B-136869, AUG. 5, 1958

B-136869, AUG. 5, 1958

TO HOWARD VAN LINES, INC., OR GLOBAL VAN LINES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1958, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MARCH 5, 1958, WHICH DISALLOWED YOUR CLAIM FOR $17,861.25 DRAYAGE CHARGES ALLEGED TO BE DUE UNDER CONTRACT NO. AF 01/600/-922, DATED MARCH 15, 1956, WITH MAXWELL AIR FORCE BASE, ALABAMA.

YOU CONTEND, IN SUBSTANCE, THAT THE GOVERNMENT IMPROPERLY COMPUTED ITS PAYMENTS FOR DRAYAGE RENDERED PURSUANT TO ITEM NO. 2 OF THE ABOVE CONTRACT ON THE NET WEIGHT OF EACH SHIPMENT, IN LIEU OF ITS GROSS WEIGHT, AS ALLEGEDLY WAS CONTEMPLATED BY THE TERMS OF THE CONTRACT. IN SUPPORT OF YOUR POSITION, YOU REFER TO PAGE 4, ITEM NO. 2 OF THE CONTRACT, PERTAINING TO DRAYAGE OF HOUSEHOLD GOODS FROM ONE POINT TO ANOTHER, WHICH READS: "PAYMENT BASED UPON GROSS WEIGHT," AND ALSO, TO PARAGRAPH 5C, PAGE 8, OF THE TECHNICAL PROVISIONS OF THE CONTRACT, WHICH PROVIDES ALSO WITH RESPECT TO DRAYAGE THAT "PACKED AND CRATED WEIGHT SHALL GOVERN PAYMENT ACCORDING TO ZONE RATE APPLICABLE.' YOU CONTEND THAT HAD THE CONTRACT STATED THAT "CRATING WAS NOT TO BE CONSIDERED IN THE GROSS WEIGHT," THAT THE UNIT PRICE BID WOULD HAVE BEEN SUBSTANTIALLY HIGHER.

IN HIS COMMUNICATION OF AUGUST 1, 1956, THE CONTRACTING OFFICER INTERPRETED THE FOREGOING PROVISIONS OF THE CONTRACT, AS FOLLOWS:

"THE WEIGHT DRAYED FROM THE RESIDENCE IS THE NET WEIGHT OF THE SHIPMENT PLUS THE WEIGHT OF ANY PRELIMINARY PACKING DONE AT THE RESIDENCE. THIS CONSTITUTES THE GROSS WEIGHT (AS USED IN THE CONTRACT). IN THE EVENT NO PRELIMINARY PACKING IS REQUIRED THE NET WEIGHT OF THE SHIPMENT DRAYED IS THE GROSS WEIGHT AND PAYMENT IS MADE THEREON.'

APPARENTLY IT IS YOUR POSITION, FOR EXAMPLE, THAT IN THE EVENT YOU PERFORM DRAYAGE OF HOUSEHOLD GOODS FROM RESIDENCE TO YOUR WAREHOUSE AND THEN DO PACKING AND CRATING THERE, WHICH ADDS POUNDAGE, AND THEREAFTER TRANSPORT SUCH PACKED AND CRATED HOUSEHOLD GOODS TO ANOTHER POINT YOU ARE ENTITLED TO PAYMENT FOR DRAYAGE FROM RESIDENCE TO YOUR WAREHOUSE UPON THE GROSS WEIGHT OF THE SHIPMENT AFTER PACKING AND CRATING ARE COMPLETED RATHER THAN THE ACTUAL WEIGHT OF THE MATERIAL MOVED TO YOUR WAREHOUSE. THIS INTERPRETATION APPEARS TO BE ERRONEOUS SINCE ITEM NO. 2 APPLIES STRICTLY TO THE MATTER OF "DRAYAGE," AS TO WHICH PAYMENT IS AUTHORIZED ONLY ON THE GROSS WEIGHT OF THE SHIPMENT REMOVED FROM THE RESIDENCE OR STORAGE POINT; AND MUST NOT BE CONFUSED WITH ITEM NO. 1 WHICH CONCERNS "PACKING AND CRATING" EXCLUSIVELY, AS TO WHICH YOU ALSO ARE PAID AT THE SPECIFIED RATES ON A GROSS WEIGHT BASIS.

IN A REPORT DATED MARCH 1, 1957, THE COMMERCIAL TRANSPORTATION OFFICER AT THE GOVERNMENT CONTRACTING FACILITY INTERPRETED THE CONTRACT, AND EXPLAINED THE BASIS UPON WHICH DRAYAGE PAYMENTS WERE MADE, AS FOLLOWS:

"2. ITEM 2 OF THE BID SCHEDULE SAYS THAT PAYMENT WILL BE BASED ON GROSS WEIGHT. THIS IS DEFINITELY A REFERENCE TO DRAYAGE OF HOUSEHOLD GOODS FROM ONE POINT TO PACKING AND CRATING FACILITY AND THAT PAYMENT WILL BE BASED UPON THE GROSS WEIGHT DRAYED. THEREFORE, ON PICK-UPS THE GROSS WEIGHT REFERS TO THE NET WEIGHT OF HOUSEHOLD GOODS AS THEY ARE SET IN THE QUARTERS, AND THE GROSS WEIGHT REFERS TO THE HOUSEHOLD GOODS AFTER THE PRELIMINARY PACKING AT THE QUARTERS IN PREPARATION FOR SAFE DRAYAGE TO THE PACKING AND CRATING WAREHOUSE.

"3. HIS (THE CONTRACTOR-S) REFERENCE TO PAGE 8 ITEM 5C REFERS TO OTHER DRAYAGE WHEN FREE PICK-UP AND DELIVERY TO CONTRACTOR'S PLANT IS NOT PROVIDED BY THE COMMON CARRIER. * * *

THE FOREGOING STATEMENT CONFORMS WITH OUR INTERPRETATION OF THE PERTINENT CONTRACT PROVISIONS.

IT IS ADMINISTRATIVELY REPORTED THAT YOUR CONTRACTS FOR SIMILAR SERVICES FOR THE FISCAL YEARS 1955 AND 1956 CONTAINED THE SAME LANGUAGE WITH REGARD TO PAYMENT AS THE CONTRACT HERE WHICH COVERS THE FISCAL YEAR 1957. ASSUMING THAT THE LANGUAGE USED IN THE CONTRACT MAY BE SUSCEPTIBLE TO TWO DIFFERENT INTERPRETATIONS, THE FACT THAT YOUR INVOICES ON YOUR TWO PRIOR CONTRACTS WERE BILLED AND PAID ON THE BASIS OF THE ACTUAL WEIGHT OF THE HOUSEHOLD GOODS DRAYED FROM THE QUARTERS TO THE PACKING FACILITIES SHOWS THAT WHATEVER AMBIGUITY EXISTED AS TO THE LANGUAGE USED WAS RESOLVED BY THE CONDUCT OF THE PARTIES TO THESE CONTRACTS. IN VIEW OF THE FACT THAT PAYMENTS WERE MADE ON THIS BASIS FOR 1956 AND 1957, IT IS NOT UNDERSTOOD AS TO WHY IT SHOULD NOW BE CONTENDED BY YOUR ATTORNEY THAT HAD YOU KNOWN THAT PAYMENTS WOULD BE MADE ON THE BASIS THAT THEY HAVE BEEN MADE FOR THE 1957 FISCAL YEAR, YOUR PRICE WOULD HAVE BEEN SUBSTANTIALLY HIGHER.

ACCORDINGLY, AND SINCE PAYMENTS UNDER THE PRESENT CONTRACT APPEAR TO HAVE BEEN MADE ON A CORRECT AND PROPER BASIS, THE SETTLEMENT OF MARCH 5, 1958, IS AFFIRMED.

CONCERNING YOUR REQUEST FOR AN ORAL CONFERENCE ON THIS MATTER, YOU ARE PRIVILEGED TO CALL AT THE OFFICE OF THE GENERAL COUNSEL, GENERAL ACCOUNTING OFFICE, 441 G. STREET, N. W., AT ANY TIME DURING THE HOURS OF 9:00 A.M. TO 4:00 P.M., MONDAYS THROUGH FRIDAYS, TO ORALLY DISCUSS THE ISSUES HERE INVOLVED. AS A GENERAL MATTER, HOWEVER, OUR PROCEDURES ARE SUCH THAT CASES PRESENTED HERE FOR SETTLEMENT ARE DECIDED UPON THE BASIS OF THE WRITTEN RECORD ALONE AND THEREFORE ANYTHING ..END :