B-128586, AUG. 8, 1956

B-128586, AUG. 8, 1956

TO MR. ALVON S. JONES, AUTHORIZING CERTIFYING OFFICER, SOIL CONSERVATION SERVICE:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, WITH ENCLOSURES, REQUESTING AN ADVANCE DECISION AS TO THE PROPER BASIS UPON WHICH PAYMENT, IF ANY, MAY BE MADE TO REID'S SERVICES, MERIDIAN, MISSISSIPPI, FOR A QUANTITY OF KUDZU CROWNS OR PLANTS FURNISHED THE SOIL CONSERVATION SERVICE, CAMPTON, KENTUCKY, PURSUANT TO INFORMAL CONTRACT DATED MARCH 19, 1956, AND PURCHASE ORDER NO. 342-KY-SCS-56 OF THAT DATE.

A VOUCHER COVERING PAYMENT IN THE MATTER WAS NOT ENCLOSED WITH YOUR LETTER. AS A CERTIFYING OFFICER YOU ARE NOT ENTITLED TO A DECISION EXCEPT AS TO A QUESTION OF LAW INVOLVED IN A PAYMENT ON A VOUCHER PRESENTED TO YOU FOR CERTIFICATION. SEE 35 COMP. GEN. 28, 26 ID. 797; 21 ID. 1128. HOWEVER, THE REQUIREMENT FOR A VOUCHER IN THIS INSTANCE WILL BE WAIVED WITH THE UNDERSTANDING THAT PROPERLY PREPARED VOUCHERS WILL BE SUBMITTED IN THE FUTURE WITH REQUESTS FOR DECISIONS.

BY THE TERMS OF THE CONTRACT, REID'S SERVICES, THE CLAIMANT HEREIN, AGREED TO DELIVERY TO THE SOIL CONSERVATION SERVICE ON OR BEFORE APRIL 15, 1956, A TOTAL OF 30,000 KUDZU CROWNS, AS SPECIFIED, FOR THE STIPULATED UNIT PRICE OF $11.50 PER THOUSAND. DELIVERY OF THE PLANTS WAS TO HAVE BEEN F.O.B. POINT OF ORIGIN, MERIDIAN, MISSISSIPPI, FOR CONSIGNMENT VIA RAILWAY EXPRESS ON GOVERNMENT BILL OF LADING TO MT. STERLING, KENTUCKY, THE NEAREST RAILHEAD TO CAMPTON, POINT OF ULTIMATE DESTINATION.

DELIVERY OF THE PLANTS WAS EFFECTED F.O.B. CARS MERIDIAN, MISSISSIPPI, ON OR ABOUT APRIL 13, 1956, THE SEEDLINGS ARRIVING AT MR. STERLING, KENTUCKY, ON MONDAY, APRIL 16, 1956, FROM WHICH INTERMEDIATE POINT THEY WERE PICKED UP AND TRANSPORTED BY GOVERNMENT VEHICLE TO POINT OF DESTINATION.

THE QUALITY OF THE PLANTS WAS TO HAVE CONFORMED TO THE FOLLOWING STANDARDS:

"THESE CROWNS OR PLANTS MUST BE HEALTHY, UNBRUISED AND UNBROKEN. EACH PLANT MUST HAVE AT LEAST ONE SOUND BUD AND MUST HAVE ONE OR MORE FLESHY ROOTS AT LEAST ONE-HALF INCH IN DIAMETER AND AT LEAST SIX INCHES LONG. CROWNS WITH ROOTS MORE THAN ONE INCH IN DIAMETER ARE OVERSIZE AND NOT MORE THAN 10 PERCENT OF SUCH CROWNS WILL BE ALLOWED ANY INDIVIDUAL CONTAINER. PLANTS MUST BE FREE OF MOLD OR NEMATODES (ROOT KNOT).'

BY THE CONTRACT'S PLAIN TERMS PAYMENT FOR THE SEEDLINGS WAS TO HAVE BEEN MADE ON THE FOLLOWING BASIS:

"SETTLEMENT IS TO BE MADE ON THE BASIS OF NET COUNT OF VIABLE PLANTS RECEIVED AT POINT OF DELIVERY IN GOOD CONDITION FOR PLANTING. * * *"

UPON INSPECTION OF THE PLANTS AT DESTINATION, IT WAS DISCOVERED THAT OF THE TOTAL QUANTITY OF 30,000 DELIVERED, ONLY 5,425 PLANTS, OF A CONTRACT VALUE OF $62.39, MET THE SPECIFICATION REQUIREMENTS AS TO QUALITY. THIS CONNECTION, IT APPEARS TO HAVE BEEN INFORMALLY AGREED BY THE PARTIES THAT SOME 9,000 ADDITIONAL PLANTS OF MARGINAL QUALITY WOULD THEREAFTER BE PLANTED, AND THAT THE CONTRACTOR WOULD BE ENTITLED TO PAYMENT THEREFOR UPON THE BASIS OF THEIR EVENTUAL SURVIVAL. OF THOSE PLANTED OF THIS LATTER QUALITY, ONLY 250 CROWNS, VALUED AT A TOTAL OF $2.88, ACTUALLY SURVIVED. THUS, UPON THE BASIS OF SETTLEMENT EXPRESSLY PROVIDED FOR IN THE CONTRACT, THE CLAIMANT PROPERLY WOULD BE ENTITLED TO PAYMENT IN THE SUM OF $65.27 FOR THE VIABLE PLANTS DELIVERED UNDER THIS CONTRACT.

HOWEVER, AS A FURTHER CONDITION OF THE CONTRACT, IT WAS PROVIDED ON PAGE 3 OF THE BID FORM: ,IF * * * CROWNS AND/OR SEEDLINGS ARE DELIVERED WHICH ARE FOUND TO BE NOT EQUAL TO SPECIFICATIONS, THEY WILL BE REJECTED AND INCOMING AND OUTGOING FREIGHT AND DRAYAGE CHARGES WILL BE PAID BY THE SELLER.' THE RECORD SHOWS THAT THE GOVERNMENT INCURRED FREIGHT CHARGES TOTALING $191.10 IN TRANSPORTING THESE CROWNS TO POINT OF DESTINATION, OF WHICH AMOUNT $154.95 IS APPORTIONABLE TO THE REJECTED STOCK, CONSISTING OF APPROXIMATELY 24,325 CROWNS. SINCE, UNDER THE PLAIN TERMS OF THE CONTRACT, THIS LATTER AMOUNT PROPERLY IS CHARGEABLE TO THE CONTRACTOR AS TRANSPORTATION COST INCURRED ON NON SPECIFICATION STOCK, IT SEEMS CLEAR THAT NO PAYMENT PROPERLY MAY BE MADE TO THE CLAIMANT BUT THAT IT IS INDEBTED TO THE UNITED STATES IN THE SUM OF $89.68 REPRESENTING, OF COURSE, THE DIFFERENCE BETWEEN THE AMOUNT OF $65.27 DUE FOR THE 5,675 SPECIFICATION PLANTS DELIVERED AND THE PROPORTIONATE FREIGHT ADJUSTMENT OF $154.95 DUE THE GOVERNMENT ON THE 24,325 NON-SPECIFICATION CROWNS WHICH WERE REJECTED.

YOU ARE ADVISED ACCORDINGLY. THE PAPERS WITH YOUR LETTER ARE RETURNED HEREWITH.