B-163644, MAR. 14, 1968

B-163644: Mar 14, 1968

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WHERE BEEF IN EXCESS OF CONTRACT MAXIMUM WEIGHT LIMITATION HAS BEEN ACCEPTED AND CONSUMED CONTRACTOR IS ENTITLED TO PAYMENT ON QUANTUM MERUIT BASIS. CLAYTOR: REFERENCE IS MADE TO LETTER DSAH-CFF OF FEBRUARY 21. THE MAXIMUM QUANTITY OF BEEF PERMITTED UNDER THE CONTRACT TO BE DELIVERED WAS 11. IT IS REPORTED THAT THE OVERAGE WAS CONSUMED. 753 POUNDS OF DELIVERED BEEF BUT WAS PAID ONLY FOR THE 11. THE CONTRACTING OFFICER HAS FOUND THAT THE AMOUNT CLAIMED BY THE CONTRACTOR IS IN LINE WITH THE MARKET PRICE AND IS FAIR AND REASONABLE. PAYMENT OF THE CLAIM IN THAT AMOUNT IS THEREFORE RECOMMENDED. THE ACCEPTANCE OF BEEF IN EXCESS OF THE CONTRACT MAXIMUM WEIGHT LIMITATION BY THE COMMISSARY OFFICER WAS AN UNAUTHORIZED ACTION UNDER THE CONTRACT.

B-163644, MAR. 14, 1968

CONTRACTS - DELIVERIES - EXCESS DECISION TO CHIEF, ACCOUNTING AND FINANCE DIV., DEFENSE SUPPLY AGENCY AUTHORIZING ALLOWANCE OF CLAIM FOR DELIVERY OF BEEF IN EXCESS OF PERMISSIBLE 10 PERCENT VARIATION. WHERE BEEF IN EXCESS OF CONTRACT MAXIMUM WEIGHT LIMITATION HAS BEEN ACCEPTED AND CONSUMED CONTRACTOR IS ENTITLED TO PAYMENT ON QUANTUM MERUIT BASIS. HOWEVER, APPROPRIATE INSTRUCTIONS SHOULD BE ISSUED TO COMMISSARY OR OTHER RECEIVING OFFICERS TO PRECLUDE REOCURRENCE OF SITUATION.

TO MR. CLAYTOR:

REFERENCE IS MADE TO LETTER DSAH-CFF OF FEBRUARY 21, 1968, FORWARDING FOR CONSIDERATION THE CLAIM OF THE KAIN CATTLE COMPANY IN THE AMOUNT OF $317.69, REPRESENTING BEEF DELIVERED IN EXCESS OF THE PERMISSIBLE 10- PERCENT VARIATION PROVIDED IN CONTRACT DSA-133-7-M 05279.

THE CONTRACT PROVIDED FOR DELIVERY TO THE COMMISSARY OFFICER, LACKLAND AIR FORCE BASE, OF 10,000 POUNDS OF CHILLED BEEF AT $0.4219 PER POUND. THE "EXTENT OF QUANTITY VARIATION" CLAUSE IN THE CONTRACT PROVIDED THAT THE PERMISSIBLE VARIATION IN QUANTITY SHALL BE LIMITED TO 10 PERCENT. THEREFORE, THE MAXIMUM QUANTITY OF BEEF PERMITTED UNDER THE CONTRACT TO BE DELIVERED WAS 11,000 POUNDS. HOWEVER, THE RECEIVING REPORT SHOWS THAT THE COMMISSARY OFFICER RECEIVED AND ACCEPTED 11,753 POUNDS OF BEEF DELIVERED BY THE CONTRACTOR. THUS, THE CONTRACTOR OVERDELIVERED 753 POUNDS OF BEEF. IT IS REPORTED THAT THE OVERAGE WAS CONSUMED.

THE CONTRACTOR BILLED FOR PAYMENT FOR THE 11,753 POUNDS OF DELIVERED BEEF BUT WAS PAID ONLY FOR THE 11,000 MAXIMUM POUNDS AUTHORIZED BY THE CONTRACT. THE CONTRACTOR HAS RECLAIMED FOR THE 753-POUND OVERAGE AT $0.4219 PER POUND TOTALING $317.69. THE CONTRACTING OFFICER HAS FOUND THAT THE AMOUNT CLAIMED BY THE CONTRACTOR IS IN LINE WITH THE MARKET PRICE AND IS FAIR AND REASONABLE. PAYMENT OF THE CLAIM IN THAT AMOUNT IS THEREFORE RECOMMENDED.

THE ACCEPTANCE OF BEEF IN EXCESS OF THE CONTRACT MAXIMUM WEIGHT LIMITATION BY THE COMMISSARY OFFICER WAS AN UNAUTHORIZED ACTION UNDER THE CONTRACT. HOWEVER, SINCE THE OVERAGE OF BEEF HAS BEEN CONSUMED TO THE BENEFIT OF THE GOVERNMENT, THE CONTRACTOR IS ENTITLED TO PAYMENT THEREFOR ON A QUANTUM MERUIT BASIS. THEREFORE, ALLOWANCE OF THE CLAIM AS RECOMMENDED BY THE CONTRACTING OFFICER APPEARS TO BE PROPER UNDER THE CIRCUMSTANCES. SETTLEMENT BY OUR OFFICE WILL ISSUE IN DUE COURSE. HOWEVER, WE SUGGEST THAT APPROPRIATE INSTRUCTIONS BE ISSUED TO COMMISSARY OR OTHER RECEIVING OFFICERS TO PRECLUDE A RECURRENCE OF THIS SITUATION.