B-175895, APR 30, 1974

B-175895, APR 30, 1974

CONTRACTOR REQUESTED RECONSIDERATION OF PRIOR DECISION DENYING CLAIM ON BASIS OF NEW ALLEGATION WHICH IS DISPUTED BY PROCURING ACTIVITY. SINCE GAO DECISIONS ARE BASED SOLELY ON THE WRITTEN RECORD, AND WHERE THAT RECORD IS IN CONFLICT AS TO THE FACTS, GAO MUST DISALLOW CLAIM, LEAVING CONTROVERSIAL MATTERS FOR SCRUTINY OF COURTS WHERE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND CROSS-EXAMINATION.

TO AFGHAN CARPET CLEANERS:

AFGHAN'S PRESIDENT SEEKS RECONSIDERATION OF OUR DECISION OF FEBRUARY 21, 1973, 52 COMP. GEN. 530, WHEREIN GAO DENIED THAT PORTION OF ITS CLAIM IN EXCESS OF THE GENERAL SERVICES ADMINISTRATION (GSA) CONTRACT PRICE, MINUS ANY APPLICABLE DISCOUNTS, FOR THE CLEANING, REPAIRING AND INSTALLATION OF RUGS AND CARPETS IN GOVERNMENT BUILDINGS IN NORTHWEST, WASHINGTON, D.C.

IN BRIEF SUMMARY, AFGHAN HELD THE GSA CONTRACT FOR SUCH SERVICES IN SOUTHWEST AND SOUTHEAST WASHINGTON WHILE METRO MAINTENANCE, INC. (METRO), HELD THE CONTRACT FOR NORTHWEST AND NORTHEAST WASHINGTON. UNDER THE TERMS OF THE MASTER SCHEDULE FOR ALL SUCH CONTRACTS, THE CONTRACTOR HOLDING THE CONTRACT FOR A SPECIFIED AREA WAS REQUIRED TO FULFILL ALL REQUIREMENTS OF THE AGENCIES WITHIN THE AREA ENCOMPASSED BY HIS CONTRACT SUBJECT TO CERTAIN ENUMERATED EXCEPTIONS. THE GOVERNMENT AGENCY WAS REQUIRED TO USE THE CONTRACTOR HOLDING THE CONTRACT FOR THE AGENCY'S AREA, UNLESS THE SERVICES WERE REQUIRED AT A LOCATION OUTSIDE A DESIGNATED SERVICE AREA.

ACCORDING TO THE FACTS IN THE RECORD UPON WHICH OUR DECISION WAS BASED, THE RENEGOTIATION BOARD, LOCATED IN NORTHWEST WASHINGTON, WAS IN THE PROCESS OF MOVING TO A NEW LOCATION, ALSO IN THE NORTHWEST SECTOR. EMPLOYEE OF THE BOARD ORALLY ORDERED AFGHAN TO PICK UP CARPETING AT THE OLD LOCATION, CLEAN IT, AND DELIVER IT TO THE NEW LOCATION SEVERAL WEEKS LATER. A PRICE FOR THESE SERVICES WAS NOT STATED UNTIL DELIVERY OF THE CARPETS TO THE RENEGOTIATION BOARD'S NEW LOCATION, AT WHICH TIME AFGHAN SUBMITTED AN INVOICE FOR $.20 PER SQUARE FOOT LESS A PROMPT PAYMENT DISCOUNT. IT WAS EXPLAINED THAT THE $.20 PER FOOT FIGURE WAS THE COMMERCIAL RATE, AND THAT THIS PRICE WAS BEING LEVIED ON THE BOARD SINCE IT ALLEGEDLY SELECTED AFGHAN'S SERVICES ON AN "OPEN MARKET" BASIS, RATHER THAN GOING TO METRO, WHICH HELD THE GSA CONTRACT FOR THE NORTHWEST SECTOR AT 8 CENTS PER SQUARE FOOT MINUS APPLICABLE DISCOUNTS.

THE RECORD BEFORE US AT THE TIME OF OUR DECISION STATED THAT THE BOARD HAD INADVERTENTLY CONTACTED AFGHAN FOR THE JOB, THINKING THAT AFGHAN WAS THE GSA CONTRACTOR FOR THE BOARD'S SECTOR (NORTHWEST WASHINGTON). AFGHAN DID NOT APPRISE THE BOARD OF THE AUTHORIZED CONTRACTOR (METRO) UNTIL AFTER THE WORK HAD BEEN PERFORMED.

IN DENYING AFGHAN'S REQUEST FOR COMPENSATION IN EXCESS OF THE PRICE SET FORTH IN METRO'S CONTRACT FOR NORTHWEST WASHINGTON, WE CITED IN OUR DECISION PRIOR CONTROLLING GAO DECISIONS REGARDING SUPPLY SCHEDULE CONTRACTS WHICH HELD THAT IN INSTANCES IN WHICH THE GOVERNMENT MISTAKENLY PLACES ORDERS WITH OTHER THAN THE SCHEDULED CONTRACTOR, THE GOVERNMENT MAY NOT LEGALLY PAY A PRICE IN EXCESS OF THAT STIPULATED IN THE APPLICABLE SUPPLY CONTRACT. FURTHERMORE, THOSE ENTERING INTO A CONTRACT WITH THE GOVERNMENT ARE CHARGED WITH NOTICE OF THE LIMITATIONS ON THE AUTHORITY OF THE OFFICER OR EMPLOYEE TO OBLIGATE THE UNITED STATES.

ALL OF THE MATTERS RAISED IN AFGHAN'S REQUEST FOR RECONSIDERATION, EXCEPT ONE, WERE BEFORE US AND CAREFULLY CONSIDERED IN REACHING OUR DECISION. WITH REGARD TO THOSE MATTERS, WE HAVE RECONSIDERED THEM BUT HAVE CONCLUDED THAT THEY DO NOT PROVIDE A BASIS UPON WHICH WE MAY LEGALLY MODIFY OUR DECISION.

HOWEVER, AFGHAN HAS CHARGED FOR THE FIRST TIME THAT THE RENEGOTIATION BOARD DID NOT MISTAKENLY ORDER THE SERVICES FROM AFGHAN, BUT THAT AFGHAN WAS SOLICITED ONLY AFTER THE RENEGOTIATION BOARD HAD CONTACTED METRO FOR THE JOB AND METRO HAD ALLEGEDLY REFUSED IT. AFGHAN'S PRESIDENT STATES THAT HIS EMPLOYEES ARE WILLING TO TESTIFY UNDER OATH THAT THEY HEARD THE REFERENCED COMMUNICATION AT THE TIME THEY PICKED UP THE CARPETS.

THIS LATEST ALLEGATION WAS SUBMITTED TO THE RENEGOTIATION BOARD FOR COMMENT, AND THE PERTINENT OFFICIAL HAS STATED THAT THE ALLEGED CONVERSATION DID NOT TAKE PLACE. THE BOARD HAS REAFFIRMED ITS PRIOR STATEMENT THAT IT WAS NOT AWARE THAT METRO HELD THE CONTRACT FOR ITS SECTOR UNTIL AFGHAN PRESENTED ITS BILL FOLLOWING PERFORMANCE OF THESE SERVICES.

WHILE THIS RECENT ALLEGATION BY AFGHAN, IF ESTABLISHED, MIGHT PROVIDE A BASIS FOR MODIFICATION OF OUR PRIOR DECISION, IT HAS BEEN REFUTED BY THE RENEGOTIATION BOARD. SINCE OUR OFFICE EXAMINES AND SETTLES CLAIMS SOLELY ON THE BASIS OF THE WRITTEN RECORD BEFORE IT, WHERE THAT RECORD IS IN CONFLICT AS TO THE FACTS, AS IN THE INSTANT CASE, WE DO NOT POSSESS THE AUTHORITY OF THE COURTS TO SUMMON WITNESSES, ADMINISTER OATHS, AND CONDUCT ORAL EXAMINATION AND CROSS-EXAMINATION TO FACILITATE THE RESOLUTION OF SUCH CONFLICTS.

IT HAS THEREFORE BEEN THE ESTABLISHED RULE OF THIS OFFICE TO DISALLOW DOUBTFUL CLAIMS. BY SO DOING, CONTROVERSIAL MATTERS ARE RESERVED FOR SCRUTINY IN THE COURTS WHERE THE FACTS MAY BE JUDICIALLY DETERMINED UNDER SWORN TESTIMONY AND COMPETENT EVIDENCE. SEE B-174345, OCTOBER 3, 1973; ALSO LONGWILL V. UNITED STATES, 17 CT. CL. 288, 291 AND CHARLES V. UNITED STATES, 19 CT. CL. 316, 319.

IN VIEW THEREOF, WE ARE WITHOUT AN UNDISPUTED BASIS IN THE RECORD UPON WHICH TO MODIFY OUR PREVIOUS DECISION.