B-166546, JUN. 12, 1969

B-166546: Jun 12, 1969

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485 WHICH WAS WITHHELD BY THE DEFENSE SUPPLY AGENCY AS THE RESULT OF AN INFORMAL INQUIRY ISSUED BY OUR OFFICE AT DENVER. THE CONTRACTOR SHALL FURNISH SUCH TRANSPORTATION AND THE GOVERNMENT WILL REIMBURSE THE CONTRACTOR FOR SUCH COST PROVIDED THE TRANSPORTATION HAS BEEN APPROVED AS PROVIDED THEREIN. DAVIS WERE TERMINATED EFFECTIVE FEBRUARY 15. S-0275-15 MAKING PAYMENT TO BENDIX WAS BASED IN PART ON SERVICES PERFORMED BY THE TWO NAMED EMPLOYEES COVERING THE PERIOD OF FEBRUARY 1. THE ACTUAL DATE IS STATED TO HAVE BEEN DUE TO THE LACK OF GOVERNMENT TRANSPORTATION. IN VIEW OF THE FOREGOING BENDIX CONTENDS THAT IT IS ENTITLED TO REIMBURSEMENT NOT ONLY UNDER THE CONTRACT PROVISIONS BUT ALSO ON A QUANTUM MERUIT BASIS SINCE THE GOVERNMENT ACCEPTED THE SERVICES.

B-166546, JUN. 12, 1969

TO MR. CAMPUZANO:

YOUR LETTER OF MARCH 19, 1969, TRANSMITTED A LETTER DATED MARCH 10, 1969, ADDRESSED TO OUR OFFICE BY THE BENDIX FIELD ENGINEERING CORPORATION (BENDIX) REQUESTING REIMBURSEMENT OF $1,485 WHICH WAS WITHHELD BY THE DEFENSE SUPPLY AGENCY AS THE RESULT OF AN INFORMAL INQUIRY ISSUED BY OUR OFFICE AT DENVER, COLORADO.

UNDER THE TERMS OF CONTRACT NO. F09603-67-C-1057, EFFECTIVE SEPTEMBER 21, 1966, BENDIX AGREED TO FURNISH TO THE AIR FORCE THE SUPPLIES AND SERVICES NECESSARY TO MAINTAIN THE RDR-100 WEATHER AVOIDANCE RADAR SYSTEM AN/APS- 113, THE DRA-12/CPA-24C DOPPLER NAVIGATION RADAR SYSTEM AN/APN-179, AND SUPPORTING PECULIAR TEST EQUIPMENT IN A SERVICEABLE CONDITION IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THE CONTRACT. ITEM 1AA OF THE CONTRACT REQUIRES BENDIX TO FURNISH THE SERVICES OF PERSONNEL IN VIETNAM TO PERFORM REPAIR, MODIFICATION, INSPECTION, TESTING, CALIBRATION AND PREVENTIVE MAINTENANCE OF COMPONENT PARTS, SUBASSEMBLIES, ASSEMBLIES AND SYSTEMS OF THE AN/APS-113, AN/APN-179 AND SUPPORTING TEST EQUIPMENT AND AEROSPACE GROUND EQUIPMENT AS REQUIRED TO MAINTAIN SAID ITEMS IN FULLY OPERATIONAL AND SERVICEABLE CONDITION.

PARAGRAPH 2 OF SECTION III OF THE SPECIAL PROVISIONS APPLICABLE TO ITEM 1 OF THE CONTRACT PROVIDES THAT THE GOVERNMENT WOULD FURNISH SUITABLE TRANSPORTATION FOR CONTRACTOR PERSONNEL FROM THE CONTRACTOR'S PLANT TO THE SITE OF THE WORK AND RETURN TO THE PLANT. PARAGRAPH 5 OF SECTION III PROVIDES THAT TRANSPORTATION FROM AERIAL PORT OF EMBARKATION TO THE REPUBLIC OF VIETNAM AND RETURN SHALL BE ACCOMPLISHED BY MILITARY AIRCRAFT UNLESS OTHERWISE APPROVED BY THE CONTRACTING OFFICER. PART III, BI, OF ATTACHMENT "A" OF THE CONTRACT PROVIDES THAT, IF THE GOVERNMENT FAILS TO FURNISH SUITABLE TRANSPORTATION, THE CONTRACTOR SHALL FURNISH SUCH TRANSPORTATION AND THE GOVERNMENT WILL REIMBURSE THE CONTRACTOR FOR SUCH COST PROVIDED THE TRANSPORTATION HAS BEEN APPROVED AS PROVIDED THEREIN. PARAGRAPH 4 (A) (2) OF SECTION V PROVIDES THAT THE TIME NECESSARY FOR THE RETURN OF CONTRACTOR PERSONNEL TO THE PLANT OF THE CONTRACTOR SHALL BE CONSIDERED AS TIME SPENT IN THE PERFORMANCE OF CONTRACT SERVICES.

SPECIAL ORDERS NOS. T-6976 AND T-6940, DATED OCTOBER 21 AND 20, 1966, RESPECTIVELY, AUTHORIZED MR. JACK A. KABATZNICK AND MR. GEORGE W. DAVIS, EMPLOYEES OF BENDIX, TO PROCEED TO VIETNAM RELATIVE TO PERFORMANCE OF THE CONTRACT SERVICES.

BY SUPPLEMENTAL AGREEMENT NO. P002, EXECUTED MARCH 30, 1967, THE SERVICES OF MR. KABATZNICK AND MR. DAVIS WERE TERMINATED EFFECTIVE FEBRUARY 15, 1967. SINCE VOUCHER NO. S-0275-15 MAKING PAYMENT TO BENDIX WAS BASED IN PART ON SERVICES PERFORMED BY THE TWO NAMED EMPLOYEES COVERING THE PERIOD OF FEBRUARY 1, 1967, TO MARCH 1, 1967, OUR AUDIT DIVISION REPRESENTATIVES REQUESTED AN EXPLANATION OF SUCH PAYMENT. IN REPLY THERETO, THE DISBURSING OFFICER WITHHELD FROM A SUBSEQUENT PAYMENT TO BENDIX ON VOUCHER NO. S-002-40 THE SUM OF $1,629.64 TO OFFSET THE STATED OVERPAYMENT ON VOUCHER NO. S-0275-15.

IN THE LETTER OF MARCH 10, 1969, BENDIX AGREES TO REDUCE ITS CLAIM BY $144.64 REPRESENTING HOLIDAY CHARGES OF $72.32 FOR EACH EMPLOYEE WHICH RESULTS IN AN ADJUSTED CLAIM OF $1,485. BENDIX STATES THAT UNDER DATE OF FEBRUARY 2, 1967, IT RECEIVED A TELEGRAPHIC TERMINATION NOTICE OF THE SERVICES OF THE TWO EMPLOYEES INVOLVED AND THAT ON FEBRUARY 17, 1967, IT RECEIVED A COPY OF A TELEGRAM FROM WARNER ROBINS AIR FORCE BASE TO THE 7TH AIR FORCE, VIETNAM, INSTRUCTING THAT COMMAND TO INSTRUCT ITS PERSONNEL TO OBTAIN FIRST AVAILABLE GOVERNMENT TRANSPORTATION FOR RETURN TO BALTIMORE, MARYLAND. BENDIX FURTHER STATES THAT ITS PERSONNEL DID NOT LEAVE VIETNAM BY MILITARY AIR TRANSPORTATION UNTIL FEBRUARY 28, 1967, AND ARRIVED IN OWINGS MILLS, MARYLAND, ON MARCH 1, 1967. BENDIX ALSO STATES THAT WHEN IT RECEIVED SUPPLMENTAL AGREEMENT P002 IT SIGNED AND RETURNED IT TOGETHER WITH A STATEMENT THAT THE TWO EMPLOYEES INVOLVED HAD ACTUALLY WORKED THROUGH FEBRUARY 28, 1967, IN VIETNAM. THE DELAY BETWEEN THE TERMINATION DATE OF FEBRUARY 15, AS STATED IN THE SUPPLEMENTAL AGREEMENT, AND THE ACTUAL DATE IS STATED TO HAVE BEEN DUE TO THE LACK OF GOVERNMENT TRANSPORTATION. IN VIEW OF THE FOREGOING BENDIX CONTENDS THAT IT IS ENTITLED TO REIMBURSEMENT NOT ONLY UNDER THE CONTRACT PROVISIONS BUT ALSO ON A QUANTUM MERUIT BASIS SINCE THE GOVERNMENT ACCEPTED THE SERVICES.

IN REPORT DATED MAY 23, 1969, THE TERMINATION CONTRACTING OFFICER STATES THAT BENDIX TOOK IMMEDIATE ACTION TO NOTIFY ITS EMPLOYEES OF TERMINATION EFFECTIVE FEBRUARY 2, 1967; HOWEVER, BENDIX WAS DIRECTED BY THE ADMINISTRATIVE CONTRACTING OFFICER TO AWAIT TRANSPORTATION INSTRUCTIONS FROM WARNER ROBINS AIR FORCE BASE, GEORGIA. THESE INSTRUCTIONS WERE ISSUED FEBRUARY 17, 1967, DIRECTING THE EMPLOYEES TO RETURN VIA THE FIRST AVAILABLE GOVERNMENT TRANSPORTATION. THE TERMINATION CONTRACTING OFFICER ALSO STATES THAT UNDER THE CIRCUMSTANCES IT IS HIS OPINION THAT THE CONTRACTOR WAS RELIEVED OF THE RESPONSIBILITY FOR OBTAINING COMMERCIAL TRANSPORTATION. HE FURTHER STATES THAT THE GOVERNMENT WAS PRIMARILY RESPONSIBLE FOR SUPPLYING TRANSPORTATION FOR THE EMPLOYEES AND THAT THE GOVERNMENT SUFFERED NO DAMAGES AS A RESULT OF THE DELAY IN FURNISHING TRANSPORTATION SINCE THE EMPLOYEES PERFORMED SATISFACTORY SERVICES DURING THE PERIOD OF DELAY IN DEPARTURE. IT IS ALSO REPORTED THAT IT WOULD APPEAR PROPER TO PAY THE CONTRACTOR THE SUM OF $1,485 ON A QUANTUM MERUIT BASIS SINCE THE GOVERNMENT RECEIVED THE BENEFIT OF THE SERVICES OF THE EMPLOYEES DURING THE PERIOD THEY WERE AWAITING GOVERNMENT TRANSPORTATION TO THE UNITED STATES.

INASMUCH AS IT APPEARS FROM THE RECORD THAT THE DELAY IN RETURNING THE EMPLOYEES TO THEIR HOME BASE WAS NOT THE FAULT OF THE CONTRACTOR AND SINCE THE GOVERNMENT ACTUALLY RECEIVED THE BENEFIT OF THE SERVICES OF THE EMPLOYEES, WE SEE NO LEGAL OBJECTION TO PAYING THE CONTRACTOR THE SUM OF $1,485 WHICH WAS PREVIOUSLY WITHHELD.