B-149933, APR. 30, 1963

B-149933, APR. 30, 1963

TO NEWFOUNDLAND DIESEL AND MARINE ENGINEERING, LTD.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 23, 1963, CONCERNING YOUR CLAIM FOR $35,107.40, CANADIAN CURRENCY, COVERING AMOUNTS WITHHELD BY THE DEPARTMENT OF THE AIR FORCE IN MAKING PAYMENT OF YOUR INVOICES FOR REPAIRING VARIOUS ITEMS OF EQUIPMENT UNDER CONTRACT NO. AF 65/031/ 328, DATED MAY 20, 1954, AS AMENDED.

YOU ACKNOWLEDGE RECEIPT OF THE SUM OF $22,669.65 WHICH WE AUTHORIZED TO BE PAID ON THE CLAIM AND CONTEND THAT THE SUMS OF $2,093.51, $3,969 AND $2,533 ARE STILL DUE YOUR COMPANY. THE SUM OF $2,093.51 IS MENTIONED IN CONNECTION WITH THE FACT THAT IN OUR LETTER TO YOU OF NOVEMBER 23, 1962, IT WAS POINTED OUT THAT YOUR TOTAL CLAIM FOR $35,107.40 INCLUDED ITEMS AGGREGATING THE SUM OF $5,935.75 WHICH HAD BEEN ALLOWED BY THE AIR FORCE UPON CONSIDERATION OF VARIOUS RECLAIM SUBMITTED BY YOUR COMPANY RESPECTING SUSPENSIONS FROM PAYMENT ON INVOICES PRESENTED FOR PAYMENT UNDER THE CONTRACT. YOU CONCEDE THAT THE SUM OF $5,935.75 WAS PAID BUT, WITH RESPECT TO THE ITEMS COMPRISING THAT FIGURE, YOU STATE THAT RECLAIMS TOTALING $8,029.28 WERE ISSUED, LEAVING AN UNPAID BALANCE OF $2,093.51 (ACTUAL DIFFERENCE- - $2,093.53).

INASMUCH AS THE RECORD BEFORE US DOES NOT DISCLOSE ANY SPECIFIC INFORMATION CONCERNING THE ADDITIONAL CLAIM FOR $2,093.51, IT IS ESSENTIAL THAT FURTHER INFORMATION WITH RESPECT THERETO BE FURNISHED BY YOU BEFORE WE WOULD BE IN A POSITION TO DETERMINE ITS VALIDITY. IT IS TO BE NOTED THAT THE ALLOWANCE OF $22,669.65 COVERS FULL PAYMENT FOR MANY ITEMS OF ALLEGED SUSPENSIONS FROM INVOICES FOR MATERIALS USED IN THE REPAIR WORK AND IT IS POSSIBLE, OF COURSE, THAT THE RECLAIMS AGGREGATING THE SUM OF $2,093.51 OR $2,093.53 WERE INCLUDED IN THE TOTAL CLAIM FOR $35,107.40 THEN UNDER CONSIDERATION.

WITH RESPECT TO THE REMAINING OUTSTANDING CLAIMS FOR $3,969 AND $2,533, IT IS ALLEGED THAT THE AIR FORCE ALLOWED YOU ONLY A PER DIEM RATE OF $3, WHEREAS THE CONTRACT ESTABLISHED A RATE OF $4, AND THAT INSUFFICIENT LABOR HOURS WERE ALLOWED FOR WORKERS ON TEMPORARY DUTY ASSIGNMENTS. THE RECORD OTHERWISE SHOWS THAT YOU HAVE CONTENDED IN THE PAST THAT THE NORMAL WORKING SCHEDULE AT ON-SITE LOCATIONS WAS 12 HOURS AND, THEREFORE, YOU WERE ENTITLED TO BILL THE AIR FORCE FOR MANY HOURS OF WAITING TIME AT THE ON-SITE LOCATIONS WHICH EXCEEDED 8 HOURS PER DAY; ALSO, TO CHARGE PER DIEM IN EXCESS OF $4 PER DAY.

THE CONTRACT PROVIDES IN RELATION TO ON-SITE WORK THAT THE NORMAL WORKING DAY WOULD BE 8 HOURS AND THAT PER DIEM ALLOWANCES WOULD BE MADE AT THE RATE OF $4 PER MAN. THE PER DIEM ALLOWANCE CANNOT BE REGARDED AS CONSTITUTING OTHER THAN AN ALLOWANCE FOR LIVING EXPENSES FOR A FULL DAY, REGARDLESS OF THE ACTUAL NUMBER OF HOURS WHICH AN EMPLOYEE ON A TEMPORARY DUTY ASSIGNMENT MAY HAVE WORKED ON A PARTICULAR DAY. ALSO, IT IS APPARENT THAT IT WAS NEVER INTENDED THAT AN EMPLOYEE WOULD BE ENTITLED TO RECEIVE PAYMENT FOR MORE THAN 8 HOURS OF WORK IN ANY CASE WHERE THE ACTUAL TIME SPENT ON THE JOB WAS 8 HOURS OR LESS PER DAY AT HIS TEMPORARY DUTY STATION. WE THEREFORE FIND ON THE BASIS OF THE INFORMATION WHICH WE NOW HAVE CONCERNING THE CLAIMS FOR $3,969 AND $2,533 THAT THE CONTRACT PROVISIONS WERE PROPERLY INTERPRETED BY THE AIR FORCE AUDITORS. NEITHER DO WE AGREE THAT YOU WERE ENTITLED TO PAY THE EMPLOYEES ONLY $3 PER DAY AS A PER DIEM ALLOWANCE AND RETAIN THE DIFFERENCE OF $1 FOR ADMINISTRATIVE COSTS, A SITUATION WHICH YOU NOW CONTEND EXISTED IN AN EFFORT TO EXPLAIN THE DISCREPANCY BETWEEN THE SUMS CLAIMED BY YOU FOR PER DIEM ALLOWANCES AND THE TOTAL SUM PAID TO YOUR EMPLOYEES FOR LIVING EXPENSES AS REPORTEDLY REFLECTED IN YOUR ACCOUNTING RECORDS.

YOU COMPLAIN THAT THE AIR FORCE AUDITORS DID NOT MAKE A FULL INVESTIGATION BEFORE TAKING EXCEPTION TO THE ITEMS OF CLAIM AGGREGATING THE SUMS OF $3,969 AND $2,533. HOWEVER, IT IS OUR OPINION THAT THEY WERE JUSTIFIED IN LIMITING THEIR INVESTIGATION BASICALLY TO AN EXAMINATION OF YOUR BOOKS AND RECORDS CONCERNING OPERATIONS UNDER THE CONTRACT, SINCE IT WAS SPECIFICALLY AGREED THAT YOU WOULD MAINTAIN DETAILED, COMPLETE AND ACCURATE ACCOUNTING RECORDS TO SUPPORT HOURS OF LABOR BY INDIVIDUAL DAILY JOB TIMECARDS AND EVIDENCE OF ACTUAL PAYMENTS. IT WAS YOUR RESPONSIBILITY TO MAINTAIN SUCH RECORDS AND WE WOULD NOT BE WARRANTED IN TAKING THE POSITION THAT THE GOVERNMENT SHOULD DISREGARD THE CONTRACT REQUIREMENT BECAUSE OF THE DIFFICULTY ALLEGEDLY INVOLVED IN MAINTAINING ADEQUATE RECORDS OF HOURS OF LABOR PERFORMED AT THE ON-SITE LOCATIONS.

IN THE CIRCUMSTANCES IT DOES NOT APPEAR ON THE PRESENT RECORD THAT ANY ADDITIONAL PAYMENT PROPERLY MAY BE MADE UNDER YOUR CONTRACT. IF YOU DESIRE THAT THE MATTER BE FURTHER CONSIDERED BY OUR OFFICE, IT IS SUGGESTED THAT YOU FURNISH A COMPLETE ITEMIZATION OF EACH OF THE OUTSTANDING CLAIMS, TOGETHER WITH SUPPORTING DATA CERTIFIED AS BEING SUBSTANTIATED BY THE PERTINENT BOOKS AND RECORDS OF YOUR COMPANY.