B-147018, SEP. 20, 1961

B-147018, SEP. 20, 1961

TO THE BELVISION, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 11, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 17, 1959, WHICH DISALLOWED YOUR CLAIM FOR $4,000 REPRESENTING THE AMOUNT PAID TO THE GOVERNMENT FOR CERTAIN SURPLUS PROPERTY PURCHASED BY YOU FROM THE UNITED STATES ARMY QUARTERMASTER CENTER, TOKYO, JAPAN, BUT WHICH YOU ALLEGE YOU DID NOT RECEIVE.

THE CONTRACT IN THIS CASE WAS ON STANDARD FORM 114 REVISED AUGUST 1950, AND CONTAINED ON PAGE 2 THEREOF THE USUAL GENERAL SALE TERMS AND CONDITIONS WITH REGARD TO INSPECTION, DISCLAIMER OF WARRANTY, AND ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT OF THE PROPERTY BEING OFFERED FOR SALE (PARAGRAPHS NOS. 1, 2 AND 8), WHICH PROVISIONS ARE PERTINENT TO YOUR CLAIM. THESE PROVISIONS WERE QUOTED IN FULL IN OUR SETTLEMENT AND WILL NOT BE REPEATED HERE.

UNDER CONTRACT NO. DA/S/-92-557-FEG-18861 AND MODIFICATION NO. 1 THERETO, AWARDED TO YOU OCTOBER 31, 1957, YOU AGREED TO PURCHASE FROM THE GOVERNMENT AT YOUR TOTAL BID PRICE OF $7,678, SUBJECT TO THE GENERAL SALE TERMS AND CONDITIONS INCORPORATED THEREIN BY THE BID SALES INVITATION (NO. 92-557-S-58-317 DATED AUGUST 14, 1957), CERTAIN SURPLUS PROPERTY COVERED BY ITEM NO. 3 ON THE BID INVITATION. THE MATERIAL IN THAT ITEM WAS LISTED IN THE INVITATION SPECIFICALLY AS ONE LOT OF "MISCELLANEOUS ELECTRONIC TUBES (UNUSED) (LOT NO. 301, WHSE NO. 32)" CONSISTING OF APPROXIMATELY THE QUANTITY OF EACH TYPE STATED UNDER THE ITEM. THE PROPERTY INVOLVED IN YOUR CLAIM WAS DESCRIBED (PAGE 11 OF THE INVITATION), AS FOLLOWS:

CHART

"QUANTITY MFG. OR

EACH TYPE SPECIFICATION

87,843 104 MIL-E-1B RF AMPLIFIER PENTODE SHARP,

CUT-OFF GLASS"

AT THE END OF THE ITEM, IT WAS STATED THAT THE PROPERTY WAS LOCATED AT "PROPERTY DISPOSAL YARD, ISOGO AREA, LOT 301, WHSE NO. 32, US ARMY SIGNAL SUPPLY CENTER, FAR EAST, YOKOHAMA, JAPAN," AND BIDDERS WERE ADVISED THAT IT COULD BE INSPECTED THERE.

YOU PAID THE FULL PURCHASE PRICE FOR THE LOT OF TUBES COVERED BY ITEM NO. 3, AND ON JANUARY 27, 1958, MR. H. K. TASAKI OF THE KEIHIN EXPRESS COMPANY, YOUR AGENT IN JAPAN, ACCEPTED DELIVERY OF THE MATERIAL UNDER THE CONTRACT AND RECEIPTED THEREFOR ON VENDORS SHIPPING DOCUMENT. ON FEBRUARY 6, 1958, IN A LETTER ADDRESSED TO YOU (COPY TO KEIHIN EXPRESS COMPANY, TOKYO, JAPAN), THE CONTRACTING OFFICER OF THE ARMY DISPOSAL CENTER, TOKYO, AUTHORIZED THE EXPORT OF THE MATERIAL TO YOU AT YOUR NEW YORK ADDRESS.

AFTER ARRIVAL OF THE PROPERTY IN NEW YORK, IN LETTER DATED APRIL 21, 1958, TO THE CONTRACTING OFFICER, YOU ALLEGED THAT YOU HAD NOT RECEIVED ALL OF THE ELECTRONIC TUBES PURCHASED BY YOU UNDER THE ITEM LISTED AS "87,843 1U4 E-1B.' YOU STATED THAT ONLY 8,000 (CORRECTED IN PEN TO 9,200) TUBES HAD BEEN RECEIVED, LEAVING A SHORTAGE OF ABOUT 80,000 TUBES. SUPPORT OF YOUR ALLEGATION OF SHORTAGE IN THE NUMBER OF TUBES RECEIVED, YOU SUBMITTED A COPY OF A REPORT BY LLOYDS OF LONDON OF A SURVEY IT HAD MADE OF THE MATERIAL IN THE SHIPMENT RECEIVED IN NEW YORK. YOU STATED THAT YOU EVALUATED THE MISSING TUBES AT FIVE CENTS EACH ON YOUR BID, WHICH COMES TO $4,000, AND REQUESTED CONSIDERATION OF YOUR CLAIM FOR REFUND IN THAT AMOUNT ON ACCOUNT OF THE ALLEGED SHORTAGE.

YOUR CLAIM WAS FORWARDED BY THE DEPARTMENT OF THE ARMY TO OUR OFFICE FOR SETTLEMENT, AND THE CLAIM WAS DISALLOWED FOR THE REASONS STATED IN OUR SETTLEMENT CERTIFICATE DATED APRIL 17, 1959.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED SOLELY ON THE PREMISE THAT YOU WERE ENTITLED TO RECEIVE THE SPECIFIC QUANTITY OF TUBES STATED IN THE INVITATION COVERING THE LOT OF MATERIAL OFFERED FOR SALE UNDER ITEM NO. 3 OF THE SALES INVITATION AS AMENDED.

THE RECORD DISCLOSES THAT THE DESCRIPTION APPEARING IN THE BID INVITATION COVERING THE PROPERTY HERE INVOLVED STATED THAT THE QUANTITIES WERE "APPROXIMATELY" AS LISTED UNDER EACH TYPE OF TUBE. THE DESCRIPTION IN THE BID INVITATION WAS TAKEN FROM THE "REQUEST FOR SALE" BY THE U.S. ARMY SIGNAL SUPPLY CENTER, FAR EAST, YOKOHAMA, JAPAN, TO THE U.S. ARMY QUARTERMASTER CENTER, TOKYO, JAPAN (DISPOSAL SALES AGENCY), AND FROM THE ACCOMPANYING ITEMIZED LIST OF MISCELLANEOUS TUBES COVERING "LOT 301, WHSE NO. 32" TO BE SOLD, WHICH CARRIES THE DESCRIPTION OF "1U4 MIL-E-1B GLASS RF AMPLIFIER PENTODE SHARP CUT OFF 87,843.'

THE GOVERNMENT PROPERTY DISPOSAL OFFICER AT THE SITE WHERE THE PROPERTY WAS STORED, IN A SIGNED STATEMENT DATED APRIL 23, 1958, HAS STATED THAT THE LOT OF MATERIAL (LOT NO. SSC-301) WAS RECEIVED AT THE DISPOSAL YARD ON OCTOBER 22, 1957, AND THAT ITS INTEGRITY AS A "LOT" WAS UPHELD UNTIL DELIVERY TO YOUR AGENT ON JANUARY 27, 1958. THIS STATEMENT IS CORROBORATED BY THE DISPOSAL OFFICER'S ASSISTANT IN A SIGNED STATEMENT OF JULY 11, 1958, THAT "ALL THE ITEMS LISTED IN I.B. NO. 317 DATED 31 OCTOBER 1957 WERE STORED UNDER COVER IN ONE LOT AND WAS NOT DISTURBED OR MOVED BY ANY PERSON OR PERSONS UNKNOWN UNTIL THE BUYER CAME AND PICKED UP THE LOT ON 27 JANUARY 1958. SINCE THIS I.B. WAS SOLD AS ONE LOT THERE WAS NO WEIGHT INVOLVED IN THE TRANSFER TO THE BUYER.' THE RECORD SHOWS THAT THE MATERIAL WAS NOT WEIGHED AT THE TIME OF DELIVERY TO YOUR AGENT.

THE RECORD FURTHER SHOWS THAT AFTER DELIVERY TO YOUR AGENT THE MATERIAL WAS TRANSFERRED AND PLACED IN STORAGE IN A WAREHOUSE AT YOKOHAMA, JAPAN, BY YOUR AGENT, AND THAT IT WAS REPACKED FOR SHIPPING PURPOSES IN LIGHT CARDBOARD BOXES. A COPY OF A CERTIFICATE AND LIST OF MEASUREMENT AND/OR WEIGHT DATED FEBRUARY 27, 1958, PREPARED BY NIPPON KAIJI KENTEI KYOKAI AT THE YOKOHAMA-SHI FUTOH WAREHOUSE, YOKOHAMA, JAPAN, FOR PURPOSES OF SHIPPING THIS LOT OF TUBES, STATES THAT THERE WERE 125 PACKAGES (699 4/12 CUBIC FEET OR 8,635 POUNDS). THERE IS STILL ANOTHER DOCUMENT IN THE RECORD WHICH BEARS YOUR NAME AS CONSIGNEE AND THE SIGNATURE OF MR. TASAKI, YOUR AGENT, AND THE DATE OF MARCH 5, 1958, FOR SHIPPING THIS MATERIAL FROM YOKOHAMA TO NEW YORK, VIA PANAMA, ON THE ,HONOLULU MARU.' THIS DOCUMENT LISTS "1 LOT" OF "MISCELLANEOUS ELECTRONIC TUBES (UNUSED)" IN 8 CRATES AND 117 CARTONS, NET WEIGHT OF 7,385 POUNDS, AND GROSS WEIGHT OF 8,635 POUNDS, MEASUREMENT 699 FEET - 4 INCHES CUBIC FEET, WITH A DETAILED PACKING LIST ATTACHED SHOWING A QUANTITY OF 87,843 OF THE 1U4 TUBES IN THE SHIPMENT. THE LLOYDS OF LONDON SURVEY REPORT STATES THAT ONLY "124" PACKAGES WERE IN THE SHIPMENT WHEN RECEIVED AT NEW YORK.

IT IS CLEAR FROM THE RECORD THAT THE LOT OF MISCELLANEOUS TUBES DELIVERED TO YOU UNDER THE CONTRACT CONTAINED 87,843 OF THE 1U4 TUBES AS STATED IN THE DESCRIPTION OF THE MATERIAL IN THE BID INVITATION.

WHILE THERE MAY HAVE BEEN A SHORTAGE, AS ALLEGED BY YOU, IN THE QUANTITY OF ELECTRONIC TUBES IN THE SHIPMENT RECEIVED BY YOU, NOTHING APPEARS IN THE RECORD TO INDICATE THAT ANY SUCH SHORTAGE OCCURRED THROUGH ANY ACT OR FAULT OF GOVERNMENT PERSONNEL CONNECTED WITH THE SALE TRANSACTION. EVIDENCE IS AVAILABLE REGARDING THE CUSTODY OR SECURITY OF THE PROPERTY FROM THE DATE OF ITS REMOVAL BY YOUR AGENT FROM THE GOVERNMENT YARD IN YOKOHAMA TO THE TIME OF RECEIPT OF THE MATERIAL IN NEW YORK. THE CIRCUMSTANCES OF HANDLING THE MATERIAL SUBSEQUENT TO ITS DELIVERY BY THE GOVERNMENT TO YOUR AGENT IN JAPAN, HOWEVER, DOES LEND CREDENCE TO THE POSSIBILITY OF A SHORTAGE TAKING PLACE DURING TRANSPORTATION FROM THE GOVERNMENT SITE TO THE AGENT'S WAREHOUSE, WHILE IN STORAGE THERE AND IN REPACKING, OR DURING SHIPMENT FROM THE WAREHOUSE TO NEW YORK.

WHILE DISCREPANCIES AS TO THE WEIGHT OF THE MATERIAL SOLD TO YOU APPEAR IN THE RECORD, WHICH MIGHT INDICATE THE POSSIBILITY OF A SHORTAGE BY WEIGHT OF THE MATERIAL RECEIVED BY YOU FROM THE GOVERNMENT, THIS FACT CAN HAVE NO BEARING ON THE SETTLEMENT OF YOUR CLAIM INASMUCH AS THE MATERIAL WAS SOLD TO YOU ON A "LOT" BASIS ONLY,"AS IS" AND "WHERE IS," AND WITHOUT ANY WARRANTY OR GUARANTY OF ANY KIND AS TO THE DESCRIPTION OF THE MATERIAL, INCLUDING WEIGHT, QUANTITY, ETC. THE PROVISIONS OF PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, REFERRED TO IN OUR SETTLEMENT, PROHIBIT ANY ADJUSTMENT WHERE THE SALE IS ON A LOT BASIS.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR ALLOWING YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT OF APRIL 17, 1959, IS SUSTAINED.