B-126837, MAR. 9, 1956

B-126837, MAR. 9, 1956

TO MR. MANELY W. ALLEN, AUTHORIZED CERTIFYING OFFICER, NATIONAL PARK SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 27, 1956, F5019-F, REQUESTING A DECISION AS TO WHETHER YOU ARE AUTHORIZED TO CERTIFY FOR PAYMENT AN INVOICE IN FAVOR OF COSDEN PETROLEUM CORPORATION IN THE AMOUNT OF $267.59, FOR REIMBURSEMENT FOR DEMURRAGE ALLEGED TO HAVE BEEN PAID BY THE CORPORATION TO GROENDYKE TRANSPORT, INC., ON FIVE TRANSPORT LOADS OF ASPHALT DELIVERED TO GREAT SAND DUNES NATIONAL MONUMENT, COLORADO, UNDER CONTRACT NO. 14-10-333-97, DATED AUGUST 4, 1955.

THE CONTRACT PROVIDED FOR DELIVERY OF APPROXIMATELY 51,000 GALLONS OF ASPHALT "FOR ROAD WORK," F.O.B. GREAT SAND DUNES NATIONAL MONUMENT, FOR A PRICE OF $6,550.20. THE INVITATION ON WHICH THE CONTRACT WAS BASED INCLUDED A SUPPLEMENT TO GENERAL PROVISIONS PROVIDING IN PART AS FOLLOWS:

"DEMURRAGE RATES TABLES AND AUTHORITY UNDER WHICH SUCH CHARGES ARE MADE MUST ACCOMPANY BID, IF CHARGES OF THIS TYPE ARE TO BE CLAIMED BY THE BIDDER.

"DELIVERIES WILL BE REQUESTED BY THE GOVERNMENT IN 3,500 TO 5,000 GALLON QUANTITIES AS NEEDED. DELIVERY WILL BE MADE DIRECT FROM TRANSPORT TO ASPHALT DISTRIBUTOR ON THE JOB.

"A 24-HOUR ADVANCE NOTICE FOR DELIVERY WILL BE GIVEN BY A REPRESENTATIVE OF THE GOVERNMENT AND THE ASPHALT SHALL BE DELIVERED ON THE JOB EXPEDITIOUSLY TO INSURE A MINIMUM UNLOADING TEMPERATURE OF ABOVE 180 DEGREES F.'

IN SUBMITTING ITS BID THE COSDEN PETROLEUM CORPORATION ADDED TO THE SAID SUPPLEMENT THE FOLLOWING STATEMENT:

"MATERIAL WILL BE LOADED AT A TEMPERATURE OF 165-170 DEGREES F, BUT WE CANNOT GUARANTEE ARRIVAL TEMPERATURE.'

IT FURNISHED NO DEMURRAGE RATE TABLES AND MADE NO STATEMENT RELATIVE TO DEMURRAGE.

THE INVOICE COVERS DEMURRAGE AT THE RATE OF $2.40 PER HOUR ON FIVE TRANSPORT LOADS OF ASPHALT REPORTED BY THE REGIONAL ADMINISTRATIVE OFFICER UNDER TICKETS NOS. 4601, 4609, 4610, 4634 AND 4641, AS HAVING BEEN DELAYED IN UNLOADING 30 HOURS, 27 HOURS, 31 1/4 HOURS, 8 3/4 HOURS AND 11 3/4 HOURS, RESPECTIVELY. THE FOLLOWING EXPLANATION OF THE DELAYS IS FURNISHED BY THE REGIONAL ADMINISTRATIVE OFFICER:

"TICKET NO. 4601: THIS SHIPMENT WAS LOADED AT A TEMPERATURE OF 145 DEGRESS F. AS SHOWN BY THE SUPPLIER'S REPORT, WHICH WAS TOO LOW, MAKING IT NECESSARY TO HAVE THE TRANSPORT RETURN TO ALAMOSA, COLORADO, A DISTANCE OF 37 MILES, TO REHEAT THE ASPHALT TO PROPER TEMPERATURE FOR UNLOADING. THIS SHIPMENT WAS RETURNED TO THE MONUMENT AT 4:00 P.M. THE SAME DAY FROM ALAMOSA. ALTHOUGH WE WORKED UNTIL 6:30 P.M. THE TRUCK WAS NOT EMPTY. THIS ASPHALT COOLED SO MUCH DURING THE NIGHT, IT WAS REHEATED THROUGH THE DISTRIBUTOR ON THE JOB, WITH MORE DELAY. THIS INDICATED THAT THE TRUCK TANKS WERE NOT SUFFICIENTLY INSULATED TO RETAIN HEAT OVERNIGHT. (THIS SHIPMENT AFFECTED OUR SCHEDULE SO MUCH THAT WE HAD TWO SHIPMENTS COME IN BEFORE THE FIRST ONE WAS UNLOADED.)

"TICKET NOS. 4609 AND 4610: THE FACT THAT IT WAS IMPOSSIBLE TO UNLOAD THE SHIPMENT COVERED BY TICKET NO. 4601, DUE TO THE LOW TEMPERATURE ON ARRIVAL, DELAYED PROGRESS OF THE JOB TO THE EXTENT THAT IT WAS NOT POSSIBLE TO HANDLE THESE SHIPMENTS, WHICH WERE ORDERED BEFORE THE DELAY OCCURRED. IN ANY CASE, THEY ARRIVED TOO COLD FOR UNLOADING. IT WAS THEREFORE NECESSARY TO HOLD BOTH SHIPMENTS. IT WAS ALSO NECESSARY TO RETURN THESE TRANSPORTS TO ALAMOSA FOR REHEATING. THE MAJOR PORTION OF ONE OF THESE TRANSPORTS WAS STORED IN A RENTED TRUCK TANK.

"TICKET NOS. 4634 AND 4641: DUE TO THE EXPERIENCE WITH THE THREE PREVIOUS SHIPMENTS, THE CONTRACTOR WAS REQUESTED TO ROUTE THESE LOADS VIA ALAMOSA TO INSURE THE REQUIRED UNLOADING TEMPERATURE. APPROXIMATELY FOUR HOURS WERE REQUIRED TO MAKE THE TRIP, VIA ALAMOSA, HEAT, AND REPORT TO THE PROJECT BY 8:00 A.M. WE HAVE NO INFORMATION AS TO THE TEMPERATURE ON ARRIVAL AT ALAMOSA, WHERE THESE TWO SHIPMENTS WERE REHEATED.'

IN 46 AM.JUR. 529 IT IS STATED:

"IF A THING IS ORDERED FOR A SPECIAL PURPOSE AND IS SUPPLIED AND SOLD FOR THAT PURPOSE, THERE IS AN IMPLIED WARRANTY THAT IT IS FIT FOR THAT PURPOSE.'

IN THE INSTANT MATTER, THE CONTRACT CLEARLY PROVIDED THAT THE ASPHALT WAS INTENDED "FOR ROAD WORK" AND THAT IT WAS TO BE DELIVERED "TO ASPHALT DISTRIBUTOR ON THE JOB.' THEREFORE, THE CONTRACTOR WAS OBLIGATED TO DELIVER THE ASPHALT IN PROPER CONDITION FOR UNLOADING AND IMMEDIATE USE. WHILE THE CONTRACTOR STATED IN ITS BID, AS A QUALIFICATION OF THE STATED REQUIREMENT OF A MINIMUM UNLOADING TEMPERATURE OF 180 DEGREES F., THAT THE ASPHALT WOULD BE LOADED AT A TEMPERATURE OF 165-170 DEGREES F., THE CONTRACTOR'S OWN RECORD SHOWS THAT THE SHIPMENT UNDER TICKET NO. 4601 WAS LOADED AT A TEMPERATURE OF 145 DEGREES AND THAT ITS TEMPERATURE ON ARRIVAL WAS 100-110 DEGREES, WHICH FACT MADE IT NECESSARY TO HAVE THAT SHIPMENT RETURNED TO ALAMOSA, COLORADO, AND REHEATED. IT IS REPORTED FURTHER THAT THE RESULTING DELAY AFFECTED THE SCHEDULE OF WORK, CAUSING DELAY IN UNLOADING THE SHIPMENTS SUBSEQUENTLY RECEIVED UNDER TICKETS NOS. 4609 AND 4610; ALSO THAT THE LATTER TWO SHIPMENTS LIKEWISE ARRIVED TOO COLD FOR UNLOADING. THE DELAY IN UNLOADING THE SHIPMENTS RECEIVED UNDER TICKETS NOS. 4634 AND 4641 IS REPORTED TO HAVE RESULTED FROM REQUIRING THEM TO BE REHEATED AT ALAMOSA BEFORE DELIVERY, BECAUSE OF THE UNSATISFACTORY EXPERIENCE WITH THE THREE PREVIOUS SHIPMENTS.

IN VIEW OF THE FOREGOING, IT SEEMS CLEAR THAT THE DELAYS IN UNLOADING WERE CAUSED BY THE FAILURE OF THE CONTRACTOR TO DELIVER THE ASPHALT ON THE JOB IN PROPER CONDITION FOR UNLOADING AND USE AS CONTEMPLATED BY THE TERMS OF THE CONTRACT, AND THAT THE GOVERNMENT WOULD NOT BE RESPONSIBLE THEREFOR EVEN IF THE CONTRACT HAD FURNISHED DEMURRAGE RATES AND TABLES WITH ITS BID. ACCORDINGLY, THE INVOICE SUBMITTED MAY NOT BE CERTIFIED FOR PAYMENT IN ANY AMOUNT.