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B-122644, JUN. 27, 1955

B-122644 Jun 27, 1955
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TO OTIS ELEVATOR COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 19. THE SPECIFICATIONS UNDER SCHEDULE B PROVIDED THAT "REPAIRS AND REPLACEMENTS OF PARTS ARE NOT TO BE PROVIDED BY THE CONTRACTOR UNDER THIS SCHEDULE.'. THE GOVERNMENT WILL PAY FOR THE MECHANIC'S TRAVELING EXPENSES INVOLVED IN SUCH SPECIAL TRIP. THE CONTRACTOR WILL BEAR ALL COSTS ENTAILED WHILE THE MECHANIC IS ON THE PREMISES WHERE THE ELEVATOR IS LOCATED.'. IN THE LETTER IT IS STATED: "* * * CONTRARY TO YOUR INTERPRETATION OF THE CONTRACT. YOU ARE TO PAY OUR MAN FOR TRAVELING TO AND FROM THE JOB FOR EMERGENCY CALLS. THESE TERMS ARE TRUE FOR ALL WORK IN CONNECTION WITH OTIS ELEVATORS. * * *" IN YOUR LETTER OF APRIL 19.

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B-122644, JUN. 27, 1955

TO OTIS ELEVATOR COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 19, 1955, REQUESTING REVIEW OF SETTLEMENT DATED APRIL 12, 1955, WHICH DISALLOWED $356.67 OF YOUR CLAIM FOR $668.67 FOR CALL-BACK SERVICE UNDER CONTRACT NO. V6008P 181, DATED JUNE 26, 1953 (YOUR INVOICES MY-15577 AND MY-15558).

UNDER THE CONTRACT YOU AGREED TO FURNISH, DURING THE FISCAL YEAR 1954, ALL MATERIALS, LABOR, TOOLS, AND EQUIPMENT NECESSARY FOR INSPECTION, MAINTENANCE, AND ADJUSTMENT SERVICE FOR ELEVATORS SPECIFIED IN SCHEDULES A AND B, IN ACCORDANCE WITH THE SPECIFICATIONS AND FOR THE PRICES STIPULATED. THE SPECIFICATIONS UNDER SCHEDULE A PROVIDED THAT YOU WOULD FURNISH "ALL PARTS OF EVERY DESCRIPTION MADE NECESSARY BY WEAR AND TEAR," WITH SPECIFIC EXCEPTIONS NOT HERE INVOLVED. THE SPECIFICATIONS UNDER SCHEDULE B PROVIDED THAT "REPAIRS AND REPLACEMENTS OF PARTS ARE NOT TO BE PROVIDED BY THE CONTRACTOR UNDER THIS SCHEDULE.' ALSO, THE CONTRACT REQUIRED YOU TO FURNISH ,EMERGENCY CALL BACK SERVICE" AT RATES OF $5.80 AND $11.60 PER MECHANIC PER HOUR, FOR SERVICES BETWEEN 8 A.M. AND 5 P.M., AND BETWEEN 5 P.M. AND 8 A.M., RESPECTIVELY, AND PROVIDED:

"EMERGENCY CALL-BACK SERVICE CONSISTS OF PROMPTLY RESPONDING TO REQUESTS FROM THE VETERANS ADMINISTRATION CENTER BY TELEPHONE OR OTHERWISE, FOR EMERGENCY SERVICE. THE GOVERNMENT WILL PAY FOR THE MECHANIC'S TRAVELING EXPENSES INVOLVED IN SUCH SPECIAL TRIP, AND THE CONTRACTOR WILL BEAR ALL COSTS ENTAILED WHILE THE MECHANIC IS ON THE PREMISES WHERE THE ELEVATOR IS LOCATED.'

YOUR INVOICE MY-15558 FOR $93 COVERED EMERGENCY CALL-BACK SERVICE ON ORDER NO. 1650, DATED FEBRUARY 23, 1954. THE ORDER REQUIRED SERVICE ON A DUMBWAITER UNDER SCHEDULE A. IN A LETTER OF MAY 20, 1954, TO THE VETERANS ADMINISTRATION YOU STATED THAT THE CHARGES CONSISTED OF THE HOURLY RATE OF $5.80 FOR THE MECHANIC FOR 10 HOURS TRAVEL TIME, SEVEN CENTS PER MILE FOR 400 MILES TRAVEL, AND $7 AS A PRORATED SHARE OF BOARD AND ROOM CHARGES. IN THE LETTER IT IS STATED:

"* * * CONTRARY TO YOUR INTERPRETATION OF THE CONTRACT, YOU ARE TO PAY OUR MAN FOR TRAVELING TO AND FROM THE JOB FOR EMERGENCY CALLS, WHILE WE ASSUME ALL LABOR SPENT ON THE JOB. THESE TERMS ARE TRUE FOR ALL WORK IN CONNECTION WITH OTIS ELEVATORS. * * *"

IN YOUR LETTER OF APRIL 19, 1955, YOU ADMIT THAT THE CHARGE OF $7 FOR ROOM AND BOARD IS NOT IN ACCORDANCE WITH THE CONTRACT TERMS. HOWEVER, YOU INSIST THAT THE CHARGE OF $58 ($5.80 PER HOUR FOR 10 HOURS TRAVEL TIME) IS MADE PURSUANT TO THE TERMS OF THE CONTRACT AND, THEREFORE, THAT YOU ARE ENTITLED TO THAT AMOUNT PLUS THE AMOUNT OF $28 FOR MILEAGE.

AS INDICATED ABOVE, THE CONTRACT DOES NOT PROVIDE FOR PAYMENT OF THE HOURLY RATE SPECIFIED FOR THE TIME YOUR MECHANIC WAS TRAVELING TO AND FROM THE WORK SITE AND IT IS AN ESTABLISHED LEGAL PRINCIPLE THAT A TRADE OR BUSINESS CUSTOM OR PRACTICE MAY NOT SUPERSEDE OR ALTER THE CLEAR AND UNAMBIGUOUS TERMS OF A CONTRACT. FURTHERMORE, THE CONTRACTING OFFICER HAS STATED THAT IT WAS HIS UNDERSTANDING, AT THE TIME THE CONTRACT WAS EXECUTED, THAT THE GOVERNMENT WAS OBLIGATED TO PAY THE HOURLY RATES SPECIFIED ONLY FOR THE TIME YOUR MECHANICS SHOULD BE ENGAGED IN MAKING REPAIRS.

WHILE THE INVOICE DOES NOT INCLUDE ANY CHARGE FOR THE TIME YOUR MECHANIC WAS ENGAGED IN MAKING THE REPAIRS UNDER ORDER NO. 1650, IN YOUR LETTER OF MAY 20, 1954, IT IS STATED THAT THE MECHANIC ,SPENT TWO HOURS AT THE STATION PLACING AND INSPECTING THE DUMBWAITER HOIST ROPE.' HENCE, IT APPEARS THAT UNDER THE TERMS OF THE CONTRACT YOU ARE ENTITLED TO PAYMENT FOR SERVICES RENDERED UNDER ORDER NO. 1650AS FOLLOWS:

TABLE

TRAVEL EXPENSES--- 400 MILES AT 7 CENTS PER MILE $28.00

MECHANICS SERVICES--- 2 HOURS AT $5.80 PER HOUR 11.60

TOTAL $39.60

YOUR INVOICE MY-15577 FOR $575.67 COVERED EMERGENCY CALL-BACK SERVICES RENDERED UNDER ORDER NO. 2060, DATED APRIL 19, 1954, ON A FREIGHT ELEVATOR UNDER SCHEDULE B. THE CHARGES CONSIST OF THE HOURLY RATE OF $5.80 FOR A MECHANIC AND OF $4.95 FOR A HELPER, FOR 22 L/2 HOURS AT THE SITE OF THE WORK, ONE HOUR IN SECURING MATERIALS AND 16 HOURS TRAVEL TIME, EACH; TRAVEL EXPENSES; BUS FARE FOR ONE MAN; ROOM AND BOARD FOR TWO MEN; AND SUNDRY MATERIALS AND CARTAGE. IT IS YOUR CONTENTION THAT SINCE YOU WERE NOT REQUIRED TO FURNISH REPLACEMENT PARTS OR MAKE REPAIRS TO ELEVATORS COVERED BY SCHEDULE B UNDER THE GENERAL PROVISIONS OF THE CONTRACT, THE GOVERNMENT IS LIABLE FOR ALL THE CHARGES AS MADE BY YOU FOR THE EMERGENCY CALL-BACK SERVICE. HOWEVER, THE PROVISIONS RELATING TO EMERGENCY CALL- BACK SERVICE COVERED ELEVATORS LISTED UNDER BOTH SCHEDULES A AND B, AND, THEREFORE, FOR THE REASONS STATED HEREINABOVE, THERE WAS NO OBLIGATION ON THE GOVERNMENT TO PAY THE HOURLY RATE FOR THE TIME SPENT BY THE MECHANIC AND THE HELPER IN TRAVELING TO AND FROM THE WORK SITE, OR THE CHARGE FOR ROOM AND BOARD. THE CHARGE OF $9.19 FOR BUS FARE IN ADDITION TO THE CHARGE FOR TRAVEL EXPENSES IS NOT EXPLAINED AND MAY NOT BE ALLOWED ON THE PRESENT RECORD. WHILE THE CONTRACT CONTAINS NO PROVISION FOR A HELPER, APPARENTLY ONE WAS REQUIRED AND THE RATE CHARGED APPEARS REASONABLE. FURTHERMORE, WHILE THE RECORD CONTAINS NO EXPLANATION OF THE CHARGE OF $12.21 FOR SUNDRY MATERIALS AND CARTAGE, IT IS ASSUMED THAT IT REPRESENTS THE COST OF MATERIALS REQUIRED FOR THE REBABBITT SERVICE PERFORMED, AND, THEREFORE, THAT IT IS A CHARGE FOR WHICH THE GOVERNMENT IS LIABLE UNDER THE TERMS OF THE CONTRACT RELATING TO SCHEDULE B. THUS, ON THE PRESENT RECORD YOU ARE ENTITLED TO PAYMENT ON YOUR INVOICE MY-15577 FOR SERVICES RENDERED UNDER ORDER NO. 2060, AS FOLLOWS:

TABLE

SERVICES OF MECHANIC--- 23 1/2 HOURS AT $5.80 PER HOUR $136.30

SERVICES OF HELPER--- 23 1/2 HOURS AT $4.95 PER HOUR 116.33

TRAVEL EXPENSES, DENVER TO WORK SITE AND RETURN 42.12

MATERIAL AND CARTAGE 12.21

TOTAL $306.96

THE AMOUNTS PROPERLY CHARGEABLE FOR SERVICE RENDERED ON ORDERS NO. 1650 AND NO. 2060 WERE $39.60 AND $306.96, RESPECTIVELY, OR A TOTAL OF $346.56. THEREFORE, A SETTLEMENT FOR THE BALANCE OF $34.56 ($346.56 LESS $312 ALLOWED BY THE SETTLEMENT OF APRIL 12, 1955) WILL BE ISSUED IN DUE COURSE.

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