B-155378, OCT. 28, 1964

B-155378, OCT. 28, 1964

TO MR. THOMAS B. JONES, AUTHORIZED CERTIFYING OFFICER, POST OFFICE DEPARTMENT:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 13, 1964, FILE APB:TBJ:HVL, REQUESTING A DECISION AS TO WHETHER THERE MAY BE CERTIFIED FOR PAYMENT AN INVOICE IN THE AMOUNT OF $7,261.50 PRESENTED BY THE STUDEBAKER CORPORATION AND COVERING LOADING CHARGES INCURRED AND PAID THROUGH MAY 8, 1964, TO ITS SUBCONTRACTOR, MET-PRO, INC., UNDER CONTRACT NO. GS-OOS-46411, DATED APRIL 25, 1963.

THE CONTRACT CALLED FOR THE FURNISHING, F.O.B. LANSDALE, PENNSYLVANIA, OF 3,391 MAIL DELIVERY TRUCKS AT A UNIT PRICE OF $1,883.24 OR A TOTAL OF $6,386,066.84. THE INVITATION FOR BIDS, WHICH WAS MADE A PART OF THE CONTRACT, HAD REQUESTED BIDDERS TO STATE PRICES FOR LOADING THE TRUCKS AT POINT OF ORIGIN AND STUDEBAKER'S ACCEPTED BID INCLUDED THE FOLLOWING:

"* * * BIDS ARE SOLICITED FOB POINT OF ORIGIN (MANUFACTURER'S ACTUAL PRODUCTION POINT OR OTHER OF THE MANUFACTURER'S FACILITIES), FOR SHIPMENT BY HIGHWAY CARRIER TO ULTIMATE DESTINATIONS DESIGNATED BY THE POST OFFICE DEPARTMENT. IN THE EVENT THE GOVERNMENT ELECTS TO SHIP UNITS TO AN ULTIMATE DESTINATION BY RAIL, STATE AMOUNT WHICH WILL BE CHARGED FOR LOADING ON:

CONVENTIONAL EQUIPMENT: $ 10.00

TTX OR SIMILAR EQUIPMENT: $ NONE

(LOADING CHARGE WILL NOT BE CONSIDERED IN EVALUATION OF BIDS.)"

THE CONTRACT WAS ENTERED INTO BY GENERAL SERVICES ADMINISTRATION ALTHOUGH IT APPEARS THAT THE POST OFFICE DEPARTMENT ARRANGED FOR TRANSPORTATION OF VEHICLES FROM THE SUBCONTRACTOR'S (MET-PRO, INC.) PLANT AT LANSDALE, PENNSYLVANIA, BY DRIVEAWAY METHOD AND BY "TTX" OR SIMILAR EQUIPMENT AND ISSUED SHIPPING INSTRUCTIONS ACCORDINGLY. IT IS EXPLAINED THAT "TTX" OR SIMILAR EQUIPMENT IS A FLAT RAILROAD CAR EQUIPPED WITH CHAIN TIE DOWN WHEREAS CONVENTIONAL EQUIPMENT IS A FLAT RAILROAD CAR WITHOUT CHAIN TIE DOWN EQUIPMENT. THIS EQUIPMENT IS OWNED BY TRAILER TRAIN CORPORATION AND IS LEASED TO MEMBER RAILROAD LINES.

IT IS CONTENDED BY THE CONTRACTOR ON BEHALF OF ITS SUBCONTRACTOR THAT "TTX" OR SIMILAR EQUIPMENT WAS NOT AVAILABLE AT LANSDALE WHEN THE CONTRACT WAS ENTERED INTO AND THEREFORE NO RATE WAS IN EFFECT. CONSEQUENTLY, WHEN THE WORD "NONE" WAS USED BY STUDEBAKER IN THE SPACE PROVIDED FOR QUOTING A PRICE FOR SUCH LOADING, IT WAS THE SAME AS WHEN IT HAD USED THE WORDS "NOT APPLICABLE" IN A PRIOR CASE. THE CONTRACTING OFFICER AGREES WITH THIS VIEW AND STATES THAT THE INTENT WAS CLEAR SINCE THE SERVICE WAS NOT AVAILABLE AT EITHER TIME. THE RECORD SHOWS, HOWEVER, THAT THE POST OFFICE DEPARTMENT PREVAILED ON THE RAILROAD SERVING THE LANSDALE PLANT TO MAKE "TTX" SERVICE AVAILABLE AND IT SOUGHT TO HAVE STUDEBAKER, THROUGH ITS SUBCONTRACTOR AT LANDSALE, TO LOAD VEHICLES ON "TTX" EQUIPMENT AT NO CHARGE.

THE CONTRACTING OFFICER EXPRESSES HIS VIEW THAT "THERE IS NO JUSTIFICATION OR BASIS FOR ANY SUCH INTERPRETATION AS WOULD REQUIRE THE CONTRACTOR TO PERFORM THIS SERVICE WITHOUT CHARGE AS A RESULT OF CHANGED CONDITIONS, WHICH WERE NON-EXISTENT AT DATE OF BID.' IN VIEW OF THE FACT THAT THIS "TTX" LOADING SERVICE WAS NOT AVAILABLE AT THE TIME THAT THE BID WAS SUBMITTED AND THE FACT THAT THE LOADING CHARGES WERE NOT CONSIDERED IN EVALUATING BIDS, WE FIND NO BASIS FOR REQUIRING THE CONTRACTOR TO PERFORM THE "TTX" LOADING SERVICE AT NO COST TO THE GOVERNMENT.

ACCORDINGLY THE CONTRACTOR'S INVOICE FOR THE "TTX" LOADING SERVICE PERFORMED UNDER THE CONTRACT MAY BE CERTIFIED FOR PAYMENT, IF OTHERWISE CORRECT. THE INVOICE IS RETURNED HEREWITH.