B-144720, FEB 6, 1961

B-144720, FEB 6, 1961

TO CITY OF CHICOPEE, ELECTRIC LIGHT DEPARTMENT:

REFERENCE IS MADE TO YOUR CLAIM FOR $66,065.17 REPRESENTING ADJUSTMENTS IN BILLINGS FOR ELECTRICITY FURNISHED THE WESTOVER AIR FORCE BASE, MASSACHUSETTS, FOR THE PERIOD FROM JULY 1, 1956, THROUGH OCTOBER 31, 1957. REFERENCE IS ALSO MADE TO THE CLAIM OF THE WESTOVER AIR FORCE BASE AGAINST YOU IN THE AMOUNT OF $23,918.03, ARISING OUT OF THE FAILURE TO DEDUCT DISCOUNT ON PAYMENTS MADE FOR ELECTRICITY DURING THE PERIOD FROM MARCH 10, 1955, THROUGH JUNE 30, 1956.

THE CONTRACT INVOLVED HERE, ORIGINALLY NUMBERED W-918-QM-50 BUT LATER RENUMBERED AS W-19-032-AC-18, WAS ENTERED INTO ON JUNE 30, 1941, AND PROVIDED FOR THE FURNISHING OF PRIMARY CURRENT AT THE METERING STATION AT THE INDUSTRIAL ENTRANCE TO WESTOVER FIELD AS WELL AS FURNISHING SECONDARY SERVICE TO METERS INSTALLED AT THE REQUEST OF THE USING SERVICES. AMENDMENTS TO THE CONTRACT WERE MADE FROM TIME TO TIME. BY SUPPLEMENTAL AGREEMENT NO. 16 DATED AUGUST 3, 1954, YOU AGREED TO FURNISH ELECTRIC SERVICE AT 4800 VOLTS TO THE RADIO TRANSMITTER BUILDING LOCATED OUTSIDE HOLYOKE GATE AT WESTOVER FIELD. BY SUPPLEMENTAL AGREEMENT NO. 18 DATED MARCH 10, 1955, THE FOLLOWING LANGUAGE WAS ADDED TO THE CONTRACT:

"SAID CONTRACT IS AMENDED AND SUPPLEMENTED AS FOLLOWS:

"1. BY ADDING THE FOLLOWING TO THE RATES:

"MINIMUM CHARGE FOR POWER CONSUMERS $1.00 PLUS 50 CENTS PER MONTH, PER K.V.A. OF TRANSFORMER CAPACITY INSTALLED. POWER CONSUMERS ARE THOSE WITH OVER 1/2 H.P. IN MOTORS.

"A DISCOUNT OF 10 PERCENT WILL BE ALLOWED TO POWER CONSUMERS WHO USE PRIMARY CURRENT. CREDITS WILL BE ALLOWED ON ALL CONSUMPTION OVER 1,000 K.W. HRS. PER MONTH FOR POWER FACTOR CORRECTION.' CLAUSE (O) OF THE CONTRACT ENTITLED "RATES" IS SUBDIVIDED INTO PARAGRAPH 1, PRIMARY CURRENT, AND PARAGRAPH 2, SECONDARY CURRENT, AND DIFFERENT RATES AND METHODS OF METERING ARE PROVIDED FOR EACH TYPE OF SERVICE. IN THE MODIFICATIONS TO THE CONTRACT THESE TWO TYPES OF SERVICE WERE CONSIDERED SEPARATELY.

IT IS CONTENDED BY YOU THAT WHEN AGREEMENT NO. 16 WAS ENTERED INTO THE GOVERNMENT FURNISHED THE NECESSARY TRANSFORMER FOR TAKING THE POWER FOR THE RADIO TRANSMITTER BUILDING FROM YOUR DISTRIBUTION SYSTEM AND THAT SUPPLEMENTAL AGREEMENT NO. 18 WAS EXECUTED ON MARCH 10, 1955, TO PROVIDE PAYMENT FOR THIS SERVICE ONLY. HOWEVER, THE WORDING OF THIS LATTER AGREEMENT IS GENERAL AND IT HAS BEEN THE CONTENTION OF THE GOVERNMENT THAT THE DISCOUNT APPLIES TO ALL PRIMARY CURRENT USED BY THE GOVERNMENT. FOR THE PERIOD FROM MARCH 10, 1955, TO JULY 1, 1956, THE DISCOUNT OF 10 PERCENT ON THE PRIMARY CURRENT USED BY THE GOVERNMENT OTHER THAN THAT MEASURED BY METER NO. 143 AMOUNTS TO $23,918.03 WHICH IS THE SUBJECT OF YOUR REPORTED INDEBTEDNESS TO THE GOVERNMENT. THE FACT THAT YOU BILLED THE GOVERNMENT IN ACCORDANCE WITH WHAT YOU STATE WAS INTENDED BY YOU AND BY THE GOVERNMENT REPRESENTATIVE EXECUTING SUPPLEMENTAL AGREEMENT NO. 18 LENDS CONSIDERABLE SUPPORT TO YOUR CONTENTION ALTHOUGH THE RECORD BEFORE OUR OFFICE IS INCONCLUSIVE ON THIS POINT.

AS TO YOUR CLAIM FOR $66,065.17, THE MATTER CONCERNS THE INTERPRETATION TO BE PLACED UPON THE PROVISIONS OF CHANGE ORDER NO. 22 DATED JULY 1, 1956, IN PERTINENT PART AS FOLLOWS:

"A. POWER AND LIGHT RATE SCHEDULE EFFECTIVE OCTOBER 1, 1936 AS AMENDED APRIL 1, 1948, IS HEREBY CANCELLED AND M.D.P.U. NO. 6 ATTACHED HERETO IS SUBSTITUTED THEREFOR.

"M.D.P.U. NO. 6

CANCELS POWER AND LIGHT RATE SCHEDULE EFFECTIVE OCTOBER 1, 1936,

(AS AMENDED APRIL 1, 1948.)

"LIGHT AND POWER RATE SCHEDULE

"AVAILABILITY

"THIS SCHEDULE APPLIES TO ALL KINDS OF ELECTRIC SERVICE INCLUDING LIGHT, HEAT AND POWER. "RATE

"FOR ANY PART OF THE FIRST 10 KWH USED PER MO., ONE DOLLAR (MINIMUM CHARGE) FOR THE NEXT 15 KWH USED PER MO., AT 4.24 CENTS PER KWH FOR THE NEXT 75 KWH USED PER MO., AT 2.65 CENTS PER KWH FOR THE NEXT 1,900 KWH USED PER MO., AT 2.12 CENTS PER KWH FOR THE NEXT 48,000 KWH USED PER MO., AT 1.80 CENTS PER KWH FOR THE NEXT 100,000 KWH USED PER MO., AT 1.70 CENTS PER KWH FOR ALL ADDITIONAL KWH USED PER MO., AT 1.50 CENTS PER KWH

"MINIMUM CHARGE

"THE MINIMUM CHARGE SHALL BE ONE DOLLAR ($1.00) PER MONTH FOR ALL CLASSES OF LIGHTING CONSUMERS AND INCLUDES MOTORS UP TO ONE HALF ( 1/2 ( H.P.

"THE MINIMUM CHARGE FOR INDUSTRIAL POWER CONSUMERS SHALL BE ONE DOLLAR ($1.00) PLUS FIFTY CENTS (.50) PER MONTH PER K.V.A. OF TRANSFORMER CAPACITY INSTALLED.

"DISCOUNTS

"A DISCOUNT OF TEN PER CENT (10 PERCENT) WILL BE ALLOWED TO INDUSTRIAL POWER CONSUMERS WHO USE PRIMARY CURRENT.'

ALTHOUGH THE WORDING OF THE SCHEDULE ATTACHED TO CHANGE ORDER NO. 22 INDICATES THAT THE RATES THEREIN WERE TO APPLY TO ALL KINDS OF ELECTRIC SERVICE INCLUDING HEAT AND POWER, YOU NEVERTHELESS BILLED THE GOVERNMENT FOR POWER SUBSEQUENT TO JULY 1, 1956, AT THE SEPARATE RATES FOR PRIMARY CURRENT WHICH YOU HAD BILLED THERETOFORE AND DID NOT PRESENT ANY CLAIM FOR THE INCREASED RATES UNTIL DECEMBER 11, 1957. THIS FACT WOULD INDICATE THAT THE SCHEDULE WAS NOT INTENDED TO SUPPLANT THE PRIOR SCHEDULE OF RATES INSOFAR AS PRIMARY CURRENT WAS CONCERNED. ALSO, IT HAS BEEN REPORTED THAT THE SUPERSEDING CONTRACT NUMBEREDAF 19/617/-1119 EFFECTIVE JANUARY 1, 1959, AGAIN PROVIDES A SPECIAL AND SEPARATE RATE FOR PRIMARY CURRENT. FURTHERMORE, THERE IS INVOLVED HERE THE QUESTION OF WHETHER YOUR ACCEPTANCE OF THE PAYMENTS FOR THE PERIOD OF 16 MONTHS WITHOUT PROTEST DID NOT AMOUNT TO AN ACCORD AND SATISFACTION.

FOR REASONS STATED HEREINABOVE, WE DO NOT FEEL JUSTIFIED ON THE PRESENT RECORD TO DISTURB THE PAYMENTS HERETOFORE MADE UNDER THE CONTRACT. ACCORDINGLY YOUR CLAIM FOR PAYMENT OF $66,065.17 IS DISALLOWED AND NO ACTION WILL BE TAKEN BY OUR OFFICE TO COLLECT ANY REPORTED OVERPAYMENTS BECAUSE OF THE FAILURE TO DEDUCT THE DISCOUNT OF 10 PERCENT ON PAYMENTS FOR PRIMARY CURRENT MADE UP TO AND INCLUDING OCTOBER 31, 1957.