B-149144, JUL. 12, 1962

B-149144, JUL. 12, 1962

TO MR. D. R. CATLIN, PRESIDENT, LIFPAR, INCORPORATED:

THERE WAS RECEIVED IN OUR OFFICE ON MAY 16, 1962, A TELEFAX FROM LIFPAR, INC., REQUESTING OUR OFFICE TO INVESTIGATE THE MATTER OF A CLAIM SUBMITTED BY THAT CONCERN IN THE AMOUNT OF $240.90, REPRESENTING THE CONTRACT PRICE FOR TWO RADIATORS FURNISHED THE PERRIN AIR FORCE BASE, TEXAS, PURSUANT TO PURCHASE ORDER NO. (41-610/62-2434, DATED DECEMBER 7, 1961.

IN RESPONSE TO OUR REQUEST FOR A REPORT CONCERNING THE CLAIM INVOLVED HEREIN, THE DEPARTMENT OF THE AIR FORCE TRANSMITTED HERE WITH LETTERS DATED JUNE 13 AND JUNE 27, 1962, COPIES OF THE SEVERAL COMMUNICATIONS BETWEEN LIFPAR, INC., AND THE PERRIN AIR FORCE BASE RELATING TO THE CLAIM, TOGETHER WITH A COPY OF A LETTER DATED APRIL 4, 1962, FROM THE CENTRAL FREIGHT LINES, INC., SHERMAN, TEXAS. AMONG THE ENCLOSURES TO THE LETTER OF JUNE 13, 1962, WAS A COPY OF THE CONTRACTING OFFICER'S DECISION DATED MAY 29, 1962, ADDRESSED TO YOUR COMPANY AT 2571 NORTH MCGREGOR DRIVE, HOUSTON 4, TEXAS, IN WHICH THE CLAIM WAS DENIED, IT BEING POINTED OUT, HOWEVER, THAT UNDER THE DISPUTES CLAUSE OF THE CONTRACT THE CONTRACTOR HAD THE RIGHT TO APPEAL THE CONTRACTING OFFICER'S DECISION TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS WITHIN THIRTY DAYS FROM THE DATE OF THE DECISION. BY LETTER DATED JUNE 8, 1962, THE CONTRACTING OFFICER AGAIN ADVISED YOUR COMPANY OF ITS RIGHT TO APPEAL FROM HIS DECISION. YOUR TELEFAX WAS, OF COURSE, DISPATCHED PRIOR TO THE RECEIPT OF THE CONTRACTING OFFICER'S DECISION DATED MAY 29, 1962. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTOR EVER TOOK ANY STEPS TO APPEAL THE CONTRACTING OFFICER'S DECISION. IN YOUR LETTER OF JUNE 6, 1962, ACKNOWLEDGING THE RECEIPT OF THE LETTER OF MAY 29, 1962, YOU ADVISED THE PURCHASING AND CONTRACTING OFFICE, PERRIN AIR FORCE BASE, THAT YOUR COMPANY HAD NO RIGHT OF APPEAL. IN THE LIGHT OF THE ADVICES GIVEN IN THE LETTER OF MAY 29, 1962, THAT STATEMENT IS NOT UNDERSTOOD.

IT APPEARS FROM THE RECORD IN THIS CASE THAT THE CLAIM HEREIN IS PREDICATED UPON THE FACT THAT THE RADIATORS IN QUESTION WERE DELIVERED TO AN AUTHORIZED CARRIER FOR DELIVERY TO THE PERRIN AIR FORCE BASE AND THAT SINCE THE SAME WERE DULY DELIVERED AT DESTINATION YOU ARE ENTITLED TO BE PAID THEREFOR. THIS CONTENTION SEEMS TO OVERLOOK CERTAIN OF THE CONTRACT PROVISIONS TO WHICH REFERENCE WILL HEREINAFTER BE MADE.

RESPECTING THE MERITS OF THE CLAIM, THE CONTRACTING OFFICER FOUND IN HIS DECISION OF MAY 29, 1962, THAT "TWO BOXES OF CRATED TRUCK PARTS" WERE RECEIVED F.O.B. DESTINATION ON JANUARY 17, 1962, WITH NO VISIBLE DAMAGE TO THE CONTAINERS. IT WAS REPORTED FURTHER, HOWEVER, THAT THE BOXES WERE OPENED IN THE PRESENCE OF A REPRESENTATIVE OF THE CARRIER, AND THAT DAMAGE WAS NOTED, IT APPEARING THAT THE CARRIER WAS PARTIALLY RESPONSIBLE THEREFOR. A REPORT OF INSPECTION WAS OBTAINED FROM THE CENTRAL FREIGHT LINES, INC., AND THE MATERIAL WAS RETURNED TO THE CARRIER ON JANUARY 18, 1962. THERE HAS NOT BEEN OVERLOOKED THE CARRIER'S LETTER OF FEBRUARY 19, 1962, TRANSMITTING TO LIFPAR, INC., A COPY OF THE DELIVERY RECEIPT DATED JANUARY 12, 1962, SHOWING THAT THE SHIPMENT WAS DELIVERED WITHOUT ANY EXCEPTIONS AS TO DAMAGE. THE INCONSISTENCY IN THE REPORTED DELIVERY DATES HAS NOT BEEN EXPLAINED. IN THIS CONNECTION, THE CENTRAL FREIGHT LINES, INC., ADVISED THE PERRIN AIR FORCE BASE BY LETTER DATED APRIL 4, 1962 (A COPY OF WHICH IS INDICATED AS HAVING BEEN SENT TO LIFPAR), IN PART, AS FOLLOWS:

"THIS IS TO ADVISE THAT ON THE DATE OF MARCH 16, 1962 WE FORWARDED TWO CARTONS RADIATORS TO OUR CLAIM DEPARTMENT AT WACO, TEXAS. THESE DAMAGED ON OUR F/B 2818357-1-12-62.'

IN HIS DECISION OF MAY 29, 1962, THE CONTRACTING OFFICER MADE REFERENCE TO PARAGRAPH 1 OF THE GENERAL PROVISIONS OF THE CONTRACT, AS FOLLOWS:

"INSPECTION AND ACCEPTANCE--- INSPECTION AND ACCEPTANCE WILL BE AT DESTINATION, UNLESS OTHERWISE PROVIDED. UNTIL DELIVERY AND ACCEPTANCE, AND AFTER ANY REJECTIONS, RISK OF LOSS WILL BE ON THE CONTRACTOR UNLESS LOSS RESULTS FROM NEGLIGENCE OF THE GOVERNMENT.'

IT IS CLEAR FROM THE LANGUAGE OF THE QUOTED PARAGRAPH THAT ACCEPTANCE OF THE RADIATORS WAS NOT TO TAKE PLACE UNTIL AFTER INSPECTION AT DESTINATION. IN OTHER WORDS, THE MERE DELIVERY OF THE RADIATORS AT DESTINATION WITH NO VISIBLE DAMAGE DID NOT JUSTIFY PAYMENT THEREFOR. VIEW OF THE FINDINGS BY THE CONTRACTING OFFICER IN THE DECISION OF MAY 29, 1962, WE FEEL THAT THE ACTION TAKEN IN THIS CASE WAS CORRECT. ACCORDINGLY, THE CLAIM IS HEREBY DENIED.

WE FEEL ALSO THAT WE SHOULD COMMENT UPON THE FURTHER STATEMENT CONTAINED IN YOUR LETTER OF JUNE 6, 1962, TO THE EFFECT THAT IT IS IMPOSSIBLE FOR YOUR COMPANY TO BRING SUIT AGAINST THE UNITED STATES ON ACCOUNT OF YOUR CLAIM. IF THE CONTRACTOR FEELS THAT IT HAS A CAUSE OF ACTION FOR RECOVERY OF THE AMOUNT CLAIMED, AN ACTION THEREFOR MAY BE FILED IN THE UNITED STATES COURT OF CLAIMS PURSUANT TO THE PROVISIONS OF 28 U.S.C. 1491, OR IN THE LOCAL UNITED STATES DISTRICT COURT PURSUANT TO THE PROVISIONS OF 28 U.S.C. 1346, THE LATTER HAVING ORIGINAL JURISDICTION OF THE CLAIM, CONCURRENT WITH THE COURT OF CLAIMS. HOWEVER, YOUR ATTENTION IS INVITED TO THE CASE OF KILGORE V. UNITED STATES, 121 CT.CL. 340, 370, IN WHICH IT WAS HELD THAT UNDER THE SUPREME COURT'S DECISIONS IN UNITED STATES V. JOSEPH A. HOLPUCH COMPANY, 328 U.S. 234, 240; UNITED STATES V. BLAIR, 321 U.S. 730, 735, AND OTHERS, A CONTRACTOR WHO HAS FAILED TO PURSUE HIS ADMINISTRATIVE REMEDIES UNDER THE "DISPUTES" CLAUSE OF THE CONTRACT IS NOT ENTITLED TO BRING AN ACTION IN THE COURT OF CLAIMS.