B-146603, JAN. 24, 1962

B-146603, JAN. 24, 1962

TO AIR SURVEY CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF AUGUST 1 AND NOVEMBER 17, 1961, REQUESTING RELIEF FROM THE ACTIONS OF THE INTERNATIONAL COOPERATION ADMINISTRATION IN INTERPRETING AND ADMINISTERING A CONTRACT DATED OCTOBER 28, 1958, CALLING FOR TOPOGRAPHIC MAP COMPILATION OF A SPECIFIED AREA OF HAITI.

ON SEPTEMBER 19, 1959, THE HAITIAN BRANCH OF THE INTERNATIONAL COOPERATION ADMINISTRATION, THE UNITED STATES OPERATIONS MISSION TO HAITI, INVITED BIDS FOR A TOPOGRAPHIC MAP COMPILATION CONTRACT INVOLVING 2400 SQUARE MILES IN HAITI. NINE TIMELY BIDS WERE RECEIVED AND BY LETTER DATED OCTOBER 28, 1958, THE CONTRACT WAS AWARDED TO THE LOW BIDDER, AIR SURVEY CORPORATION, AT A UNIT PRICE OF $8.50 PER SQUARE MILE, OR A TOTAL OF $20,400. BY LETTER OF DECEMBER 4, 1958, THE USOM/HAITI OFFERED AN ADDITIONAL 500 SQUARE MILES OF MAP COMPILATION AT THE CONTRACT UNIT PRICE. YOUR COMPANY ACCEPTED THIS OFFER IN A LETTER DATED DECEMBER 15, 1958, RESULTING IN AN AMENDED CONTRACT PROVIDING FOR MAY COMPILATION OF 2900 SQUARE MILES FOR A TOTAL CONTRACT PRICE OF $24,650.

UNDER THE TERMS OF THE CONTRACT USOM/HAITI FURNISHED GLASS PHOTOGRAPHIC PLATES AND PRINTS OF THE AERIAL PHOTOGRAPHS OF THE AREA TO BE COMPILED. WHEN YOU FOUND THAT THE PRINTS CONTAINED NUMEROUS PINPRICKS HIGHLIGHTED BY PURPLE COLORING REPRESENTING NATIVE HUTS, YOU QUESTIONED THE RIGHT OF USOM/HAITI TO REQUIRE COMPILATION OF THE PINPRICKS WHICH DID NOT APPEAR OVER IMAGES DISCERNIBLE ON THE PRINTS. YOU CONTENDED THAT THE CONTRACT CONTEMPLATED ONLY STEREO COMPILATION PROCESSES DEPENDENT ON PHOTOGRAPHIC IMAGES AND THAT OTHER PROCESSES ARE REQUIRED WHEN CLASSIFICATION OR ANNOTATION BY PINPRICK IS NOT RELATED TO SPECIFIC IMAGES ON THE PRINTS. AS A RESULT OF THE DISPUTE OVER INTERPRETATION OF THE TERMS OF THE CONTRACT, THERE WAS A LENGTHY EXCHANGE OF CORRESPONDENCE AND A NUMBER OF CONFERENCES BETWEEN YOUR COMPANY AND USOM/HAITI AND ICA IN WASHINGTON, IN WHICH REPRESENTATIVES OF THE CONTRACTING AGENCY CONTINUED TO INSIST ON PERFORMANCE. ALTHOUGH THE CONTRACT REQUIRED DELIVERY OF CERTAIN ITEMS 180 DAYS AFTER COMMENCEMENT OF CONTRACT AND THE REMAINING ITEMS 210 DAYS AFTER COMMENCEMENT, ICA APPROVED A DELIVERY SCHEDULE WHICH YOU PROPOSED IN A LETTER OF DECEMBER 8, 1959, CALLING FOR COMPLETION OF THE ORIGINAL CONTRACT FOR MAPPING 2400 SQUARE MILES DURING THE MONTH OF JUNE 1960 AND COMPLETION OF THE ADDITIONAL 500 SQUARE MILES OF MAPPING DURING THE MONTH OF AUGUST 1960.

ON JULY 1, 1960, USOM/HAITI ADVISED ICA IN WASHINGTON THAT YOUR COMPANY WAS NOT MEETING THE NEW SCHEDULE AND THIS WAS CAUSING SERIOUS PROBLEMS IN THE HAITIAN PROJECT FOR WHICH THE MAPS WERE NEEDED. WHEN ICA ASKED FOR AN EXPLANATION, SEVERAL CONFERENCES WERE HELD ON THE MATTER, AND THEREAFTER YOU SET FORTH YOUR POSITION IN A LETTER DATED JULY 29, 1960. YOU STATED THAT A FIRM OF AUDITORS HAD ESTIMATED THAT PERFORMANCE OF THE CONTRACT WOULD COST ABOUT $72,000 AND YOUR COMPANY'S FINANCIAL CONDITION NECESSITATED SUSPENSION OF THE CONTRACT AFTER YOU HAD COMPLETED WORK ON 1,134.843 SQUARE MILES AND HAD COMPLETED THE ENGINEERING PHASE OF MANUSCRIPT PREPARATION FOR THE BALANCE OF 1,765.157 SQUARE MILES. YOU ASKED TO BE RELIEVED FROM COMPLETION OF THE CONTRACT AND TO BE PAID FOR WORK COMPLETED.

ICA REPLIED BY LETTER OF SEPTEMBER 12, 1960, ADVISING THAT NO AUTHORITY EXISTED TO RELIEVE YOUR COMPANY OF ITS CONTRACTUAL OBLIGATIONS AND INSISTING THAT WORK BE RESUMED ON THE CONTRACT IMMEDIATELY. WHEN NO EVIDENCE OF RESUMPTION OF WORK WAS RECEIVED IN YOUR LETTERS OF OCTOBER 7 AND 20, 1960, ICA DETERMINED THAT THE PROJECT COULD NOT BE DELAYED ANY LONGER AND BY LETTER OF JANUARY 25, 1961, ICA ADVISED THAT THE CONTRACT WAS TERMINATED FOR DEFAULT BY YOUR COMPANY. THE GOVERNMENT-FURNISHED PROPERTY WHICH YOU RETURNED AFTER THE CONTRACT TERMINATION WAS FORWARDED TO HAITI WHERE MAP COMPILATION IS BEING COMPLETED.

IN YOUR LETTER OF AUGUST 1, 1961, TO OUR OFFICE YOU REQUEST RELIEF FROM THE ACTIONS OF ICA IN ADMINISTERING THE CONTRACT. YOU CONTEND THAT ICA'S INTERPRETATION IMPOSED A BURDEN WHICH YOUR COMPANY DID NOT AGREE TO UNDERTAKE. YOU REPEAT THE STATEMENTS SET FORTH IN YOUR LETTER TO ICA ON JULY 29, 1960, THAT ACCORDING TO YOUR INTERPRETATION OF THE SPECIFICATIONS, YOU CONTEMPLATED ONLY THE USE OF STEREO COMPILATION PROCESSES AND DID NOT ANTICIPATE THAT YOU WOULD BE REQUIRED TO USE OTHER COSTLIER PROCESSES TO COMPILE LARGE NUMBERS OF NATIVE HUTS WHICH WERE ANNOTATED BY PINPRICKS ON THE PRINTS BUT WHICH WERE NOT DISCERNIBLE AS IMAGES ON THE PHOTOGRAPHIC PLATES OR PRINTS.

IN SUPPORT OF YOUR INTERPRETATION, YOU SUBMIT A LETTER DATED MARCH 30, 1961, FROM COLONEL JOHN G. LADD, USA RETIRED, EXECUTIVE DIRECTOR OF THE ASSOCIATION OF PROFESSIONAL PHOTOGRAMMETRISTS AND FORMER COMMANDING OFFICER OF THE ARMY MAP SERVICE. COLONEL LADD STATES THAT THE ICA INTERPRETATION IS CONTRARY TO THE CUSTOM AND USAGE IN THE MAP MAKING PROFESSION AND THAT THE TERMS "CLASSIFICATION" AND "ANNOTATION" APPLY, WITH MINOR EXCEPTIONS, TO THE IDENTIFICATION OF IMAGES WHICH APPEAR ON THE AERIAL PHOTOGRAPHS. IT IS COLONEL LADD'S OPINION THAT THE CONTRACT CANNOT BE CONSTRUED TO REQUIRE OTHER THAN A STRICT STEREO COMPILATION OF THE AERIAL PHOTOGRAPHY. IN FURTHER SUPPORT OF OF YOUR POSITION, YOU SUBMIT A LETTER DATED MAY 11, 1961, FROM MR. CARL J. ALSTER, PRESIDENT OF ALSTER AND ASSOCIATES, INC., WASHINGTON, D.C., WHO SUBMITTED A BID OF $14.38 PER SQUARE MILE, A TOTAL BID OF $34,512, IN RESPONSE TO ICA'S ORIGINAL INVITATION FOR MAPPING 24,000 SQUARE MILES OF HAITI. MR. ALSTER AGREES WITH YOUR INTERPRETATION OF THE CONTRACT AND STATES THAT HIS PRICE QUOTATION WOULD LIKELY HAVE BEEN AT LEAST DOUBLED IF HE HAD KNOWN THE EXTENT OF THE COMPILATION OF NATIVE HUTS REQUIRED BY ICA.

IN REQUESTING RELIEF FROM WHAT YOU CONSIDER TO BE AN UNWARRANTED INTERPRETATION OF THE REQUIREMENTS OF THE CONTRACT, YOU SUBMIT A TOTAL CLAIM OF $35,514.50, CONSISTING OF $8,681.55 WHICH HAS BEEN PAID AND $964.60 WHICH HAS BEEN RETAINED BY ICA FOR WORK PERFORMED AND BILLED, $2,581.36 FOR WORK PERFORMED BUT NOT YET BILLED, AND $23,286.99 FOR EXTRA WORK WHICH YOU DID NOT ANTICIPATE HAVING TO PERFORM.

IN A REPORT DATED OCTOBER 16, 1961, ICA STATES THAT THE ACCURATE POSITIONING OF ALL NATIVE DWELLINGS WAS AN IMPORTANT PART OF THIS MAP COMPILATION PROJECT. MOST OF THE HUTS ARE CONSTRUCTED OF EARTH AND ARE CONSIDERED TO BE AS PERMANENT AS A FRAME HOUSE IN THE UNITED STATES. GREAT DEAL OF TIME WAS SPENT IN IDENTIFYING ALL SUCH BUILDINGS ON THE FIELD CLASSIFICATION SURVEY PHOTOGRAPHS SINCE THEIR PLOTTING ON THE MAPS WAS REGARDED AS ESSENTIAL TO THE EFFECTIVE PLANNING OF LAND UTILIZATION, IRRIGATION, ROUTES OF COMMUNICATION, ETC. THERE IS NO DISPUTE CONCERNING YOUR OBLIGATION TO COMPILE THOSE HUTS DISCERNIBLE BY PHOTO INTERPRETATION, THE ONLY QUESTION IS WHETHER OR NOT YOUR OBLIGATION EXTENDS TO COMPILING ALL NATIVE DWELLINGS REPRESENTED BY PINPRICKS ON THE PHOTOGRAPHS OR WHETHER IT IS LIMITED TO COMPILING ONLY THOSE NATIVE DWELLINGS PINPRICKED OVER IMAGES. ICA STATES THAT THE CLEAR INTENT OF SECTION 2-05 (B) OF THE CONTRACT IS THAT ALL OF THE NUMEROUS NATIVE DWELLINGS MUST BE COMPILED AND NOTHING IN THE ARMY MAP SERVICE TECHNICAL MANUALS LIMITS THE DEFINITION OF THE TERM "ANNOTATED" TO THE NARROW INTERPRETATION YOU HAVE SUGGESTED. ICA POINTS OUT THAT CONFERENCES WITH PERSONNEL OF THE ARMY MAP SERVICES AND THE UNITED STATES GEOLOGICAL SURVEY HAVE CONFIRMED ITS INTERPRETATION OF THE DISPUTED SPECIFICATIONS AND REPRESENTATIVES OF THOSE AGENCIES HAVE STATED THAT THE SPECIFICATIONS WERE NOT MISLEADING AS TO THE EXTENT OF THE OBLIGATION TO COMPILE NATIVE DWELLINGS.

YOUR LETTER OF NOVEMBER 17, 1961, IS CONCERNED PRIMARILY WITH REPEATING YOUR ASSERTION THAT YOU CONSIDER THE CONTRACT IN QUESTION TO

BE A STEREO-COMPILATION CONTRACT WHICH DOES NOT REQUIRE COMPILATION OF FEATURES NOT DISCERNIBLE BY PHOTO INTERPRETATION. YOU SUGGEST THAT SECTION 2-05 OF THE CONTRACT, UPON WHICH ICA RELIES FOR ITS INTERPRETATION, DOES NOT UPHOLD ICA'S POSITION BUT RATHER SUPPORTS YOUR CONTENTIONS.

SECTION 2-05 PROVIDES AS FOLLOWS:

"2-05--- FIELD CLASSIFICATION DATA:

"A. THE CONTRACTOR WILL BE FURNISHED A SET OF FIELD CLASSIFIED PHOTOGRAPHS AND ALLIED MATERIALS. THESE DATA CONSIDERED AUTHORITATIVE FOR THE SHOWING OF THE APPROPRIATE MAP FEATURES. IF, DURING THE COMPILATION AND EDIT PROCESSES, THE CONTRACTOR DISCOVERS ANY DISCREPANCIES IN THE MATERIALS FURNISHED WHICH CANNOT BE RESOLVED, HE SHOULD NOTE THESE ON THE CONTRACTOR'S EDIT OVERLAY (SEE PARAGRAPH 1 18).

"B. THERE ARE NUMEROUS NATIVE DWELLINGS OF THE ONE ROOM THATCHED ROOF TYPE IN HAITI. IT WAS IMPRACTICAL TO PIN PRICK ALL OF THESE NATIVE HUTS DURING THE FIELD CLASSIFICATION SURVEY AND THEREFORE IT SHALL BE NECESSARY FOR THE CONTRACTOR TO COMPILE ALL HUTS DISCERNIBLE BY PHOTO INTERPRETATION IN ADDITION TO THOSE ANNOTATED. THE MAXIMUM NUMBER AND REPRESENTATIVE PATTERN ARE THE CRITERIA TO BE FOLLOWED.'

SECTION 2-05 (B) DRAWS A DISTINCTION BETWEEN HUTS DISCERNIBLE BY PHOTO INTERPRETATION AND THOSE ANNOTATED. YOUR CONTENTION THAT,ACCORDING TO CUSTOM AND USAGE IN THE TRADE, THE TERM "ANNOTATED" IS LIMITED AND A HUT CANNOT BE "ANNOTATED" UNLESS IT IS DISCERNIBLE AS AN IMAGE ON THE PHOTOGRAPHIC PRINTS WOULD, IF VALID, RENDER MEANINGLESS THE STATED DISTINCTION BETWEEN DISCERNIBLE AND ANNOTATED HUTS. ICA HAS DETERMINED THAT THE TERM "ANNOTATED" SHOULD NOT BE GIVEN THE LIMITED INTERPRETATION YOU SUGGEST, BUT THAT IT IS BROAD ENOUGH TO INCLUDE LOCATION OF NATIVE HUTS BY PINPRICKS WHICH DO NOT APPEAR OVER IMAGES ON THE PRINTS, A POSITION IT SAYS IS SUPPORTED BY PERSONNEL OF THE ARMY MAP SERVICE AND THE UNITED STATES GEOLOGICAL SURVEY.

IN MOORE V. UNITED STATES, 196 U.S. 157, 166, THE COURT STATED: "THE EFFECT OF USAGE UPON CONTRACTS OF PARTIES HAS BEEN DECIDED MANY TIMES. MAY BE RESORTED TO IN ORDER TO MAKE DEFINITE WHAT IS UNCERTAIN, CLEAR UP WHAT IS DOUBTFUL, OR ANNEX INCIDENTS, BUT NOT TO VARY OR CONTRADICT THE TERMS OF A CONTRACT.' ASSUMING, FOR THE PURPOSE OF ARGUMENT, THAT CUSTOM OR USAGE IN THE PRESENT CASE WOULD NOT VARY OR CONTRADICT THE TERMS OF THE CONTRACT, WE THEN FIND THAT YOU AND ICA HAVE REACHED DIAMETRICALLY OPPOSITE CONCLUSIONS ABOUT USAGE OF THE TERM "ANNOTATED" IN THE PHOTOGRAMMETRIC PROFESSION. THE EXISTENCE OF A PARTICULAR USAGE HAS BEEN HELD TO BE A QUESTION OF FACT. WESTERN PETROLEUM CO. V. TIDAL GASOLINE CO., 284 F. 82; INGRAM DAY LUMBER CO. V. SCHULTZ, 45 F.2D 359, CERTIORARI DENIED 283 U.S. 833.

IT IS NOT PRIMARILY A FUNCTION OF OUR OFFICE TO RESOLVE DISPUTED QUESTIONS OF FACT, BUT RATHER TO DETERMINE IF THE RECORD BEFORE US IS SUCH AS CLEARLY TO AUTHORIZE PAYMENT OF GOVERNMENT FUNDS. ON THE PRESENT RECORD, WE CANNOT CONCLUDE THAT PAYMENT OF ANY PART OF YOUR CLAIM SHOULD BE AUTHORIZED. IN VIEW OF THE CONFLICTING POSITIONS TAKEN ON THE MATTER BY YOU AND THE ADMINISTRATIVE OFFICE, WE WILL NOT MAKE A DETERMINATION ON THE QUESTION OF USAGE OF THE TERM ,ANNOTATED" IN THE PHOTOGRAMMETRIC PROFESSION. IN A CASE INVOLVING A DISPUTE OF FACT, IT IS THE UNDOUBTED RIGHT AND DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT THE CLAIM, LEAVING THE CLAIMANT TO PROSECUTE HIS CLAIM IN A COURT OF LAW. LONGWILL V. UNITED STATES, 17 CT.CL. 288, 291; CHARLES V. UNITED STATES, 19 CT.CL. 316, 319.