINISTRATIVE PROCEDURE PRESCRIBED BY THE DISPUTES CLAUSES OF THE CONTRACT MAY BE CARRIED OUT. A COPY OF OUR LETTER OF TODAY TO THE ATTORNEY FOR THE CLAIMANT IS ALSO ENCLOSED. PREVIOUS SETTLEMENT ACTION SHOULD BE CONSIDERED AS CANCELLED.