A-87700, A-83089, SEPTEMBER 11, 1937, 17 COMP. GEN. 240

A-87700, A-83089, SEPTEMBER 11, 1937, 17 COMP. GEN. 240

CONTRACTS--- RENTAL OF EQUIPMENT--- TERMINATION FOR IRREGULARITIES--- GOVERNMENT LIABILITY WHERE, IN CONNECTION WITH A CONTRACT AWARDED UPON BID SUBMITTED UNDER OTHER THAN BIDDER'S CORRECT NAME, CONTRACTOR FURNISHED BUSINESS COUPES WITH DETACHABLE TRUNK BOXES--- INSTEAD OF PICK-UP TRUCKS OF ONE TON CAPACITY, AS REQUIRED BY THE CONTRACT--- WHICH WERE USED FOR A SHORT PERIOD FOR INSPECTION PURPOSES ONLY, BY A PARTY SAID TO BE THE BIDDER'S HUSBAND AND ALSO ASSISTANT TO THE BIDDER'S BROTHER, A MUNICIPAL OFFICER, AND THE CONTRACT WAS CANCELLED, AFTER INVESTIGATION, ON THE BASIS OF GROSS IRREGULARITIES IN ITS FULFILLMENT, AND CONTRACTOR DEBARRED FROM FURTHER BIDDING FOR A SPECIFIED PERIOD, PAYMENT MAY NOT BE MADE OF RENTAL CLAIMED FOR USE OF THE VEHICLES, NOTWITHSTANDING CONTRACTOR'S CONTENTION THAT CONTRACT REQUIRED INSPECTION ON DELIVERY AND THAT THERE WAS SOME DELAY IN ADMINISTRATIVE INSPECTION.

ACTING COMPTROLLER GENERAL ELLIOTT TO MRS. LESTER LEE, SEPTEMBER 11, 1937:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 19, 1937, REQUESTING REVIEW OF SETTLEMENT OF APRIL 15, 1937, WHICH DISALLOWED YOUR CLAIM NO. 0628623, IN THE AMOUNTS OF $60.80 AND $46.40, AN AGGREGATE OF $107.20, CLAIMED TO BE DUE AS RENTAL ON TWO PLYMOUTH "TRUCKS" RENTED TO THE TREASURY DEPARTMENT PROCUREMENT OFFICE, MILWAUKEE, WIS., FOR USE OF THE WORKS PROGRESS ADMINISTRATION BETWEEN JUNE 5 AND 15, 1936, UNDER CONTRACT NO. ER -TPS-53-8326, JUNE 5, 1936.

YOUR CLAIM AND YOUR REQUEST FOR REVIEW ARE IN SUBSTANCE THAT YOU FILLED OUT A BID FORM FOR TWO 1-TON PLYMOUTH PICK-UP TRUCKS; THAT A PICK-UP TRUCK IS NORMALLY UNDERSTOOD TO BE A TRUCK BOX ON THE REAR OF A COUPE; THAT PLYMOUTH DOES NOT MAKE A 1- TO 2-TON TRUCK; THAT YOUR BID WAS MADE OUT IN ACCORDANCE WITH INSTRUCTIONS OF AN EMPLOYEE OF THE PROCUREMENT OFFICE; THAT THE EQUIPMENT FURNISHED WAS EXACTLY AS REPRESENTED AND WAS EXACTLY WHAT WAS WANTED BY THE DEPARTMENT OPERATING THE PROJECT; THAT YOUR CONTRACT CLEARLY STATED "SUBJECT TO INSPECTION ON DELIVERY"; THAT YOU DELIVERED THE VEHICLES INTO THE CUSTODY OF TWO UNITED STATES GOVERNMENT EMPLOYEES; AND THAT THEY WERE USED BY THE GOVERNMENT A TOTAL OF 134 HOURS AT A RENTAL OF 80 CENTS PER HOUR.

THE RECORD SHOWS THAT UNDER DATE OF MAY 15, 1936, YOU SUBMITTED A BID UNDER THE NAME OF E. J. NELSON--- WHY YOU DID NOT USE YOUR CORRECT NAME, MRS. LESTER LEE, IS NOT SHOWN--- OFFERING TO RENT THE GOVERNMENT TWO 1936 MODEL PLYMOUTH TRUCKS OF 1-TON AND LESS THAN 2-TON CAPACITY, WITH PICK-UP BODY, WITHOUT OPERATOR, AT 80 CENTS PER HOUR. THE BID FORM PROVIDED IN PART THAT---

ALL PROJECTS IN WISCONSIN WILL WORK FIVE (5) DAYS A WEEK--- SATURDAY TO BE CONSIDERED AS A HOLIDAY--- NO RENTAL BEING PAID FOR BARE EQUIPMENT ON SUNDAYS AND HOLIDAYS.

THE CAPACITY OF TRUCKS OFFERED SHALL BE THE MANUFACTURER'S RATED CAPACITY.

* * * ALL EQUIPMENT SHALL BE SUBJECT TO INSPECTION AND ACCEPTANCE PRIOR TO ASSIGNMENT BY THE ADMINISTRATIVE OFFICER IN CHARGE OF THE PROJECT ON WHICH THE EQUIPMENT IS TO BE USED.

YOUR OFFER WAS ACCEPTED, AND PURCHASE ORDERS WERE ISSUED JUNE 5, 1936, BY A. E. TODD, DEPUTY PROCUREMENT OFFICER. IT APPEARS THAT ONE OF THE VEHICLES WAS USED BY ONE MIKE MACDONALD, AN EMPLOYEE OF THE WORKS PROGRESS ADMINISTRATION, AND THAT THE OTHER WAS USED BY LESTER LEE, SAID TO BE YOUR HUSBAND AND ASSISTANT TO YOUR BROTHER, WHO IS REPORTED AS BEING COMMISSIONER OF PUBLIC WORKS FOR THE CITY OF MILWAUKEE, AND AN EMPLOYEE OF THE CITY, AND THAT BOTH VEHICLES WERE USED FOR INSPECTION PURPOSES. THERE IS NO EVIDENCE THAT EITHER WAS USED AS A TRUCK--- THAT IS, FOR THE TRANSPORTATION OF FREIGHT EQUIPMENT OR OTHER MATERIAL, SUCH AS TRUCKS IN THE RECOGNIZED ACCEPTATION OF THAT TERM ARE BUILT, EQUIPPED, AND ORDINARILY USED TO TRANSPORT.

WITHIN A SHORT TIME THE TRANSACTION WAS INVESTIGATED, APPARENTLY AT THE INSTANCE OF OFFICIALS OF THE WORKS PROGRESS ADMINISTRATION, THE FACT WAS DISCOVERED AND REPORTED THAT THE VEHICLES FURNISHED BY YOU WERE PLYMOUTH BUSINESS COUPES "WITH SMALL, DETACHABLE BODIES INSERTED IN THE TONNEAU" , AND THAT THE VEHICLES WERE BEING USED FOR INSPECTION WORK--- APPARENTLY AS PASSENGER CONVEYANCES--- AND NOT FOR HAULING PURPOSES. THEREUPON THE TWO AUTOMOBILES WERE REMOVED FROM WORKS PROGRESS ADMINISTRATION SERVICE FOR THE REASON THAT THEY WERE NOT TRUCKS AND WERE NOT OF 1-TON CAPACITY, AND YOUR CONTRACT WAS IMMEDIATELY CANCELED. AT A LATER DATE, TO WIT, ON DECEMBER 24, 1936, YOU WERE NOTIFIED THAT, BASED ON AN OFFICIAL REPORT, IT REASONABLY APPEARED THAT YOU HAD BEEN GUILTY OF GROSS IRREGULARITIES IN FULFILLING THE CONTRACT HERE INVOLVED OF SUCH A NATURE AS TO WARRANT THE PROCUREMENT DIVISION, TREASURY DEPARTMENT, IN REFUSING TO GIVE CONSIDERATION TO ANY BID SUBMITTED BY YOU FOR A PERIOD OF 1 YEAR, AND THAT YOU WERE DEBARRED FROM BIDDING UNDER GOVERNMENT INVITATIONS ISSUED BY THAT DIVISION FOR A PERIOD OF 1 YEAR FROM DECEMBER 24, 1936.

YOU UNDERTOOK BY YOUR BID TO FURNISH THE GOVERNMENT WITH PICK-UP BODY TRUCKS OF AT LEAST 1-TON CAPACITY. WHEN YOUR BID WAS ACCEPTED JUNE 5, 1936, IT CONSTITUTED A CONTRACT BINDING YOU TO THAT EFFECT. WHILE THE SCHEDULE PROVIDED THAT EQUIPMENT DELIVERED WOULD BE "SUBJECT" TO INSPECTION AND ACCEPTANCE BY THE ADMINISTRATIVE OFFICER IN CHARGE OF THE PROJECT, PRIOR INSPECTION AND ACCEPTANCE WAS NOT A REQUISITE OF THE CONTRACT, AND THE GOVERNMENT WAS PRIVILEGED TO RELY UPON YOUR UNDERTAKING TO FURNISH TRUCKS AS DESCRIBED BY YOU. WHEN YOU DID NOT FURNISH PICK-UP TRUCKS OF 1-TON OR MORE CAPACITY YOU DID NOT COMPLY WITH YOUR CONTRACT, WHICH WAS CANCELED IMMEDIATELY UPON INSPECTION BY AUTHORIZED REPRESENTATIVES OF THE WORKS PROGRESS ADMINISTRATION AND DISCOVERY OF THE FACT THAT THE AUTOMOBILES WERE PLYMOUTH BUSINESS COUPES WITH DETACHABLE TRUNK BOXES, AS ADMINISTRATIVELY REPORTED TO THIS OFFICE.

YOUR FURNISHING SUCH AUTOMOBILES WAS NOT A COMPLIANCE WITH YOUR CONTRACT, DID NOT OPERATE TO ENTITLE YOU TO PAYMENT OF 80 CENTS PER HOUR, FOR RENTAL OF VEHICLES NOT COMPLYING WITH THE CONTRACT, OR TO JUSTIFY CHARGING APPROPRIATED MONEYS OF THE UNITED STATES FOR PAYMENT TO YOU IN ANY AMOUNT. THE VEHICLES FURNISHED WERE NOT SUCH AS YOU WERE OBLIGATED BY YOUR CONTRACT TO FURNISH, AND THAT THEY WERE NOT SUCH AS WERE REQUIRED BY THE GOVERNMENT WAS SUFFICIENTLY EVIDENCED BY THE IMMEDIATE REMOVAL OF THE VEHICLES FROM WORKS PROGRESS SERVICE UPON DISCLOSURE OF THE FACT TO RESPONSIBLE REPRESENTATIVES OF THE WORKS PROGRESS ADMINISTRATION THAT YOU HAD FURNISHED COUPES INSTEAD OF TRUCKS.

IT MAY BE OBSERVED THAT YOUR INVOICES CHARGED THE GOVERNMENT WITH RENTAL OF ONE VEHICLE FOR 8 HOURS ON JUNE 6 AND 9 HOURS ON JUNE 13, 1936, AND WITH RENTAL OF THE OTHER VEHICLE FOR 8 HOURS ON JUNE 13, 1936, AT 80 CENTS PER HOUR. JUNE 6 AND JUNE 13, 1936, FELL ON SATURDAY AND BY THE EXPRESS TERMS OF YOUR CONTRACT YOU WERE NOT TO BE PAID RENTAL FOR THOSE DAYS. DURING THE WEEK BEGINNING MONDAY, JUNE 8, YOU CHARGED RENTAL ON ONE VEHICLE FOR 3 DAYS OF 8 HOURS EACH AND 3 DAYS OF 9 HOURSEACH, A TOTAL OF 51 HOURS, AND ON THE OTHER VEHICLE FOR 6 DAYS OF 8 HOURS EACH, OR 48 HOURS. THE REGULATIONS OF THE WORKS PROGRESS ADMINISTRATION IN EFFECT IN JUNE 1936 LIMITED WORKING HOURS ON PROJECTS TO 8 HOURS PER DAY AND 40 HOURS PER WEEK. THE RENTAL CHARGES FOR THE TWO AUTOMOBILES DURING THE SAID WEEK, THEREFORE, APPARENTLY WERE FOR 11 HOURS AND 8 HOURS MORE THAN THE REGULATIONS PERMITTED WORKERS TO BE EMPLOYED. WHETHER AND WHY THE "TRUCKS" WERE OPERATED MORE THAN THE MAXIMUM NUMBER OF HOURS PERMITTED DOES NOT APPEAR. SEE SECTION 35 OF THE ACT OF MARCH 4, 1909, 35 STAT. 1095, AS AMENDED BY THE ACT OF OCTOBER 23, 1918, 40 STAT. 1015.

UPON THE FACTS PRESENTED THERE APPEARS NO LEGAL BASIS FOR PAYMENT TO YOU IN ANY AMOUNT, AND THE DISALLOWANCE OF APRIL 15, 1937, MUST BE AND IS SUSTAINED.