B-150092, JUN. 10, 1963
Highlights
DUTY: 20 PERCENT PURCHASE TAX: NIL1 LOT" YOU WERE HIGH BIDDER ON THE ITEM AT A PRICE OF L842.10.0. 000 POUNDS WAS ACTUALLY PRESENT FOR REMOVAL. THAT THE UNITED STATES WAS NOT LIABLE TO YOU FOR THE DEVIATION IN WEIGHT. YOU SUGGEST THAT POSSIBLY SOME OF THE MATERIAL MAY HAVE BEEN REMOVED. IT IS REPORTED TO US THAT THE 20. 000 POUNDS ESTIMATED WEIGHT FOR ITEM NO. 1 WAS ARRIVED AT BY VISUAL INSPECTION BY A UNITED STATES AIR FORCE MEMBER ASSIGNED TO THE TASK. WAS BASED ON HIS PAST EXPERIENCE. THERE IS NO INDICATION THAT ANY OF THE MATERIAL WAS REMOVED PRIOR TO YOUR REMOVAL OF THE MATERIAL. AS YOU HAVE STATED. MERE VISUAL INSPECTION OF THIS PROPERTY WAS INADEQUATE FOR THE PURPOSE OF DETERMINING ITS ACTUAL WEIGHT.
B-150092, JUN. 10, 1963
TO THE MORELAND TRADING COMPANY, LTD.:
THIS REFERS TO YOUR LETTER OF JANUARY 9, 1963, REQUESTING RECONSIDERATION OF OUR DECISION B-150092, DATED NOVEMBER 21, 1962, WHICH SUSTAINED THE SETTLEMENT OF AUGUST 27, 1962, DISALLOWING YOUR CLAIM FOR L346.5.2 IN CONNECTION WITH AN AWARD TO YOUR FIRM OF ITEM NO. 1 ON SPOT BID SALE NO. 61-730-S-62-8X.
ESTIMATED QTY - 20,000 LBS.
DUTY: 20 PERCENT PURCHASE TAX: NIL1 LOT"
YOU WERE HIGH BIDDER ON THE ITEM AT A PRICE OF L842.10.0, AND YOU RECEIVED THE AWARD. UPON REMOVAL OF THE MATERIAL YOU DISCOVERED THAT APPROXIMATELY ONLY 60 PERCENT OF THE ESTIMATED 20,000 POUNDS WAS ACTUALLY PRESENT FOR REMOVAL.
IN OUR PRIOR DECISION WE CONCLUDED THAT UNDER THE EXPRESS ITEMS OF THE SALE QUOTED THEREIN (ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS), THE SELLER, THE UNITED STATES, DISCLAIMED ANY WARRANTIES AS TO THE ACTUAL WEIGHT OF THE MATERIAL; AND ACCORDINGLY, THAT THE UNITED STATES WAS NOT LIABLE TO YOU FOR THE DEVIATION IN WEIGHT.
YOU STATE THAT YOU DID NOT INDEPENDENTLY DETERMINE THE ACTUAL WEIGHT OF THE MATERIAL BEFORE YOU BID BECAUSE YOU RELIED ON THE WEIGHT GIVEN IN THE SALE DESCRIPTION. YOU SUGGEST THAT POSSIBLY SOME OF THE MATERIAL MAY HAVE BEEN REMOVED, BUT NOT TAKEN OFF THE RECORD.
IT IS REPORTED TO US THAT THE 20,000 POUNDS ESTIMATED WEIGHT FOR ITEM NO. 1 WAS ARRIVED AT BY VISUAL INSPECTION BY A UNITED STATES AIR FORCE MEMBER ASSIGNED TO THE TASK, AND WAS BASED ON HIS PAST EXPERIENCE. THERE IS NO INDICATION THAT ANY OF THE MATERIAL WAS REMOVED PRIOR TO YOUR REMOVAL OF THE MATERIAL. AS YOU HAVE STATED, YOU ALSO CONDUCTED A VISUAL INSPECTION OF THE PROPERTY PRIOR TO BIDDING. APPARENTLY, MERE VISUAL INSPECTION OF THIS PROPERTY WAS INADEQUATE FOR THE PURPOSE OF DETERMINING ITS ACTUAL WEIGHT. BE THAT AS IT MAY, THE UNITED STATES DID NOT ASSUME THE BURDEN OF WARRANTING THE TRUE WEIGHT OF THE MATERIAL. IT MERELY PRESENTED ITS HONEST ESTIMATE, AND UNDER THE TERMS OF THE SALE, YOU ASSUMED THE RISK OF ERROR IN THE ESTIMATE.
NO BASIS HAS BEEN PRESENTED UPON WHICH WE MAY ALLOW YOUR CLAIM. ACCORDINGLY, WE MUST SUSTAIN OUR PRIOR DECISION ON THE MATTER.