B-181867, SEP 4, 1974

B-181867: Sep 4, 1974

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STATE AND LOCAL TAXES CLAUSE SET OUT IN ASPR 7-103.10(A) WAS INCORPORATED BY REFERENCE IN THE CONTRACT. PAYMENT OF $173.15 UNDER CONTRACT DSA-400-71-C-5209 WAS PROPERLY ALLOWED IN ACCORDANCE WITH THE ABOVE PROVISIONS. LUTZ SUPERDYNE'S CLAIMS FOR REIMBURSEMENT OF FEDERAL IMPORT SURCHARGE INCURRED INCIDENT TO PERFORMANCE OF TWO OTHER CONTRACTS WAS PROPERLY DISALLOWED FOR THE REASONS STATED BELOW. THE CLAIM FOR REIMBURSEMENT FOR SURTAX PAID WITH REGARD TO THIS CONTRACT AMOUNTS TO $96.50 AND THEREFORE WAS PROPERLY DISALLOWED SINCE PARAGRAPH (C) OF THE CLAUSE THEN IN EFFECT EXPRESSLY PROVIDES THAT NO PRICE ADJUSTMENT OF LESS THAN $100 SHALL BE MADE FOR INCREASED DUTY. PAYMENT OF THE $96.50 IS PRECLUDED.

B-181867, SEP 4, 1974

CLAIM FOR $373.34 FOR IMPORT SURCHARGES INCURRED INCIDENT TO PERFORMANCE OF THREE CONTRACTS MAY BE ALLOWED ONLY WHERE CONTRACT CONTAINED THE FEDERAL, STATE, AND LOCAL TAXES CLAUSE SET OUT IN ASPR 7 103.10(A) AND THE AMOUNT OF THE IMPORT SURCHARGE EXCEEDS $100.

LUTZ SUPERDYNE, INC.:

THIS MATTER DEALS WITH APPEALS OF CERTAIN SETTLEMENTS MADE BY THE TRANSPORTATION AND CLAIMS DIVISION OF OUR OFFICE WHICH ALLOWED $173.15 OF THE $373.34 CLAIMED FOR REIMBURSEMENT OF FEDERAL IMPORT SURCHARGES INCURRED IN THE PERFORMANCE OF THREE CONTRACTS WITH THE DEFENSE SUPPLY AGENCY. LUTZ SUPERDYNE, INC. (LUTZ SUPERDYNE), IN ITS LETTER OF APPEAL ARGUES THAT IT SEEKS REIMBURSEMENT OF ONE SUM OF $373.34, NOT INDIVIDUAL SUMS AGAINST DIFFERENT CONTRACTS. IN THIS REGARD, THE CLAIMS INVOLVE THREE SEPARATE CONTRACTS AND DISPOSITION OF THE CLAIMS MUST THEREFORE DEPEND UPON THE PARTICULAR CONTRACT TERMS, OR LACK THEREOF, INVOLVED IN EACH OF THE THREE CONTRACTS.

FOR THE REASONS STATED BELOW, WE SUSTAIN THE SETTLEMENTS AS BEING PROPER. THE CERTIFICATE OF SETTLEMENT DATED MAY 13, 1974, ISSUED BY GAO TRANSPORTATION AND CLAIMS DIVISION, AUTHORIZED PAYMENT OF $173.15 UNDER DSA-400-71-C-5209 AS REIMBURSEMENT FOR IMPORT SURCHARGE. IN ACCORDANCE WITH PARAGRAPH 11-401.1, OF THE ARMED SERVICES PROCUREMENT REGULATION (ASPR) (1969 ED.), THE FEDERAL, STATE AND LOCAL TAXES CLAUSE SET OUT IN ASPR 7-103.10(A) WAS INCORPORATED BY REFERENCE IN THE CONTRACT. PAYMENT OF $173.15 UNDER CONTRACT DSA-400-71-C-5209 WAS PROPERLY ALLOWED IN ACCORDANCE WITH THE ABOVE PROVISIONS.

LUTZ SUPERDYNE'S CLAIMS FOR REIMBURSEMENT OF FEDERAL IMPORT SURCHARGE INCURRED INCIDENT TO PERFORMANCE OF TWO OTHER CONTRACTS WAS PROPERLY DISALLOWED FOR THE REASONS STATED BELOW. CONTRACT DSA-400-72-C-0432 ALSO INCORPORATED BY REFERENCE THE TAX CLAUSE SET FORTH IN ASPR 7 103.10(A). HOWEVER, THE CLAIM FOR REIMBURSEMENT FOR SURTAX PAID WITH REGARD TO THIS CONTRACT AMOUNTS TO $96.50 AND THEREFORE WAS PROPERLY DISALLOWED SINCE PARAGRAPH (C) OF THE CLAUSE THEN IN EFFECT EXPRESSLY PROVIDES THAT NO PRICE ADJUSTMENT OF LESS THAN $100 SHALL BE MADE FOR INCREASED DUTY. UNDER THESE CIRCUMSTANCES, PAYMENT OF THE $96.50 IS PRECLUDED. THE THIRD CLAIM IS IN THE AMOUNT OF $103.69 FOR REIMBURSEMENT OF FEDERAL IMPORT SURCHARGES INCIDENT TO PERFORMANCE UNDER PURCHASE ORDER NO. DSA-400-71-M- AJ53. THIS PURCHASE ORDER AMOUNTING TO $1,796.44 DID NOT CONTAIN A TAX CLAUSE AND NONE WAS REQUIRED BY ASPR 11-401.1(A)(IV) (1969 ED.) SINCE THE AMOUNT INVOLVED WAS LESS THAN $10,000. IN THE ABSENCE OF A CONTRACT PROVISION FOR PRICE ADJUSTMENT TO COMPENSATE FOR IMPORT SURCHARGES, THE GAO IS WITHOUT AUTHORITY TO EITHER AUTHORIZE OR DIRECT AN INCREASE IN THE CONTRACT PRICE.