B-150609, APR. 25, 1963

B-150609, APR. 25, 1963

TO THE SECRETARY OF THE AIR FORCE:

UNDER DATE OF JANUARY 17, 1963, WE TRANSMITTED TO YOUR DEPARTMENT A COPY OF A LETTER DATED JANUARY 8, 1963, TOGETHER WITH COPIES OF THE ENCLOSURES THERETO, FROM ALEXANDER BOSKOFF, ESQUIRE, 1111 E STREET, N.W., WASHINGTON 4, D.C., SUBMITTING ON BEHALF OF THE SQUARE DEAL TRUCKING COMPANY, INC., A CLAIM FOR $15,120, AS AN EQUITABLE PRICE ADJUSTMENT UNDER CONTRACT NO. AF- 49-/642/-1869, ENTERED INTO UNDER DATE OF JULY 1, 1962, BETWEEN THAT COMPANY AND THE DEPARTMENT OF THE AIR FORCE.

IT WAS POINTED OUT IN OUR LETTER THAT THE DISPUTE IN THIS CASE ARISES OUT OF AN INTERPRETATION OF CERTAIN OF THE CONTRACT PROVISIONS AND THUS INVOLVES A QUESTION OF LAW. IN ORDER THAT OUR OFFICE MIGHT GIVE CONSIDERATION TO THE CLAIM, WE REQUESTED THE COMMENTS OF YOUR DEPARTMENT GENERALLY ON THE MATTERS SET FORTH IN THE LETTER OF JANUARY 8, 1963, AND THE ENCLOSURES THERETO. THE RECORD INDICATES THAT OUR LETTER OF JANUARY 17, 1963, WAS FORWARDED VIA THE WRIGHT-PATTERSON AIR FORCE BASE TO THE AIR FORCE ACCOUNTING AND FINANCE CENTER AT DENVER, COLORADO, FOR CONSIDERATION AND REPORT. UNDER DATE OF MARCH 21, 1963, THE AIR FORCE ACCOUNTING AND FINANCE CENTER FURNISHED A REPORT ON THE CLAIM, THERE BEING TRANSMITTED THEREWITH A COPY OF THE INDICATED CONTRACT, TOGETHER WITH AN ENDORSEMENT DATED MARCH 13, 1963, BY HQ AFLC, WRIGHT-PATTERSON AIR FORCE BASE, COMMENTING ON THE CLAIM. COPIES OF THE LETTER OF MARCH 21, 1963, AND OF THE ENDORSEMENT DATED MARCH 13, 1963, ARE ENCLOSED FOR READY REFERENCE. IT WILL BE NOTED THAT THE CLAIM WAS ADMINISTRATIVELY DISAPPROVED.

AS A BASIS FOR THE CLAIM MR. BOSKOFF ALLEGED IN HIS LETTER OF JANUARY 8, 1963, IN EFFECT, THAT IN SUBMITTING ITS BID IN THIS CASE THE CONTRACTOR RELIED UPON CERTAIN PROVISIONS OF THE INVITATION FOR BIDS -- HEREINAFTER REFERRED TO--- UNDER WHICH IT IS CLAIMED THE CONTRACTOR WAS PERMITTED TO DISPOSE OF ALL BASE REFUSE AT THE INCINERATOR ON THE BOLLING AIR FORCE BASE. IT WAS STATED THAT ORIGINALLY THE USE OF THE INCINERATOR WAS WHOLLY DENIED BUT THAT SUBSEQUENTLY ITS USE WAS PERMITTED ON MONDAYS, WEDNESDAYS AND FRIDAYS, HOLIDAYS EXCEPTED, AT CERTAIN SPECIFIED HOURS.

THE RECORD SHOWS THAT UNDER DATE OF APRIL 27, 1962, THE BASE PROCUREMENT OFFICER, ANDREWS AIR FORCE BASE, ISSUED INVITATIONS FOR BIDS NO. 49-642-62 -120, FOR REFUSE COLLECTION AND DISPOSAL AT D.C., AND AT FIVE OFF-BASE LOCATIONS FOR THE PERIOD JULY 1, 1962, THROUGH JUNE 30, 1963. THE CLAIM IN THIS CASE ARISES UNDER BASE BID NO. 2 OF THE INVITATION FOR BIDS, FOR THE FURNISHING OF THE REQUIRED SERVICES AT THE BOLLING AIR FORCE BASE AND THE WILBURN AREA, AS TO WHICH THE SQUARE DEAL TRUCKING COMPANY SUBMITTED A LOW BID OF $21,612. BY MODIFICATION NO. 2, DATED OCTOBER 1, 1962, THE CONTRACT PRICE WAS INCREASED BY $540, OR TO A TOTAL OF $22,152.

PARAGRAPH 3-09 (C) OF THE TECHNICAL PROVISIONS OF THE CONTRACT PROVIDES THAT THE DISPOSAL OF REFUSE FROM THE BOLLING AIR FORCE BASE BE EITHER AT AN OFF-BASE SITE PROVIDED BY THE CONTRACTOR AT HIS OWN EXPENSE AND AT NO OBLIGATION OR LIABILITY TO THE GOVERNMENT, OR DELIVERED AT A BOLLING AIR FORCE BASE INCINERATOR. IN THE LATTER EVENT, THE CONTRACTOR IS REQUIRED TO FURNISH AN ASH RECEPTACLE AT THE INCINERATOR AND REMOVE ALL ASHES THEREFROM TO THE OFF-BASE SITE PROVIDED BY THE CONTRACTOR AT HIS OWN EXPENSE AND AT NO OBLIGATION OR LIABILITY TO THE GOVERNMENT.

WE ENCLOSE FOR READY REFERENCE THE ENCLOSURES TO OUR LETTER OF JANUARY 17, 1963, WHICH WERE RETURNED HERE WITH THE ADMINISTRATIVE REPORT. YOUR ATTENTION IS INVITED TO THE STATEMENTS ON PAGE TWO OF MR. BOSKOFF'S LETTER OF JANUARY 8, 1963, TO THE EFFECT THAT THE CONTRACTOR BEGAN PERFORMANCE UNDER THE CONTRACT ON JULY 1, 1962, AND WAS INFORMED BY PERSONNEL AT THE BOLLING AIR FORCE BASE THAT THE INCINERATOR WAS NOT AVAILABLE SINCE IT HAD BEEN CLOSED FOR REPAIRS. BY A LETTER DATED JULY 5, 1962, THE CONTRACTOR REQUESTED THAT THE INCINERATOR BE MADE AVAILABLE.

IT WAS REPORTED FURTHER THAT UNDER DATE OF JULY 13, 1962, THE CONTRACTOR WAS ORALLY ADVISED BY THE BASE PROCUREMENT OFFICER THAT THE INCINERATOR WAS CLOSED AND WOULD NOT BE MADE AVAILABLE FOR THE CONTRACTOR'S USE DURING THE CONTRACT PERIOD. BY A LETTER OF THE SAME DAY THE CONTRACTOR REQUESTED A PRICE INCREASE TO COMPENSATE FOR THE EXTRA WORK REQUIRED IN HAULING THE REFUSE OFF THE BASE. THEREAFTER, BY LETTER OF AUGUST 10, 1962, THE CONTRACTING OFFICER AUTHORIZED THE CONTRACTOR TO USE THE BASE INCINERATOR ON MONDAYS, WEDNESDAYS AND FRIDAYS, HOLIDAYS EXCEPTED, DURING CERTAIN SPECIFIED HOURS. THE LETTER THEN ADVISED THE CONTRACTOR THAT---

"* * * AT OTHER TIMES REFUSE WILL BE DISPOSED OF IN ACCORDANCE WITH CLAUSE TP 3-09,C./1) OF THE CONTRACT SPECIFICATIONS.'

MR. BOSKOFF THEN WENT ON TO STATE THAT FOLLOWING THE RECEIPT OF THE LETTER OF AUGUST 10, 1962, THE CONTRACTOR REQUESTED THE BASE SANITATION OFFICER TO PROVIDE THE LIMITED ACCESS PROVIDED FOR THEREIN AND WAS INFORMED FOR THE FIRST TIME THAT THE INCINERATOR ENTRANCE WAS NOT LARGE ENOUGH TO ACCOMMODATE THE CONTRACTOR'S TRUCKS. RESPECTING THIS SITUATION, MR. BOSKOFF ALLEGED THAT THE CONTRACTOR'S TRUCKS COMPLIED WITH THE EQUIPMENT BY THE SPECIFICATIONS AND THAT THEY WERE INSPECTED AND ACCEPTED AS SUCH BY THE CONTRACTING OFFICER PRIOR TO AWARD.

UNDER DATE OF AUGUST 17, 1962, THE CONTRACTOR RENEWED ITS REQUEST TO THE CONTRACTING OFFICER FOR A PRICE ADJUSTMENT. BY DECISION DATED AUGUST 24, 1962, THE CONTRACTING OFFICER DENIED THE REQUEST FOR A PRICE INCREASE, AND UNDER DATE OF SEPTEMBER 6, 1962, THE CONTRACTOR FILED ITS APPEAL. MR. BOSKOFF REPORTED THAT ON DECEMBER 28, 1962, THE CONTRACTOR FILED ITS COMPLAINT WITH THE ARMED SERVICES BOARD OF CONTRACT APPEALS, ASBCA NO. 8586, BUT THAT THE CONTRACTOR INTENDS TO WITHHOLD FURTHER ACTION WITH RESPECT TO THE APPEAL PENDING CONSIDERATION OF THE CLAIM BY OUR OFFICE.

IN THE DECISION OF AUGUST 24, 1962, THE CONTRACTING OFFICER MADE REFERENCE TO THE CONTRACT PROVISIONS REGARDING THE DISPOSAL OF REFUSE FROM THE BOLLING AIR FORCE BASE AND THE WILBURN AREA, AND TOOK THE POSITION THAT THOSE PROVISIONS WERE IN NO WAY AN OPTION FOR THE CONTRACTOR'S CHOICE AND COULD BE CONSIDERED AS AN OPTION CLAUSE FOR THE GOVERNMENT'S USE SINCE THE GOVERNMENT CONTROLS THE INCINERATOR. WE QUOTE TWO PARAGRAPHS FROM THE CONTRACTING OFFICER'S DECISION, AS FOLLOWS:

"THE CLAUSE AS SET FORTH IN PARAGRAPH B ABOVE IS IN NO WAY AN OPTION CLAUSE FOR THE CONTRACTOR'S CHOICE. IT IS A STATEMENT OF FACT THAT REFUSE WILL BE DISPOSED OF AT ONE OF THE TWO LOCATIONS. IT CAN BE CONSIDERED AS BEING AN OPTION CLAUSE FOR THE GOVERNMENT'S USE SINCE THE GOVERNMENT CONTROLS THE INCINERATOR. IF THE GOVERNMENT DESIRES THAT REFUSE BE DISPOSED OF OFF-BASE BECAUSE OF LIMITED OPERATION OF THE INCINERATOR, REPAIR OF THE INCINERATOR, OR HEAVY WORK LOAD OF THE INCINERATOR, THE CONTRACT PROVISIONS MAKE PROVISION FOR OFF BASE DISPOSAL AT THE CONTRACTOR'S OWN EXPENSE AND AT NO OBLIGATION OR LIABILITY TO THE GOVERNMENT.

"THERE IS NO GUARANTEE UNDER THE INVITATION FOR BIDS THAT THE INCINERATOR WOULD BE OPEN FOR USE BY THE CONTRACTOR, THEREFORE A CONTRACTOR MUST BASE HIS BID COST USING EITHER ONE OF THE LOCATIONS AS REQUIRED.'

WE HAVE GIVEN CAREFUL CONSIDERATION TO THE PERTINENT PROVISIONS OF THE CONTRACT AND ARE UNABLE TO AGREE WITH THE CONTRACTING OFFICER'S INTERPRETATION. AS WE READ THOSE PROVISIONS, THEY FURNISH NO NOTICE TO PROSPECTIVE BIDDERS THAT USE OF THE INCINERATOR COULD BE REFUSED BY THE GOVERNMENT, BUT ARE FAIRLY SUSCEPTIBLE OF THE CONSTRUCTION THAT THE CHOICE OF THE METHOD OF DISPOSAL RESTED WITH THE CONTRACTOR. SINCE THE LANGUAGE USED WAS DRAFTED BY THE GOVERNMENT, IT MUST BE CONSTRUED AGAINST THE GOVERNMENT, WHERE IT IS AMBIGUOUS OR REASONABLY SUSCEPTIBLE OF MORE THAN ONE MEANING. SEE W. H. EDWARDS ENGINEERING CORP. V. UNITED STATES, CT.CL.NO. 218-59, APRIL 5, 1963.

SINCE IT APPEARS THAT THE CLAIMANT SUBMITTED ITS BUD ON THE BASIS OF THE USE OF THE BASE INCINERATOR--- AS IT HAD A RIGHT TO DO--- AND SINCE THE BID WAS ACCEPTED AND SINCE THE CLAIMANT WAS THEREAFTER DENIED THE USE OF THE INCINERATOR, WE BELIEVE THAT TO THE EXTENT THE CONTRACTOR'S COSTS MAY HAVE BEEN INCREASED BY DENIAL OF ACCESS TO THE INCINERATOR HE WAS ENTITLED TO AN EQUITABLE ADJUSTMENT UNDER THE CHANGES CLAUSE OF THE CONTRACT.

UPON THE BASIS OF THE RECORD BEFORE US, IT IS OUR VIEW THAT THE MATTER SHOULD BE RETURNED TO THE CONTRACTING OFFICER FOR APPROPRIATE ADJUSTMENT IN ACCORDANCE WITH THE "CHANGES" ARTICLE OF THE CONTRACT. THE ATTORNEY FOR THE CLAIMANT IS BEING FURNISHED A COPY OF THIS DECISION.