Municipal Leasing Corp. v. United States

32 Cont. Cas. Fed. 73,129, 7 Cl. Ct. 43, 1984 U.S. Claims LEXIS 1234
CourtUnited States Court of Claims
DecidedDecember 12, 1984
DocketNo. 428-82C
StatusPublished
Cited by8 cases

This text of 32 Cont. Cas. Fed. 73,129 (Municipal Leasing Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Municipal Leasing Corp. v. United States, 32 Cont. Cas. Fed. 73,129, 7 Cl. Ct. 43, 1984 U.S. Claims LEXIS 1234 (cc 1984).

Opinion

OPINION

MEROW, Judge:

This matter comes before the court on cross-motions for summary judgment. Previously, in Municipal Leasing Corp. v. United States, 1 Cl.Ct. 771 (1983), defendant’s summary judgment motion was denied. The parties have subsequently filed pretrial statements, responses thereto and additional summary judgment motions.

Facts

This case involves a “lease to ownership” of 10 Intecolor Terminals between the United States, Base Contracting Division, Offutt Air Force Base (Air Force) and Municipal Leasing Corporation (Municipal). After selecting the equipment it required, the Air Force contracted with Municipal under a sole source contract to provide the Intecolor desk top computer terminals. Prior to the procurement, the Air Force was considering replacing its computer hardware in order to standardize its computer system. The Air Force was using Hazeltine terminals which were misfunctioning. To satisfy its immediate needs, the Air Force was faced with a choice of whether to procure different computers or to purchase replacement program chips for the Hazeltines. The decision to purchase the Intecolors was supported by the fact that the producer of the replacement chips required a minimum purchase of 250 chips and the Air Force only required 20. However, the Intecolors would not interface with the existing system. It was decided to lease computers from Municipal until the Air Force was able to standardize its system.

The basic contract period was from August 1 through September 30, 1980. The contract provided for an “option year one” from October 1, 1980 through September 30, 1981, and an “option year two” from October 1, 1981 through September 30, 1982. The Air Force would acquire ownership of the equipment by paying prorated monthly payments over the life of the contract through September 30, 1982 (later modified to November 30, 1982). The monthly rates were as follows: $634 for one ISC Model 8052 Desk Top Computer 13" CRT; $839 for one ISC Model 8052 Desk Top Computer 19" CRT; and $3,521 for the remaining 8 ISC Model 8052 Desk Top Computers 19" CRT, totaling $4,994.

The contract specified “payment will be based on certified invoices for actual numbers of units completed during each invoice period.” The contract also provided that plaintiff “shall be responsible for the necessary packing, unpacking and placement of equipment required by the initial installation of the equipment and the removal of the equipment at the end of the contract.” Also, inspection and final acceptance of the equipment was at destination.

On November 18, 1980 plaintiff submitted a $4,994 invoice for October 1-30, 1980. Plaintiff was paid $3,495.80. The payment was based on a handwritten notation on the invoice which stated “THERE WAS ONLY 7 INSTALLED FOR THE MONTH OF OCTOBER 80. C. HAMBY.” Similar reduced payments were made for several subsequent months. For example, invoice notations were made that 9 computers were installed in December 1980 and that 6 computers were installed in January 1981. Overall, Air Force payments totaled $8,987.20 less than the amount plaintiff invoiced.

The following clauses were included in the contract:

SP-04: OPTION TO EXTEND THE TERM OF THE CONTRACT DAR 7-104.27(c) (Undated)
This contract is renewable, at the option of the Government, by the Contracting Officer giving written notice of renewal to the Contractor by the first day of each fiscal year or within 30 days after funds for that fiscal year become available, whichever date is the later; provided that the Contracting Officer shall have given preliminary notice of the Government’s intention to renew at least 30 days before this contract is to expire. [45]*45Such a preliminary notice shall not be deemed to commit the Government to renewals. If the Government exercises this option for renewal, the contract as renewed shall be deemed to include this option provision. However, the total duration of this contract, including the exercise of any options under this clause, shall not exceed 26 months.
SP-05: AVAILABILITY OP FUNDS FOR NEXT FISCAL YEAR (1975 JUN) DAR 7-104.91(b)
Funds are not presently available for performance under this contract beyond 30 SEP 80. The Government’s obligation, for performance of this contract beyond this date is contingent upon the availability of appropriated funds from which payment for the contract purposes can be made. No legal liability on the part of the Government for payment of any money for performance under this contract beyond 30 SEP 80 shall arise unless and until funds are made available to the Contracting Officer for such performance and notice of such availability, to be confirmed in writing by the Contracting Officer, is given to the Contractor.
SP-06 * * * Government’s Intentions:
It is the intent of the Air Force to exercise the options as specified in SP-04 above. The Air Force shall use its best efforts to obtain appropriations of the necessary funds to meet its obligations and to continue this contract in force. The Air Force shall not replace the leased equipment with functionally similar equipment during the term of this contract.

In addition, the contract contained a standard (1968) service contract “Termination for Convenience of the Government” clause.

By amendment effective October 1, 1980, the contract was extended to cover the 1981 fiscal year. The amendment expressly called attention to the “availability of funds” contract provision.

In a letter dated July 27, 1981 the contracting officer provided notice of “the government’s intentions to renew this contract for the period 01 Oct 81 through 30 Sep 82.” The letter also stated “You are advised, however, that this preliminary notice will not be deemed to commit the government to a renewal.” An internal Air Force memorandum dated August 26, 1981 references the SP-04 and SP-05 clauses of the contract and states “Funds will not be made available for renewal of the subject contract beyond 30 September 1981.” The memorandum also requested that plaintiff be advised to provide shipping instructions for the leased equipment “within 30 days after receipt of your official termination notification.”

On September 8, 1981 the contracting officer sent a letter to plaintiff, stating (in part):

This contract * * * will terminate as of 30 Sep 1981 in accordance with Special Provisions 04 and 05 as cited on page H-3. It is requested that you provide shipping instructions no later than 30 days after receiving this notification. * *

By a letter dated July 1, 1982 the contracting officer denied a claim plaintiff had submitted. The decision stated (in part):

3. Pursuant to Special Provision 04, the Government reserved the option to renew the contract at the close of the fiscal year in accordance with DAR 7-104.27(c). The Air Force availed itself of this option at the close of the fiscal year 1980 thereby extending payment and performance duties to 30 September 1981.
4. Although the Air Force agreed to use its best efforts to exercise the contract’s options by Special Provision 06, ultimately, any renewal of the subject contract was totally contingent upon the availability of funds. DAR 7-104.91(b)
5.

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Bluebook (online)
32 Cont. Cas. Fed. 73,129, 7 Cl. Ct. 43, 1984 U.S. Claims LEXIS 1234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/municipal-leasing-corp-v-united-states-cc-1984.