B-3954, JUNE 6, 1939, 18 COMP. GEN. 909

B-3954, JUNE 6, 1939, 18 COMP. GEN. 909

CONTRACTS - INCREASED DELIVERY COST LIABILITY - PLACE OF DELIVERY OUTSIDE LIMITS OF CITY SPECIFIED THE ADDITION OF THE WORDS "TUCSON, ARIZONA" TO A CONTRACT PROVISION REQUIRING DELIVERY "F.O.B. FEDERAL PRISON CAMP NO. 10" CANNOT RELIEVE THE CONTRACTOR OF ITS OBLIGATION TO MAKE DELIVERY TO THE CAMP MERELY BECAUSE THE CITY SO SPECIFIED IS ONLY THE POST-OFFICE ADDRESS FOR THE PRISON CAMP AND THE CAMP IS LOCATED OUTSIDE THE LIMITS OF THE CITY, NOR IS THE DIFFERENCE IN COST OF SUCH DELIVERY OVER THE COST WHICH WOULD HAVE BEEN INCURRED FOR CARTAGE WITHIN THE CITY LIMITS PROPERLY CHARGEABLE TO GOVERNMENT FUNDS UNDER SUCH CIRCUMSTANCES.

COMPTROLLER GENERAL BROWN TO E. SCHWARTZ PLUMBING SUPPLY CO., INC., JUNE 6, 1939:

YOUR LETTER OF MARCH 10, 1939, REQUESTS REVIEW OF SETTLEMENT DATED MARCH 7, 1939, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $186.28 DEDUCTED FROM THE PURCHASE PRICE OF PIPE AND FITTINGS FURNISHED UNDER DEPARTMENT OF JUSTICE CONTRACT JLC-6237, TO COVER THE COST OF TRUCKING SUCH SUPPLIES FROM A RAILROAD SIDING TO FEDERAL PRISON CAMP NO. 10.

IN THE REQUEST FOR REVIEW YOU STATE:

IN REPLY TO YOUR LETTER OF MAR. 7, WE WILL CONCEDE TO YOU THAT THE GOVERNMENT WAS ENTITLED TO RECEIVE DELIVERY AT FEDERAL PRISON CAMP NO. 10 REGARDLESS OF WHETHER OR NOT A RAILROAD SIDING WAS LOCATED IN THE PRISON CAMP. HOWEVER, YOU ADMIT THAT TUCSON, ARIZONA, IS ONLY A POST OFFICE ADDRESS FOR THE PRISON CAMP WHICH INDICATES THAT THE PRISON CAMP IS LOCATED OUTSIDE THE LIMITS OF TUCSON CITY.

IF THE PRISON CAMP WERE LOCATED WITHIN THE LIMITS OF TUCSON CITY, THE CARTAGE CHARGE FOR THE DELIVERY OF PIPE FROM THE NEAREST FREIGHT TERMINAL TO THE CAMP WOULD NOT HAVE EXCEEDED $1.50 PER TON. HOWEVER, DUE TO THE FACT THAT THE PRISON CAMP WAS LOCATED OUTSIDE THE LIMITS OF TUCSON CITY, DELIVERY OF THIS PIPE NECESSITATED A MUCH LONGER HAUL THAN WE COULD REASONABLY BE EXPECTED TO CALCULATE ON. AS OUR PREVIOUS LETTER INDICATED, WE WERE COMPELLED TO PAY $3.00 PER TON FOR CARTAGE.

WE HOPE YOU WILL RECONSIDER OUR CLAIM FROM THIS ANGLE, IN WHICH EVENT WE WILL BE PLEASED TO REDUCE OUR CLAIM TO $1.50 PER TON WHICH REPRESENTS THE DIFFERENCE IN COST OF DELIVERY WITHIN THE LIMITS OF TUCSON CITY AND THE COST OF DELIVERY TO THE ACTUAL LOCATION OUTSIDE THE CITY OF TUCSON.

THE INVITATION TO BID--- WHICH BECAME A PART OF YOUR CONTRACT--- SPECIFICALLY STATED THAT DELIVERY WAS TO BE MADE "F.O.B. FEDERAL PRISON CAMP NO. 10, TUCSON, ARIZONA.' THE QUESTION FOR CONSIDERATION THEN IS ONLY WHETHER THESE TERMS REQUIRED YOU TO BEAR THE EXPENSE OF DELIVERY TO THE CAMP OR WHETHER DELIVERY TO A RAILROAD SIDING AT TUCSON, ARIZ., SATISFIED THE REQUIREMENTS OF THE CONTRACT.

IT SEEMS CLEAR THAT IF DELIVERY AT A FREIGHT SIDING IN TUCSON, ARIZ., HAD BEEN INTENDED THE CONTRACT CLAUSE WOULD HAVE READ SIMPLY "F.O.B. TUCSON, ARIZONA.' THE WORDS "F.O.B. FEDERAL PRISON CAMP. NO. 10" CANNOT BE READ OUT OF THE CONTRACT. THERE WERE NO STATEMENTS IN THE INVITATION TO BID WHICH MIGHT HAVE LED YOU TO BELIEVE THAT THE CAMP WAS WITHIN THE CITY LIMITS OF TUCSON OR THAT IT WAS SERVED BY A RAILROAD SIDING. HOWEVER, REGARDLESS OF WHETHER THE PRISON CAMP WAS OR WAS NOT WITHIN THE CITY LIMITS OF TUCSON THE CONTRACT WAS CLEAR AND SPECIFIC THAT DELIVERY OF THE SUPPLIES WAS REQUIRED F.O.B. PRISON CAMP NO. 10.

SINCE THE POINT OF DELIVERY FIXED IN YOUR CONTRACT WAS FEDERAL PRISON CAMP NO. 10, THE FACT THAT YOU MAY HAVE FAILED TO ASCERTAIN THE EXACT LOCATION OF THE CAMP AND THE COST OF TRUCKING THE SUPPLIES FROM THE NEAREST RAILROAD SIDING CAN IMPOSE NO ADDITIONAL BURDEN UPON THE UNITED STATES. THERE IS, THEREFORE, NO LEGAL BASIS FOR ALLOWING YOU ANY AMOUNT FOR TRUCKING THE SUPPLIES TO THE DESIGNATED CONTRACT POINT.

ACCORDINGLY, THE SETTLEMENT DISALLOWING YOUR CLAIM MUST BE, AND IS, SUSTAINED.