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B-154688, MAY 29, 1968

B-154688 May 29, 1968
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TO JANET'S TYPEWRITER SERVICE: REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL AMOUNTS ALLEGED TO BE DUE ON INVOICES FOR TYPEWRITER SERVICES OR REPAIRS RENDERED THE DEPARTMENT OF THE NAVY DURING FISCAL YEAR 1967. FOR $5.50 FOR THE USS ELOKOMIN) SUCH INVOICES WERE PAID BY THE ADMINISTRATIVE OFFICE ON MARCH 7. THE PRESENT AMOUNT OF THE CLAIM IS $1. YOU WERE A FEDERAL SUPPLY SCHEDULE CONTRACTOR UNDER GENERAL SERVICES ADMINISTRATION CONTRACT NO. UNLESS AN AMOUNT IN EXCESS THEREOF WAS AUTHORIZED IN ADVANCE BY THE ORDERING OFFICE. THE CONTRACT PRICE TO RECONDITION OR OVERHAUL UNDER ITEM NO. 74-R-4350-15 WAS $10.10. THE CONTRACT SPECIFICATIONS AND SPECIAL PROVISIONS PROVIDED THAT ALL PARTS REQUIRED FOR RECONDITIONING WERE TO BE SUPPLIED BY THE CONTRACTOR AND INCLUDED IN THE CONTRACT PRICE.

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B-154688, MAY 29, 1968

TO JANET'S TYPEWRITER SERVICE:

REFERENCE IS MADE TO YOUR CLAIM FOR ADDITIONAL AMOUNTS ALLEGED TO BE DUE ON INVOICES FOR TYPEWRITER SERVICES OR REPAIRS RENDERED THE DEPARTMENT OF THE NAVY DURING FISCAL YEAR 1967. WHILE THE ORIGINAL CLAIM IN THE AMOUNT OF $1,109.69 CONTAINED TWO INVOICES IN FISCAL YEAR 1968 (NO. 12131, OCTOBER 26, 1967, FOR $99, AND NO. 12176, NOVEMBER 16, 1967, FOR $5.50 FOR THE USS ELOKOMIN) SUCH INVOICES WERE PAID BY THE ADMINISTRATIVE OFFICE ON MARCH 7, 1968, AND THE PRESENT AMOUNT OF THE CLAIM IS $1,005.19.

BRIEFLY, YOU WERE A FEDERAL SUPPLY SCHEDULE CONTRACTOR UNDER GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-03S-27641 WHICH PROVIDED FOR THE REPAIRING, MAINTAINING AND RECONDITIONING OF MANUAL TYPEWRITERS DURING THE PERIOD OF PERFORMANCE UNDER ALL OF THE PURCHASE ORDERS IN DISPUTE. THE TERMS OF THAT CONTRACT (ITEM 74-R-4350) PROVIDED FOR ADJUSTMENT AND REPAIR WORK TO BE ACCOMPLISHED AT $2.20 PER HOUR PLUS CHARGES FOR REPAIR PARTS, WITH A LIMITATION OF THE TOTAL COST TO 80 PERCENT OF THE COST TO RECONDITION OR OVERHAUL A MACHINE AS LISTED UNDER ITEM 74-R-4350-15, UNLESS AN AMOUNT IN EXCESS THEREOF WAS AUTHORIZED IN ADVANCE BY THE ORDERING OFFICE.

PARAGRAPH 9B (1) OF THE CONTRACT REQUIRED THAT JOB TICKETS FOR REPAIR WORK EXCEEDING 80 PERCENT OF THE OVERHAUL PRICE SHOULD SHOW THE ESTIMATED COST WHICH HAD BEEN APPROVED IN ADVANCE, AND THE NAME AND TITLE OF THE OFFICIAL AUTHORIZING THE CONTRACTOR TO PROCEED WITH THE REPAIRS. THE CONTRACT PRICE TO RECONDITION OR OVERHAUL UNDER ITEM NO. 74-R-4350-15 WAS $10.10, MAKING THE 80 PERCENT REPAIR COST LIMITATION $8.08. THE CONTRACT SPECIFICATIONS AND SPECIAL PROVISIONS PROVIDED THAT ALL PARTS REQUIRED FOR RECONDITIONING WERE TO BE SUPPLIED BY THE CONTRACTOR AND INCLUDED IN THE CONTRACT PRICE.

THE AMOUNTS IN DISPUTE REPRESENT CHARGES IN EXCESS OF THOSE SPECIFIED ABOVE (LABOR AT $5.50 AN HOUR INSTEAD OF $2.20, TOTAL REPAIR COSTS IN EXCESS OF $8.08, AND OVERHAUL COSTS IN EXCESS OF $10.10).

IT APPEARS THAT THE DISPUTE CENTERS MAINLY AROUND THE ESTABLISHMENT OF THE CONDITION OF THE TYPEWRITERS WHEN ACCEPTED BY THE CONTRACTOR, AND WHETHER THE WORK REQUIRED WAS EXEMPT FROM THE CONTRACT PRICES BY OPERATION OF CONTRACT CLAUSE NO. 4A WHICH PROVIDED:

"IN ACCORDANCE WITH THE SCOPE OF CONTRACT CLAUSE EACH CONTRACTOR WILL BE OBLIGATED TO PERFORM ALL OF THE SERVICES THAT MAY BE REQUIRED DURING THE CONTRACT TERM. CONTRACTS WILL NOT COVER TYPEWRITERS, WITH BROKEN ORBENT FRAMES, CARRIAGE FRAMES, RAILS OR MACHINES DAMAGED BY ACCIDENT OR MISUSE, STRIPPED TYPEWRITERS, OR OBSOLETE TYPEWRITERS WHERE PARTS ARE NOT AVAILABLE UNDER THE MANUFACTURER'S CURRENT PRICE LIST.'

THE BASIC PROBLEM PRESENTED IN THIS MATTER IS ONE THAT HAS BEEN BEFORE THIS OFFICE ON MANY OCCASIONS -- THAT IS, WHETHER WE MAY ALLOW A CLAIM ON THE BASIS OF FACTUAL REPRESENTATIONS OF A CLAIMANT WHICH ARE DIRECTLY CONTRARY TO THOSE OF THE ADMINISTRATIVE AGENCY. HERE YOUR POSITION IS ESSENTIALLY THAT THE MACHINES CONCERNED WERE DAMAGED TO SUCH AN EXTENT AS TO JUSTIFY THEIR EXCLUSION FROM THE CONTRACT PURSUANT TO CLAUSE NO. 4A, QUOTED ABOVE, WHEREAS THE POSITION OF THE ADMINISTRATIVE OFFICE, BASED UPON THE BEST INFORMATION IT WAS ABLE TO OBTAIN INCLUDING STATEMENTS FURNISHED BY REQUISITIONING SHIPS AND STATIONS TOGETHER WITH AN ANALYSIS OF THE SERVICES AND REPAIRS PERFORMED AS SHOWN ON THE BILLINGS, IS THAT THE SUBJECT MACHINES WERE NOT DAMAGED BY ACCIDENT OR MISUSE AND THEIR CONDITION WAS SUCH THAT THEY WERE NOT PROPERLY FOR EXCLUSION FROM THE CONTRACT AND PRICES SPECIFIED THEREIN.

OUR REVIEW OF THE MATERIAL SUBMITTED TO THIS OFFICE DOES NOT INDICATE THAT THE ADMINISTRATIVE POSITION WAS ARBITRARILY TAKEN OR THAT IT IS CLEARLY UNSUPPORTED BY THE RECORD. WHILE YOU WERE REQUESTED BY THE ADMINISTRATIVE OFFICE ON NUMEROUS OCCASIONS TO SUBMIT DATA OR OTHER EVIDENCE TO SUPPORT YOUR POSITION THAT THE SUBJECT MACHINES WERE VALID EXCLUSIONS FROM THE CONTRACT, YOU DID NOT SUBMIT SUCH SUPPORTING MATERIAL. IN SUCH MATTERS IT IS OUR LONG-ESTABLISHED RULE TO ACCEPT THE FACTS AS SHOWN BY THE ADMINISTRATIVE RECORDS IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF. COMP. GEN. 51; 16 ID. 325. OUR DECISIONS ALSO HAVE CONSISTENTLY HELD THAT THE BURDEN DOES NOT REST UPON THIS OFFICE TO REFUTE CLAIMS PRESENTED FOR SETTLEMENT OR TO REFUTE THE ALLEGATIONS UPON WHICH SUCH CLAIMS ARE BASED, BUT THAT THE BURDEN IS ON CLAIMANTS TO FURNISH EVIDENCE, EITHER TO OUR OFFICE OR THE COURT IF THEY CHOOSE TO FILE SUIT, CLEARLY AND SATISFACTORILY PROVING THEIR CLAIMS AND ALL MATTERS INCIDENTAL THERETO WHICH MAY BE NECESSARY TO ESTABLISH THE LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO RECEIVE PAYMENT. SEE 18 COMP. GEN. 199; ID. 980; AND 31 ID. 340. THE COURT OF CLAIMS LONG AGO HELD IN THE CASES OF LONGWILL V UNITED STATES, 17 CT. CL. 288 (1881), AND CHARLES V UNITED STATES, 19 CT. CL. 316 (1884), THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT HAVE THE RIGHT AND DUTY TO SCRUTINIZE CLAIMS AND ACCOUNTS WITH GREAT CARE AND TO REJECT ANY CLAIM WHEN THERE IS SUBSTANTIAL DOUBT AS TO WHETHER IT WOULD BE RECOVERABLE IN A JUDICIAL PROCEEDING.

WHILE SEVERAL OF THE REQUISITION ORDERS AS ISSUED BY THE SHIPS OR STATIONS WERE SUBSEQUENTLY MODIFIED TO INCORPORATE THE TERMS OF THE GENERAL SERVICES ADMINISTRATION CONTRACT, SUCH ACTION APPEARS TO HAVE BEEN TAKEN PURSUANT TO DECISIONS OF THIS OFFICE HOLDING IN SIMILAR SITUATIONS THAT PURCHASING ACTIVITIES ARE NOT AUTHORIZED TO OBLIGATE THE GOVERNMENT TO PAY IN EXCESS OF THE GENERAL SERVICES ADMINISTRATION CONTRACT PRICES FOR PROCUREMENTS WITHIN THE PURVIEW OF SUCH CONTRACTS. SEE 30 COMP. GEN. 23, AND 34 ID. 280. THE FACT AS ALLEGED BY YOU THAT SIMILAR ACTION MAY NOT ALWAYS HAVE BEEN TAKEN WITH RESPECT TO WORK PERFORMED BY OTHER CONTRACTORS CANNOT BE CONSIDERED AS MAKING IT IMPROPER IN YOUR CASE, AND WE ARE ADVISED THAT THE INCIDENCE OF SUCH CASES IS VERY SMALL.

IN VIEW OF THE FOREGOING THERE DOES NOT APPEAR TO BE A PROPER BASIS FOR THIS OFFICE TO ALLOW MORE THAN CONTRACT PRICES FOR THE SERVICES PERFORMED ON THE MACHINES IN DISPUTE, AND YOUR CLAIM FOR SUCH ADDITIONAL AMOUNTS IS THEREFORE DISALLOWED.

IT APPEARS HOWEVER THAT CONTRACT PRICES IN THE AMOUNT OF $30.30 AND $10.10 ARE STILL DUE ON YOUR INVOICES NOS. 11854 AND 11045, RESPECTIVELY, AND THAT YOUR CLAIM FOR $3.41 ON INVOICE NO. 12512 IS SATISFACTORILY SUPPORTED. ACCORDINGLY, OUR CLAIMS DIVISION IS BEING DIRECTED BY MEMORANDUM OF TODAY TO PROCESS THOSE ITEMS FOR PAYMENT. OUR CLAIMS DIVISION IS ALSO BEING REQUESTED TO DEVELOP WITH THE ADMINISTRATIVE OFFICE AND EFFECT APPROPRIATE SETTLEMENT OF YOUR CLAIM FOR REPAIR OF TWO ELECTRIC TYPEWRITERS FROM THE USS AMERICA, AS PRESENTED TO THIS OFFICE BY YOUR LETTER OF MAY 9, 1968.

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