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B-144792, FEB. 9, 1961

B-144792 Feb 09, 1961
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THE CLAIM WAS TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE BY THE DEPARTMENT OF THE ARMY FOR DIRECT SETTLEMENT AND WAS DISALLOWED BY THE SETTLEMENT DATED OCTOBER 4. IT IS CONTENDED BY YOUR REPRESENTATIVE THAT IN THE NEGOTIATIONS LEADING UP TO THE CONTRACT IT WAS CONTEMPLATED THAT THE GOODS SHOULD BE DELIVERED TO THE BROOKLYN ARMY TERMINAL. AT REGULAR DOMESTIC FREIGHT RATES BUT THAT YOU HAVE BEEN CHARGED BY THE CARRIER WITH HIGHER EXPORT FREIGHT RATES RESULTING IN AN ADDITIONAL CHARGE OF $204.90. IT IS STATED BY GRINNELL SHIRTZ MARKETING SERVICE IN A LETTER DATED MAY 25. TO THE CHICAGO MILITARY SUBSISTENCE MARKET CENTER: "THESE BEANS WERE OFFERED AND THE SALE NEGOTIATED ON THE BASIS OF A PRICE DELIVERED TO THE BROOKLYN ARMY TERMINAL.

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B-144792, FEB. 9, 1961

TO GERVAS CANNING COMPANY, INC.:

THERE HAS BEEN REFERRED TO THIS OFFICE FOR CONSIDERATION A LETTER DATED DECEMBER 19, 1960, FROM YOUR REPRESENTATIVE, GRINNELL-SHIRTZ MARKETING SERVICE, TO HEADQUARTERS, CHICAGO REGION, MILITARY SUBSISTENCE SUPPLY AGENCY, CHICAGO, ILLINOIS, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 4, 1960, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $204.90 REPRESENTING ADDITIONAL FREIGHT CHARGES INCURRED IN THE DELIVERY OF 1,038 DOZEN NO. 10 CANS OF SNAP BEANS UNDER NEGOTIATED CONTRACT NO. CHI-2010-59 DATED MARCH 5, 1959. UNDER DATE OF SEPTEMBER 2, 1960, THE CLAIM WAS TRANSMITTED TO THE GENERAL ACCOUNTING OFFICE BY THE DEPARTMENT OF THE ARMY FOR DIRECT SETTLEMENT AND WAS DISALLOWED BY THE SETTLEMENT DATED OCTOBER 4, 1960, FOR THE REASONS SETOUT THEREIN.

IT IS CONTENDED BY YOUR REPRESENTATIVE THAT IN THE NEGOTIATIONS LEADING UP TO THE CONTRACT IT WAS CONTEMPLATED THAT THE GOODS SHOULD BE DELIVERED TO THE BROOKLYN ARMY TERMINAL, BROOKLYN, NEW YORK, AT REGULAR DOMESTIC FREIGHT RATES BUT THAT YOU HAVE BEEN CHARGED BY THE CARRIER WITH HIGHER EXPORT FREIGHT RATES RESULTING IN AN ADDITIONAL CHARGE OF $204.90. THIS CONNECTION, IT IS STATED BY GRINNELL SHIRTZ MARKETING SERVICE IN A LETTER DATED MAY 25, 1959, TO THE CHICAGO MILITARY SUBSISTENCE MARKET CENTER:

"THESE BEANS WERE OFFERED AND THE SALE NEGOTIATED ON THE BASIS OF A PRICE DELIVERED TO THE BROOKLYN ARMY TERMINAL, BROOKLYN, N.Y. THEY WERE SHIPPED ON COMMERCIAL B/LS AS PER INSTRUCTIONS CONTAINED IN THE MIRR DOCUMENTS WHICH CALLED FOR, SHIPPED TO-MARK FOR, T.O. BROOKLYN ARMY TERM. DEST: N.Y. HARBOR, N.Y. FREE LTGE DELY FOR EXPORT. LTGE DELY FOR EXPORT.

"THE RAILROAD ORIGINALLY ACCEPTED THE SHIPMENT AT THE REGULAR COMMERCIAL RATE TO BROOKLYN BUT HAS SUBSEQUENTLY CHARGED THE CONTRACTOR AN ADDITIONAL $204.90 CLAIMING THAT THE SHIPMENT WAS CONSIGNED FOR EXPORT SHIPMENT, WHICH CARRIES A HIGHER RATE.'

THERE IS NOT FOUND ANY INDICATION THAT THE ADDITIONAL AMOUNT HAS BEEN PAID TO THE CARRIER. THE BEANS WERE DELIVERED AND WERE PAID FOR AT THE PRICE STATED IN THE CONTRACT.

IT APPEARS THAT THE FIRST NEGOTIATIONS WERE BY TELEPHONE. HOWEVER, IN ITS LETTER DATED MARCH 2, 1959, GRINNELL-SHIRTZ MARKETING SERVICE AS YOUR REPRESENTATIVE OFFERED BEANS FOR DELIVERY "TO BROOKLYN ARMY TERMINAL.' THE NOTICE OF AWARD DATED MARCH 5, 1959, ADDRESSED TO YOU IN CARE OF GRINNELL-SHIRTZ MARKETING SERVICE, IT WAS PLAINLY STATED THAT THE BEANS WERE TO BE DELIVERED TO ,TRANSPORTATION OFFICER, BROOKLYN ARMY TERMINAL, BROOKLYN 50, NEW YORK" IN "DOMESTIC SHIPPING CONTAINERS FOR OVERSEAS SHIPMENT," F.O.B. DESTINATION. IDENTICAL PROVISIONS WERE CONTAINED IN A PURCHASE ORDER ALSO DATED MARCH 5, 1959. MOREOVER, THE MATERIEL INSPECTION AND RECEIVING REPORT WHICH WAS FURNISHED TO YOU PRIOR TO SHIPMENT STATED THAT SHIPMENT WAS TO BE MADE TO "T.O. BROOKLYN ARMY TERM. DEST: N.Y. HARBOR, N.Y. FREE LTGE DELY FOR EXPORT," ALSO STATING THAT SHIPMENT WAS TO BE IN "DOMESTIC SHIPPING CONTAINERS FOR OVERSEAS SHIPMENT.'

IN A LETTER DATED JANUARY 14, 1960, TO GRINNELL-SHIRTZ MARKETING SERVICE, THE NEW YORK CENTRAL SYSTEM STATES:

"THESE BILLS ARE A RESULT OF CORRECTIONS ISSUED BY OUR WEEHAWKEN ACCOUNTING BUREAU. THEY STATE SHIPMENTS WERE EXPORTED PIER 4 ARMY BASE, BROOKLYN, NEW YORK UNDER MARINE DEPARTMENT ORDERS F-5278 FEBRUARY 24 AND F -5432 FEBRUARY 25. CODE MARKINGS ON THEIR BUREAU COPIES SHOW THAT THEY WERE DEFINITELY FOR EXPORT, 63 CENTS RATE PLUS 06 IS CORRECT BASIS.'

IT SEEMS CLEAR THAT THE REPRESENTATIVES OF THE GOVERNMENT INTENDED AT ALL TIMES THAT THE BEANS SHOULD BE DELIVERED TO THE BROOKLYN ARMY TERMINAL FOR EXPORT AND THAT SUCH INTENTION WAS SHOWN IN ALL OF THE PAPERS AND DOCUMENTS INVOLVED, AS ABOVE SET FORTH. ANY ERROR OR MISUNDERSTANDING ON YOUR PART RELATIVE TO THE MATTER MUST BE REGARDED AS UNILATERAL AND NOT A PROPER BASIS FOR PAYMENT OF ANY AMOUNT BY THE GOVERNMENT IN ADDITION TO THE PRICE STATED IN THE CONTRACT. THEREFORE, THE SETTLEMENT OF OCTOBER 4, 1960, DISALLOWING YOUR CLAIM, APPEARS CORRECT AND HEREBY IS SUSTAINED.

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