B-173216, AUG 14, 1972
Highlights
WHILE A DECISION OF THE COMPTROLLER GENERAL IS SUBJECT TO REVIEW UPON A CLEAR SHOWING THAT IT WAS BASED ON A MISTAKE OF FACT OR LAW. THE REASONS PUT FORTH BY CLAIMANT IN REQUESTING A REVIEW ARE NO MORE THAN HIS OPINION OF WHAT THE LAW SHOULD BE. FRED SCHWARTZ: REFERENCE IS MADE TO YOUR LETTER OF JULY 23. DENYING YOUR REQUEST FOR REFUND OF YOUR BID DEPOSIT IN THE AMOUNT OF $420 WHICH WAS RETAINED BY THE SALES CONTRACTING OFFICER. AS LIQUIDATED DAMAGES WHEN YOU WERE FOUND IN DEFAULT ON ITEM NO. 28. WHERE THE ESTIMATED WEIGHT SHOWN IN AN INVITATION FOR AN ITEM IS NOT. WHILE A DECISION OF THE COMPTROLLER GENERAL IS SUBJECT TO REVISION UPON A CLEAR SHOWING THAT IT WAS BASED ON A MISTAKE OF EITHER LAW OR FACT.
B-173216, AUG 14, 1972
GAO DECISIONS - REVIEW - REQUIRED SHOWING CONCERNING PROPRIETY OF DECISION, B-173216 OF NOVEMBER 15, 1971, WHICH DENIED REQUEST OF FRED SCHWARTZ FOR A REFUND OF A BID DEPOSIT RETAINED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIF., AS LIQUIDATED DAMAGES FOR CONTRACT DEFAULT BY CLAIMANT. WHILE A DECISION OF THE COMPTROLLER GENERAL IS SUBJECT TO REVIEW UPON A CLEAR SHOWING THAT IT WAS BASED ON A MISTAKE OF FACT OR LAW, THE REASONS PUT FORTH BY CLAIMANT IN REQUESTING A REVIEW ARE NO MORE THAN HIS OPINION OF WHAT THE LAW SHOULD BE. THEREFORE, REVIEW DENIED.
TO MR. FRED SCHWARTZ:
REFERENCE IS MADE TO YOUR LETTER OF JULY 23, 1972, QUESTIONING THE PROPRIETY OF OUR DECISION OF NOVEMBER 15, 1971, DENYING YOUR REQUEST FOR REFUND OF YOUR BID DEPOSIT IN THE AMOUNT OF $420 WHICH WAS RETAINED BY THE SALES CONTRACTING OFFICER, DEFENSE SUPPLY AGENCY, DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA, AS LIQUIDATED DAMAGES WHEN YOU WERE FOUND IN DEFAULT ON ITEM NO. 28, CONTRACT NO. 44-1158-146.
YOU REQUEST THAT WE REVERSE THE DECISION OF NOVEMBER 15 BY MAKING CERTAIN FINDINGS WHICH WOULD BE INCOMPATIBLE WITH THE LEGAL RATIONALE OF THAT DECISION, AND THAT WE INSTRUCT THE DEFENSE SUPPLY AGENCY TO AMEND ITS GENERAL SALE TERMS AND CONDITIONS SO AS TO PROVIDE FOR A CORRESPONDING MONETARY ADJUSTMENT, OR WITHDRAWAL OF THE ITEM, WHERE THE ESTIMATED WEIGHT SHOWN IN AN INVITATION FOR AN ITEM IS NOT, IN FACT, THE ACTUAL WEIGHT OF THE ITEM.
WHILE A DECISION OF THE COMPTROLLER GENERAL IS SUBJECT TO REVISION UPON A CLEAR SHOWING THAT IT WAS BASED ON A MISTAKE OF EITHER LAW OR FACT, THE VIEWS SET OUT IN YOUR LETTER REPRESENT NO MORE THAN YOUR OPINION OF WHAT THE LAW SHOULD BE. IN THIS CONNECTION, YOU HAVE CITED NO PRECEDENT OR SUPPORT, IN THE FORM OF EITHER A JUDICIAL OPINION OR A DECISION OF THIS OFFICE, FOR YOUR BELIEF THAT THE LEGAL CONCLUSIONS SET OUT IN OUR DECISION OF NOVEMBER 15 ARE IN ERROR. UNDER THE CIRCUMSTANCES WE ARE UNABLE TO CONCLUDE THAT YOUR VIEWS PRESENT ANY APPROPRIATE BASIS FOR REACHING A CONCLUSION DIFFERENT FROM THAT REACHED IN THE SUBJECT DECISION. ACCORDINGLY, OUR DECISION OF NOVEMBER 15 IS AFFIRMED.
REGARDING YOUR REQUEST THAT THE GENERAL SALE TERMS AND CONDITIONS USED BY THE VARIOUS SALES OFFICES OF THE DEFENSE SUPPLY AGENCY BE REVISED IN THE MANNER OUTLINED ABOVE, WE BELIEVE A REVISION OF THAT NATURE IS PROPERLY FOR CONSIDERATION BY THE DEFENSE SUPPLY AGENCY IN THE FIRST INSTANCE, AND YOUR REQUEST SHOULD THEREFORE BE DIRECTED TO THAT AGENCY RATHER THAN TO THIS OFFICE.