A-94609, DECEMBER 5, 1938, 18 COMP. GEN. 494

A-94609: Dec 5, 1938

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STIPULATED THAT DELIVERY WAS TO START WITHIN 1 DAY AFTER RECEIPT OF ORDER AND BE COMPLETED WITHIN 30 DAYS. THE CONTRACTOR IS NOT ENTITLED TO EXTRAORDINARY EXPENSES. WHEREBY THE CLAIM WAS DISALLOWED. THIS TAR WAS TO BE USED IN THE REPAIR OF STREETS AS A PROJECT DESIGNED TO FURNISH EMPLOYMENT TO THOSE OUT OF WORK IN THAT CITY. THE CONTRACT SPECIFICALLY PROVIDED THAT YOU WERE TO DELIVER AND APPLY THE TAR BY MEANS OF AN APPROVED PRESSURE DISTRIBUTOR "WHERE AND WHEN. THE CONTRACT FURTHER STIPULATED THAT DELIVERY WAS TO START WITHIN 1 DAY AFTER RECEIPT OF ORDER AND BE COMPLETED WITHIN 30 DAYS. YOU WERE REQUIRED TO HEAT THE MATERIAL AND MAINTAIN A TEMPERATURE OF NOT LESS THAN 200 DEGREES AND NOT MORE THAN 300 DEGREES F.

A-94609, DECEMBER 5, 1938, 18 COMP. GEN. 494

CONTRACTS - INCREASED COSTS - GOVERNMENT LIABILITY - ALLEGED CONTRACT COMMENCEMENT DELAYS WHERE CONTRACT PROVIDED FOR DELIVERY AND APPLICATION OF TAR "WHERE AND WHEN, AND IN QUANTITY DESIGNATED" UPON 12 HOURS' NOTICE, AND STIPULATED THAT DELIVERY WAS TO START WITHIN 1 DAY AFTER RECEIPT OF ORDER AND BE COMPLETED WITHIN 30 DAYS, THE CONTRACTOR IS NOT ENTITLED TO EXTRAORDINARY EXPENSES, REPRESENTING DEMURRAGE CHARGES, HEATING COSTS AND EXPENSES IN HOLDING CARS IN READINESS FOR DELIVERY, BECAUSE OF THE ALLEGED GOVERNMENT FAILURE TO ACCEPT DELIVERY WITHIN THE 30 DAYS SPECIFIED IN THE CONTRACT, THE 30-DAY PROVISION HAVING REFERENCE TO THE TIME OF COMPLETION AFTER RECEIPT OF THE ORDER AND NOT THAT THE UNITED STATES WOULD ORDER OR ACCEPT DELIVERY WITHIN 30 DAYS AFTER THE DATE OF THE CONTRACT, AND THE ACCEPTANCE OF THE BID NOT CONSTITUTING AN ORDER FOR THE DELIVERIES.

ACTING COMPTROLLER GENERAL ELLIOTT TO P. S. KRAMER, DECEMBER 5, 1938:

YOUR LETTER OF MARCH 1, 1938, SUPPLEMENTED BY LETTER OF NOVEMBER 14, 1938, REQUESTED REVIEW OF SETTLEMENT DATED OCTOBER 20, 1937, WHICH DISALLOWED YOUR CLAIM FOR $2,929.77 AS EXTRAORDINARY EXPENSES INCURRED BY REASON OF THE DELAY IN THE WORKS PROGRESS ADMINISTRATION OFFICE IN NEW YORK CITY IN USING THREE RAILROAD TANK CARS OF WATER GAS TAR DELIVERED TO THE BOROUGH OF QUEENS, NEW YORK, UNDER CONTRACT NO. ER-TPS 21-3471, DATED SEPTEMBER 26, 1935.

IT APPEARS UNNECESSARY TO REPEAT THE STATEMENTS CONTAINED IN THE SETTLEMENT OF OCTOBER 20, 1937, WHEREBY THE CLAIM WAS DISALLOWED, IT BEING SUFFICIENT TO SUMMARIZE THAT UNDER THE TERMS OF THE CONTRACT YOU AGREED TO DELIVER 33,000 GALLONS OF WATER GAS TAR TO THE BOROUGH OF QUEENS IN TANK CAR LOTS FOR A UNIT PRICE OF $0.1416, AND THIS TAR WAS TO BE USED IN THE REPAIR OF STREETS AS A PROJECT DESIGNED TO FURNISH EMPLOYMENT TO THOSE OUT OF WORK IN THAT CITY. THE CONTRACT SPECIFICALLY PROVIDED THAT YOU WERE TO DELIVER AND APPLY THE TAR BY MEANS OF AN APPROVED PRESSURE DISTRIBUTOR "WHERE AND WHEN, AND IN QUANTITY DESIGNATED BY THE TRAFFIC DEPT., PROCUREMENT DIV., " UPON 12 HOURS' NOTICE. THE CONTRACT FURTHER STIPULATED THAT DELIVERY WAS TO START WITHIN 1 DAY AFTER RECEIPT OF ORDER AND BE COMPLETED WITHIN 30 DAYS. ALSO, YOU WERE REQUIRED TO HEAT THE MATERIAL AND MAINTAIN A TEMPERATURE OF NOT LESS THAN 200 DEGREES AND NOT MORE THAN 300 DEGREES F.

YOU HAVE ALLEGED THAT AS A RESULT OF THE FAILURE TO ACCEPT DELIVERIES WITHIN THE 30-DAY PERIOD SPECIFIED IN THE CONTRACT YOU NECESSARILY INCURRED EXTRAORDINARY EXPENSES IN THE AMOUNT OF $2,929.77, REPRESENTING DEMURRAGE CHARGES, HEATING COSTS, AND EXPENSES IN HOLDING CARS AND EQUIPMENT IN READINESS FOR DELIVERY. IN THIS CONNECTION IT MAY BE NOTED THAT YOU HAVE CLAIMED DEMURRAGE CHARGES ON THE TANK CARS FOR SUNDAYS AND HOLIDAYS AND FOR FREE TIME WHEN THE APPLICABLE RAILROAD TARIFFS DO NOT PROVIDE FOR CHARGES DURING SUCH DAYS. IN FACT YOUR CLAIM IN MANY RESPECTS APPEARS AS FOR SPECULATIVE AND NOT ACTUAL DAMAGES. THE CONTRACT WAS NOT THAT THE UNITED STATES WOULD ORDER OR ACCEPTDELI VERY OF THE TAR WITHIN 30 DAYS AFTER THE DATE OF THE CONTRACT. THE CONTRACT WAS THAT YOU WOULD START DELIVERY 1 DAY AFTER RECEIPT OF ORDER, COMPLETE IN 30 DAYS, AND APPLY THE TAR "WHERE AND WHEN, AND IN QUANTITY DESIGNATED" BY THE GOVERNMENT REPRESENTATIVES. SUCH A STIPULATION EXPRESSLY NEGATIVES ANY REVIEW THAT THE GOVERNMENT WAS REQUIRED TO ACCEPT DELIVERY IN THE MANNER AND WITHIN THE TIME CONTENDED BY YOU IN SUPPORT OF YOUR CLAIM.

IT SEEMS THAT THIS CLAIM IS THE RESULT OF A MISAPPREHENSION UPON YOUR PART THAT THE ACCEPTANCE OF YOUR BID CONSTITUTED AN ORDER FOR THE DELIVERIES AND THAT YOU THEREUPON PLACED TANK CARS UPON THE RAILROAD SIDINGS ON NOVEMBER 6, 19, AND DECEMBER 14, AND MADE ARRANGEMENTS FOR THE RENTAL OF TWO APPLICATORS AND A FORCE OF MEN TO MAKE THE APPLICATION AND DISTRIBUTION AS IF YOU WERE TO BE ENGAGED UPON THE INITIAL CONSTRUCTION OF A ROAD INSTEAD OF THE REPAIR OF STREETS IN A BUSY CITY WHERE THERE IS A CONSIDERABLE AMOUNT OF TRAFFIC. IT IS NOT UNDERSTOOD HOW YOU COULD HAVE MISUNDERSTOOD THE MATTER TO THAT EXTENT WHEN THE CONTRACT PROVIDED THAT THE MATERIAL WAS TO BE DELIVERED AND APPLIED "WHERE AND WHEN, AND IN QUANTITY DESIGNATED" BY THE GOVERNMENT REPRESENTATIVES.

IT ONLY WAS REQUIRED FOR YOU TO HAVE THE MATERIAL AVAILABLE TO THE EXTENT THAT YOU COULD START DELIVERY AND APPLY THE TAR UPON 12 HOURS' NOTICE, AND YOU CANNOT SHIFT TO THE UNITED STATES ANY UNNECESSARY EXPENSES THAT YOU MAY HAVE INCURRED IN THAT CONNECTION, THROUGH A CLAIM FOR DAMAGES.

FURTHERMORE, EVEN IF OTHERWISE CORRECT, NO ADDITIONAL AMOUNT COULD BE PAID YOU SINCE THERE IS NO APPROPRIATION AVAILABLE THEREFOR. SECTION 3678, REVISED STATUTES, PROVIDES THAT ALL APPROPRIATIONS SHALL BE "APPLIED SOLELY TO THE OBJECTS FOR WHICH THEY ARE RESPECTIVELY MADE, AND FOR NO OTHERS.' THE APPROPRIATION HERE INVOLVED DOES NOT PROVIDE "EITHER IN EXPRESS TERMS OR BY IMPLICATION" FOR PAYMENT OF THE EXPENSES CLAIMED BY YOU. ACCORDINGLY, THE SETTLEMENT MUST BE, AND IS AFFIRMED.