B-129763, NOV. 26, 1956

B-129763, NOV. 26, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED NOVEMBER 7, 1956, FILE CSG-2194 NJC, FROM J. W. MCLAIN, CONTRACTING OFFICER, UNITED STATES MARINE CORPS, REQUESTING DECISION AS TO WHETHER THE CASH DISCOUNT OF $1,423.69 DEDUCTED FROM D.O. VOUCHER NO. 2522, SEPTEMBER 1956 ACCOUNTS OF J. W. ELDRIDGE, SYMBOL NO. 6115, PROPERLY WAS TAKEN. THE VOUCHER REFERRED TO EVIDENCES PAYMENT TO THE CAROLINA PAPER MILLS, INC., IN THE NET AMOUNT OF $12,813.18 FOR 2,194 CASES OF PAPER, TOILET, AS SPECIFIED, FURNISHED THE 1ST COMBAT SERVICE, GROUP,UNITED STATES MARINE, CAMP PENDLETON, CALIFORNIA, PURSUANT TO CONTRACT NO. DA-36-030 QM-7853 DATED MAY 31, 1956.

THE CONTRACT TERMS PERTINENT TO THE CONTRACTOR'S OFFER OF DISCOUNT OF 10 PERCENT FOR PAYMENT WITHIN 10 DAYS ARE RECITED IN PARAGRAPH 21 OF THE ADDITIONAL GENERAL PROVISIONS OF THE CONTRACT, AS FOLLOWS: "TIME WILL BE COMPUTED TO DATE PAYMENTS ARE MAILED TO CONTRACTOR FROM DATE OF DELIVERY OF SUPPLIES TO CARRIER WHEN (AS HERE) DELIVERY AND ACCEPTANCE ARE AT POINT OF ORIGIN, * * * OR FROM DATE CORRECT INVOICE OR VOUCHER (PROPERLY CERTIFIED BY THE CONTRACTOR) IS RECEIVED IN THE OFFICE SPECIFIED BY THE GOVERNMENT IF THE LATTER DATE IS LATER THAN THE DATE OF DELIVERY.'

THE RECORD IN THE CASE SHOWS THAT DELIVERY OF THIS CONSIGNMENT OF SUPPLIES WAS MADE TO THE CARRIER AT POINT OF ORIGIN, ROCKINGHAM, NORTH CAROLINA, ON SEPTEMBER 11, 1956, AND THAT THE CONTRACTOR'S CERTIFIED INVOICE OF THAT DATE WAS MAILED TO THE DISBURSING OFFICER, MARINE CORPS SUPPLY CENTER, BARSTOW, CALIFORNIA, ARRIVING AT THE LATTER POINT ON SEPTEMBER 17, 1956. PAYMENT ON THE INVOICE IS REPORTED TO HAVE BEEN EFFECTED BY DISBURSING OFFICER ELDRIDGE EIGHT DAYS LATER, OR ON SEPTEMBER 25, 1956. ALTHOUGH NOT SO STATED, PRESUMABLY THE ISSUANCE AND MAILING OF THE GOVERNMENT CHECK WAS ACCOMPLISHED ON THAT DAY. OF COURSE, THIS PAYMENT WAS MADE WELL WITHIN THE SPECIFIED DISCOUNT PERIOD OF 10 CALENDAR DAYS, COMPUTED FROM THE DATE OF RECEIPT IN THE DESIGNATED DISBURSING OFFICE OF THE CONTRACTOR'S INVOICE OF SEPTEMBER 11, 1956, AND HENCE, IT MUST BE CONCLUDED THAT THE 10 PERCENT CASH DISCOUNT DEDUCTED FROM THE PROCEEDS OF THE PAYMENT VOUCHER WAS EARNED BY THE GOVERNMENT, AND IS PROPERLY FOR RETENTION BY IT. IN THIS REGARD IT IS NOTED, HOWEVER, THAT THE CONTRACTOR CONTENDS THAT THE DATE OF PAYMENT WAS SEPTEMBER 28, 1956, AND THAT THE INVOLVED CHECK WAS MAILED ON THAT DAY AS INDICATED BY THE "SETTLEMENT CERTIFICATE" RECEIVED WITH PAYMENT. NO EVIDENCE TO SUPPORT THIS CONTENTION HAS BEEN FURNISHED.

THE INSTANT CASE IS CLEARLY DISTINGUISHABLE FROM THE FOSTER COMPANY, INC. V. UNITED STATES, 128 C.CLS. 291, WHEREIN THE UNITED STATES COURT OF CLAIMS HELD THAT IN ORDER TO EARN THE DISCOUNT OFFERED UNDER THE PARTICULAR TERMS OF THE CONTRACT THERE INVOLVED THE CHECK IN PAYMENT OF THE CONTRACTOR'S INVOICE MUST HAVE BEEN MAILED IN SUFFICIENT TIME TO HAVE REACHED THE PAYEE BEFORE THE SPECIFIED DISCOUNT PERIOD HAD EXPIRED, SINCE HERE, THE CONTRACT EXPRESSLY STIPULATES THAT FOR DISCOUNT PURPOSES PAYMENT ON THE CONTRACTOR'S INVOICE WOULD BE CONSIDERED AS HAVING BEEN MADE AT THE TIME OF MAILING OF THE GOVERNMENT'S CHECK.