B-152702, MAR. 18, 1964

B-152702, MAR. 18, 1964

TO HEMPEL RENT A CAR, INC.:

REFERENCE IS MADE TO YOUR STATEMENT DATED OCTOBER 1, 1963, IN EFFECT REQUESTING REVIEW OF THE SETTLEMENT DATED APRIL 10, 1963, WHICH DISALLOWED YOUR CLAIM FOR ADDITIONAL COMPENSATION FOR THE RENTAL OF AUTOMOBILES BY THE DEPARTMENT OF THE ARMY, CORPS OF ENGINEERS, ST. LOUIS, MISSOURI.

THE RECORD SHOWS THAT PROPOSALS WERE REQUESTED BY THE UNITED STATES ARMY ENGINEER DISTRICT, ST. LOUIS, MISSOURI, FOR THE RENTAL OF TWO STATION WAGONS. BY LETTER DATED DECEMBER 27, 1962, YOUR FIRM SUBMITTED A PROPOSAL FOR THE RENTAL OF TWO 1961 FALCON STATION WAGONS AT A QUOTED RATE OF $125 PER MONTH, PLUS $0.08 PER MILE AND $10 PER MONTH FOR CERTAIN INSURANCE. THE LESSOR WAS TO FURNISH ALL MAINTENANCE AND THE GOVERNMENT WAS TO FURNISH ALL GASOLINE EXCEPT THE INITIAL TANKFUL. UPON RECEIPT OF YOUR PROPOSAL BY THE GOVERNMENT BUYER, YOU WERE ADVISED THAT IT COULD NOT BE GUARANTEED THAT THE VEHICLES WOULD BE USED BY THE GOVERNMENT FOR THE FULL 45 DAYS ANTICIPATED. BASED ON THE FOREGOING NEGOTIATIONS, PURCHASE ORDER NO. LMLSD 63-595 WAS ISSUED ON DECEMBER 27, 1962, TO YOUR FIRM. ISSUING SUCH PURCHASE ORDER YOUR PROPOSAL WAS CONVERTED INTO ADAILY RATE OF $4.50 AND THE MILEAGE RATE OF $0.08 PER MILE WAS SET FORTH. MOREOVER, ON PAGE 2 OF THE PURCHASE ORDER IT WAS PROVIDED THAT:

"PAYMENT WILL BE MADE ON BASIS OF ACTUAL MILEAGE AND PERIOD OF TIME EACH VEHICLE IS IN THE POSSESSION OF THE GOVERNMENT. RATES STATED ARE PER DAY, FRACTIONS OF DAYS ARE COUNTED AS FULL DAYS. * * *"

ALSO, THE PURCHASE ORDER SCHEDULE, RATHER THAN STATING THE MINIMUM RENTAL PERIOD TO BE 45 DAYS WAS PREFACED WITH THE STATEMENT--- "FURNISH ON A RENTAL BASIS FOR A PERIOD NOT TO EXCEED 45 DAYS THE FOLLOWING: "

PURSUANT TO SUCH PURCHASE ORDER YOUR FIRM FURNISHED THE TWO SPECIFIED VEHICLES. HOWEVER, THE DRIVER OF EACH VEHICLE WAS REQUIRED BY YOUR FIRM TO SIGN A RENTAL AGREEMENT WHICH CONTAINED TERMS DIFFERENT FROM AND CONFLICTING WITH THOSE CONTAINED IN THE GOVERNMENT PURCHASE ORDER. YOUR RENTAL AGREEMENT PROVIDED THAT:

"* * * THIS RENTAL CONTRACT CONTAINS THE ENTIRE AGREEMENT BETWEEN RENTER AND OWNER OR OWNER'S REPRESENTATIVE; IT IS AGREED THAT THESE TERMS ARE CONTRACTUAL AND HAVE NOT, AND CANNOT BE ALTERED BY ANOTHER DOCUMENT OR ORAL AGREEMENT.'

THESE TERMS WERE REPUGNANT AND CONTRARY TO THE TERMS OF THE GOVERNMENT PURCHASE ORDER. UPON BECOMING AWARE OF THIS, THE ORDERING OFFICER DIRECTED RETURN OF THE TWO STATION WAGONS TO YOUR FIRM, AND SUCH WAS ACCOMPLISHED ON JANUARY 7, 1963. BY LETTER OF JANUARY 8, 1963, YOUR FIRM WAS ADVISED OF THE REASON FOR RETURN OF THE VEHICLES, AND ON JANUARY 15, 1963, YOU WERE TENDERED PAYMENT IN THE AMOUNT OF $53.96 IN FULFILLMENT OF THE GOVERNMENT'S OBLIGATION UNDER THE PURCHASE ORDER FOR THE RENTAL OF THE TWO STATION WAGONS; HOWEVER, YOU RETURNED EACH CHECK AND THE ACCOMPANYING VOUCHERS, AND INSISTED ON PAYMENT AT THE RATE OF $42.50 PER VEHICLE FOR THE FIVE DAYS THEY WERE USED AND $0.10 PER MILE. ON JANUARY 18, 1963, THE CHECK FOR $53.96 WAS AGAIN TENDERED TO YOU AND AGAIN RETURNED BY YOU, AND BY LETTER DATED JANUARY 24, 1963, THE CHECK WAS RETURNED TO YOU ONCE MORE.

YOUR CLAIM FOR $47.24 ADDITIONAL COMPENSATION FOR THE RENTAL OF THE TWO STATION WAGONS APPEARS TO STEM FROM YOUR BELIEF THAT THE GOVERNMENT RENTED YOUR VEHICLES AT A STIPULATED MONTHLY RATE, AND SINCE THE GOVERNMENT ONLY KEPT THE VEHICLES INVOLVED FOR A PERIOD OF FIVE DAYS, IT SHOULD BE OBLIGATED TO PAY THE PROPORTIONATELY HIGHER DAILY RATE YOU NOW CLAIM.

IT SHOULD BE POINTED OUT THAT WHILE YOUR INITIAL PROPOSAL MIGHT HAVE BEEN ON THE BASIS OF A MONTHLY RATE, THE PURCHASE ORDER WHICH WAS A COUNTEROFFER BY THE CORPS OF ENGINEERS TO YOUR PROPOSAL, AND WHICH WAS ACCEPTED BY YOU WITHOUT OBJECTION, SPECIFIED A DAILY RATE FOR EACH AUTOMOBILE NOT TO EXCEED 45 DAYS. THE PURCHASE ORDER ALSO STIPULATED THAT PAYMENT WOULD BE MADE ON THE BASIS OF ACTUAL MILEAGE AND THE PERIOD OF TIME EACH VEHICLE WAS IN THE POSSESSION OF THE GOVERNMENT AND THE RATES STATED WERE ON A DAILY BASIS.

IN VIEW OF THE PLAIN TERMS OF THE GOVERNMENT PURCHASE ORDER, THERE IS NO BASIS FOR PAYMENT TO YOU OF ANY ADDITIONAL COMPENSATION, AND THE SETTLEMENT OF APRIL 10, 1963, IS SUSTAINED.