B-168635, NOV. 19, 1970

B-168635, NOV. 19, 1970

CONTRACTS - SALES PERFORMANCE - RESCESSION REAFFIRMING DECISION OF MARCH 20, 1970, AND APRIL 27, 1970, DENYING REQUEST BY EDWARD LEVY METALS, INC., FOR RECESSION OF DEFENSE SURPLUS SALES CONTRACT FOR THE PURCHASE AND TRANSPORTATION OF CRANES. THAT THE PURCHASER WOULD BE REQUIRED TO CUT THE CRANE BRIDGES IN ORDER TO FASCILITATE THE CRANE'S TRANSFER BY RAIL DOES NOT GIVE HIM THE RIGHT TO RECESSION WHEN THE ONLY DUTY AFFIRMATIVELY ASSUMED BY THE GOVERNMENT WAS TO PROVIDE THE USE OF ITS SPUR TRACK AND A LOCOMOTIVE TO MOVE THE LOADED CARS. TO HOLD THAT THE GOVERNMENT CANNOT COMPLY WITH ITS OBLIGATION WOULD INTRODUCE AN "ESCAPE CLAUSE" INTO THE CONTRACT WHICH WAS NOT PROVIDED FOR AND WOULD FAIL ACCOUNT FOR THE FACT THAT THE PURCHASER INSPECTED THE CRANES AND SITE PRIOR TO HIS BID AND SHOULD HAVE BEEN AWARE OF THE CONDITIONS OF REMOVAL.

TO MR. ARTHUR L. BALLIN:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 19 AND JULY 22, 1970, ON BEHALF OF EDWARD LEVY METALS, INC., REQUESTING RECONSIDERATION OF OUR DECISION OF APRIL 27, 1970, AND 49 COMP. GEN. (B-168635, MARCH 20, 1970), DENYING ITS REQUEST FOR RESCISSION OF DEFENSE SURPLUS SALES CONTRACT NO. 27-9075-004.

YOU CONTEND THAT THE CONTRACTOR IS ENTITLED TO HAVE ITS CONTRACT RESCINDED BECAUSE OF THE GOVERNMENT'S FAILURE TO PERFORM ITS OBLIGATION TO TRANSPORT THE CRANES FROM THEIR LOCATION TO THE POINT WHERE THE GOVERNMENT RAIL SPUR JOINS THE FRISCO RAILROAD TRACKS AND THAT THE GOVERNMENT IS UNABLE TO PERFORM THIS OBLIGATION UNLESS THE PURCHASER CUTS THE CRANE BRIDGES WHICH, YOU CONTEND, IS TANTAMOUNT TO THEIR DESTRUCTION.

WE HAVE CAREFULLY CONSIDERED THE CASES CITED IN YOUR BRIEF BUT WE DO NOT FIND THEM DISPOSITIVE OF THE LEGAL ISSUE INVOLVED IN THIS CLAIM. THE ISSUE, AS WE VIEW IT, MAY BE NARROWED TO ONE CRITICAL CONSIDERATION, THAT IS, WHAT WAS THE EXTENT OF THE GOVERNMENT'S OBLIGATION REGARDING THE TRANSPORTATION OF THE CRANES ON ITS SPUR TRACK TO THE FRISCO RAILROAD TRACKS. ASIDE FROM THE LEGAL PRECEDENTS MENTIONED IN OUR DECISION AT 49 COMP. GEN., OF MARCH 20, AND AFFIRMING DECISION OF APRIL 27, 1970, WE BELIEVE THAT THE SALES CONTRACT, PARTICULARLY THAT PORTION RELATING TO DELIVERY, LOADING AND REMOVAL OF PROPERTY, EFFECTIVELY PRECLUDES THE RELIEF REQUESTED. THE ONLY DUTY AFFIRMATIVELY ASSUMED BY THE GOVERNMENT WAS TO PROVIDE USE OF ITS SPUR TRACK AND A LOCOMOTIVE TO MOVE THE LOADED CARS FROM THEIR LOCATION TO THE FRISCO RAILROAD TRACKS.

THE OBLIGATION OF THE PURCHASER WAS TO FURNISH RAILROAD CARS AND TO DISMANTLE AND LOAD THE CRANES ABOARD THOSE CARS FOR TRANSPORT ON THE GOVERNMENT SPUR TRACK BY ITS LOCOMOTIVE TO THE TERMINUS OF THAT SPUR TRACK. UNDER THE SALES CONTRACT, THE PURCHASER HAD THE SOLE RESPONSIBILITY TO PREPARE THE CRANES FOR LOADING AND TRANSPORT. THAT BEING THE CASE, IT WAS THE CONTRACTOR'S RESPONSIBILITY TO ASSURE THAT HIS DISMANTLING AND LOADING WOULD ACCOMMODATE THE CURVE OF THE SPUR TRACK. HOLD THAT THE GOVERNMENT CANNOT COMPLY WITH ITS OBLIGATION TO MOVE THE CRANES OVER ITS SPUR TRACK UNLESS THE CRANE BRIDGES ARE CUT WOULD INTRODUCE AN "ESCAPE CLAUSE" INTO THE CONTRACT WHICH WAS NOT PROVIDED FOR, OR CONTEMPLATED BY, THE SALES INVITATION.

WE SEE NO "IMPOSSIBILITY OR COMMERCIAL FRUSTRATION" HERE WHICH WOULD EXCUSE PERFORMANCE SINCE THE GOVERNMENT WAS READY AND ABLE TO MOVE THE CRANES WHEN PROPERLY DISMANTLED AND LOADED BY THE SALES CONTRACTOR. THE FACT THAT DISMANTLING MAY REQUIRE THE CUTTING OF THE BRIDGES DOES NOT FRUSTRATE OR PREVENT PERFORMANCE; IT MAKES PERFORMANCE PERHAPS MORE COSTLY OR BURDENSOME.

UPON REVIEW, WE FIND NOTHING IN THE RECORD WHICH EQUATES PERFORMANCE TO PHYSICALLY INTACT CRANE BRIDGES OR WHICH MAKES THE GOVERNMENT A GUARANTOR OF COMPLETE CRANES, F.O.B. FRISCO RAILROAD. WE FEEL THAT THE PROVISIONS CONCERNING THE REMOVAL OF THE CRANES ARE CLEAR AND UNAMBIGUOUS. ADDITIONALLY, THE RECORD INDICATES THAT THE PURCHASER INSPECTED THE CRANES AND THE SITE PRIOR TO SUBMITTING HIS BID AND HE COULD HAVE, AT THAT TIME, ASCERTAINED BY ADEQUATE INSPECTION THEIR DIMENSIONS AND THE CONDITIONS OF REMOVAL.

WE BELIEVE THAT THE AUTHORITIES PREVIOUSLY CITED BY OUR OFFICE, AS SUPPLEMENTED BY OUR DISCUSSION HERE, SUPPORT OUR CONCLUSION THAT THE CLAIM IS NOT FOR ALLOWANCE. THEREFORE, OUR PRIOR DECISION IS AFFIRMED.