B-171252, JAN 22, 1971, 50 COMP GEN 513

B-171252, JAN 22, 1971, 50 COMP GEN 513

CONTRACTS - DELIVERIES - FAILURE TO MEET SCHEDULE - INTERPRETATION OF "TIME FOR DELIVERY" PROVISION THE INTERPRETATION OF THE "TIME FOR DELIVERY" PROVISION IN A CONTRACT FOR COURT REPORTING AND TRANSCRIPTION SERVICE OF HEARINGS BEFORE THE NATIONAL TRANSPORTATION SAFETY BOARD, DEPARTMENT OF TRANSPORTATION, IS A QUESTION OF LAW AND NOT OF FACT FOR RESOLUTION UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT. THE REQUIREMENT TO DELIVER TRANSCRIPTS ORIGINATING OUTSIDE OF WASHINGTON, D.C., TO THE DOCKET SECTION OF THE BOARD, LOCATED IN WASHINGTON, WITHIN 10 DAYS, MEANS THE TRANSCRIPTS MUST BE IN THE CUSTODY OF THE SPECIFIED OFFICE WITHIN 10 CALENDAR DAYS FROM THE DATE OF THE HEARING, AND THE MERE FACT OF MAILING THE TRANSCRIPTS BEFORE THE EXPIRATION OF THE 10-DAY PERIOD DOES NOT CONSTITUTE FULL COMPLIANCE WITH THE DELIVERY CLAUSE.

TO THE HOOVER REPORTING COMPANY, INC., JANUARY 22, 1971:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 9, 1970, WITH ENCLOSURE, REQUESTING OUR OFFICE TO INTERPRET ARTICLE III (A) OF CONTRACT NO. DOT-SB-10003 WITH THE NATIONAL TRANSPORTATION SAFETY BOARD, DEPARTMENT OF TRANSPORTATION (DOT).

THE SUBJECT CONTRACT WAS AWARDED ON JUNE 29, 1970, FOR COURT REPORTING AND TRANSCRIPTION SERVICE OF HEARINGS BEFORE THE NATIONAL TRANSPORTATION SAFETY BOARD FOR THE PERIOD JULY 1, 1970, THROUGH JUNE 30, 1971, IN WASHINGTON, D.C., AND THROUGHOUT THE UNITED STATES, INCLUDING ITS TERRITORIES AND POSSESSIONS. STANDARD FORM NO. 32, JUNE 1964 EDITION, WHICH CONTAINED A "DISPUTES" CLAUSE, WAS INCORPORATED INTO THE CONTRACT BY REFERENCE.

THE PART OF THE CONTRACT WITH WHICH WE ARE CONCERNED DEALS WITH THE TIME OF DELIVERY SET FORTH IN ARTICLE III, WHICH READS AS FOLLOWS:

COPY TO BE FURNISHED SHALL BE DESIGNATED REGULAR COPY OR DAILY COPY AS DEFINED BELOW AND DELIVERED AS INSTRUCTED BY THE PRESIDING OFFICIAL:

(A) REGULAR COPY: TRANSCRIPTS SHALL BE DELIVERED AS FOLLOWS: TEN (10) CALENDAR DAYS OUTSIDE THE WASHINGTON, D.C. AREA; FIVE (5) CALENDAR DAYS IN THE WASHINGTON, D.C. AREA.

(B) DAILY COPY: COMPLETE TRANSCRIPTS OF THE DAY'S PROCEEDINGS SHALL BE DELIVERED NOT LATER THAN 9:00 A.M. ON THE FOLLOWING BUSINESS DAY.

(C) UNLESS THE CONTRACTOR IS OTHERWISE DIRECTED, ALL TRANSCRIPTS ORDERED SHALL BE DELIVERED TO THE DOCKET SECTION, NATIONAL TRANSPORTATION SAFETY BOARD, WASHINGTON, D.C., DURING THE REGULAR BUSINESS HOURS, WITH POSTAGE OR OTHER TRANSPORTATION CHARGES FULLY PREPAID BY THE CONTRACTOR.

UNDER THE CONTRACT, ACCEPTANCE OF ALL TRANSCRIPTS "WILL BE AT DESTINATIONS;" THAT IS, AT THE DOCKET SECTION, NATIONAL TRANSPORTATION BOARD, WASHINGTON, D.C.

YOU STATE THAT AFTER MEETING WITH REPRESENTATIVES OF DOT REGARDING THE PROPER INTERPRETATION OF THE ABOVE-QUOTED DELIVERY ARTICLE, YOU HAVE BEEN UNABLE TO REACH AN AGREEMENT IN VIEW OF DOT'S CONTENTION THAT IN ORDER TO COMPLY WITH THIS ARTICLE, TRANSCRIPTS FROM OUTSIDE THE WASHINGTON, D.C., AREA "MUST BE RECEIVED" IN THE WASHINGTON OFFICE OF DOT WITHIN 10 CALENDAR DAYS OF THE DATE OF HEARING. YOU CONTEND THAT TRANSCRIPTS FROM OUTSIDE THE WASHINGTON, D.C., AREA WHICH "ARE DEPOSITED IN THE UNITED STATES MAIL," POSTAGE PREPAID, AND ADDRESSED TO DOT, WASHINGTON, D.C., WITHIN 10 CALENDAR DAYS FROM THE DATE OF HEARING, ARE IN COMPLIANCE WITH THE ARTICLE. YOU BELIEVE THAT SUCH INTERPRETATION IS CONSISTENT WITH THE MANNER IN WHICH YOU INTERPRETED SIMILAR PROVISIONS IN OTHER GOVERNMENT CONTRACTS. IN VIEW OF THESE TWO DIFFERENT INTERPRETATIONS, YOU REQUEST OUR VIEWS IN THE MATTER.

THE RECORD BEFORE US CONTAINS NO INDICATION OF A DISPUTE OF FACT WHICH WOULD BE A MATTER INITIALLY FOR RESOLUTION BY THE ADMINISTRATIVE AGENCY UNDER THE CONTRACT DISPUTES CLAUSE, SUBJECT TO REVIEW UNDER STANDARDS CONTAINED IN 41 U.S.C. 321. RATHER, THE QUESTION INVOLVED APPEARS TO BE ONE OF LAW RATHER THAN OF FACT; I.E., WHETHER UNDER THE "TIME OF DELIVERY" PROVISIONS SET FORTH IN ARTICLE III OF THE CONTRACT THE CONTRACTOR IS REQUIRED TO DEPOSIT TRANSCRIPTS FROM OUTSIDE THE WASHINGTON, D.C., AREA IN THE MAIL, IF SUCH MODE OF TRANSMISSION IS USED, IN SUFFICIENT TIME FOR THEM TO BE DELIVERED TO THE DOCKET SECTION, NATIONAL TRANSPORTATION SAFETY BOARD, WASHINGTON, D.C., WITHIN 10 DAYS.

IT HAS BEEN CONSISTENTLY HELD BY THE COURT OF CLAIMS THAT THE INTERPRETATION OF THE LANGUAGE OF A CONTRACT IS A QUESTION OF LAW, NOT A QUESTION OF FACT. SEE DYNAMICS CORPORATION OF AMERICA V THE UNITED STATES, 182 CT. CL. 62 (1968), AND THE CASES CITED THEREIN.

WE THINK THAT THE LANGUAGE CONTAINED IN ARTICLE III IS UNAMBIGUOUS AND IS SUBJECT TO ONLY ONE REASONABLE INTERPRETATION WITH REGARD TO THE DELIVERY REQUIREMENTS OF TRANSCRIPTS EMANATING FROM OUTSIDE THE WASHINGTON, D.C., AREA. WE BELIEVE THAT THE CONTRACTOR, UNLESS OTHERWISE DIRECTED, IS REQUIRED TO TAKE APPROPRIATE MEASURES TO ASSURE THAT ALL TRANSCRIPTS ORIGINATING OUTSIDE WASHINGTON, D.C., WILL BE DELIVERED TO THE NTSB DOCKET SECTION WITHIN 10 DAYS. IF MAIL SERVICE IS USED, TRANSCRIPTS MUST BE DEPOSITED IN SUFFICIENT TIME TO ALLOW FOR DELIVERY WITHIN THE 10-DAY PERIOD TO THE DESIGNATED PLACE. IN OTHER WORDS, UNDER THE TERMS OF THE TIME OF DELIVERY CLAUSE, DELIVERY IS EFFECTED WHEN THE TRANSCRIPTS ARE ACTUALLY PLACED IN THE CUSTODY OF THE DOCKET SECTION WITHIN 10 CALENDAR DAYS FROM THE DATE OF THE HEARING. HENCE, THE MERE FACT OF MAILING BEFORE EXPIRATION OF THE 10-DAY PERIOD DOES NOT CONSTITUTE FULL COMPLIANCE WITH THE CLAUSE. THE FOREGOING IS NOT INTENDED IN ANY MANNER TO FORECLOSE YOUR COMPANY FROM PURSUING ANY ADMINISTRATIVE REMEDIES WHICH MIGHT BE AVAILABLE UNDER THE TERMS OF THE CONTRACT WITH FURTHER REGARD TO THE MANNER OF CONTRACT PERFORMANCE.