B-147754, DEC. 22, 1961

B-147754, DEC. 22, 1961

TO CARTER'S MOVING AND STORAGE:

WE REFER TO YOUR LETTER OF AUGUST 22, 1961, TO OUR CLAIMS DIVISION, REQUESTING REVIEW OF THE SETTLEMENT OF JULY 27, 1961, WHICH DISALLOWED YOUR CLAIM FOR ALLEGED UNDERCHARGES MADE IN CONNECTION WITH SERVICES PERFORMED UNDER CERTAIN CONTRACTS WITH THE DEPARTMENT OF THE AIR FORCE, CHANUTE AFB, RANTOUL, ILLINOIS.

YOUR LETTER OF DECEMBER 12, 1958, TO THE FINANCE OFFICER, CHANUTE AFB, FURNISHED A TOTAL OF 41 INVOICES DATED DECEMBER 10, 1958, WHICH YOU DESCRIBED AS CORRECTED OR SUPPLEMENTAL STATEMENTS COVERING ITEMS OF SERVICE PERFORMED UNDER CONTRACT NO. AF 11/602/-161 BUT ORIGINALLY BILLED UNDER CONTRACT NO. AF 11/602-286 AND UNDER CONTRACT NO. AF 11/602-286 BUT ORIGINALLY BILLED UNDER CONTRACT NO. AF 11/602/-375. ITEM 1 OF THE SCHEDULE OF CONTRACT NO. AF 11/602-161 CONTAINS THE FOLLOWING PROVISIONS:

"CONTRACT PERIOD. ANY CONTRACT AWARDED AS A RESULT OF BIDS SUBMITTED UNDER THIS INVITATION WILL EXTEND FROM 1 JULY 1953 THRU 30 JUNE 1954, EXCEPT THAT ARTICLES IN STORAGE AS OF 30 JUNE 1954 MAY REMAIN IN STORAGE FOR A MAXIMUM OF SIX MONTHS THEREAFTER AT GOVERNMENT EXPENSE (OR IN SPECIAL CASES A MAXIMUM OF TWELVE MONTHS WHEN AUTHORIZED BY REGULATIONS). PAYMENT FOR SUCH SERVICES WHEN NECESSARY TO HANDLE AND DISPOSE OF ARTICLES IN STORAGE AS OF 30 JUNE 1954 AND ORDERED BY THE CONTRACTING OFFICER SHALL BE MADE AT PRICES INDICATED HEREIN.'

CONTRACT NO. AF 11/602-286 FOR THE FOLLOWING YEAR CONTAINS A SIMILAR PROVISION FOR ARTICLES PLACED IN STORAGE BEFORE THE END OF THE CONTRACT PERIOD ON JUNE 30, 1955. YOUR LETTER AND THE ACCOMPANYING INVOICES REQUESTED PAYMENT FOR PACKING AND CRATING SERVICES PERFORMED ON ARTICLES IN STORAGE AT THE END OF THE TWO PERIODS IN QUESTION AT THE HIGHER RATES PREVAILING AT THE TIME THE ARTICLES WERE PLACED IN STORAGE, RATHER THAN AT THE LOWER RATES IN EFFECT AT THE TIME THE PACKING AND CRATING SERVICES WERE ACTUALLY PERFORMED.

YOUR CLAIMS WERE SUBMITTED IN DUE COURSE TO OUR CLAIMS DIVISION, WHICH ISSUED A SETTLEMENT DATED JULY 27, 1961, DISALLOWING YOUR CLAIMS FOR THE REASON THAT YOU WERE PAID FOR THE SERVICES RENDERED AT THE APPLICABLE CONTRACT RATES IN EFFECT AT THE TIME THE SERVICES WERE PERFORMED. IN YOUR LETTER OF AUGUST 22, 1961, REQUESTING RECONSIDERATION OF THAT SETTLEMENT, YOU SUGGEST THAT THERE WAS A MISINTERPRETATION OF YOUR BASIS FOR FILING THE CLAIMS AND THE EVIDENCE SUPPORTING THEM.

THE RECORD BEFORE US SUPPORTS YOUR CONTENTIONS THAT 25 GROUPS OF THE ARTICLES COVERED BY THE 41 INVOICES WERE PLACED IN STORAGE PRIOR TO JUNE 30, 1954, UNDER CONTRACT NO. 161 AND AFTER THAT DATE PACKING AND CRATING SERVICES WERE PERFORMED AND BILLED UNDER CONTRACT NO. 286, AND ALSO THAT THE REMAINING 16 GROUPS OF ARTICLES WERE PLACED IN STORAGE PRIOR TO JUNE 30, 1955, UNDER CONTRACT NO. 286, BUT THE PACKING AND CRATING SERVICES PERFORMED ON THE ARTICLES AFTER THAT DATE WERE BILLED UNDER CONTRACT NO. 375. THERE HAS BEEN NO MISINTERPRETATION OF YOUR DESIRE TO BE PAID FOR THESE SERVICES AT THE HIGHER RATES PREVAILING AT THE TIME THE ARTICLES WERE PLACED IN STORAGE RATHER THAN AT THE LOWER CONTRACT RATES IN EFFECT AT THE TIME THE SERVICES WERE ACTUALLY PERFORMED.

YOUR ENTITLEMENT TO PAYMENT DEPENDS UPON WHICH CONTRACT GOVERNS, THE ONE IN EFFECT AT THE TIME THE ARTICLES WERE PLACED IN STORAGE OR THE ONE IN EFFECT WHEN THE PACKING AND CRATING WERE PERFORMED. WE BELIEVE IT IS REASONABLE TO CONCLUDE THAT THE PROVISIONS UPON WHICH YOU RELY, ALLOWING PAYMENT AT THE CONTRACT RATE FOR SERVICES PERFORMED AFTER THE EXPIRATION OF THE CONTRACT, WERE PLACED IN CONTRACTS OF THIS NATURE IN ANTICIPATION OF THE POSSIBILITY THAT CONTRACTS FOR SUBSEQUENT YEARS MIGHT BE AWARDED TO A DIFFERENT CONTRACTOR. HOWEVER, IN THIS CASE THAT POSSIBILITY DID NOT MATERIALIZE AND THE THREE CONTRACTS FOR THE ENTIRE PERIOD IN QUESTION WERE AWARDED TO YOUR COMPANY. WE ARE THEREFORE CONFRONTED WITH THE WELL- ESTABLISHED RULE OF LAW THAT A SUBSEQUENT CONTRACT BETWEEN THE SAME PARTIES, CONCERNING THE SAME SUBJECT MATTER, BUT CONTAINING TERMS INCONSISTENT WITH THE FORMER CONTRACT, WILL SUPERSEDE THE FORMER CONTRACT EVEN THOUGH THERE IS NO EXPRESS AGREEMENT THAT THE NEW CONTRACT WILL DO SO. DECCA RECORDS, INC. V. REPUBLIC RECORDING CO., 235 F.2D 360; HOUSEKEEPER PUBLISHING CO. V. SWIFT, 97 F. 290. THE SUBJECT MATTER OF THE THREE CONTRACTS IN QUESTION HERE IS THE SAME, NAMELY, FURNISHING PACKING, CRATING, STORAGE AND ALLIED SERVICES, BUT THE CONTRACTS ARE INCONSISTENT IN THAT LOWER PRICES ARE QUOTED IN EACH SUCCESSIVE CONTRACT. UNDER THE ABOVE RULE OF LAW EACH CONTRACT WAS SUPERSEDED BY THE ONE AWARDED FOR THE FOLLOWING YEAR AND PAYMENT FOR ANY OF THE SERVICES RENDERED MUST BE DETERMINED BY THE RATES CONTAINED IN THE CONTRACT COVERING THE PERIOD IN WHICH PERFORMANCE WAS COMPLETED, SINCE NO OTHER CONTRACT WAS IN EFFECT AT THAT TIME.

YOUR ORIGINAL BILLINGS IN THIS CASE WERE MADE UNDER THE CONTRACTS IN EFFECT AT THE TIME THE SERVICES WERE ACTUALLY RENDERED, AND YOU RECEIVED PAYMENT IN ACCORDANCE WITH THE APPLICABLE RATES. WE FIND NO LEGAL BASIS FOR ALLOWING ADDITIONAL PAYMENTS BASED ON RATES CONTAINED IN PREVIOUS CONTRACTS WHICH HAD BEEN SUPERSEDED AT THE TIME YOU PERFORMED THE SERVICES. THE SETTLEMENT OF JULY 27, 1961, DISALLOWING YOUR CLAIM FOR ADDITIONAL PAYMENTS, WAS CORRECT AND MUST BE SUSTAINED.