B-161841, JUL. 26, 1967

B-161841, JUL. 26, 1967

CONTRACTS - TERMINATION - COSTS DECISION TO CERTIFYING OFFICER OF THE FBI CONCERNING CLAIM OF RICHMOND PARKING CORPORATION INCIDENT TO TERMINATION OF CONTRACT. UPON THE TERMINATION OF A VEHICLE REPAIR AND STORAGE CONTRACT WHICH PROVIDED A SPECIFIC AMOUNT ($18) PER MONTH FOR THE ROOM FOR STORAGE AND REPAIR BUT DID NOT SPECIFY NOR ESTIMATE THE NUMBER OF VEHICLES THAT WOULD BE STORED DURING A MONTH, THE GOVT. IS ONLY OBLIGATED TO PAY THE STIPULATED MONTHLY PAYMENT FOR THE REMAINING TWO MONTHS OF THE CONTRACT TERM AND IS NOT REQUIRED TO MAKE STORAGE PAYMENTS ON THE BASIS OF THE AVERAGE MONTHLY CHARGE FOR THE PRECEEDING MONTHS SINCE THE CONTRACT AT ITS INCEPTION WAS NOT INFORCEABLE BUT BECAME VALID ONLY TO THE EXTENT IT WAS BEING PERFORMED.

TO MR. MAURICE F. ROW, AUTHORIZED CERTIFYING OFFICER, DEPARTMENT OF JUSTICE, FEDERAL BUREAU OF INVESTIGATION:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 19, 1967, REQUESTING OUR DECISION AS TO THE PROPRIETY OF PAYMENT OF AN INVOICE SUBMITTED BY RICHMOND PARKING CORPORATION IN THE AMOUNT OF $365 UNDER CONTRACT J FBI 6345.

ON MAY 27, 1966, THE FEDERAL BUREAU OF INVESTIGATION (FBI) ENTERED INTO A CONTRACT WITH THE RICHMOND PARKING CORPORATION, 109 NORTH SIXTH STREET, RICHMOND, VIRGINIA 23219, FOR THE STORAGE OF GOVERNMENT-OWNED VEHICLES AND FOR CERTAIN OTHER MAINTENANCE SERVICES. THE CONTRACT WAS TO BE EFFECTIVE FROM JULY 1, 1966, THROUGH JUNE 30, 1967. STORAGE RATES UNDER THE CONTRACT WERE AS FOLLOWS:

"ONE CAR AT $18.00 PER MONTH

TWO TO FIVE CARS AT $18.00 PER MONTH EACH

SIX TO TEN CARS AT $18.00 PER MONTH EACH

ELEVEN OR MORE CARS AT $18.00 PER MONTH EACH"

THE CONTRACT FURTHER PROVIDED FOR CERTAIN AUTOMOBILE REPAIR SERVICES AT SPECIFIED RATES. MOREOVER, THE CONTRACT CONTAINED A "CHARGE FOR ROOM, FOR STORAGE AND REPAIRS AT $18.00 PER MONTH.' YOU REPORT THAT IN APRIL 1967, THE FBI WAS ABLE TO OBTAIN STORAGE SPACE FOR ITS VEHICLES IN GENERAL SERVICES ADMINISTRATION-CONTROLLED SPACE. BY LETTER DATED APRIL 25, 1967, FROM THE SPECIAL AGENT IN CHARGE OF THE RICHMOND, VIRGINIA, DIVISION, THE CONTRACTOR WAS ADVISED THAT EFFECTIVE APRIL 26, 1967, ALL CARS AND OTHER BUREAU PROPERTY WOULD BE REMOVED FROM THE CONTRACTOR'S PREMISES AND THAT THE STORAGE SPACE WOULD NO LONGER BE USED BY THE FBI.

IT IS FURTHER REPORTED THAT THE CONTRACTOR HAS ADVISED THAT IT EXPECTS STORAGE PAYMENTS FOR THE MONTHS OF MAY AND JUNE BASED ON THE AVERAGE MONTHLY CHARGE FOR THE PAST YEAR.

YOU OBSERVE THAT UNDER THE TERMS OF THE CONTRACT, THE ONLY AMOUNT FOR WHICH THE GOVERNMENT IS LIABLE FOR THE MONTHS OF MAY AND JUNE IS THE $18 PER MONTH CHARGE FOR THE ROOM FOR "STORAGE AND REPAIRS.' WE AGREE THAT THE GOVERNMENT IS LIABLE IN THE AMOUNT OF $36 FOR RENTAL OF THE STORAGE ROOM FOR THE MONTHS OF MAY AND JUNE 1967. THE GOVERNMENT WAS UNCONDITIONALLY OBLIGATED TO PAY FOR THE USE OF THE STORAGE ROOM FOR THE ENTIRE CONTRACT PERIOD. HOWEVER, WE DO NOT BELIEVE THE GOVERNMENT IS LIABLE FOR ANY ADDITIONAL STORAGE CHARGES FOR THE MONTHS OF MAY AND JUNE 1967. THE CONTRACT DID NOT SPECIFY A MINIMUM NUMBER OF GOVERNMENT-OWNED VEHICLES TO BE STORED EACH MONTH NOR DID IT CONTAIN AN ESTIMATE OF THE NUMBER OF VEHICLES WHICH THE GOVERNMENT EXPECTED TO BE STORED. STORAGE CHARGES WERE TO BE BASED SOLELY ON THE NUMBER OF VEHICLES ACTUALLY STORED DURING THE MONTH. THERE IS NOTHING IN THE CONTRACT WHICH REQUIRED THE GOVERNMENT TO STORE, OR LIMIT ITS STORAGE DEMAND TO, ANY ASCERTAINABLE NUMBER OF VEHICLES. THEREFORE, THE CONTRACT AT ITS INCEPTION WAS NOT ENFORCEABLE BUT BECAME VALID AND BINDING ONLY TO THE EXTENT THAT IT WAS PERFORMED. SEE WILLARD, SUTHERLAND AND COMPANY V. UNITED STATES, 262 U.S. 489, 493.

ACCORDINGLY, YOU ARE ADVISED THAT THE AMOUNT OF $36 PROPERLY MAY BE CERTIFIED FOR PAYMENT UNDER CONTRACT. THE CONTRACTOR'S INVOICE IN THE AMOUNT OF $365 IS RETURNED.