B-167926, JUL 15, 1970, 50 COMP GEN 28

B-167926, JUL 15, 1970, 50 COMP GEN 28

SALES - PROPERTY DESCRIPTIONS - RULE THE RULE TO BE DERIVED FROM PAST DECISIONS OF THE COMPTROLLER GENERAL RELATING TO CLAIMS FOR ALLEGED MISDESCRIPTION OF SURPLUS PROPERTY WHERE NO GUARANTEE PROVISIONS WERE INCORPORATED IN THE INVITATION IS THAT THE HOLDING AUTHORITY, INCLUDING THE PROPERTY DISPOSAL OFFICER, SHOULD BE HELD TO THE USE OF THE BEST INFORMATION AVAILABLE, THE ACCURACY OF WHICH MAY BE RELIED ON IF NOT INTERNALLY INCONSISTENT, BUT IF THE INFORMATION IS CONTRADICTORY OR INCONSISTENT, THE HOLDING ACTIVITY HAS THE DUTY TO SELECT ON SOME REASONABLE BASIS THE DESCRIPTIVE INFORMATION TO BE USED. IF NO INFORMATION IS AVAILABLE, THE HOLDING ACTIVITY HAS THE DUTY TO DEVELOP A DESCRIPTION OF THE PROPERTY ON A REASONABLE BASIS, TAKING INTO CONSIDERATION THE CIRCUMSTANCES AND EFFORT IN RELATION TO THE PROBABLE VALUE. ERRORS IN JUDGMENT OR TYPOGRAPHICAL ERRORS BY THE HOLDING ACTIVITY WOULD NOT PER SE VIOLATE THE RULE. SALES - DISCLAIMER OF WARRANTY - ERRONEOUS DESCRIPTION - RELIEF GENERALLY UNDER INVITATION FOR BIDS TO DISPOSE OF SURPLUS PROPERTY ON AN "AS IS" AND "WHERE IS" BASIS, BIDDERS ADVISED THAT THE ESTIMATED WEIGHT OF THE ITEMS OFFERED WERE NOT GUARANTEED AND URGED TO INSPECT THE PROPERTY ARE NOT ENTITLED TO A PRICE ADJUSTMENT FOR WEIGHT SHORTAGES IF THE DESCRIPTIVE INFORMATION USED BY THE HOLDING ACTIVITY WAS THE BEST AVAILABLE, OR IF NOT AVAILABLE, THE WEIGHT ESTIMATE WAS BASED ON A VISUAL INSPECTION OF THE PROPERTY BECAUSE IT WOULD NOT HAVE BEEN FEASIBLE TO WEIGH THE INDIVIDUAL ITEMS. HOWEVER, RELIEF MAY BE GRANTED WHERE THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE NOTICE OF THE MISDESCRIPTION BEFORE AWARD, OR THE HOLDING ACTIVITY UNEXPLAINEDLY ALMOST TRIPLED THE WEIGHT WHICH HAD BEEN ACCURATELY SHOWN IN A ROUGH DRAFT OF THE SALES WRITEUP.

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, JULY 15, 1970:

REFERENCE IS MADE TO THE LETTERS OF APRIL 9, 1970, AND MAY 1, 1970, WITH ATTACHMENTS, FROM THE ASSISTANT COUNSEL, DEFENSE SUPPLY AGENCY (DSA), REFERENCE: DSAH-G, CONCERNING OUR DECISION B-167926, JANUARY 15, 1970, AND CERTAIN CLAIMS RECEIVED BY YOUR AGENCY FOR ALLEGED MISDESCRIPTION OF SURPLUS ITEMS SOLD WHERE THERE IS NO RECOURSE UNDER THE "GUARANTEE" PROVISIONS. IT IS SUGGESTED THAT OUR DECISION B 160014, OCTOBER 27, 1966, AND B-166611, MAY 15, 1969, MAY BE INCONSISTENT WITH B-167926, JANUARY 15, 1970.

THE DECISION, B-160014, OCTOBER 27, 1966, CONCERNED A CLAIM FOR AN ALLEGED MISDESCRIPTION OF AN ITEM IN A SURPLUS SALES INVITATION. SUBITEM OF THE ITEM STATED THAT THE HANDLE SOCKET OF CERTAIN HARD TOOLS WERE SLIDING T-TYPE, 1/4-INCH DRIVE. THE HANDLE SOCKETS WERE ACTUALLY 9/32-INCH DRIVE. IT WAS FOUND THAT THE DESCRIPTION WAS TAKEN FROM THE BEST AVAILABLE INFORMATION AS SET OUT IN THE TURN-IN DOCUMENT FROM THE HOLDING ACTIVITY AND THERE WAS NO INDICATION IN THE RECORD BEFORE OUR OFFICE OF BAD FAITH ON THE PART OF GOVERNMENT EMPLOYEES DRAWING THE INVITATION OR THAT SUCH EMPLOYEES HAD ANY INFORMATION THAT THE SUBITEM WAS OTHER THAN AS DESCRIBED IN THE INVITATION. THE "GUARANTEED DESCRIPTIONS" CLAUSE WAS NOT INCLUDED WITH THE "SALE BY REFERENCE" CONDITIONS INCORPORATED IN THAT INVITATION. SINCE THE SALE WAS ON AN "AS IS" AND "WHERE IS" BASIS, IT WAS CONCLUDED THAT THERE WAS NO WARRANTY AND THAT THE RULE OF CAVEAT EMPTOR PREVAILED.

IN B-166611, MAY 15, 1969, AN AUTOMOBILE WAS DESCRIBED AS A SEDAN, 1965 DODGE-6, 2-DOOR, AND THE SERIAL NUMBER OF THE CAR WAS SET FORTH IN THE PURCHASE DESCRIPTION. THE VEHICLE WAS ACTUALLY A 1964 DODGE, THE MISDESCRIPTION IN THE INVITATION RESULTING FROM A TYPOGRAPHICAL ERROR BY THE REPORTING AGENCY. NO GUARANTEE PROVISIONS WERE INCORPORATED AS TERMS AND CONDITIONS OF THAT SALE. THE CONTENTION WAS THAT THE CATALOG DESCRIPTION WAS NOT BASED ON THE BEST AVAILABLE INFORMATION. OUR OFFICE REJECTED THIS ARGUMENT SINCE THE SALES OFFICER BASED THE DESCRIPTION ON THE BEST AND SOLE INFORMATION AVAILABLE TO HIM, THAT FURNISHED BY THE REPORTING AGENCY.

THE ADMINISTRATIVE REPORTS REFER TO LANGUAGE IN B-160014, OCTOBER 27, 1966, WHICH STATES THAT " *** SALES PERSONNEL GENERALLY RELY UPON THE RECORDS CERTIFIED TO THEM BY THE HOLDING ACTIVITIES IN PREPARING THE PROPERTY DESCRIPTIONS WHICH ARE INSERTED IN DISPOSAL INVITATIONS AND ARE UNDER NO DUTY TO MAKE ANY INSPECTION OF ITEMS THEMSELVES IN PREPARING FOR THE SALE. RELIEF CAN ONLY BE GRANTED WHERE THE MISDESCRIPTION IS THE RESULT OF SOME ACT ON THE PART OF THE SALES PERSONNEL THEMSELVES. THE RULE OF CAVEAT EMPTOR APPLIES WITH RESPECT TO MISDESCRIPTIONS RESULTING FROM THE FAULT OF EMPLOYEES OF THE HOLDING ACTIVITIES *** ."

IN B-166611, MAY 15, 1969, WE SAID:

*** IN SURPLUS SALES THE OFFICIALS OF THE GOVERNMENT ARE REQUIRED ONLY TO ACT IN GOOD FAITH, WHICH THE SALES OFFICER DID. ***

IN B-167926, JANUARY 15, 1970, THE TURN-IN DOCUMENT CONTAINED INCONSISTENT DESCRIPTIVE LANGUAGE. ONLY THE MORE FAVORABLE LANGUAGE WAS INCLUDED IN THE PURCHASE DESCRIPTION. IN THAT CASE IT WAS HELD THAT THE PROPERTY DISPOSAL OFFICER COULD NOT SIMPLY SELECT THE MORE FAVORABLE INFORMATION BUT HAD TO CAREFULLY EVALUATE THE SITUATION TO INSURE THAT THE SELECTION OF ONE PART OF THE DESCRIPTION OVER ANOTHER INCONSISTENT PART WAS BASED ON THE BEST AVAILABLE INFORMATION.

IN B-151239, MAY 31, 1963, THE PROPERTY DISPOSAL OFFICER KNOWINGLY CHANGED THE DESCRIPTION OF THE PROPERTY SHOWN IN THE TURN-IN DOCUMENT. B-151239, WHICH WAS CITED IN B-167926, IT WAS ALSO FOUND THAT THE PROPERTY DISPOSAL OFFICER DID NOT FULFILL HIS DUTY.

WE THINK THE RULE TO BE DERIVED FROM THE FOREGOING CASES IS THAT THE HOLDING ACTIVITY WHICH INCLUDES THE PROPERTY DISPOSAL OFFICER, SHOULD BE HELD TO THE USE OF THE BEST INFORMATION AVAILABLE TO IT. WHERE THE INFORMATION IS CONTRADICTORY OR INCONSISTENT THE HOLDING ACTIVITY HAS A DUTY TO SELECT THE DESCRIPTIVE INFORMATION TO BE USED ON SOME REASONABLE BASIS. HOWEVER, WHERE THE DESCRIPTION OF THE ITEM AVAILABLE TO THE HOLDING ACTIVITY IS NOT INTERNALLY INCONSISTENT, IT HAS A RIGHT TO RELY ON THE ACCURACY OF THE INFORMATION. WHERE NO INFORMATION IS AVAILABLE, THE HOLDING ACTIVITY HAS A DUTY TO DEVELOP A DESCRIPTION OF THE PROPERTY ON A REASONABLE BASIS TAKING INTO CONSIDERATION THE CIRCUMSTANCES AND THE EFFORT JUSTIFIED IN RELATION TO THE PROBABLE VALUE. ERRORS IN JUDGMENT OR TYPOGRAPHICAL ERRORS BY THE HOLDING ACTIVITY WOULD NOT PER SE VIOLATE THE STANDARD. WE BELIEVE THAT OUR HOLDINGS ON THE POINT ARE CONSISTENT WITH THIS RULE.

THE FIVE FACTUAL SITUATIONS PRESENTED FOR OUR CONSIDERATION ARE SET OUT INDIVIDUALLY BELOW.

THE CAPCO ALLOY STEEL COMPANY'S (CAPCO) CLAIM CONCERNED A SHORTAGE IN THE ESTIMATED TOTAL WEIGHT OF ITEM NO. 11, CONTRACT NO. 44-0048-097, WHICH WAS DESCRIBED AS FOLLOWS:

TUBING: 2-1/4" OUTSIDE DIMENSION, CORROSION RESISTING STEEL. FSN 4710- 278-9453. OUTSIDE, AREA E - UNPACKED - UNUSED - FAIR CONDITION. TOTAL COST $2085. EST. TOTAL WT. 3400 LBS. 778 FEET.

THE ABOVE-QUOTED DESCRIPTION OF ITEM NO. 11 APPEARED IN INVITATION FOR BIDS NO. 44-0048, WHICH INCORPORATED BY REFERENCE THE INSTRUCTIONS, TERMS AND CONDITIONS, IN THE "SALE BY REFERENCE" PAMPHLET OF MARCH 1969. THIS PAMPHLET PROVIDED THAT THE SALE WAS ON AN "AS IS" AND "WHERE IS" BASIS, THAT THE DESCRIPTION OF THE PROPERTY WAS BASED ON THE BEST INFORMATION AVAILABLE AND THE BIDDER WAS URGED TO INSPECT THE PROPERTY. IT WAS FURTHER PROVIDED THAT THE ESTIMATED TOTAL WEIGHT OF THE PROPERTY WAS NOT GUARANTEED.

SUBPARAGRAPH (A)(1) OF CLAUSE 27 IN THE "SALE BY REFERENCE," MARCH 1969, PAMPHLET PROVIDED THAT THE CONTRACT PRICE WOULD NOT BE ADJUSTED OR PROPERTY DELETED FROM THE CONTRACT PURSUANT TO THE "GUARANTEED DESCRIPTIONS" CLAUSE UNLESS THE PURCHASER FURNISH THE SALES CONTRACTING OFFICER WRITTEN NOTICE WITHIN 20 CALENDAR DAYS OF REMOVAL OF THE PROPERTY THAT HE CONSIDERED THE PROPERTY TO HAVE BEEN MISDESCRIBED; FURTHER THE PROPERTY MUST BE HELD SUFFICIENTLY INTACT TO PERMIT IDENTIFICATION BY THE GOVERNMENT.

CAPCO PAID $0.7869151 PER FOOT FOR THE 778 FEET OF TUBING AND REMOVED THE ITEM ON NOVEMBER 20, 1969. BY LETTER OF NOVEMBER 24, 1969, SUBSEQUENT TO THE REMOVAL OF THE PROPERTY, CAPCO ADVISED THE PROCURING ACTIVITY THAT THE ITEM DELIVERED CONSISTED OF 1,093 POUNDS AND A REQUEST WAS MADE FOR A PRICE DECREASE OF $415.26.

THE TURN-IN DOCUMENT TO THE HOLDING ACTIVITY INDICATED THAT THE TOTAL WEIGHT OF THE PROPERTY WAS 3,400 POUNDS. THIS INFORMATION WAS USED BY PERSONNEL AT THE HOLDING ACTIVITY TO PREPARE THE PROPERTY LIST WHICH WAS SUBMITTED TO THE SALES OFFICE. THE DESCRIPTIONS IN THE PROPERTY LIST WERE USED IN THE INVITATION FOR BIDS.

THE FACTS OF THE CAPCO CLAIM INDICATE THAT THE PURCHASE DESCRIPTION WAS TAKEN FROM THE TURN-IN DOCUMENT WITHOUT ANY CHANGES BY THE SELLING ACTIVITY. THIS CASE FALLS WITHIN THE GENERAL RULE THAT RELIEF IS DENIED WHERE THE SELLING ACTIVITY ACTS IN GOOD FAITH ON THE BASIS OF THE BEST AVAILABLE INFORMATION. THEREFORE, SINCE THERE WAS NO WARRANTY WITH THE RESPECT TO THE WEIGHT OF THE PROPERTY, CAPCO'S CLAIM MUST BE DENIED.

THE CLAIM OF WESTERN ALLOY METALS CORPORATION (WESTERN) CONCERNS A SHORTAGE IN THE ESTIMATED TOTAL WEIGHT OF ITEMS NOS. 105 THROUGH 116 UNDER INVITATION FOR BIDS NO. 44-9130, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA. ITEM NO. 105 WAS DESCRIBED AS FOLLOWS:

BATTERY, STORAGE NICKEL ALKALINE, 30 CELL, 11 PLATE, EDISION, MODEL 30C5.

TOTAL COST $2956

EST. TOTAL WT. 4200 LBS. 2 EACH

ARTICLE: DANGEROUS PROPERTY APPLICABLE.

ITEMS NOS. 106 THROUGH 115 WERE DESCRIBED AS "SAME AS" ITEM NO. 105. ITEM NO. 116 WAS DESCRIBED AS FOLLOWS:

116 BATTERY, STORAGE: EDISION, CONSISTING OF:

2 EA. - MODEL 10D6A, 6 CELL

1 EA. - MODEL UNKNOWN, 6 CELL, DIMENSIONS: 26-1/4" X 13" X 23"

1 EA. - MODEL UNKNOWN, 30 CELL, DIMENSIONS: 36-1/2 X 31-1/2" X 21 1/4".

OUTSIDE LOT 505 - 33 - UNPACKED - USED - POOR CONDITION

TOTAL COST $2200

EST. TOTAL WT. 4800 LBS. 1 LOT

ARTICLE EQ: DANGEROUS PROPERTY APPLICABLE.

THE ESTIMATED WEIGHT OF THE TOTAL QUANTITY DESCRIBED IN ITEMS NOS. 105 THROUGH 116 WAS 51,000 POUNDS. WESTERN WAS THE HIGH BIDDER AT $5,403 AND AWARD WAS MADE TO THAT CONCERN ON MAY 23, 1969.

ON JUNE 27, 1969, SUBSEQUENT TO REMOVAL OF THE PROPERTY, A REPRESENTATIVE OF WESTERN ADVISED THE CONTRACTING OFFICER BY TELEPHONE OF A SHORTAGE IN WEIGHT IN ITEMS NOS. 105 THROUGH 116 AND OF WESTERN'S INTENTION TO FILE A CLAIM. BY LETTER OF NOVEMBER 4, 1969, WESTERN ADVISED THE CONTRACTING OFFICER THAT THERE WAS A SHORTAGE OF 23,560 POUNDS AND A REFUND OF $2,905.64 WAS REQUESTED. THE BATTERIES WERE REMOVED FROM GOVERNMENT CONTROL ON JUNE 25, 1969. WESTERN FILED ITS WRITTEN CLAIM FOR RELIEF ON NOVEMBER 4, 1969.

SPACES IN THE TURN-IN DOCUMENT FOR DESCRIBING THE TYPE OF CONTAINER, THE TOTAL WEIGHT, THE NUMBER OF CONTAINERS AND THE TOTAL CUBE WERE LEFT BLANK. THE REPORT FROM THE SALES CONTRACTING OFFICER STATES THAT THE WRITER OF THE SALES DESCRIPTION ESTIMATED THE TOTAL WEIGHT FROM VISUAL INSPECTION AND THESE WEIGHTS WERE INCLUDED IN THE PROPERTY LISTING REFERRED TO THE SALES OFFICE. THE SALES OFFICE APPARENTLY RELIED ON THIS LISTING IN INCLUDING THE PURCHASE DESCRIPTION IN THE INVITATION.

THE INVITATION WHICH IS THE SUBJECT OF WESTERN'S CLAIM INCORPORATED THE INSTRUCTIONS TERMS AND CONDITIONS CONTAINED IN THE "SALE BY REFERENCE" PAMPHLET OF APRIL 1968. THE PROVISIONS IN THIS PAMPHLET THAT THE SALE WAS ON AN "AS IS" AND "WHERE IS" BASIS; THAT THE DESCRIPTION OF THE PROPERTY WAS BASED ON THE BEST INFORMATION AVAILABLE AND URGING THE BIDDER TO INSPECT THE PROPERTY WERE THE SAME AS THE PROVISIONS IN THE MARCH 1969 "SALE BY REFERENCE" PAMPHLET. THE APRIL 1968 PAMPHLET STATED THAT THE ESTIMATED TOTAL WEIGHT WAS NOT GUARANTEED. PARAGRAPH (A)(1) OF CLAUSE 27 IN THE APRIL 1968 "SALE BY REFERENCE" PAMPHLET IS THE SAME AS THE CORRESPONDING CLAUSE IN THE MARCH 1969 "SALE BY REFERENCE" PAMPHLET, SUMMARIZED ABOVE.

THE FACTS OF WESTERN'S CLAIM INDICATE THAT THE MISDESCRIPTION WAS DUE TO A VISUAL INSPECTION BY THE WRITER OF THE PURCHASE DESCRIPTION WHO WAS PART OF THE HOLDING ACTIVITY. THE SALES OFFICE DESCRIBED THE PROPERTY IN ACCORDANCE WITH THE INFORMATION REPORTED TO IT BY THE HOLDING ACTIVITY. WE HAVE BEEN ADVISED THAT IN VIEW OF THE MIX OF BATTERIES IT WOULD HAVE BEEN NECESSARY TO INDIVIDUALLY WEIGH THE BATTERIES TO INSURE THAT THE WEIGHT WAS ACCURATE; THAT THIS WAS NOT FEASIBLE; THAT, THEREFORE, A VISUAL INSPECTION WAS MADE AND THE WEIGHT WAS DESCRIBED AS AN ESTIMATE. IN OUR OPINION THE HOLDING ACTIVITY ACTED REASONABLY IN THE CIRCUMSTANCES; CONSEQUENTLY, THERE IS NO BASIS FOR GRANTING RELIEF TO WESTERN.

THE LETTER OF MAY 1, 1970, FROM YOUR AGENCY, PRESENTS CLAIMS FROM ASHLAND METALS UNDER TWO SEPARATE CONTRACTS - CONTRACTS NOS. 16-0061 116 AND 25- 0066-115.

CONTRACT NO. 16-0061-116 WAS AWARDED TO ASHLAND METALS FOR ITEM NO. 103, CONTAINED IN SALES INVITATION NO. 16-0061, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, RHODE ISLAND. THIS ITEM WAS DESCRIBED AS FOLLOWS:

103. CABLE, POWER ELECTRICAL: SHIPBOARD, CONSISTING OF:

1790 FEET - (ON 4 REELS). TYPE MDGT-30, 30 CONDUCTOR, AWG-3 CONDUCTOR,

600 VOLTS, O/D2.750, FSN 6145-184-2526.

INSIDE - UNUSED - GOOD CONDITION

TOTAL COST $11,195

EST. TOTAL WT. 25,000 LBS.

EST. SHIPPING DIM. F/REELS: 75" DIA. X 48" W 1 LOT

ASHLAND METALS PURCHASED THE ABOVE ITEM FOR $6,550 ON A LOT BASIS AND SUBSEQUENT TO REMOVAL OF THE PROPERTY FILED A CLAIM FOR REFUND OF $1,167.99 BASED ON THE ASSERTION THAT THE ACTUAL WEIGHT OF THE PROPERTY DELIVERED WAS 4,458 POUNDS LESS THAN THE ESTIMATED TOTAL WEIGHT STATED IN THE PURCHASE DESCRIPTION. THE TURN-IN DOCUMENTS LIST THE PROPERTY UNDER THE FEDERAL STOCK NUMBER AND THE PROPERTY DISPOSAL OFFICER HAS ADVISED THAT THE FEDERAL STOCK CATALOG WAS USED TO DESCRIBE THE PROPERTY. THE GROSS WEIGHT OF THE PROPERTY WAS ESTIMATED BY PERSONNEL IN THE DISPOSAL OFFICE. A MEMORANDUM DATED MARCH 30, 1970, FROM THE DISPOSAL DIVISION, BOSTON NAVAL SHIPYARD ANNEX STATES AS FOLLOWS WITH RESPECT TO THE ESTIMATED WEIGHT:

1. FORWARDED. THIS MATERIAL WAS WRITTEN "AS A LOT," WITH DESCRIPTION AS A USABLE ITEM. THE FOOTAGE WAS EXACT, THE WEIGHT ON THE REFERRAL WAS AN ESTIMATE, AND FOR SHIPPING PURPOSES ONLY; (NOT PART OF THE DESCRIPTION).

THE INVITATION INCORPORATED BY REFERENCE THE TERMS AND CONDITIONS CONTAINED IN THE "SALE BY REFERENCE, MARCH 1969" PAMPHLET. THESE TERMS AND CONDITIONS ARE THE SAME AS THOSE DESCRIBED WITH REFERENCE TO CAPCO'S CLAIM.

IN ASHLAND METALS' CLAIM UNDER CONTRACT NO. 16-0061-116, AN INACCURATE ESTIMATE WAS MADE BY DISPOSAL OFFICE PERSONNEL. THIS WAS A SALE BY "LOT" AND ASHLAND METALS ALLEGED THE SHORTAGE PRIOR TO THE REMOVAL OF ALL OF THE PROPERTY. OUR EXAMINATION SHOWS THAT FOR ITEM NO. 103 THE FIRM SUBMITTED A TOTAL BID OF $6,550 FOR THE "LOT" WITH NO UNIT PRICE INSERTED. THERE IS NO EVIDENCE OF UNREASONABLE ACTION BY THE HOLDING ACTIVITY AND THE SELLING ACTIVITY RELIED ON INFORMATION FURNISHED TO IT BY THE HOLDING ACTIVITY. THEREFORE, THERE IS NO BASIS FOR GRANTING RELIEF UNDER THIS CONTRACT. THE CLAIM UNDER CONTRACT NO. 25-0066-115 AWARDED BY THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA, CONCERNS THE FOLLOWING PURCHASE DESCRIPTION OF ITEM NO. 61 CONTAINED IN SALES INVITATION NO. 25-0066:

CABLE, ELECTRIC, NAVY DEGAUSSING: GENERAL CABLE CORP., SPEC. N15-C 1J, TYPE MDGA-19(23); 19 CONDUCTORS COPPER STRANDED NO. 7 AWG. AC, 600 VOLTS, FELT ASBESTOS AND VARNISHED CAMBRIC INSULATION AND A COMPOUND IMPREGNATED RAYON BRAID OVER EACH CONDUCTOR. THE CONDUCTORS ARE CABLED UNDER A BINDER. TYPE MDGA HAS AN IMPERVIOUS SHEATH AND A PAINTED METAL ARMOR BRAID OVER THE BINDER.

EST. 45,853 FEET ON 55 REELS. FSN 6145-191-1982.

OUTSIDE - PACKED UNUSED - GOOD CONDITION

TOTAL COST $64,194

EST. TOTAL WT. 320,971 LBS. 1 LOT

ASHLAND METALS WAS THE HIGH BIDDER FOR THE ABOVE PROPERTY AT $43,752.31. DURING REMOVAL OF THE PROPERTY ASHLAND ALLEGED A SHORTAGE IN THE ESTIMATED TOTAL WEIGHT AND A LETTER DATED MARCH 5, 1970, FROM ASHLAND METALS CONFIRMED THIS ASSERTION. AFTER COMPLETE REMOVAL ASHLAND METALS FILED A CLAIM FOR $24,033.56 BASED ON THE ASSERTION THAT THE ACTUAL WEIGHT OF THE PROPERTY DELIVERED WAS SOME 176,000 POUNDS LESS THAN THE ADVERTISED ESTIMATED TOTAL WEIGHT.

A MEMORANDUM PREPARED BY THE PROPERTY SALES SPECIALIST DATED MARCH 26, 1970, INDICATES THAT AN INSPECTION WAS MADE OF THE REMAINING PORTION OF ITEM NO. 61 AFTER BEING ADVISED OF ASHLAND METAL'S ASSERTION. ONE REEL WAS SELECTED AS REPRESENTATIVE OF THE LARGEST AND HEAVIEST OF THE LOT. COMPUTATION WAS MADE TAKING INTO CONSIDERATION THAT SOME OF THE REELS WERE SMALLER THAN THE LARGEST SELECTED AND IT WAS FOUND THAT THE TOTAL WEIGHT WAS 114,632 POUNDS CONSISTING OF 73,382 POUNDS OF CABLE (45,853 FEET OF CABLE AT 2.5 POUNDS PER FOOT) AND 41,250 POUNDS AS THE WEIGHT OF THE REELS (55 REELS AT 750 POUNDS PER REEL).

THE SALES CONTRACTING OFFICER'S REPORT GIVES THE FOLLOWING DETAILS REGARDING THE MISDESCRIPTION OF ITEM NO. 61:

9. THE NSC DISPOSAL DIVISION MEMORANDUM OF 26 MARCH 1970 ADVISES THE ESTIMATED TOTAL WEIGHT OF THE CABLE WAS ARRIVED AT BY OBTAINING THE WEIGHT FROM ONE REEL AND MULTIPLYING BY 55, THE TOTAL NUMBER OF REELS. THIS METHOD OF ESTIMATING WEIGHT WAS INCORRECT IN VIEW OF THE FOOTAGE LISTING BY REEL AVAILABLE AT THE TIME. THE ESTIMATED FOOTAGE WAS OBTAINED FROM THE MARKINGS ON EACH REEL AND LISTED ON THE TALLY SHEET. THE DESCRIPTION WRITTEN BY A NSC DISPOSAL TECHNICIAN ON MATERIAL IDENTIFICATION FORM DATED 3/3/69 IS IDENTICAL WITH THE TYPEWRITTEN REFERRAL LISTING AND IFB DESCRIPTION. THE WAREHOUSEMAN THAT ESTIMATED THE TOTAL WEIGHT SHOULD HAVE BEEN AWARE OF THE DIFFERENT FOOTAGE ON EACH REEL AS HE COMPILED THE LISTING.

ASHLAND METALS ALLEGES ITS BID PRICE WAS COMPUTED ON A POUND BASIS. THIS REGARD THE SALES CONTRACTING OFFICER'S REPORT STATES THAT A PRUDENT BUSINESSMAN WOULD HAVE BEEN ABLE TO ASCERTAIN THAT THE CABLE WEIGHED APPROXIMATELY 2.5 POUNDS PER FOOT AND WITH THE PURCHASE DESCRIPTION ESTIMATE OF 45,853 FEET OF CABLE ON 55 REELS, ASHLAND METALS SHOULD HAVE CONCLUDED THAT THE ESTIMATED TOTAL WEIGHT STATED IN THE PURCHASE DESCRIPTION WAS INCORRECT.

ENCLOSED WITH DSA'S REPORT ON ASHLAND METALS' CLAIM UNDER THIS CONTRACT IS AN EXTRACT FROM A PUBLICATION BY NATIONAL ELECTRIC ON "SHIPBOARD CABLES." PAGE 12 OF THIS PUBLICATION GIVES INFORMATION REGARDING TYPE MDGA-19(23) MULTIPLE CONDUCTOR, DEGAUSSING, ARMORED CABLE, WHICH IS THE TYPE OF CABLE DESCRIBED IN ITEM NO. 61. THE PUBLICATION STATES THAT THE APPROXIMATE NET WEIGHT PER 1,000 FEET IS 2,516 POUNDS WHICH COMES TO APPROXIMATELY 2.5 POUNDS PER FOOT OF CABLE. DSA'S REPORT OF MAY 1, 1970, STATES THAT PRIOR TO BID OPENING A SALES OFFICE REPRESENTATIVE ESTABLISHED THE CURRENT MARKET APPRAISAL OF ITEM NO. 61 BASED ON AN AVERAGE WEIGHT OF 2-1/2 POUNDS PER FOOT OF CABLE FOR 45,853 FEET FOR A TOTAL OF 114,632 POUNDS AND THAT THIS INFORMATION SHOULD HAVE BEEN REPORTED TO THE CONTRACTING OFFICER. THE ADMINISTRATIVE REPORT FURTHER ADVISES THAT PRIOR TO AWARD THE CONTRACTING OFFICER HAD ITEM NO. 61 INSPECTED TO VERIFY THE ACCURACY OF THE DESCRIPTION OF THIS ITEM. THE LETTER OF MAY 1, 1970, RECOMMENDS THAT AN ADJUSTMENT BE AUTHORIZED FOR ITEM NO. 61.

REGARDING ASHLAND METALS' REQUEST FOR RELIEF UNDER CONTRACT NO. 25 0066- 115, WE FIND THAT ON ITEM NO. 61 A TOTAL BID OF $43,752.31 FOR THE "LOT" WAS SUBMITTED WITH NO UNIT PRICE INSERTED. WHILE CERTAIN PUBLICATIONS MAY HAVE INDICATED THE WEIGHT PER FOOT OF CABLE, THERE HAS BEEN NO SHOWING THAT ASHLAND METALS WAS ACTUALLY AWARE THAT THE PURCHASE DESCRIPTION WAS ERRONEOUS. MOREOVER, WE WILL NOT IMPUTE THE KNOWLEDGE OF THE PUBLICATIONS REGARDING THE WEIGHT OF CABLES TO ASHLAND METALS IN THE ABSENCE OF A SHOWING THAT ASHLAND METALS WAS MORE THAN AN OCCASIONAL PURCHASER OF CABLE TO BE USED AS SCRAP. IN VIEW OF THE STATEMENT IN THE REPORT THAT THE SALES OFFICE HAD INFORMATION AVAILABLE WHICH INDICATED THAT THE ESTIMATED WEIGHT IN THE PURCHASE DESCRIPTION FOR ITEM NO. 61 WAS ERRONEOUS WHICH SHOULD HAVE BEEN SUBMITTED TO THE CONTRACTING OFFICER AND THE FURTHER STATEMENT THAT THE CONTRACTING OFFICER HAD THE ITEM INSPECTED PRIOR TO AWARD, WE FIND THAT THE CIRCUMSTANCES HERE JUSTIFY THE CONCLUSION THAT THE CONTRACTING OFFICER HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE MISDESCRIPTION PRIOR TO AWARD. THEREFORE, ASHLAND METALS MAY BE GRANTED AN ADJUSTMENT IN THE PURCHASE PRICE FOR ITEM NO. 61 AS ADMINISTRATIVELY RECOMMENDED.

THE CLAIM OF COMMERCIAL METALS COMPANY (COMMERCIAL) INVOLVES A SHORTAGE IN THE ESTIMATED TOTAL WEIGHT OF ITEM NO. 170 DESCRIBED IN INVITATION FOR BIDS NO. 44-0038, ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA, AS TELEPHONE CABLE HAVING AN ESTIMATED TOTAL WEIGHT OF 40,000 POUNDS. THE PURCHASE DESCRIPTION STATED THAT THE SALE WAS ON A "LOT" BASIS.

COMMERCIAL'S BID FOR ITEM NO. 170 OF $6,824.89, WAS HIGH AND AN AWARD WAS MADE TO THAT CONCERN ON OCTOBER 16, 1969. BY LETTER OF NOVEMBER 11, 1969, COMMERCIAL ADVISED THE CONTRACTING OFFICER THAT THE ACTUAL WEIGHT OF ITEM NO. 170 WAS 19,400 POUNDS WHICH IS ABOUT ONE-HALF OF THE ESTIMATED TOTAL WEIGHT STATED IN THE DESCRIPTION AND RESCISSION OF THE CONTRACT FOR THAT ITEM WAS REQUESTED. COMMERCIAL REFUSED DELIVERY AND DEFAULTED ON ITS CONTRACT FOR ITEM NO. 170. IN ACCORDANCE WITH THE "DEFAULT" PROVISION OF THE "SALE BY REFERENCE" PAMPHLET, MARCH 1969, INCORPORATED BY REFERENCE IN THE INVITATION, THE CONTRACTING OFFICER RETAINED 20 PERCENT OF THE PURCHASE PRICE. A CLAIM HAS BEEN MADE FOR REFUND OF THIS 20 PERCENT. THE OTHER PERTINENT TERMS AND CONDITIONS IN THE "SALE BY REFERENCE" PAMPHLET, MARCH 1969, ARE THE SAME AS THOSE DESCRIBED IN REFERENCE TO CAPCO'S CLAIM.

A MEMORANDUM DATED FEBRUARY 18, 1970, PREPARED BY THE PROPERTY SALES SPECIALIST STATES THAT AN INSPECTION WAS MADE OF THE PROPERTY COVERED BY ITEM NO. 170 AND THE DESCRIPTION IN THE INVITATION WAS FOUND TO BE ACCURATE EXCEPT FOR THE ESTIMATED WEIGHT. THE MEMORANDUM STATES THAT A REVIEW OF THE ROUGH DRAFT OF STANDARD SALES WRITEUP DATA SHOWED THE GROSS WEIGHT TO BE 13,580 POUNDS; HOWEVER, THIS HAD BEEN CHANGED BY THE HOLDING ACTIVITY TO READ 40,000 POUNDS. THE ADMINISTRATIVE REPORT ADVISES THAT THE ESTIMATED WEIGHT OF 40,000 POUNDS WAS PUT INTO THE INVITATION BASED ON INFORMATION FURNISHED BY THE HOLDING ACTIVITY. AN INVESTIGATION WAS MADE WITH RESPECT TO THE ACCURACY OF THE ESTIMATED WEIGHT FOR ITEM NO. 170; HOWEVER, PERSONNEL AT THE HOLDING ACTIVITY COULD NOT ACCOUNT FOR THE CHANGE.

IN COMMERCIAL'S CASE THE ESTIMATED WEIGHT WAS ACCURATELY REFLECTED IN THE SALES WRITEUP DATA FURNISHED TO THE HOLDING ACTIVITY BUT FOR SOME UNACCOUNTABLE REASON WAS CHANGED BY THE HOLDING ACTIVITY AND BASED ON THE INFORMATION SUBMITTED TO THE SALES ACTIVITY AN INACCURATE BUT APPARENTLY MORE FAVORABLE DESCRIPTION WAS PUT IN THE INVITATION. WE FIND THAT THE UNEXPLAINED DEPARTURE FROM THE DESCRIPTION PROVIDED DEPARTS FROM THE RULE OF REASONABLENESS STATED EARLIER. CONSEQUENTLY, WE FIND THAT THE FACTS OF COMMERCIAL'S CLAIM CONSTITUTE A BASIS FOR GRANTING RELIEF.

THE LETTER OF APRIL 9, 1970, MENTIONS A SOLUTION TO THE PROBLEM WHERE THE ACTUAL WEIGHT TURNS OUT TO BE LESS THAN THE ESTIMATED WEIGHT SHOWN IN THE PURCHASE DESCRIPTION. IT IS SUGGESTED THAT THE WEIGHT BE MADE A FACTUAL PART OF THE INVITATION AND THUS SUBJECT TO THE "GUARANTEE" PROVISIONS. IS INDICATED THAT WIDER USE OF SALES BY WEIGHT ARE CONTEMPLATED PARTICULARLY WHERE THE VALUE OF THE PROPERTY DEPENDS PRIMARILY ON THE WEIGHT. WE HAVE NO OBJECTION TO SUCH A SOLUTION.