B-39509, JANUARY 27, 1944, 23 COMP. GEN. 547

B-39509: Jan 27, 1944

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- WHICH OBLIGATES THE CONTRACTOR TO FURNISH SERVICES COMPARABLE TO THOSE REQUIRED UNDER THE NEW CONTRACT BUT WHICH DOES NOT PRESCRIBE ANY SPECIFIC TIME WITHIN WHICH REPAIR SERVICE IS TO BE PERFORMED . WHO IS NOT IN DEFAULT BUT WHO. WHERE A CONTRACT DOES NOT SPECIFY THE TIME WITHIN WHICH IT IS TO BE PERFORMED. THE CONTRACT IS TO BE CONSTRUED AS REQUIRING PERFORMANCE WITHIN A REASONABLE TIME. 1944: I HAVE YOUR LETTER OF JANUARY 19. THE NECESSITY FOR OBTAINING THE LATTER CONTRACT IS FULLY EXPLAINED IN THE DIRECTOR'S MEMORANDUM OF JANUARY 13. AS FOLLOWS: THIS IS TO ADVISE THAT THE PRESENT CONTRACT WITH THE CLARK-VAN BUREN GARAGE IS NOT SUFFICIENT TO PROPERLY STORE AND MAINTAIN THE GOVERNMENT OWNED AUTOMOBILES USED BY THE CHICAGO FIELD DIVISION IN VIEW OF THE INCREASE IN THE NUMBER OF CARS ASSIGNED TO CHICAGO SINCE THE EXECUTION OF THE PRESENT CONTRACT.

B-39509, JANUARY 27, 1944, 23 COMP. GEN. 547

CONTRACTS - INCREASED COSTS UNDER SUPPLEMENTAL CONTRACT FOR SERVICES OBTAINABLE UNDER EXISTING CONTRACT THE EXCESS COSTS OVER THOSE UNDER AN EXISTING CONTRACT OF OBTAINING STORAGE AND EXPEDITIOUS REPAIR OF GOVERNMENT AUTOMOBILES UNDER A NEW CONTRACT ENTERED INTO PRIMARILY FOR THE PURPOSE OF SUPPLEMENTING THE EXISTING CONTRACT--- WHICH OBLIGATES THE CONTRACTOR TO FURNISH SERVICES COMPARABLE TO THOSE REQUIRED UNDER THE NEW CONTRACT BUT WHICH DOES NOT PRESCRIBE ANY SPECIFIC TIME WITHIN WHICH REPAIR SERVICE IS TO BE PERFORMED --- MAY NOT BE CHARGED TO THE ORIGINAL CONTRACTOR, WHO IS NOT IN DEFAULT BUT WHO, DUE TO THE WARTIME SCARCITY OF MECHANICS, CANNOT PROVIDE AS PROMPTLY AS MAY BE DESIRED ALL THE REPAIR SERVICE REQUIRED. WHERE A CONTRACT DOES NOT SPECIFY THE TIME WITHIN WHICH IT IS TO BE PERFORMED, THE CONTRACT IS TO BE CONSTRUED AS REQUIRING PERFORMANCE WITHIN A REASONABLE TIME; AND WHAT CONSTITUTES A REASONABLE TIME DEPENDS UPON THE FACTS AND CIRCUMSTANCES IN EACH PARTICULAR CASE.

ACTING COMPTROLLER GENERAL YATES TO THE ATTORNEY GENERAL, JANUARY 27, 1944:

I HAVE YOUR LETTER OF JANUARY 19, 1944, WITH ENCLOSURES, WHEREIN YOU REQUEST A DECISION AS TO THE PROPRIETY OF THE PROCEDURE FOLLOWED BY THE FEDERAL BUREAU OF INVESTIGATION IN PROVIDING AN ADDITIONAL CONTRACT FOR STORAGE AND REPAIR OF AUTOMOBILES AT CHICAGO, ILLINOIS.

UNDER THE TERMS OF CONTRACT NO. J-21894, DATED JUNE 16, 1943, THE CLARK- VAN BUREN GARAGE AGREED TO FURNISH CERTAIN SERVICES TO THE FEDERAL BUREAU OF INVESTIGATION DURING THE PERIOD OF JULY 1, 1943, TO JUNE 30, 1944, INCLUDING STORAGE OF CARS, WASHING CARS, GASOLINE, OIL, REPAIR AND LUBRICATION SERVICES, ETC., AT PRICES STIPULATED THEREIN. HOWEVER, IT APPEARS THAT, UNDER DATE OF JANUARY 12, 1944, THE BUREAU ENTERED INTO CONTRACT NO. J-22517 WHEREUNDER THE SOUTH LOOP GARAGE AGREED TO FURNISH SUBSTANTIALLY THE SAME SERVICES DURING THE REMAINDER OF THE PERIOD COVERED BY THE FORMER AGREEMENT. THE NECESSITY FOR OBTAINING THE LATTER CONTRACT IS FULLY EXPLAINED IN THE DIRECTOR'S MEMORANDUM OF JANUARY 13, 1944, AS FOLLOWS:

THIS IS TO ADVISE THAT THE PRESENT CONTRACT WITH THE CLARK-VAN BUREN GARAGE IS NOT SUFFICIENT TO PROPERLY STORE AND MAINTAIN THE GOVERNMENT OWNED AUTOMOBILES USED BY THE CHICAGO FIELD DIVISION IN VIEW OF THE INCREASE IN THE NUMBER OF CARS ASSIGNED TO CHICAGO SINCE THE EXECUTION OF THE PRESENT CONTRACT.

AT THE PRESENT TIME THE CLARK-VAN BUREN GARAGE HAS ONLY ONE MECHANIC AND IN VIEW OF THE VOLUME OF WORK INVOLVED, AN ADDITIONAL CONTRACT WILL GREATLY FACILITATE CAR REPAIRS.

TO RELIEVE THE PRESENT CONGESTION INVITATIONS TO BID FOR ADDITIONAL SERVICES WERE EXTENDED TO THE FOLLOWING COMPANIES: SOUTH LOOP GARAGE, DOWNTOWN PARKING STATIONS, INCORPORATED AND THE DEARBORN LAKE GARAGE, INCORPORATED. IT WILL BE NOTED THAT OF THE THREE BIDS RETURNED, THE STORAGE RATE OF THE SOUTH LOOP GARAGE IS THE LOWEST. FURTHERMORE THIS GARAGE SUBMITTED THE ONLY BID ON REPAIR SERVICES.

IN VIEW OF THE ABOVE FACTS, IT WILL BE APPRECIATED IF THE CONTRACT IS AWARDED TO THE SOUTH LOOP GARAGE, AND THE APPROPRIATE COPIES OF SAME RETURNED TO THIS BUREAU.

CONSIDERED IN THE LIGHT OF THE FACT THAT THE SOUTH LOOP GARAGE SUBMITTED THE LOWEST AND ONLY RESPONSIVE BID TO THE INVITATIONS ISSUED BY THE BUREAU, IT IS EVIDENT THAT ACCEPTANCE OF THAT BID WOULD NOT CONTRAVENE THE ADVERTISING REQUIREMENTS OF SECTION 3709, REVISED STATUTES. CONSEQUENTLY, AND SINCE THE ENSUING CONTRACT OTHERWISE APPEARS TO MEET THE STATUTORY REQUIREMENTS NORMALLY APPLICABLE TO THE EXECUTION OF CONTRACTS COVERING SERVICES SIMILAR IN CHARACTER TO THOSE IN QUESTION, THERE APPEARS NO OBJECTION TO THE PROCEDURE FOLLOWED IN THE MATTER.

APPARENTLY THE REAL QUESTION FOR CONSIDERATION IN THIS CASE IS AS TO WHETHER, SINCE THE TERMS OF THE ORIGINAL CONTRACT ARE BROAD ENOUGH TO COVER ALL SUCH SERVICES THAT MIGHT BE REQUIRED BY THE CONTRACTING AGENCY DURING THE FISCAL YEAR INVOLVED AND SINCE THE PRICES STIPULATED IN THE NEW AGREEMENT FOR THE VARIOUS SERVICES TO BE RENDERED THEREUNDER ARE HIGHER IN THE MAJORITY OF INSTANCES THAN THOSE STIPULATED IN THE ORIGINAL CONTRACT FOR COMPARABLE SERVICES, THE ORIGINAL CONTRACTOR SHOULD BE CHARGED WITH THE EXCESS COST THAT MAY BE INCURRED BY THE UNITED STATES AS A RESULT OF THE MAKING OF THE NEW CONTRACT.

PARAGRAPH 4 OF THE " CONDITIONS" FORMING A PART OF THE ORIGINAL CONTRACT PROVIDES IN PERTINENT PART AS FOLLOWS:

IF THE CONTRACTOR REFUSES OR FAILS TO MAKE DELIVERIES OF THE MATERIALS OR SUPPLIES WITHIN THE TIME SPECIFIED, OR ANY EXTENSION THEREOF, THE GOVERNMENT MAY BY WRITTEN NOTICE TERMINATE THE RIGHT OF THE CONTRACTOR TO PROCEED WITH DELIVERIES OR SUCH PART OR PARTS THEREOF AS TO WHICH THERE HAS BEEN DELAY. IN SUCH EVENT, THE GOVERNMENT MAY PURCHASE SIMILAR MATERIALS OR SUPPLIES IN THE OPEN MARKET OR SECURE THE MANUFACTURE AND DELIVERY OF THE MATERIALS AND SUPPLIES BY CONTRACT OR OTHERWISE, AND THE CONTRACTOR AND HIS SURETIES (IF ANY) SHALL BE LIABLE TO THE GOVERNMENT FOR ANY EXCESS COST OCCASIONED THE GOVERNMENT THEREBY: PROVIDED, THAT THE CONTRACTOR SHALL NOT BE CHARGED WITH ANY EXCESS COST OCCASIONED THE GOVERNMENT BY THE PURCHASE OF MATERIALS OR SUPPLIES IN THE OPEN MARKET OR UNDER OTHER CONTRACTS WHEN THE DELAY OF THE CONTRACTOR IN MAKING DELIVERIES IS DUE TO UNFORESEEABLE CAUSES BEYOND THE CONTROL AND WITHOUT THE FAULT OR NEGLIGENCE OF THE CONTRACTOR, INCLUDING, BUT NOT RESTRICTED TO, ACTS OF GOD OR OF THE PUBLIC ENEMY, ACTS OF THE GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES, UNUSUALLY SEVERE WEATHER. * * *

IT IS UNDERSTOOD THAT THERE IS NO INTENTION OF TERMINATING THE ORIGINAL CONTRACT BUT THAT, DUE TO THE PRESENT SHORTAGE OF AVAILABLE MECHANICS AS A RESULT OF THE WAR, THE ORIGINAL CONTRACTOR, THROUGH NO FAULT OF ITS OWN, IS UNABLE TO PERFORM ALL REPAIR SERVICES REQUIRED AS PROMPTLY AS MAY BE DESIRED, THEREBY NECESSITATING AN ADDITIONAL CONTRACT TO AVOID HAVING VEHICLES LAID UP FOR REPAIRS AT A TIME WHEN THE AGENCY MAY BE IN URGENT NEED OF THEIR USE. IT IS WELL SETTLED THAT BEFORE THE GOVERNMENT MAY EXERCISE ITS RESERVED RIGHT TO TERMINATE A CONTRACT--- IN WHOLE OR IN PART --- UNDER THE STANDARD PROVISIONS OF PARAGRAPH 4, SUPRA, AND HOLD THE CONTRACTOR LIABLE FOR ANY EXCESS COST RESULTING THEREFROM, THE CONTRACTOR MUST BE IN DEFAULT--- THAT IS TO SAY, IT MUST HAVE REFUSED OR FAILED TO DELIVER THE CONTRACT ARTICLES OR SERVICES WITHIN THE TIME SPECIFIED IN THE CONTRACT. SUCH A SITUATION IS NOT SHOWN TO EXIST IN THIS CASE. NOWHERE IN THE ORIGINAL AGREEMENT IS THERE ANY PROVISION SETTING FORTH A LIMITATION AS TO THE TIME IN WHICH THE REPAIR SERVICES ARE TO BE FURNISHED. CONSEQUENTLY, THE CONTRACT IS TO BE CONSTRUED AS REQUIRING THE PERFORMANCE OF SUCH SERVICES WITHIN A REASONABLE TIME. WHAT IS A REASONABLE TIME DEPENDS, OF COURSE, UPON THE FACTS AND CIRCUMSTANCES IN EACH PARTICULAR CASE.

IN VIEW OF THE FACTS AND CIRCUMSTANCES REPRESENTED AS EXISTING IN THIS INSTANCE, IT WOULD APPEAR THAT THE NEW CONTRACT WAS ENTERED INTO PRIMARILY FOR THE PURPOSE OF SUPPLEMENTING THE ORIGINAL CONTRACT IN THE INTEREST OF THE GOVERNMENT RATHER THAN TO TAKE CARE OF A NEED RESULTING FROM SUCH REFUSAL OR DELAY IN PERFORMANCE AS WOULD CONSTITUTE A BREACH OF THE ORIGINAL CONTRACT.

ACCORDINGLY, I HAVE TO ADVISE THAT, IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES APPEARING, ANY EXCESS COST RESULTING FROM THE PROCUREMENT OF NECESSARY SERVICES UNDER THE NEW CONTRACT MAY NOT BE CHARGED TO THE ORIGINAL CONTRACTOR SO LONG AS IT CONTINUES TO RENDER SATISFACTORILY ALL SERVICES THAT REASONABLY MAY BE REQUIRED OF IT UNDER THE CONDITIONS EXISTING AT THE TIME.