B-152499, NOV. 29, 1963

B-152499: Nov 29, 1963

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THERE WAS SUBMITTED FOR OUR CONSIDERATION THE REQUEST OF HONORIO VALISNO. WAS AWARDED CONTRACT N62355-2494 ON JUNE 26. VALISNO ADVISED THE SALES CONTRACTING OFFICER THAT HE HAD BEEN THE VICTIM OF THE BUREAU OF CUSTOMS EMPLOYEES AND HE FURNISHED A LETTER FROM THE PHILIPPINE NATIONAL BUREAU OF INVESTIGATION SHOWING THAT AN INVESTIGATION WAS BEING MADE OF THE MATTER. WHICH WAS MADE A PART OF CONTRACT N62355 2494. PROVIDES: "THE MATERIAL SOLD WILL NOT BE DELIVERED UNLESS THE PURCHASER PRESENTS A RECEIPT FROM THE BUREAU OF CUSTOMS VERIFIED BY THE PHILIPPINE MILITARY LIAISON OFFICER SHOWING APPLICABLE TAXES HAVE BEEN PAID THE PHILIPPINE GOVERNMENT. IT IS THEREFORE CLEAR THAT MR. VALISNO WAS ON ACTUAL NOTICE AT THE TIME OF THE SUBMISSION OF HIS BID THAT HE WOULD BE REQUIRED TO PAY THE TAXES AND OTHER AMOUNTS REQUIRED BY THE PHILIPPINE GOVERNMENT.

B-152499, NOV. 29, 1963

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED SEPTEMBER 10, 1963 (R1.5), WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, THERE WAS SUBMITTED FOR OUR CONSIDERATION THE REQUEST OF HONORIO VALISNO, QUEZON CITY, PHILIPPINES, THAT SALES CONTRACT N62355-2494 BE CANCELLED FOR THE REASON THAT PERSONNEL OF THE PHILIPPINE BUREAU OF CUSTOMS ABSCONDED WITH MONEY HE INTENDED TO PAY THE CUSTOMS TAXES AND OTHER FEES LEVIED ON THE AUTOMOBILES HE PURCHASED UNDER THE CONTRACT.

MR. VALISNO, AS HIGH BIDDER, WAS AWARDED CONTRACT N62355-2494 ON JUNE 26, 1963, BY THE SALES CONTRACTING OFFICER AT THE U.S. NAVAL STATION, SANGLEY POINT, CAVITE, PHILIPPINES, COVERING THE PURCHASE OF FOUR 1957 CHEVROLET SEDANS UNDER ITEMS 1 THROUGH 4 FOR A TOTAL PRICE OF P10,440, PHILIPPINE CURRENCY. A BID DEPOSIT OF P2,088 ACCOMPANIED THE BID ON THESE ITEMS. RESPONSE TO REQUESTS FROM THE SALES CONTRACTING OFFICER THAT HE PAY THE BALANCE DUE AND TAKE DELIVERY OF THE AUTOMOBILES OR BE HELD IN DEFAULT UNDER THE PROVISIONS OF PARAGRAPH 7 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, MR. VALISNO ADVISED THE SALES CONTRACTING OFFICER THAT HE HAD BEEN THE VICTIM OF THE BUREAU OF CUSTOMS EMPLOYEES AND HE FURNISHED A LETTER FROM THE PHILIPPINE NATIONAL BUREAU OF INVESTIGATION SHOWING THAT AN INVESTIGATION WAS BEING MADE OF THE MATTER.

PARAGRAPH (I) OF THE NOTE AT THE END OF THE ADDITIONAL GENERAL PROVISIONS OF THE INVITATION, WHICH WAS MADE A PART OF CONTRACT N62355 2494, PROVIDES:

"THE MATERIAL SOLD WILL NOT BE DELIVERED UNLESS THE PURCHASER PRESENTS A RECEIPT FROM THE BUREAU OF CUSTOMS VERIFIED BY THE PHILIPPINE MILITARY LIAISON OFFICER SHOWING APPLICABLE TAXES HAVE BEEN PAID THE PHILIPPINE GOVERNMENT. RECEIPT/S) FROM THE BUREAU OF INTERNAL REVENUE DO NOT SUFFICE.'

IT IS THEREFORE CLEAR THAT MR. VALISNO WAS ON ACTUAL NOTICE AT THE TIME OF THE SUBMISSION OF HIS BID THAT HE WOULD BE REQUIRED TO PAY THE TAXES AND OTHER AMOUNTS REQUIRED BY THE PHILIPPINE GOVERNMENT, AND BY THE SUBMISSION OF HIS BID, HE ELECTED TO ASSUME THE RESPONSIBILITY OF SECURING THE REQUIRED RECEIPT. THERE IS NOTHING IN THE QUOTED PROVISION OR ELSEWHERE IN THE INVITATION WHICH MAY REASONABLY BE CONSTRUED AS CONDITIONING THE AWARD OR THE CONTRACTOR'S LIABILITY THEREUNDER UPON HIS SECURING A TAX RECEIPT.

ACCORDINGLY, THE AWARD HAVING RESULTED IN A BINDING AGREEMENT, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER. SETTLEMENT SHOULD BE MADE IN ACCORDANCE WITH THE TERMS OF PARAGRAPH 7 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT.