B-163929, JUL. 29, 1968

B-163929, JUL. 29, 1968

TO THERMAL REDUCTION CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 29, 1968, WITH ENCLOSURES, PROTESTING AGAINST THE SURPLUS SALES PROCEDURES EMPLOYED UNDER DEFENSE SURPLUS SALES OFFICE (DSSO) SALES INVITATION NO. 37 7139, AND REQUESTING RELIEF FROM THE CONTRACT PURCHASE PRICE THEREUNDER DUE TO AN ALLEGED MISDESCRIPTION OF PROPERTY.

THE SALES INVITATION, ISSUED BY THE FORT WORTH OFFICE OF DEFENSE SURPLUS SALES OFFICE, OFFERED A VARIETY OF SCRAP ITEMS. BIDS WERE OPENED ON JUNE 27, 1967. YOUR COMPANY WAS HIGH BIDDER ON ITEM 91 AT A PRICE OF $15.27 PER POUND FOR A TOTAL OF $1,527. AWARD WAS MADE TO YOU ON JULY 5, 1967. ITEM 91 WAS DESCRIBED IN THE SALES INVITATION AS FOLLOWS: "91. BERYLLIUM, SCRAP CONSISTING OF HEAT REFLECTOR SHINGLES FROM MERCURY SPACE-CRAFT. WITH FOREIGN ATTACHMENTS INCLUDING STAINLESS STEEL SCREWS, AND COATED WITH COPPER BASE PAINT. TEST SAMPLE INDICATES 99 PERCENT COMMERCIALLY PURE BERYLLIUM. INSIDE - LOOSE 100 POUNDS"

ARTICLE O OF THE INVITATION, TITLED "GUARANTEED DESCRIPTIONS"PROVIDES IN PERTINENT PART THAT THE GOVERNMENT WARRANTS AND GUARANTEES THAT THE PROPERTY TO BE DELIVERED TO THE PURCHASER UNDER ANY CONTRACT RESULTING FROM THE INVITATION WILL BE AS DESCRIBED THEREIN. IF THE DESCRIPTION IS INCORRECT THE GOVERNMENT MAY EXERCISE AN OPTION TO ALLOW RETURN OF THE PROPERTY OR TO MAKE AN EQUITABLE ADJUSTMENT IN THE PURCHASE PRICE. HOWEVER, TO TAKE ADVANTAGE OF THIS PROVISION IT IS INCUMBENT UPON THE PURCHASER TO FILE PROPER NOTICE OF THE DISCREPANCY WITHIN 20 CALENDAR DAYS FROM THE DATE OF REMOVAL OF THE PROPERTY. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES THAT UNLESS OTHERWISE PROVIDED IN THE INVITATION ALL PROPERTY IS OFFERED FOR SALE "AS S" AND "WHERE IS" AND THAT THERE IS NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESCRIPTION OF THE PROPERTY.

THE RECORD SHOWS THAT ON JULY 18, 1967, YOUR AGENT REMOVED THE ITEM FOR SHIPMENT TO THE BERYLLIUM CORPORATION FOR PROCESSING. ON SEPTEMBER 15, 1967, THE BERYLLIUM CORPORATION NOTIFIED YOU THAT THE 104 LBS. SHIPPED CONTAINED 49 LBS. OF FOREIGN METALS AND THAT THE NET BERYLLIUM RECOVERED WAS 55 LBS. SUBSEQUENTLY IT WAS DETERMINED THAT ALTHOUGH ALL SHINGLES WERE OF THE SAME CONFORMATION, SOME WERE ENTIRELY STAINLESS STEEL AND SOME WERE PART BERYLLIUM AND PART OTHER METAL. BY LETTER DATED NOVEMBER 29, 1967, YOU NOTIFIED THE SALES CONTRACTING OFFICER THAT THE ITEM WAS MISDESCRIBED AS TO THE BERYLLIUM CONTENT AND REQUESTED A REFUND IN THE AMOUNT OF $748.23.

THE RECORD FURTHER SHOWS THAT THE NATIONAL AERONAUTICS AND SPACE ADMINISTRATION HAD REPORTED THE PROPERTY IN QUESTION TO THE REDISTRIBUTION AND MARKETING ACTIVITY (R-AND-M), ELLINGTON AIR FORCE BASE, TEXAS, FOR SURPLUS DISPOSAL BUT FAILED TO INCLUDE ANY TURN-IN DOCUMENTS AS TO THE TYPE OF METAL CONTAINED IN THESE SHINGLES. FOR PURPOSE OF IDENTIFICATION, ALL SHINGLES BEING IDENTICAL IN SHAPE, ONE SHINGLE AND ONE RETAINER FROM THIS LOT WERE SENT TO KELLY AIR FORCE BASE FOR LABORATORY TESTING. THE TESTS REVEALED THAT THE SHINGLE WAS 99 PERCENT COMMERCIALLY PURE BERYLLIUM, COATED WITH A COPPER BASE PAINT, AND THE RETAINER WAS 2024 ALUMINUM ALLOY. BASED ON THE LABORATORY TEST THE RETAINERS, WEIGHING 26 POUNDS, WERE SEPARATED FROM THE LOT AND THE R-AND-M PROPERTY LIST WAS CHANGED TO SHOW 100 POUNDS OF BERYLLIUM SCRAP. IT FURTHER APPEARS THAT THE SELLING ACTIVITY DELETED THE WORDS "ALLOY TYPE" FROM THE PROPERTY LIST AND ADDED THE PHRASE "TEST SAMPLE INDICATES 99 PERCENT COMMERCIALLY PURE BERYLLIUM".

YOU CONTEND THAT SCRAP BERYLLIUM MUST BE PROCESSED WITH EXTREME CARE AND THAT IT TAKES CONSIDERABLE TIME TO RECEIVE A REPORT AS TO QUALITY AND QUANTITY OF THE RECOVERED BERYLLIUM. YOU ALSO INDICATE THAT YOU RELIED UPON THE TEST SAMPLE SHOWING 99 PERCENT PURE BERYLLIUM AS BEING REPRESENTATIVE OF THE ENTIRE 100 LBS.

THE ANALYSIS FURNISHED BY THE BERYLLIUM CORPORATION SHOWING NONBERYLLIUM CONTENT IN SOME OF THE SHINGLES SUPPORTS A CONCLUSION THAT THE SHINGLES WERE IN FACT MISDESCRIBED AND RECOVERY COULD HAVE BEEN OBTAINED UNDER THE GUARANTEED DESCRIPTIONS ARTICLE IF WRITTEN NOTICE HAD BEEN GIVEN WITHIN 20 CALENDAR DAYS FROM THE DATE OF REMOVAL OF THE PROPERTY AS PROVIDED THEREIN. HOWEVER, YOU FAILED TO SUBMIT THE NOTICE CALLED FOR IN THE ARTICLE WITHIN 20 DAYS EITHER FROM DATE OF REMOVAL OF THE PROPERTY OR FROM THE TIME (SEPTEMBER 15, 1967) THAT YOU WERE ADVISED OF THE ACTUAL CONTENT OF THE SCRAP.

PARAGRAPH NO. 2 OF THE GENERAL SALES TERMS AND CONDITIONS WHICH, IN THE ABSENCE OF APPLICABILITY OF THE GUARANTEED DESCRIPTIONS ARTICLE, IS CONTROLLING AS REGARDS ANY MISDESCRIPTION OF THE PROPERTY IN THE INVITATION, IS AN EXPRESS DISCLAIMER OF WARRANTY. THE GOVERNMENT, THEREFORE, IS NOT LIABLE FOR THE FAILURE OF THE PROPERTY DELIVERED TO CORRESPOND TO THE DESCRIPTION IN THE INVITATION, BARRING A GROSS DISCREPANCY, A "CASE OF ORDERING APPLES AND GETTING ORANGES" , WILLFUL MISDESCRIPTION OR BAD FAITH. SEE 41 COMP. GEN. 185; B-163005, APRIL 2, 1968 (47 COMP. GEN. ---). SINCE THERE IS NO EVIDENCE TO ESTABLISH THAT ANY OF THE ABOVE-LISTED EXCEPTIONS PROPERLY MAY BE INVOLVED, YOUR CLAIM MUST BE DENIED.