B-117965, FEB 16, 1954

B-117965: Feb 16, 1954

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THE HAULING AND CRATING SERVICES INVOLVED WERE PERFORMED BY THE CLAIMANT PURSUANT TO AN ORDER ISSUED JUNE 26. THE GOODS WERE PICKED UP AS SCHEDULED AND THENCE HAULED BY MOTOR VAN TO THE CONTRACTOR'S PLANT LOCATED AT BRISTOL. WHERE THEY WERE CRATED AND MADE READY FOR SHIPMENT OVERSEAS ON OR ABOUT JULY 2. WAS ACCEPTED BY THE GOVERNMENT. YOU HAVE QUESTIONED THE PROPRIETY OF AUTHORIZING PAYMENT OF THE SAID TRANSPORTATION ITEM ON THE GROUND THAT THE CLAIMANT'S ACTION IN HAVING INCLUDED IN ITS BID A QUALIFICATION DESIGNED TO PERMIT REIMBURSEMENT OF HAULING COSTS AS AN ITEM SEPARATE AND DISTINCT FROM THE ADVERTIZED SERVICES OF CRATING AND PACKING. THERE WAS NO DEVIATION OR MODIFICATION OF THE INVITATION'S TERMS IN RESPECT TO THE NATURE OR QUALITY OF THE SERVICE TO BE RENDERED.

B-117965, FEB 16, 1954

PRECIS-UNAVAILABLE

COLONEL E. O. LEE, FINANCE OFFICER:

THERE HAS BEEN RECEIVED YOUR LETTER OF NOVEMBER 16, 1953, FILE FINEK R/016, REQUESTING AN ADVANCE DECISION AS TO THE PROPRIETY OF MAKING PAYMENT ON BUREAU VOUCHER DATED OCTOBER 1, 1953, FOR $23.15, IN FAVOR OF THE BRISTOL VAN & STORAGE CORP., BRISTOL, VIRGINIA, COVERING CERTAIN HAULING, PACKING AND CRATING SERVICES PERFORMED FOR THE DEPARTMENT OF THE ARMY PURSUANT TO CONTRACT NO. DA44-012-AII-764, DATED JUNE 27, 1953.

THE HAULING AND CRATING SERVICES INVOLVED WERE PERFORMED BY THE CLAIMANT PURSUANT TO AN ORDER ISSUED JUNE 26, 1953, BY THE POST TRANSPORTATION OFFICER, CAMP PICKETT, VIRGINIA, DIRECTING THE FORMER TO PROCEED TO A DESIGNATED ADDRESS IN ABINGDON, VIRGINIA, AND TO PICK-UP, PREPARATORY TO CRATING FOR SHIPMENT OVERSEAS, THE HOUSEHOLD GOODS OF A DEPENDENT OF SFC EMMETT H. REYNOLDS. FROM THE INFORMATION DISCLOSED ON CONFIRMING DELIVERY ORDER NO. 3, ISSUED BY THE CONTRACTING OFFICER AT CAMP PICKETT ON SEPTEMBER 29, 1953, THE GOODS WERE PICKED UP AS SCHEDULED AND THENCE HAULED BY MOTOR VAN TO THE CONTRACTOR'S PLANT LOCATED AT BRISTOL, VIRGINIA, A DISTANCE OF APPROXIMATELY 15 MILES, WHERE THEY WERE CRATED AND MADE READY FOR SHIPMENT OVERSEAS ON OR ABOUT JULY 2, 1953.

WHILE THE INVITATION FOR BIDS EXPRESSLY STATED THAT THE "INITIAL DRAYAGE" INCIDENT TO TRANSPORTING THE HOUSEHOLD GOODS TO THE CRATING POINT SHOULD BE INCLINED IN THE UNIT PRICES QUOTED BY THE BIDDERS FOR PACKING AND CRATING, AND THAT "ALL SERVICE SHALL BE INVOICED AS PACKING AND CRATING" (PARAGRAPH 2 OF THE CONTRACT GENERAL CONDITIONS), THE CLAIMANT, AFTER QUOTING IDENTICAL PACKING AND CRATING RATES FOR EACH OF THE SEVEN COUNTIES IN VIRGINIA SCHEDULED TO BE SERVED UNDER THE CONTRACT, INCORPORATED IN HIS BID AN AMENDMENT OR MODIFICATION PROVIDING FOR REIMBURSEMENT TO IT OF THE TRANSPORTATION OR HAULING COSTS INCIDENT TO MOVING THE HOUSEHOLD GOODS EITHER TO OR FROM ITS BRISTOL, VIRGINIA, PLANT, COMPUTED AT THE MOTOR VAN RATES ESTABLISHED IN TARIFF 35-A FOR THE WEIGHTS AND DISTANCES HAULED. THE BID, INCLUDING THESE TERMS, WAS ACCEPTED BY THE GOVERNMENT.

CONSEQUENTLY, IN BILLING THE GOVERNMENT FOR THE SERVICES COVERED BY INVOICE NO. 9122, DATED SEPTEMBER 21, 1953, THE CLAIMANT LISTED A CHARGE OF $6.25, FOR CRATING 125 POUNDS OF HOLD BAGGAGE, COMPUTED AT THE APPLICABLE $5 RATE ESTABLISHED FOR LIKE SERVICES UNDER BID SCHEDULE "A", ALONG WITH ANOTHER SEPARATE CHARGE OF $16.90, TO COVER THE COST OF TRANSPORTING THE GOODS FROM ABINGDON TO BRISTOL, VIRGINIA, REPORTEDLY COMPUTED AT THE HAULING RATE FIXED UNDER TARIFF 35-A. YOU HAVE QUESTIONED THE PROPRIETY OF AUTHORIZING PAYMENT OF THE SAID TRANSPORTATION ITEM ON THE GROUND THAT THE CLAIMANT'S ACTION IN HAVING INCLUDED IN ITS BID A QUALIFICATION DESIGNED TO PERMIT REIMBURSEMENT OF HAULING COSTS AS AN ITEM SEPARATE AND DISTINCT FROM THE ADVERTIZED SERVICES OF CRATING AND PACKING, OPERATED TO RENDER ITS BID UNRESPONSIVE TO THE TERMS OF THE INVITATION, AND, HENCE, NOT BINDING UPON THE GOVERNMENT.

WHILE IT APPEARS THAT THE BIDDER IN SETTING OUT ITS BID PRICE FAILED TO COMPLY WITH THE INSTRUCTIONS RELEVANT THERETO, THERE WAS NO DEVIATION OR MODIFICATION OF THE INVITATION'S TERMS IN RESPECT TO THE NATURE OR QUALITY OF THE SERVICE TO BE RENDERED. CF. 30 COMP. GEN. 179. IT HAS BEEN REPORTED BY THE CONTRACTING OFFICER THAT SUCH BID WAS THE ONLY ONE RECEIVED. MOREOVER, THE SAID OFFICER HAS EXPRESSED THE BELIEF THAT THE CONTRACT SERVICES WOULD NOT BE EXTENSIVELY UTILIZED, DUE OSTENSIBLY TO THE LIMITED DEMAND FOR THOSE SERVICES IN THE PARTICULAR AREA TO BE SERVED. THUS, WHEN THE CONTRACTING OFFICER WAS CONSIDERING THE CLAIMANT'S BID FOR PURPOSES OF AWARD, IT CAN READILY BE APPRECIATED THAT HE WAS FACED WITH THE ALTERNATIVE EITHER OF ACCEPTING THE CLAIMANT'S BID, AS QUALIFIED IN THE MANNER INDICATED, OR REJECTING IT WITH FULL KNOWLEDGE OF THE PROBABILITY THAT A READVERTISEMENT OF THE GOVERNMENT'S NEEDS UNDER SIMILAR OR IDENTICAL SPECIFICATIONS WOULD SERVE NO USEFUL PURPOSE.

SINCE THE CLAIMANT'S BID WAS THE ONLY ONE RECEIVED UNDER THE INVITATION, AND AS IT APPEARS THAT IT WAS MADE AND ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH, IT MUST BE CONCLUDED THAT SUCH ACCEPTANCE RESULTED IN A BINDING CONTRACT ENFORCEABLE IN ACCORDANCE WITH THE TERMS AS EXPRESSED THEREIN. SEE HARVEY V. UNITED STATES, 105 U. S. 671; 17 C.J.S. 381. ACCORDINGLY, INASMUCH AS THE CONTRACT, AS EXECUTED, REASONABLY CONTEMPLATES REIMBURSEMENT TO THE CONTRACTOR OF THE HAULING COSTS, COMPUTED IN CONFORMITY WITH MOTOR VAN TARIFF 35-A, IN ADDITION TO THE PRICES QUOTED THEREIN FOR CRATING OR UNCRATING, THIS OFFICE IS NOT REQUIRED TO OBJECT TO PAYMENT ON THE CLAIMANT'S CERTIFIED INVOICE, IF OTHERWISE CORRECT.

THE VOUCHER AND RELATED PAPERS ARE RETURNED HEREWITH.