A-15798, OCTOBER 7, 1926, 6 COMP. GEN. 245

A-15798: Oct 7, 1926

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THE GOVERNMENT IS ENTITLED TO A REASONABLE TIME AFTER DELIVERY AND BEFORE ACCEPTANCE TO MAKE THE NECESSARY ANALYSIS WITHOUT INCURRING ANY LIABILITY FOR RENT OF THE TANK CARS FOR THAT TIME. WHEREIN WAS DISALLOWED JULY 3. IT WAS PROVIDED. (D) THREE SAMPLES WILL BE TAKEN OF ALL GASOLINE DELIVERED REGARDLESS OF METHOD OF DELIVERY. SAMPLES WILL BE TAKEN IN KEEPING WITH COMMERCIAL PRACTICE. ONE SAMPLE WILL BE RETAINED FOR FORWARDING TO CONTRACTOR. ONE WILL BE USED TO MAKE TEST OF GASOLINE DELIVERED. ONE SAMPLE WILL BE RETAINED AS AN UMPIRE SAMPLE FOR ANALYSIS BY THE BUREAU OF MINES. A TEST OF THE GASOLINE WAS TAKEN AT DESTINATION. IT WAS FOUND THAT THE GASOLINE WAS NOT UP TO SPECIFICATIONS.

A-15798, OCTOBER 7, 1926, 6 COMP. GEN. 245

CONTRACTS - INCREASED COSTS - DELAY IN ACCEPTANCE UNDER A CONTRACT FOR THE PURCHASE OF GASOLINE TO MEET CERTAIN SPECIFICATIONS, ANY DISPUTE TO BE DETERMINED BY ANALYSIS BY THE BUREAU OF MINES, AND NO TIME BEING SPECIFIED FOR ACCEPTANCE AFTER DELIVERY, THE GOVERNMENT IS ENTITLED TO A REASONABLE TIME AFTER DELIVERY AND BEFORE ACCEPTANCE TO MAKE THE NECESSARY ANALYSIS WITHOUT INCURRING ANY LIABILITY FOR RENT OF THE TANK CARS FOR THAT TIME, A WEEK'S DELAY NOT BEING CONSIDERED UNREASONABLE.

DECISION BY COMPTROLLER GENERAL MCCARL, OCTOBER 7, 1926:

THE ATLANTIC REFINING CO. HAS REQUESTED REVIEW OF SETTLEMENT NO. 013836, WHEREIN WAS DISALLOWED JULY 3, 1926, ITS CLAIM FOR $14 RENTAL AT $2 A DAY ON TANK CAR NO. 4674, HELD AT THE NAVAL TRAINING STATION, GREAT LAKES, ILL., SEVEN DAYS OVER THE 48 HOURS' FREE TIME AFTER DELIVERY MARCH 23, 1926, OF GASOLINE PURCHASED BY THE GOVERNMENT UNDER CONTRACT NO. 65854, DATED DECEMBER 16, 1925.

IN THE INSTRUCTIONS TO BIDDERS, MADE A PART OF THE CONTRACT OF DECEMBER 16, 1925, ENTERED INTO WITH THE ATLANTIC REFINING CO. BY THE PAYMASTER GENERAL OF THE NAVY FOR GASOLINE TO BE FURNISHED THE NAVY OVER THE PERIOD FROM JANUARY 1 TO JUNE 30, 1926, IT WAS PROVIDED, UNDER THE HEADING ,INSPECTION," AS FOLLOWS:

(B) DELIVERIES BY CONTRACTOR'S EQUIPMENT.--- GASOLINE SHIPPED FROM THE CONTRACTOR'S REFINERY, TANK FARM OR TERMINAL IN BULK BY VESSEL, TANK CARS, OR TANK WAGONS SHALL BE TESTED FOR QUALITY BY THE CONTRACTOR PRIOR TO LOADING, AND CONTRACTOR SHALL FORWARD TO CONSIGNEE DUPLICATE COPIES OF TEST REPORT SHOWING THAT THE GASOLINE CONFORMS TO THE SPECIFICATIONS.

(C) CONTAINER SHIPMENTS.--- GASOLINE SHIPPED IN DRUMS OR OTHER CONTAINERS SHALL BE TESTED FOR QUALITY BY THE CONTRACTOR PRIOR TO LOADING, AND CONTRACTOR SHALL FORWARD TO CONSIGNEE DUPLICATE COPIES OF TEST REPORT SHOWING THAT THE GASOLINE CONFORMS TO THE SPECIFICATIONS.

(D) THREE SAMPLES WILL BE TAKEN OF ALL GASOLINE DELIVERED REGARDLESS OF METHOD OF DELIVERY. SAMPLES WILL BE TAKEN IN KEEPING WITH COMMERCIAL PRACTICE. ONE SAMPLE WILL BE RETAINED FOR FORWARDING TO CONTRACTOR, ONE WILL BE USED TO MAKE TEST OF GASOLINE DELIVERED, AND ONE SAMPLE WILL BE RETAINED AS AN UMPIRE SAMPLE FOR ANALYSIS BY THE BUREAU OF MINES, U.S. DEPARTMENT OF THE INTERIOR, OR THE BUREAU OF STANDARDS, U.S. DEPARTMENT OF COMMERCE. IN THE EVENT OF DISPUTE AS TO THE QUALITY OF GASOLINE DELIVERED, THE ANALYSIS OF THE BUREAU OF MINES OR THE BUREAU OF STANDARDS SHALL BE CONSIDERED FINAL BY BOTH PARTIES TO THE CONTRACT.

IT APPEARS THAT UPON DELIVERY OF THE TANK CAR ON MARCH 23, 1926, A TEST OF THE GASOLINE WAS TAKEN AT DESTINATION, AND IT WAS FOUND THAT THE GASOLINE WAS NOT UP TO SPECIFICATIONS. THE MATERIAL WAS TEMPORARILY REJECTED ON THAT ACCOUNT UNTIL A TEST OF THE UMPIRE SAMPLE COULD BE MADE BY THE BUREAU OF MINES. SUCH SAMPLE WAS SENT ON THE SAME DATE TO THE BUREAU OF MINES PURSUANT TO THE PROVISIONS OF THE CONTRACT ABOVE QUOTED. THE REPORT OF THE BUREAU OF MINES AUTHORIZING ACCEPTANCE OF THE GASOLINE AS COMPLYING WITH THE SPECIFICATIONS WAS RECEIVED MARCH 31, 1926, AND THE CAR RELEASED APRIL 1, 1926.

CLAIMANT CONTENDS THAT THE DELAY IN UNLOADING WAS UNNECESSARILY CAUSED BY THE NAVY DEPARTMENT AT GREAT LAKES, ILL., THROUGH EITHER CARELESSNESS ON THE PART OF THE OPERATOR MAKING THE DISTILLATION OR INEFFICIENCY IN THE METHOD OF MAKING DISTILLATION; THAT THE COMPANY WAS NOT RESPONSIBLE THEREFOR; THAT THE MATERIAL WAS CAREFULLY CHECKED BEFORE SHIPMENT AND WAS IN ACCORDANCE WITH THE CONTRACT SPECIFICATIONS AS LATER CONFIRMED BY THE BUREAU OF MINES; AND THAT SINCE THE CHARGE HERE IN QUESTION AROSE OUT OF CIRCUMSTANCES BROUGHT ABOUT BY DELAY CAUSED BY THE NAVY DEPARTMENT, THE GOVERNMENT IS PROPERLY CHARGEABLE WITH THE RENTAL.

NO QUESTION OF BAD FAITH IS ALLEGED OR SHOWN TO HAVE EXISTED WITH RESPECT TO EITHER PARTY TO THE CONTRACT. IT APPEARS, ON THE CONTRARY, THAT THE TEMPORARY REJECTION OF THE GASOLINE AT DESTINATION WAS BASED UPON AN HONEST BELIEF THAT THE MATERIAL WAS NOT AS PURPORTED TO BE, AND, AS PROVIDED FOR BY THE CONTRACT IN THE EVENT OF DISPUTE AS TO THE QUALITY OF THE MATERIAL DELIVERED, UNLOADING OF THE CAR WAS POSTPONED UNTIL RECEIPT OF THE REPORT FROM THE BUREAU OF MINES. THERE WAS NO PROVISION MADE IN THE CONTRACT THAT UNLOADING OF THE MATERIAL SHOULD BE ACCOMPLISHED WITHIN 48 HOURS AFTER RECEIPT, OR THAT RENTAL OF THE CONTAINER WOULD BE PAID BY THE GOVERNMENT IF THE UNLOADING WAS DELAYED BEYOND A CERTAIN PERIOD AFTER DELIVERY; AND THE CONTRACT BEING SILENT UPON SUCH MATTERS, IT MUST BE UNDERSTOOD THAT THE GOVERNMENT SHOULD HAVE A REASONABLE TIME WITHIN WHICH TO INSPECT AND UNLOAD THE MATERIAL AFTER DELIVERY. THE TIME BETWEEN MARCH 23 AND APRIL 1, 1926, WAS NOT, UNDER THE CIRCUMSTANCES, AN UNREASONABLE TIME TO RELEASE THE CAR IN THE PRESENT CASE, FOR IT MUST HAVE BEEN WITHIN THE CONTEMPLATION OF BOTH PARTIES TO THE CONTRACT THAT A FEW DAYS WOULD ELAPSE WHEN A DISPUTE AROSE AS TO THE QUALITY OF THE MATERIAL AND A TESTING OF THE UMPIRE SAMPLE BY THE BUREAU OF MINES BECAME NECESSARY TO SETTLE THE SAME.

ACCORDINGLY, IT MUST BE HELD THAT RENTAL CHARGES OF THE CONTAINER OVER A PERIOD OF TIME WITHIN WHICH THE GOVERNMENT WAS ENTITLED UNDER THE CONTRACT TO WITHHOLD ACCEPTANCE OF THE MATERIAL UNTIL A PROPER TESTING OF THE SAME WAS MADE ARE NOT PROPERLY CHARGEABLE TO THE GOVERNMENT.