B-128691, AUG. 14, 1956

B-128691: Aug 14, 1956

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SOIL CONSERVATION SERVICE: REFERENCE IS MADE TO YOUR LETTER OF JULY 20. WILBERT JEWELL SUBMITTED BIDS ON THE TWO ITEMS INVOLVED AND HIS BID IN THE AMOUNT OF $425 WAS ACCEPTED AS TO ITEM NO. 1. STATING IN SUBSTANCE THAT THE CONTRACT WORK HAD BEEN PERFORMED SATISFACTORILY AND THAT THE GRASS WAS "A UNIFORM AND SUFFICIENT STAND. " INDICATING THAT THE GERMINATION OF SEED WAS SATISFACTORY. THERE ARE ALSO IN THE FILE CERTIFICATION AND SEED ANALYSIS TAGS SHOWING THAT IN AUGUST 1955 THE SEED MET THE REQUIREMENTS OF THE SPECIFICATIONS AS TO PURITY AND GERMINATION. YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT ARISES FROM THE FACT THAT THE SEED WAS NOT TESTED WITHIN 120 DAYS PRIOR TO DATE OF SEEDING AS REQUIRED BY THE SPECIFICATIONS.

B-128691, AUG. 14, 1956

TO MR. ALVON S. JONES, AUTHORIZED CERTIFYING OFFICER, SOIL CONSERVATION SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 20, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER PAYMENT MAY BE AUTHORIZED ON AN INVOICE TRANSMITTED THEREWITH IN FAVOR OF WILBERT JEWELL IN THE AMOUNT OF $425 FOR SERVICES RENDERED PURSUANT TO AN UNNUMBERED CONTRACT ENTERED INTO WITH THE CLAIMANT.

THE RECORD SHOWS THAT UNDER DATE OF APRIL 10, 1956, THE SOIL CONSERVATION SERVICE ISSUED INVITATION FOR BIDS NO. SCS-43-KY-56 FOR FURNISHING ALL LABOR, TOOLS, SEED, FERTILIZER, EQUIPMENT AND TRANSPORTATION AND PERFORMING ALL WORK NECESSARY FOR LAND PREPARATION, FERTILIZING, MULCHING AND SEEDING AS CALLED FOR BY THE SPECIFICATIONS ATTACHED THERETO. RESPONSE TO THE INVITATION, WILBERT JEWELL SUBMITTED BIDS ON THE TWO ITEMS INVOLVED AND HIS BID IN THE AMOUNT OF $425 WAS ACCEPTED AS TO ITEM NO. 1, PROVIDING FOR SOIL PREPARATION,FERTILIZING, LIMING, MULCHING AND SEEDING OF APPROXIMATELY 3.3 ACRES ON STRUCTURE NO. 11, PLUM CREEK WATERSHED, NEAR SIMPSONVILLE, SHELBY COUNTY, KENTUCKY, THE WORK TO BE COMPLETED NOT LATER THAN MAY 18, 1956.

WITH RESPECT TO THE SEED REQUIREMENTS AS TO STRUCTURE NO. 11, THE SPECIFICATIONS PROVIDED:

"SEED REQUIREMENTS: KENTUCKY 31 FESCUE SEED CERTIFIED BY THE KENTUCKY SEEK IMPROVEMENT ASSOCIATION SHALL BE USED. NO SEED SHALL BE USED HAVING A TEST DATE OF MORE THAN 120 DAYS PRIOR TO DATE OF SEEDING. CERTIFICATION TAGS OR OTHER WRITTEN EVIDENCE OF CERTIFICATION SHALL BE FURNISHED THE GOVERNMENT REPRESENTATIVE AND FORWARDED TO THE CONTRACTING OFFICER AT THE TIME OF SEEDING.'

THE FILE INCLUDES A LETTER DATED JUNE 19, 1956, FROM ROBERT DOYLE, GOVERNMENT REPRESENTATIVE, TO THE ACTING AREA CONSERVATIONIST, STATING IN SUBSTANCE THAT THE CONTRACT WORK HAD BEEN PERFORMED SATISFACTORILY AND THAT THE GRASS WAS "A UNIFORM AND SUFFICIENT STAND," INDICATING THAT THE GERMINATION OF SEED WAS SATISFACTORY. THERE ARE ALSO IN THE FILE CERTIFICATION AND SEED ANALYSIS TAGS SHOWING THAT IN AUGUST 1955 THE SEED MET THE REQUIREMENTS OF THE SPECIFICATIONS AS TO PURITY AND GERMINATION.

YOUR QUESTION AS TO THE PROPRIETY OF PAYMENT ARISES FROM THE FACT THAT THE SEED WAS NOT TESTED WITHIN 120 DAYS PRIOR TO DATE OF SEEDING AS REQUIRED BY THE SPECIFICATIONS.

ALTHOUGH THE CONTRACTOR FAILED TO COMPLY STRICTLY WITH THE SPECIFICATIONS AS TO THE USE OF SEED INSPECTED WITHIN 120 DAYS PRIOR TO DATE OF SEEDING, WHEN CONSIDERATION IS GIVEN TO THE FACT THAT THE CONTRACT WORK ACTUALLY WAS PERFORMED AND THE GOVERNMENT RECEIVED THE BENEFIT THEREOF, AND THAT THE GOVERNMENT APPARENTLY SUFFERED NO DAMAGE AS A RESULT OF NONCOMPLIANCE WITH THE SPECIFICATIONS AS TO SEED INSPECTION, IT REASONABLY MAY BE SAID, IN THIS PARTICULAR INSTANCE, THAT THERE WAS SUBSTANTIAL COMPLIANCE WITH THE REQUIREMENTS OF THE CONTRACT. ACCORDINGLY, PAYMENT IN THIS CASE IS AUTHORIZED, IF OTHERWISE CORRECT. A COPY OF THIS DECISION SHOULD BE ATTACHED TO THE VOUCHER IN MAKING PAYMENT.

AS REQUESTED, THE PAPERS TRANSMITTED WITH YOUR LETTER ARE RETURNED HEREWITH.