B-123195, FEB. 20, 1956

B-123195: Feb 20, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24. WHEREIN THERE WAS DISALLOWED $723.56 OF THE $2. THE RECORD SHOWS THAT THE SERVICES WERE PERFORMED AND YOU SUBMITTED A CLAIM FOR $2. SINCE THE AMOUNT CLAIMED WAS AT RATES OTHER AND HIGHER THAN THOSE SPECIFIED IN THE CONTRACT. YOUR CLAIM WAS SUBMITTED HERE FOR SETTLEMENT. THE AMOUNT OF $723.56WAS DISALLOWED FOR THE REASON THAT PURSUANT TO THE TERMS OF THE CONTRACT YOU AGREED TO RENDER THE SERVICES AT FIXED RATES AND NO PROVISION WAS MADE THEREIN FOR AN INCREASE IN RATES OR FOR THE $3.00 CHARGE FOR EXTRA PICK-UPS OR DELIVERIES. IT IS FURTHER STATED THEREIN THAT YOUR BID SHOWED THAT YOU WOULD ADHERE TO ALL RULES AND REGULATIONS OF THE NORTH DAKOTA PUBLIC SERVICE COMMISSION AND THAT THESE REGULATIONS REQUIRED THAT YOU CHARGE THE HIGHER RATES AND ALSO A $3.00 CHARGE FOR EVERY STOP IN TRANSIT OTHER THAN THE FIRST STOP LOADING AND THE FIRST STOP UNLOADING.

B-123195, FEB. 20, 1956

TO MOVE-WAY VANS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 24, 1955, REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED DECEMBER 31, 1954, WHEREIN THERE WAS DISALLOWED $723.56 OF THE $2,678.31 CLAIMED UNDER CONTRACT NO. 14-20-100-939 DATED MARCH 25, 1954, ENTERED INTO WITH THE DEPARTMENT OF INTERIOR, BUREAU OF INDIAN AFFAIRS.

UNDER THE SUBJECT CONTRACT YOU AGREED TO MOVE UNCRATED HOUSEHOLD GOODS, PERSONAL EFFECTS, USED OFFICE AND SCHOOL FURNITURE AND FIXTURES, FROM ELBOWOODS, NORTH DAKOTA TO VARIOUS LOCATIONS ON THE FORT BERTHOLD INDIAN RESERVATION, NORTH DAKOTA, AT THE RATES SPECIFIED THEREIN, DURING THE PERIOD APRIL 21, 1954, TO APRIL 30, 1954.

THE RECORD SHOWS THAT THE SERVICES WERE PERFORMED AND YOU SUBMITTED A CLAIM FOR $2,687.31 TO THE BUREAU OF INDIAN AFFAIRS. HOWEVER, SINCE THE AMOUNT CLAIMED WAS AT RATES OTHER AND HIGHER THAN THOSE SPECIFIED IN THE CONTRACT, YOUR CLAIM WAS SUBMITTED HERE FOR SETTLEMENT. BY SETTLEMENT NO. 2255019, DATED DECEMBER 31, 1954, THE AMOUNT OF $723.56WAS DISALLOWED FOR THE REASON THAT PURSUANT TO THE TERMS OF THE CONTRACT YOU AGREED TO RENDER THE SERVICES AT FIXED RATES AND NO PROVISION WAS MADE THEREIN FOR AN INCREASE IN RATES OR FOR THE $3.00 CHARGE FOR EXTRA PICK-UPS OR DELIVERIES.

THE RECORD FURTHER SHOWS THAT IN A LETTER DATED AUGUST 6, 1954, WITH WHICH YOU SUBMITTED CORRECTED BILLS OF LADING, YOU STATED THAT YOU HAD MADE AN ERROR IN QUOTING THE RATES ON THESE SHIPMENTS IN THAT YOU HAD QUOTED RATES FOR "OTHER THAN ENCLOSED VAN" INSTEAD OF "ENCLOSED TYPE VAN EQUIPMENT.' IT IS FURTHER STATED THEREIN THAT YOUR BID SHOWED THAT YOU WOULD ADHERE TO ALL RULES AND REGULATIONS OF THE NORTH DAKOTA PUBLIC SERVICE COMMISSION AND THAT THESE REGULATIONS REQUIRED THAT YOU CHARGE THE HIGHER RATES AND ALSO A $3.00 CHARGE FOR EVERY STOP IN TRANSIT OTHER THAN THE FIRST STOP LOADING AND THE FIRST STOP UNLOADING.

THE STATEMENT REFERRED TO IN YOUR BID READS "WE WILL ADHERE TO ALL REGULATIONS AS SET FORTH IN NORTH DAKOTA PUBLIC SERVICE COMMISSION TARIFF AS CONCERNS HOUSEHOLD GOODS REMOVALS.' THIS STATEMENT APPEARS TO INDICATE THAT YOU, IN EFFECT, PROPOSED TO ADHERE TO ANY REGULATIONS AS TO THE TYPE OR QUALITY OF SERVICE TO BE RENDERED WHICH MAY BE SET FORTH IN THE TARIFF. HOWEVER, TO CONSTRUE SUCH LANGUAGE AS MAKING THE TARIFF CHARGES APPLICABLE TO THE SHIPMENT WOULD FRUSTRATE THE PRIME PURPOSE OF SECURING BIDS, WHICH WAS TO SECURE FOR THE UNITED STATES THE LOWEST PRICE OFFERED BY A RESPONSIBLE BIDDER. FURTHERMORE, IT WOULD RENDER THE RATES SPECIFIED IN YOUR BID, AND SUBSEQUENTLY AGREED TO, COMPLETELY VOID. SUCH CONSTRUCTION IS THEREFORE COMPLETELY UNTENABLE AND WE HAVE NO ALTERNATIVE BUT APPLY TO THE SERVICES, THE RATES AGREED UPON IN THE CONTRACT. ALSO, WHILE IT MAY BE THAT, UNDER THE NORTH DAKOTA TARIFF, A CARRIER PROPERLY COULD NOT CONTRACT WITH THE GENERAL PUBLIC AT LOWER THAN TARIFF RATES, SUCH RULE, OF COURSE, WOULD NOT PRECLUDE THE FEDERAL GOVERNMENT FROM TAKING THE BENEFIT OF ANY REDUCTIONS IN RATES IT IS ABLE TO SECURE THROUGH COMPETITIVE BIDDING, THE UNITED STATES NOT BEING BOUND BY REGULATIONS OF ONE OF ITS COMPONENT STATES. SEE 19 COMP. GEN. 641.

WITH RESPECT TO THE ADDITIONAL CHARGES FOR EXTRA PICK-UP THERE IS NO PROVISION IN THE CONTRACT AUTHORIZING THESE CHARGES AND THE ADMINISTRATIVE OFFICE INDICATES THAT SUCH CHARGES WERE NOT CONTEMPLATED IN THE ORIGINAL NEGOTIATIONS FOR THE CONTRACT. IF YOU WERE AWARE THAT THE SERVICES INVOLVED NECESSITATED EXTRA PICK-UPS YOU SHOULD HAVE PROVIDED THEREFOR IN THE CONTRACT. THERE IS NO INDICATION IN THE RECORD THAT YOUR RATES WERE PREDICATED ON STOPPING AT ONLY ONE LOCATION WITHIN A SEGMENT, IN FACT, IT IS INDICATED THAT YOU INTENDED TO PERFORM ALL SERVICES AT A GIVEN LOCATION FOR THE RATES QUOTED.

THERE IS NOTHING IN THE RECORD TO SUPPORT YOUR CONTENTIONS IN THE MATTER AND SINCE THE CONTRACT PROVIDED FOR AGREED RATES FOR DELIVERY OF THE GOODS TO VARIOUS LOCATIONS AT THE FORT BERTHOLD INDIAN RESERVATION, ANY INCREASED COST WHICH YOU MAY HAVE INCURRED, WHETHER FORESEEN OR NOT, WAS ONE OF THE RISKS OF THE CONTRACT WHICH, UNDER SETTLED PRINCIPLES OF LAW, MUST BE BORNE BY YOU AND MAY NOT BE IMPOSED ON THE GOVERNMENT. SEE COLUMBUS RY. AND POWER COMPANY V. CITY OF COLUMBIA, OHIO ET AL., 249 U.S. 399, 412, AND CASES CITED THEREIN. ALSO, THERE IS NO INDICATION IN THE RECORD THAT THE CONTRACTING OFFICER WAS ON NOTICE OF ANY ERROR IN YOUR BID WITH RESPECT TO THE RATES QUOTED. THEREFORE ANY ERROR IN PREPARATION OF THE BID OBVIOUSLY WAS DUE SOLELY TO YOUR NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, AND PROVIDES NO BASIS FOR PAYING ANY AMOUNT HIGHER THAN THE CONTRACT PRICE.