B-162949, JUN. 7, 1968

B-162949: Jun 7, 1968

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TO CAPTAIN METCALFE: REFERENCE IS MADE TO LETTER DSAH-CFF. YOUR REQUEST FOR AN ADVANCE DECISION WAS ORIGINALLY SUBMITTED TO OUR OFFICE ON NOVEMBER 17. THE MATTER WAS RETURNED FOR CONSIDERATION UNDER THE ADMINISTRATIVE PROCEDURES SET OUT IN THE DISPUTES CLAUSE OF STANDARD FORM 32 OF THE CONTRACT. THE CONTRACT PROVIDED THAT THE SUPPLIES WERE TO BE DELIVERED F.O.B. DISCOUNTS - (A) PROMPT-PAYMENT DISCOUNTS WILL BE INCLUDED IN THE EVALUATION OF BIDS. PROVIDED THE PERIOD OF THE OFFERED DISCOUNT IS SUFFICIENT TO PERMIT PAYMENT WITHIN SUCH PERIOD IN THE REGULAR COURSE OF BUSINESS UNDER THE DELIVERY. TIME WILL BE COMPUTED FROM DATE OF DELIVERY OF THE SUPPLIES TO CARRIER WHEN DELIVERY AND ACCEPTANCE ARE AT POINT OF ORIGIN.

B-162949, JUN. 7, 1968

TO CAPTAIN METCALFE:

REFERENCE IS MADE TO LETTER DSAH-CFF, DATED APRIL 18, 1968, FROM THE CHIEF, ACCOUNTING AND FINANCE DIVISION, OFFICE OF THE COMPTROLLER, TRANSMITTING YOUR LETTER OF APRIL 8, 1968, WITH ENCLOSURES, WHEREIN YOU REQUESTED AN ADVANCE DECISION AS TO THE PROPRIETY OF REFUNDING THE SUM OF $2,392.03, REPRESENTING DISCOUNT TAKEN ON A PAYMENT TO THE KINGS POINT INDUSTRIES, INC., UNDER CONTRACT NO. AF 09/603/-60098.

YOUR REQUEST FOR AN ADVANCE DECISION WAS ORIGINALLY SUBMITTED TO OUR OFFICE ON NOVEMBER 17, 1967, AND BY LETTER B-162949, DECEMBER 20, 1967, TO THE CHIEF, ACCOUNTING AND FINANCE DIVISION, OFFICE OF THE COMPTROLLER, THE MATTER WAS RETURNED FOR CONSIDERATION UNDER THE ADMINISTRATIVE PROCEDURES SET OUT IN THE DISPUTES CLAUSE OF STANDARD FORM 32 OF THE CONTRACT.

THE RECORD BEFORE US SHOWS THAT UNDER THE TERMS OF THE CONTRACT THE CONTRACTOR AGREED TO FURNISH A QUANTITY OF CONTAINER ASSEMBLIES AT THE PRICE STIPULATED THEREIN, LESS A DISCOUNT OF 5 PERCENT FOR PAYMENT WITHIN 10 DAYS. THE CONTRACT PROVIDED THAT THE SUPPLIES WERE TO BE DELIVERED F.O.B. CARRIER'S EQUIPMENT AT ITS PLANT AT FAYETTEVILLE, NORTH CAROLINA, AND THAT FINAL INSPECTION AND ACCEPTANCE WOULD BE AT ORIGIN. PARAGRAPH 7 OF STANDARD FORM 30 MADE A PART OF THE CONTRACT PROVIDES AS FOLLOWS:

"7. DISCOUNTS - (A) PROMPT-PAYMENT DISCOUNTS WILL BE INCLUDED IN THE EVALUATION OF BIDS, PROVIDED THE PERIOD OF THE OFFERED DISCOUNT IS SUFFICIENT TO PERMIT PAYMENT WITHIN SUCH PERIOD IN THE REGULAR COURSE OF BUSINESS UNDER THE DELIVERY, INSPECTION, AND PAYMENT PROVISIONS OF THE INVITATION AND BID.

"/B) IN CONNECTION WITH ANY DISCOUNT OFFERED, TIME WILL BE COMPUTED FROM DATE OF DELIVERY OF THE SUPPLIES TO CARRIER WHEN DELIVERY AND ACCEPTANCE ARE AT POINT OF ORIGIN, OR FROM DATE OF DELIVERY AT DESTINATION OR PORT OF EMBARKATION WHEN DELIVERY AND ACCEPTANCE ARE AT EITHER OF THOSE POINTS, OR FROM DATE CORRECT INVOICE OR VOUCHER IS RECEIVED IN THE OFFICE SPECIFIED BY THE GOVERNMENT IF THE LATTER DATE IS LATER THAN THE DATE OF DELIVERY. PAYMENT IS DEEMED TO BE MADE, FOR THE PURPOSE OF EARNING THE DISCOUNT, ON THE DATE OF MAILING OF THE GOVERNMENT CHECK.' ALSO, PARAGRAPH 27 ATTACHED TO STANDARD FORM 32 MADE A PART OF THE CONTRACT PROVIDES AS FOLLOWS:

"27. DISCOUNTS - IN CONNECTION WITH ANY DISCOUNT OFFERED, AS MAY BE SET FORTH IN THE SCHEDULE, TIME WILL BE COMPUTED FROM DATE OF THE DELIVERY OF THE SUPPLIES TO CARRIER WHEN DELIVERY AND ACCEPTANCE ARE AT POINT OF ORIGIN, OR FROM DATE OF DELIVERY AT DESTINATION OR PORT OF EMBARKATION, WHEN DELIVERY AND ACCEPTANCE ARE AT THOSE POINTS, OR FROM DATE CORRECT INVOICE OR VOUCHER (PROPERLY CERTIFIED, IF THE CONTRACT SO PROVIDES, BY THE CONTRACTOR) IS RECEIVED IN THE OFFICE SPECIFIED BY THE GOVERNMENT IF THE LATTER DATE IS LATER THAN THE DATE OF DELIVERY. PAYMENT IS DEEMED TO BE MADE, FOR THE PURPOSE OF EARNING THE DISCOUNT, ON THE DATE OF MAILING OF THE GOVERNMENT CHECK.'

IN ACCORDANCE WITH OUR LETTER OF DECEMBER 20, 1967, THE CONTRACTING OFFICER MADE THE FOLLOWING DETERMINATION OF FACT UNDER THE DISPUTES CLAUSE OF THE CONTRACT:

"1. I HAVE REVIEWED THE SUBJECT CONTRACT DATED 9 JUNE 1965 AND FIND THAT IT PROVIDES FOR INSPECTION AND ACCEPTANCE OF THE ITEMS TO BE PRODUCED THEREUNDER TO BE AT THE CONTRACTOR'S PLANT, FAYETTEVILLE, NORTH CAROLINA, AND THAT THE F.O.B. POINT IS -ORIGIN- CONTRACTOR'S PLANT, FAYETTEVILLE, N.C.

"2. THE FILE CLEARLY INDICATES THAT PARTIAL SHIPMENT NO. 1 WAS INSPECTED AND ACCEPTED BY THE GOVERNMENT QAR ON 1 JUNE 1966, AND THAT THE MATERIAL WAS DELIVERED TO THE CARRIER DESIGNATED IN THE GBL, MCLEAN TRUCKING CO. ON 1 JUNE 1966.

"3. THE FILE FURTHER REVEALS THAT KINGS POINT INDUSTRIES STATES, ITS NORMAL PRACTICE IS TO SUBMIT ALL ITS INVOICES BY CERTIFIED MAIL AND THAT IN THIS PARTICULAR INSTANCE IT DID SUBMIT AN INVOICE COPY DD 250 BY CERTIFIED MAIL AND FOR WHICH IT HAS A CERTIFIED MAIL RECEIPT NO. 466950 SIGNED ON 3 JUNE 1966 BY THE POST OFFICE, AND THE SAME RECEIPT NO. 466950 SHOWING RECEIPT BY THE DCASR NY MAIL ROOM ON 6 JUNE 1966.

"4. KINGS POINT NORMAL PRACTICE IS TO SUBMIT INVOICES PROMPTLY AFTER SHIPMENT AND IT MUST BE ASSUMED THAT IN THIS INSTANCE IT FOLLOWED ITS NORMAL BUSINESS PROCEDURE AND SUBMITTED AN INVOICE DD 250 AS IT HAS POSITIVELY STATED.

"5. THE DISBURSING OFFICER STATES THAT IT DID IN FACT RECEIVE A CERTIFIED MAIL ENVELOPE COVERED BY RECEIPT NO. 466950, BUT IT IS UNABLE TO STATE WHAT THE CONTENTS OF THE CERTIFIED MAIL ENVELOPE WERE. HOWEVER, KINGS POINT DEFINITELY STATES THAT THE CONTENTS OF THE CERTIFIED MAIL ENVELOPE RECEIPT NO. 466950 WAS INVOICE COPY DD 250 FOR PARTIAL SHIPMENT NO. 1.

"6. CREDIBILITY MUST BE GIVEN TO KINGS POINT'S STATEMENT THAT IT COMPLIED WITH ITS NORMAL BUSINESS PRACTICE AND THAT IT DID SUBMIT AN INVOICE COPY DD 250 PARTIAL SHIPMENT NO. 1 ON 3 JUNE 1966 TO DCASR, N.Y.

"7. IT IS THEREFORE THE DECISION OF THE CONTRACTING OFFICER THAT AN INVOICE FOR PARTIAL SHIPMENT NO. 1 ON CONTRACT NO. AF09-603-60098 OR AN INVOICE COPY DD 250 FOR THE SAID PARTIAL SHIPMENT NO. 1 WAS RECEIVED BY DCASR, N.Y. ON 6 JUNE 1966.'

UNDER THE CRITERIA OF 41 U.S.C. 321-322, THE DECISION OF THE CONTRACTING OFFICER CONCERNING THE DATE THE INVOICE WAS RECEIVED BY THE GOVERNMENT IS FINAL, THERE BEING NO BASIS ON THE RECORD TO CONCLUDE THAT IT WAS ARBITRARY OR ERRONEOUS. SINCE PAYMENT OF THE CONTRACTOR'S INVOICE WAS NOT MADE UNTIL AUGUST 23, 1966 -- 78 DAYS LATER -- THE 5 PERCENT, 10-DAY DISCOUNT WAS NOT EARNED. ACCORDINGLY, YOU ARE ADVISED THAT, IF OTHERWISE PROPER, REFUND OF THE UNEARNED DISCOUNT SHOULD BE MADE TO THE CONTRACTOR.

THE FILES SUBMITTED WITH YOUR LETTER OF APRIL 8, 1968, ARE HEREWITH RETURNED.