B-135133, MAR. 18, 1958

B-135133, MAR. 18, 1958

TO COMMANDER OIL CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JANUARY 21, 1958, WITH ENCLOSURE, WHICH IS ACCEPTED AS A REQUEST FOR REVIEW OF OUR SETTLEMENT DATED DECEMBER 11, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $120.05 UNDER FEDERAL SUPPLY SERVICE CONTRACT NO. GS-02S-11179.

UNDER THE CONTRACT, ENTERED INTO BY YOU ON JUNE 19, 1956, WITH THE GENERAL SERVICES ADMINISTRATION, YOU AGREED TO FURNISH TO THE VARIOUS AGENCIES OF THE UNITED STATES GOVERNMENT LOCATED IN REGION NO. 2, SUCH TYPES AND QUANTITIES OF FUEL OIL, KEROSENE AND SOLVENTS AS MAY BE REQUIRED BY THOSE AGENCIES DURING THE PERIOD FROM AUGUST 1, 1956, THROUGH JULY 31, 1957, AT CERTAIN PRICES AS SPECIFIED IN THE CONTRACT. IT APPEARS THAT THE SUPPLY DIVISION, VETERANS ADMINISTRATION HOSPITAL, NORTHPORT, LONG ISLAND, NEW YORK, ORDERED CERTAIN QUANTITIES AND TYPES OF FUEL OIL UNDER THE CONTRACT DURING FEBRUARY 1957. IT APPEARS FURTHER THAT ON OR ABOUT FEBRUARY 1, 1957, THERE WAS A STRIKE OF TUG BOAT OPERATORS IN THE NEW YORK AREA, WHICH INTERFERED WITH THE DELIVERY OF OIL INTO NEW YORK CITY. REASON OF SUCH STRIKE YOU ALLEGE THAT IT BECAME NECESSARY TO TRANSPORT THE FUEL OIL BY TRUCK FROM LINDEN, NEW JERSEY, TO THE VETERANS ADMINISTRATION HOSPITAL AT NORTHPORT IN ORDER TO FILL THE HOSPITAL'S ORDERS UNDER THE CONTRACT AND, IN VIEW OF THE REQUIRED OVERTIME OF THE TRUCK DRIVERS, INSURANCE, PAYROLL TAXES, ETC., YOU CLAIMED AN ADDITIONAL AMOUNT OF $0.015 PER GALLON--- LATER REDUCED TO $0.01 PER GALLON--- ON 12,005 GALLONS OF THE FUEL OIL DELIVERED, OR A TOTAL OF $120.05.

IN THE LETTER OF JANUARY 21, 1958, YOU STATE, AS THE BASIS OF YOUR REQUEST FOR REVIEW, THAT YOU NEVER HAD GUARANTEED UNINTERRUPTED FUEL DELIVERIES DURING THE PROGRESS OF THE STRIKE, AS STATED IN THE SETTLEMENT OF DECEMBER 17, 1957. IN ADDITION, YOU FORWARDED TABULATED SHEETS SHOWING TRANSPORTATION SCHEDULES DURING THE PERIOD FROM FEBRUARY 8, 1957, THROUGH MARCH 13, 1957, TO INDICATE THE FUEL OIL THAT WAS TRUCKED FROM LINDEN, NEW JERSEY, TO YOUR PLANT DURING THE STRIKE.

REGARDLESS OF THE OTHER ASPECTS OF THE CLAIM, SUCH AS YOUR DENIAL OF THE REPORTED GUARANTEE OF UNINTERRUPTED DELIVERIES AND THE MATTER OF PROOF THAT THE FUEL OIL WAS TRUCKED FROM LINDEN, NEW JERSEY, TO YOUR PLANT DURING THE STRIKE, THE FACT REMAINS THAT THE BASIC ISSUE OF YOUR CLAIM MUST BE RESOLVED AROUND THE SPECIFIC TERMS OF THE CONTRACT ITSELF. THIS CONNECTION, AN EXAMINATION OF CONTRACT NO. GS-02S 11179 FAILS TO REVEAL ANY LANGUAGE, IN EITHER THE GENERAL OR THE SPECIAL PROVISIONS OF THE CONTRACT OR IN ANY OTHER PART THEREOF WHICH MAY BE INTERPRETED AS AUTHORIZING, EITHER EXPRESSLY OR BY IMPLICATION, AN INCREASE IN THE CONTRACT PRICE BASED UPON ADDITIONAL EXPENSES FOR TRUCKING SERVICES MADE NECESSARY BY REASON OF A TUG BOAT OPERATORS' STRIKE. HENCE, IT FOLLOWS THAT THERE APPEARS NO LEGAL BASIS UPON WHICH FAVORABLE CONSIDERATION MAY BE ACCORDED YOUR CLAIM BY OUR OFFICE AND, IN FACT, THERE CANNOT READILY BE PERCEIVED THE CONTRACTUAL BASIS UPON WHICH YOU RELY IN THIS RESPECT.

WHILE NOT PARTICULARLY PERTINENT, WE ALSO MIGHT ADVISE THAT EVEN IF YOUR CLAIM WAS OTHERWISE FOR ALLOWANCE, PROOF OF THE TRUCKING SERVICES FOR DELIVERY OF THE FUEL OIL TO THE NORTHPORT HOSPITAL DOES NOT APPEAR TO BE SUBSTANTIATED BY THE TRANSPORTATION SCHEDULES FURNISHED BY YOU. NOTWITHSTANDING THAT YOUR CLAIM WAS BASED ENTIRELY ON THE DELIVERY OF NO. 4 FUEL OIL, BOTH PURCHASE ORDERS NOS. 1843 AND 2045, UPON WHICH THE CLAIM IS BASED, SPECIFY ITEM NO. 379 AND NO. 5 FUEL OIL. A REFERENCE TO ITEM NO. 379 IN CONTRACT NO. GS-02S-11179 SHOWS THIS ITEM TO CALL FOR NO 5 FUEL OIL AND THE SCHEDULES FURNISHED BY YOU DO NOT SHOW TRANSPORTATION OF THE NO. 5 OIL.