B-139684, JUL. 2, 1959

B-139684, JUL. 2, 1959

TO THE GORDON ENTERPRISES:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1959, REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED SEPTEMBER 8, 1958, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $153.36 AS A REFUND OF THAT AMOUNT PAID BY YOU FOR STORAGE CHARGES ASSESSED AGAINST YOU BECAUSE OF DELAY IN REMOVING SURPLUS MATERIAL PURCHASED BY YOU FROM BROOKLEY AIR FORCE BASE, ALABAMA, UNDER CONTRACT NO. AF 01/601/S-2286 DATED JANUARY 24, 1958. IN YOUR LETTER YOU CONTEND THAT THE STORAGE RATES PAID BY YOU ($0.02 PER SQUARE FOOT FOR INSIDE STORAGE AND $0.01 PER SQUARE FOOT FOR OUTSIDE STORAGE PER DAY) IS UNREASONABLE AS INDICATED BY THE MUCH LOWER RATES AT ROBINS AIR FORCE BASE, GEORGIA ($0.00364 PER SQUARE FOOT FOR INSIDE STORAGE AND $0.001436 PER SQUARE FOOT FOR OUTSIDE STORAGE PER DAY). YOU REQUEST REFUND OF AN AMOUNT "IN PROPORTION TO THE EXCESS STORAGE CHARGES.'

MANY OF THE FACTS OF THE MATTER WERE SET OUT IN THE SETTLEMENT OF SEPTEMBER 8, 1958, AND NEED NOT BE REPEATED HERE. WITH RESPECT TO THE RATES CHARGEABLE FOR STORAGE, PARAGRAPH 7 OF GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDES:

"* * * IF THE PURCHASER FAILS TO REMOVE THE PROPERTY WITHIN THE SPECIFIED TIME, THE GOVERNMENT SHALL HAVE THE RIGHT TO CHARGE THE PURCHASER AND COLLECT UPON DEMAND A REASONABLE STORAGE CHARGE IF THE PROPERTY IS STORED ON PREMISES OWNED OR CONTROLLED BY THE GOVERNMENT, OR STORE THE PROPERTY ELSEWHERE FOR THE PURCHASER'S ACCOUNT, AND ALL COSTS INCIDENT TO SUCH STORING, INCLUDING HANDLING AND MOVING CHARGES, SHALL BE BORNE AND PAID BY THE PURCHASER; IN ADDITION TO THE FOREGOING RIGHTS, THE GOVERNMENT MAY, AFTER THE EXPIRATION OF THIRTY (30) DAYS AFTER THE DATE SPECIFIED FOR REMOVAL, AND UPON TEN (10) DAYS' WRITTEN NOTICE (CALCULATED FROM THE DATE OF MAILING) TO THE PURCHASER (WHICH TEN (10) DAYS' WRITTEN NOTICE MAY, AT THE OPTION OF THE CONTRACTING OFFICER, BE INCLUDED EITHER PARTLY OR WHOLLY IN THE THIRTY (30) DAYS SPECIFIED ABOVE OR MAY BE IN ADDITION THERETO), RESELL THE PROPERTY, APPLYING THE PROCEEDS THEREFROM AGAINST THE STORAGE AND ANY OTHER COSTS INCURRED FOR PURCHASER'S ACCOUNT. * * *"

PARAGRAPH C OF ADDITIONAL PROVISIONS OF SALE IS AS FOLLOWS:

"C.STORAGE RATES:

"/1) REFERENCE PARA 7 GENERAL SALE TERMS AND CONDITIONS ON PAGE TWO (2) THE FOLLOWING STORAGE RATE WILL BE CHARGED TO THE PURCHASER FOR FAILURE TO REMOVE PROPERTY WITHIN THE SPECIFIED TIME AS DENOTED ON CONTRACT.

"/2) INSIDE STORAGE CHARGE: RATE OF .02 PER SQ. FOOT PER DAY. THE MATERIAL STORED IN OR ON PALLETS WILL BE CHARGED BY THE SPACE OCCUPIED BY THE PALLET.

"/3) OUTSIDE STORAGE CHARGES: RATE OF .01 PER SQ. FOOT PER DAY. THE MATERIAL STORED IN OR ON PALLETS WILL BE CHARGED BY THE SPACE OCCUPIED BY THE PALLET.'

HAVING REGARD FOR THE ABOVE-QUOTED PROVISIONS OF THE CONTRACT SPECIFICALLY FIXING THE RATES CHARGEABLE FOR STORAGE, SUCH RATES ARE NOT OPEN TO QUESTION AT THIS TIME. SINCE IT APPEARS TO BE AGREED THAT THE STORAGE PAID BY YOU WAS COMPUTED AT THE RATES FIXED BY THE CONTRACT, THERE IS NO LEGAL BASIS FOR REFUND OF ANY PORTION OF THE AMOUNT SO PAID. THEREFORE, THE SETTLEMENT OF ..END :