B-128780, JAN. 3, 1957

B-128780: Jan 3, 1957

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 AFFIDAVIT DATED AUGUST 7. FOR WORK PERFORMED BY YOU AND WHICH YOU CONTEND WAS BEYOND THE TERMS OF PURCHASE ORDER CONTRACTS NOS. 28-043- 55-8271. THESE CLAIMS WERE DISALLOWED FOR THE REASONS STATED IN SETTLEMENT CERTIFICATE DATED JULY 2. HAVE BEEN INCREASED TO $157. YOUR CONTENTION IS THAT OVER AN EXTENDED PERIOD OF TIME PRECEDING THE INVOLVED CONTRACTS YOU PERFORMED SIMILAR SERVICES FOR THE SAME AND OTHER ARMY CAMPS DURING THE COURSE OF WHICH IT BECAME THE ESTABLISHED PRACTICE TO MAKE AVAILABLE TO YOU FOR SERVICING ONLY MATTRESSES AND PILLOWS WHICH WERE IN GOOD CONDITION AND REQUIRED ONLY SURFACE CLEANING. THAT IS. OR WERE BADLY STAINED OR MILDEWED.

B-128780, JAN. 3, 1957

TO MAGARIL, INCORPORATED:

REFERENCE IS MADE TO YOUR AFFIDAVIT DATED AUGUST 7, 1956, AND EXHIBITS ATTACHED THERETO, REQUESTING CONSIDERATION OF YOUR CLAIM FOR ADDITIONAL COMPENSATION ALLEGED TO BE DUE FOR SERVICES RENDERED BEYOND THE SCOPE OF THE REQUIRED SERVICES STIPULATED IN THE 13 CONTRACTS LISTED IN YOUR AFFIDAVIT.

UNDER DATE OF JUNE 14, 1956, THE DEPARTMENT OF THE ARMY REFERRED TO OUR OFFICE YOUR CLAIMS TOTALING $24,080, FOR WORK PERFORMED BY YOU AND WHICH YOU CONTEND WAS BEYOND THE TERMS OF PURCHASE ORDER CONTRACTS NOS. 28-043- 55-8271, 28-043-56-7337, AND 28-043-53-3743. THESE CLAIMS WERE DISALLOWED FOR THE REASONS STATED IN SETTLEMENT CERTIFICATE DATED JULY 2, 1956, ISSUED BY THE CLAIMS DIVISION OF OUR OFFICE. YOUR PRESENT CLAIMS PREDICATED UPON THE SAME GENERAL ALLEGATIONS, HAVE BEEN INCREASED TO $157,944.75, AND ENCOMPASS AN ADDITIONAL 10 CONTRACTS.

ALL OF THE PURCHASE ORDER CONTRACTS INVOLVED COVER THE CLEANING, AND IN SOME INSTANCE THE REPAIRING OF MATTRESSES AND PILLOWS. BRIEFLY, YOUR CONTENTION IS THAT OVER AN EXTENDED PERIOD OF TIME PRECEDING THE INVOLVED CONTRACTS YOU PERFORMED SIMILAR SERVICES FOR THE SAME AND OTHER ARMY CAMPS DURING THE COURSE OF WHICH IT BECAME THE ESTABLISHED PRACTICE TO MAKE AVAILABLE TO YOU FOR SERVICING ONLY MATTRESSES AND PILLOWS WHICH WERE IN GOOD CONDITION AND REQUIRED ONLY SURFACE CLEANING. THEREAFTER, DURING THE PERIOD COVERED BY THE SUBJECT CONTRACTS, SALVAGE-TYPE MATTRESSES AND PILLOWS, THAT IS, ARTICLES WHICH CONTAINED SERIOUS RIPS OR BURNS, OR WERE BADLY STAINED OR MILDEWED, WERE TURNED OVER TO YOU FOR SERVICING, WHEREAS IT IS IMPLIED, YOUR PRICE WAS COMPUTED ON THE BASIS OF CLEANING ONLY THE "REGULAR RUN" OF MATTRESSES AND PILLOWS.

A FURTHER ALLEGATION WITH RESPECT TO YOUR EFFORT TO ESTABLISH A RIGHT TO PAYMENT OF ALL OR A PART OF THE AMOUNTS CLAIMED IS SET FORTH ON PAGE 8 (PARAGRAPH 20) OF YOUR AFFIDAVIT WHICH IS AS FOLLOWS:

"ON THE OCCASION OF ALL OF THE CONTRACTS AFOREMENTIONED I WAS ALWAYS TOLD TO GO AHEAD AND DO WHAT WAS NECESSARY TO MAKE THE MATTRESSES AND PILLOWS SERVICEABLE AND I WAS ALWAYS TOLD, OR LED TO BELIEVE, THAT I WOULD BE PAID FOR MY ADDITIONAL SERVICES. IN RELIANCE THEREON I PERFORMED THE REQUISITE AND NECESSARY SERVICES TO THE MATTRESSES AND PILLOWS. ALL I EVER RECEIVED IN PAYMENT WAS THE ORIGINAL CONTRACT PRICE. I NEVER RECEIVED ANY ADDITIONAL SUMS FOR THE EXTRA AUTHORIZED SERVICES BEYOND THE TERMS OF THE PURCHASE ORDERS.'

IN SUBSTANCE YOU CLAIM TO HAVE PERFORMED ADDITIONAL WORK IN REPAIRING DAMAGED ARTICLES OR IN EXTRA CLEANING OF BADLY STAINED OR MILDEWED ARTICLES, NOT CONTEMPLATED BY THE CONTRACTS OR BY THE PARTIES, AND THAT IMPLIED CONTRACTS WERE CREATED AS A RESULT OF INSTRUCTIONS ISSUED IN THOSE INSTANCES BY VARIOUS PERSONNEL OF THE THREE MILITARY INSTALLATIONS, TO PERFORM SUCH SERVICES, ACCOMPANIED BY AN EXPRESS OR IMPLIED PROMISE TO REIMBURSE YOU FOR THE EXTRA SERVICES.

AN EXAMINATION OF THE RECORD DISCLOSES THAT THREE OF THE CLAIMED ITEMS AROSE IN CONNECTION WITH CONTRACTS AWARDED BY PERSONNEL AT FORT MONMOUTH. PURCHASE ORDER NO. 28-043-55-8271, DATED JANUARY 24, 1955, COVERED THE SURFACE CLEANING OF SOME 2,000 MATTRESSES AND PILLOWS EACH, FOR A QUOTED PRICE OF ?70 AND ?30 PER ARTICLE, RESPECTIVELY, OR FOR A TOTAL OF APPROXIMATELY $2,000. CLAIM IS MADE FOR AN ADDITIONAL $14,428.50, FOR ALLEGED REPAIRING AND ADDITIONAL CLEANING SERVICES RENDERED PURSUANT TO INSTRUCTIONS OF COLONEL PETER SIEGEL. IN A STATEMENT DATED APRIL 23, 1956, COLONEL SIEGEL, QUARTERMASTER, DENIES THAT SUCH SERVICES WERE ORDERED AND STATES THAT HE HAS NO RECOLLECTION OF RECEIVING A COMPLAINT FROM YOU AS TO THE CONDITION OF THE PILLOWS AND MATTRESSES.

IN AN AFFIDAVIT DATED APRIL 25, 1956, GEORGE F. MACHO, CHIEF, STORAGE BRANCH, FORT MONMOUTH, STATED IN PART THAT---

"ALL MATTRESSES AND PILLOWS WERE EXAMINED BY BOTH QUARTERMASTER PERSONNEL AND MR. MAGARIL AND HIS REPRESENTATIVES. NO MATTRESSES OR PILLOWS WERE TRANSFERRED THAT WERE FOUND TO BE DAMAGED IN ANY WAY OR ANY WHICH WERE FOUND TO BE STAINED TO THE EXTENT THAT THEY COULD NOT BE CLEANED. THE ITEMS WERE CAREFULLY EXAMINED ON BOTH SIDES BY MR. MAGARIL PERSONALLY. ANY THAT WERE FOUND TO BE UNFIT FOR CLEANING WERE SET ASIDE AND DISPOSED OF IN ACCORDANCE WITH REGULATIONS. AT NO TIME DID I TELL MR. MAGARIL TO MAKE REPAIRS. AT NO TIME DID I EVER HEAR ANY ONE TELL MR. MAGARIL TO MAKE ANY REPAIRS. WHEN THE PROPERTY WAS RETURNED, IT SHOWED NO EVIDENCE OF ANY REPAIR WORK.'

PURCHASE ORDER NO. 28-043-56-7337, CALLED FOR THE CLEANING OF APPROXIMATELY 590 MATTRESSES AND 401 PILLOWS FOR APPROXIMATELY $859.92, PAYMENT FOR WHICH IS ACKNOWLEDGED. YOUR CLAIM FOR AN ADDITIONAL $2,070.50, IS BASED UPON THE SAME ALLEGATIONS MADE CONCERNING THE PRECEDING CLAIM ITEM. IN REFUTATION THEREOF, THE STATEMENTS OF COLONEL SIEGEL AND THE AFFIDAVIT OF MR. MACHO ALSO ARE APPLICABLE TO THIS CLAIM. IN ADDITION, IN AN AFFIDAVIT EXECUTED APRIL 25, 1956, BURTON A. ROCHELLE AVERS THAT ALL OF THE ARTICLES WERE THOROUGHLY CLASSIFIED BEFORE BEING PLACED ON ORDER FOR CLEANING, AND THAT "THE MATTRESSES AND PILLOWS WERE AGAIN INSPECTED FOR THE ABOVE MENTIONED DEFECTS BY MR. MAGARIL AND HIS MEN BEFORE LOADING AND REMOVING FROM THE CLASSIFICATION SECTION FOR CLEANING AND RETURN TO QUARTERMASTER. IT WAS DETERMINED AT THE TIME INSPECTION WAS MADE BY CLASSIFICATION AND MAGARIL THAT MATTRESSES AND PILLOWS RECEIVED BY HIM WERE IN NEED OF CLEANING ONLY.' SINCE THE TWO CONTRACTS INVOLVED BOTH PROVIDED THAT ONLY ARTICLES WITHOUT RIPS OR TEARS WOULD BE SENT FOR CLEANING, AND ON RETURN THOSE HAVING BEEN REPAIRED WOULD BE REJECTED, THE STATEMENTS AND AFFIDAVITS OF THE THREE PERSONS HAVING KNOWLEDGE OF THE TRANSACTIONS AT FORT MONMOUTH MUST BE ACCEPTED AS SATISFACTORILY ESTABLISHING THAT THOSE PROVISIONS OF THE CONTRACTS WERE COMPLIED WITH, IN THE ABSENCE OF SUFFICIENT PROOF TO OVERCOME THE CORRECTNESS OF SUCH STATEMENTS. THE SELF-SERVING ALLEGATIONS SET FORTH IN YOUR CLAIM LETTERS ARE DEEMED INSUFFICIENT TO WARRANT REJECTION OF THOSE STATEMENTS MADE BY THE ARMY PERSONNEL INVOLVED.

THE THIRD CLAIM ITEM FOR ADDITIONAL WORK PERFORMED FOR FORT MONMOUTH UNDER CONTRACT NO. 28-043-53-3743 (CORRECT NO. 1378), IS IN THE SUM OF $7,581. THIS CONTRACT PROVIDED THAT IN ADDITION TO DISINFECTING AND CLEANING,"THE CONTRACTOR SHALL REPAIR ALL RIPS, TEARS, HOLES AND OPEN SEAMS" FOR THE APPROXIMATE SUM OF $955 DEPENDING UPON THE NUMBER OF ARTICLES SERVICED. NOTWITHSTANDING THAT STIPULATION YOUR CLAIM IS PREDICATED IN PART ON THE REPAIRING OF MATTRESSES AND PILLOWS. MOREOVER, THE STATEMENTS OF COLONEL SIEGEL AND MR. MACHO ARE EQUALLY FOR APPLICATION TO THIS CLAIM ITEM.

FIVE CLAIMED ITEMS OF $32,252, $34,595, $6,600, $32,004.50, AND $8,565.50, AGGREGATING $114,017, REPRESENT ALLEGED EXTRA WORK PERFORMED FOR FORT DIX. THE TOTAL ESTIMATED CONSIDERATION SET FORTH IN THE CONTRACTS, DEPENDING UPON THE QUANTITY OF ARTICLES ACTUALLY SERVICED, WAS $15,075. TWO OF THE CONTRACTS, NAMELY NOS. DA-28-013-AI-1507 AND DA-28- 013-AI-1443 FOR SURFACE CLEANING ONLY OF COTTON MATTRESSES, WERE AWARDED ON THE BASIS OF YOUR QUOTED UNIT PRICES OF ?57 AND ?68, RESPECTIVELY. THE THREE REMAINING CONTRACTS NOS. 28-013-AI-867, 28 013-AI-1009, AND 28-013- AI-1149, PROVIDED, IN ADDITION TO CLEANING THAT "THE CONTRACTOR SHALL REPAIR ALL RIPS, TEARS, HOLES, AND OPEN SEAMS," AND PRESUMABLY FOR THIS ADDITIONAL SERVICE YOU QUOTED UNIT PRICES OF ?95 UNDER THE FIRST TWO CONTRACTS AND $1.20 UNDER THE THIRD CONTRACT. NOTWITHSTANDING THOSE CONTRACT REQUIREMENTS YOUR CLAIMS THEREUNDER ARE BASED IN PART, ON THE EXTRA COSTS INCURRED IN PERFORMING REPAIRS WHICH YOU AGREED TO DO AND FOR WHICH YOU MATERIALLY INCREASED THE UNIT PRICE OFFERED. MOREOVER THOSE CONTRACTS REQUIRING REPAIR OF THE ARTICLES PROVIDED THAT "ALL UNSERVICEABLE MATTRESSES NOT WORTH CLEANING, SHALL BE RETURNED BY THE CONTRACTOR TO THE ERNMENT.'

WITH RESPECT TO THE TWO CONTRACTS REQUIRING ONLY CLEANING, IN A SIGNED CERTIFICATE DATED MARCH 27, 1956, LESLIE E. DECKER, CLASSIFICATION OFFICER, STATES IN PART AS FOLLOWS:

"THE MILITARY PERSONNEL OF THE CLASSIFICATION BRANCH DID, ON EACH OCCASION, HELP MR. MAGARIL TO LOAD HIS TRUCK. AT NO TIME WAS MR. MAGARIL'S TRUCK LOADED WITHOUT HIS PRESENCE AND THEREFORE, I CANNOT UNDERSTAND HOW IN PAR. 4 OF HIS LETTER HE CAN STATE,"WHEN I RETURNED TO MY PLANT WITH THESE MATTRESSES I, FOR THE FIRST TIME, EXAMINED THE 240 COTTON MATTRESSES WHICH HAD BEEN LOADED ON MY TRUCK AND WHICH I WAS TOLD NEEDED ONLY SURFACE CLEANING.'

"MR. MAGARIL ALWAYS INSPECTED ALL MATTRESSES BEFORE LOADING TO ASSURE HIMSELF THAT PAR. B, OF THE SPECIFICATIONS WERE COMPLIED WITH.'

TWO CLAIMS FOR $6,270 AND $7,984.75, ALLEGED TO BE DUE FOR SERVICES RENDERED CAMP KILMER, BEYOND THE SCOPE OF CONTRACTS NOS. AF-53-213 AND DA- 28-022-A1-370, WERE PRESENTED SEVERAL YEARS AFTER PERFORMANCE AND AFTER THE CAMP WAS INACTIVATED. SIMILAR ALLEGATIONS ARE MADE TO THE EFFECT THAT YOU WERE REQUIRED TO PERFORM THE EXTRA WORK BY CERTAIN OFFICERS AT THE CAMP WHO ASSURED YOU OF REIMBURSEMENT. IN OPPOSITION TO THAT ALLEGATION CAPTAIN B. J. MCLAUGLIN, EXECUTED A STATEMENT DATED APRIL 11, 1956, READING IN PART AS FOLLOWS--- "IT IS THE OPINION OF THE UNDERSIGNED, WHO WAS THE QUARTERMASTER PROPERTY OFFICER DURING THIS PERIOD, THAT THE PILLOWS GIVEN TO I. MAGARIL WERE NOT MILDEWED AND WERE ONLY THE USUAL RUN OF PILLOWS BEING USED IN A UNIT AREA. I DO NOT BELIEVE THAT I. MAGARIL HAD TO PERFORM ANY ADDITIONAL WORK TO THAT STATED IN THE CONTRACT.' THOSE CONCLUSIONS WERE AFFIRMED BY CAPTAIN JOHN P. DEMPSEY, IN A STATEMENT DATED MAY 11, 1956, WHO WAS PURCHASING AND CONTRACTING OFFICER AT CAMP KILMER DURING THE PERIOD THE SERVICES UNDER THE CONTRACTS WERE RENDERED.

THE LAST THREE CLAIMED ITEMS IN THE SUMS OF $2,112, $1,097 AND $2,384, ARE FOR ADDITIONAL SERVICES ALLEGED TO HAVE BEEN RENDERED FOR FORT WADSWORTH UNDER PURCHASE ORDER CONTRACTS NOS. 2906-54, 1946-55, AND 2804- 53, RESPECTIVELY. THE SAME ALLEGATIONS ARE MADE IN REGARD TO THE LATTER CONTRACTS, THAT IS, THAT SALVAGE MATTRESSES AND PILLOWS WERE GIVEN TO YOU FOR CLEANING AND THAT PERSONNEL AT THE INSTALLATION ASSURED YOU THAT REIMBURSEMENT FOR SUCH SERVICES WOULD BE MADE.

OPPOSED TO THOSE CONTENTIONS IS A STATEMENT DATED OCTOBER 17, 1956, BY MARIE M. ZWISLER, PROPERTY AND SUPPLY SUPERVISOR, WHEREIN SHE CERTIFIES THAT THE PILLOWS AND MATTRESSES WERE ALL OF THE REGULAR RUN ARTICLES, AND THAT AT NO TIME WERE EXTRA SERVICES ORDERED OR THE COST OF SUCH SERVICES DISCUSSED. THAT FACT IS CONFIRMED BY CAPTAIN R. J. NEUMYER, POST QUARTERMASTER, IN HIS STATEMENT DATED JANUARY 6, 1956.

IT IS TO BE NOTED THAT WHILE THE CLAIMS HERE INVOLVED WERE FOR SERVICES ALLEGED TO HAVE BEEN RENDERED FROM 1952 TO 1956, THE DEMANDS FOR PAYMENT WERE NOT MADE UNTIL ON OR ABOUT APRIL 10, 1956. IF ADDITIONAL SERVICES ACTUALLY HAD BEEN RENDERED, COMPLIANCE WITH THE DISPUTES ARTICLE OF THE CONTRACTS AND PURCHASE ORDERS, COULD HAVE BEEN INVOKED BY THE PROMPT FILING OF THE CLAIM OR CLAIMS IN WRITING, THEREBY AFFORDING THE CONTRACTING OFFICER THE OPPORTUNITY OF ASCERTAINING THE CORRECTNESS OF YOUR CONTENTIONS AND THE EXTENT, IF ANY, OF THE DAMAGES INCURRED. UNDER THE CIRCUMSTANCES CREATED BY YOUR FAILURE TO FOLLOW THOSE TERMS OF THE CONTRACT THE AMOUNTS NOW DEMANDED ARE CLEARLY UNLIQUIDATED, BASED UPON ESTIMATES OR CONJECTURE AND THEREFORE MAY NOT BE CERTIFIED FOR PAYMENT IN ANY AMOUNT BY THE ACCOUNTING OFFICERS OF THE GOVERNMENT. IT IS WELL SETTLED THAT A CLAIM AGAINST THE UNITED STATES IS BARRED BY THE FAILURE OF THE CLAIMANT TO EXHAUST ITS ADMINISTRATIVE REMEDIES UNDER CONTRACT PROVISIONS SUCH AS WERE PRESCRIBED IN THE DISPUTES CLAUSES OF YOUR CONTRACTS. SILAS MASON COMPANY, INC. V. UNITED STATES, 90 C.CLS. 56; UNITED STATES V. CALLAHAN-WALKER COMPANY, 317 U.S. 56; UNITED STATES V. BLAIR, 321 U.S. 730; UNITED STATES V. HOLPUCH CO., 328 U.S. 234.

A FURTHER AND MATERIAL DEFECT IN YOUR CLAIM IS THE ALLEGATION THAT CERTAIN PROPERTY OFFICERS OR WAREHOUSE EMPLOYEES OF THE INSTALLATIONS AUTHORIZED OR INSTRUCTED YOU TO PERFORM THE ADDITIONAL WORK WITH THE EXPRESS OR IMPLIED ASSURANCE OF REIMBURSEMENT. SINCE SUCH AUTHORITY WAS VESTED ONLY IN THE PURCHASING AND CONTRACTING OFFICERS ANY ATTEMPTED NEGOTIATIONS BY THOSE EMPLOYEES, IF ESTABLISHED, TO ENGAGE YOU TO PERFORM SERVICES BEYOND THE SCOPE OF CONTRACTS WOULD BE OF NO LEGAL FORCE OR EFFECT. ACTS OF A PUBLIC OFFICER IN EXCESS OF HIS AUTHORITY ARE VOID AND DO NOT BIND OR ESTOP THE GOVERNMENT. PIERCE V. UNITED STATES (THE FLOYD ACCEPTANCE), 7 WALL. 666; MAMMOTH OIL CO. V. UNITED STATES, 275 U.S. 13; PAN AMERICAN CO. V. UNITED STATES, 273 U.S. 456. INDIVIDUALS MUST TAKE NOTICE OF THE EXTENT OF THE AUTHORITY CONFERRED BY LAW UPON A PERSON ACTING IN AN OFFICIAL CAPACITY. HAWKINS V. UNITED STATES, 96 U.S. 689.

ALSO THE COURTS FREQUENTLY HAVE STATED THAT IT IS THE DUTY OF ADMINISTRATIVE, ACCOUNTING, AUDITING OFFICIALS OF THE GOVERNMENT, TO REFUSE APPROVAL OF CLAIMS AGAINST THE UNITED STATES, AS TO WHICH THERE EXISTS A REASONABLE DOUBT OF THEIR VALIDITY. LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 ID. 316. IN VIEW OF THE FOREGOING PAYMENT OF ANY PART OF YOUR SEVERAL CLAIMS MUST BE DENIED.