B-124507, OCT. 21, 1955

B-124507: Oct 21, 1955

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17. WHEREIN YOU WERE CERTIFIED TO BE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $1. WHICH APPARENTLY WAS NOT RECEIVED UNTIL DECEMBER 30. WAS REJECTED AS NOT COMPLYING IN SEVERAL RESPECTS WITH THE REQUIREMENTS OF THE SPECIFICATIONS. YOU WERE ADVISED BY TELEGRAM DATED MARCH 2. THAT YOUR RIGHT TO FURTHER PROCEED UNDER THE CONTRACT WAS TERMINATED AND THAT ANY EXCESS COSTS WOULD BE CHARGED TO YOUR ACCOUNT. A REPLACEMENT CONTRACT WAS ENTERED INTO AND RESULTED IN EXCESS COSTS OF $1. - CONTAINING SCRIM WHICH YOU ALLEGE WAS OBJECTIONABLE TO THE GOVERNMENT BUT WHICH COMPLIED WITH THE SPECIFICATIONS. - WOULD HAVE BEEN ACCEPTABLE. THE INSPECTION PROCEDURE AND TESTS UTILIZED BY THE ADMINISTRATION INSPECTORS MAY HAVE BEEN SOMEWHAT RIGID.

B-124507, OCT. 21, 1955

TO CHARLES BALSKY AND SONS, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MAY 17, 1955, RELATIVE TO SETTLEMENT DATED MAY 11, 1955, WHEREIN YOU WERE CERTIFIED TO BE INDEBTED TO THE UNITED STATES IN THE AMOUNT OF $1,799.88, BY REASON OF YOUR DEFAULT UNDER CONTRACT NO. GS-08S-2572, PURCHASE ORDER NO. D53 549-1, DATED OCTOBER 7, 1952, WITH THE GENERAL SERVICES ADMINISTRATION.

UNDER THE CONTRACT YOU AGREED TO FURNISH TO THE GENERAL SERVICES ADMINISTRATION, ON OR BEFORE DECEMBER 20, 1952, 40,000 POUNDS OF CLOTHS, WIPING, COTTON, ETC., FEDERAL SPECIFICATION DDD-W-415, AT $0.2197 A POUND, OR FOR A TOTAL PRICE OF $8,788. THE SHIPMENT OF THE CLOTHS, WHICH APPARENTLY WAS NOT RECEIVED UNTIL DECEMBER 30, 1952, WAS REJECTED AS NOT COMPLYING IN SEVERAL RESPECTS WITH THE REQUIREMENTS OF THE SPECIFICATIONS. THERE FOLLOWED AN EXCHANGE OF CORRESPONDENCE BETWEEN YOU AND THE GENERAL SERVICES ADMINISTRATION RELATIVE TO THE METHODS USED IN THE INSPECTION, REPLACEMENT REQUIREMENTS, ETC. UPON YOUR SUBSEQUENT FAILURE TO FURNISH SATISFACTORY WIPING CLOTHS BY FEBRUARY 27, 1953, THE FINAL DELIVERY DATE, AS EXTENDED FROM TIME TO TIME BY THE GOVERNMENT, YOU WERE ADVISED BY TELEGRAM DATED MARCH 2, 1953, THAT YOUR RIGHT TO FURTHER PROCEED UNDER THE CONTRACT WAS TERMINATED AND THAT ANY EXCESS COSTS WOULD BE CHARGED TO YOUR ACCOUNT. A REPLACEMENT CONTRACT WAS ENTERED INTO AND RESULTED IN EXCESS COSTS OF $1,799.88. THIS AMOUNT HAS BEEN WITHHELD FROM AMOUNTS OTHERWISE FOUND PROPERLY DUE YOU TO LIQUIDATE THE INDEBTEDNESS.

YOUR LETTER OF MAY 17, 1955, DISCLAIMS ALL LIABILITY FOR THE DEFAULT SOLELY ON THE GROUND THAT IF THE GOVERNMENT HAD NOT RESORTED TO EXTREMELY RIGID AND UNUSUAL METHODS OF INSPECTION THE WIPING CLOTHS--- CONTAINING SCRIM WHICH YOU ALLEGE WAS OBJECTIONABLE TO THE GOVERNMENT BUT WHICH COMPLIED WITH THE SPECIFICATIONS--- WOULD HAVE BEEN ACCEPTABLE.

A REVIEW OF THE ENTIRE RECORD IN THIS CASE REVEALS THAT WHILE, AS CONTENDED BY YOU AND FOUND BY THE BOARD OF REVIEW OF THE GENERAL SERVICES ADMINISTRATION, THE INSPECTION PROCEDURE AND TESTS UTILIZED BY THE ADMINISTRATION INSPECTORS MAY HAVE BEEN SOMEWHAT RIGID, IT IS NOT SHOWN THAT THE WIPING CLOTHS WERE REJECTED FOR THE SPECIFIC REASON THAT SCRIM WAS INCLUDED IN THE MATERIAL. FURTHER, IT IS NOT SHOWN THAT THE TESTS WERE IN ANY MANNER ARBITRARILY PERFORMED. THE REPORT OF THE INSPECTORS, WHICH PREVIOUSLY WAS BROUGHT TO YOUR ATTENTION, SPECIFICALLY POINTS OUT THAT FEDERAL SPECIFICATION NO. CCC-T-191B, WHICH APPARENTLY WAS APPLICABLE FOR INSPECTION OF THE WIPING CLOTHS, ESTABLISHES TEST METHODS PRIMARILY INTENDED FOR NEW FABRICS AND SINCE THE INSPECTORS WERE DEALING WITH USED MATERIALS IT FOLLOWED THAT CERTAIN FEATURES OF THE SPECIFICATIONS WERE DIFFICULT TO ADHERE TO LITERALLY DUE TO THE PACKING AND CONDITION OF THE CLOTHS. IT IS FURTHER STATED IN THE REPORT THAT UNDER THE CIRCUMSTANCES THE INSPECTORS DEVISED A FAIR MEANS FOR CONDITIONING AND INSPECTING THE CLOTHS AND, MORE SPECIFICALLY, THAT THE WEIGHING OF THE CLOTHS WAS NOT DONE UNDER CONTROLLED CONDITIONS OF HUMIDITY AND TEMPERATURE.

GRANTING HOWEVER, FOR THE SOLE PURPOSE OF A FURTHER DISCUSSION OF THE MERITS OF THIS CASE, THAT THE REJECTION OF THE WIPING CLOTHS MIGHT EMBODY SOME ELEMENT OF DOUBT, IT IS NOTED THAT THERE STILL EXISTS OTHER FACTORS WHICH, WITHOUT MORE, WOULD APPEAR TO WARRANT THE TERMINATION OF YOUR CONTRACT AND ESTABLISH THE RESULTANT LIABILITY AS TO THE EXCESS COSTS. THIS REGARD, THE RECORD REVEALS, IN ADDITION TO THE HIGHLY CONTESTED QUESTION OF SCRIM, THAT 11.6 PERCENT OF THE WIPING CLOTHS WAS FOUND TO BE UNSATISFACTORY BECAUSE OF UNDERSIZE, FRAYED, TENDER, RAYON AND STAINED CLOTHS; ALSO, THAT 36 PERCENT OF THE CLOTHS WAS OF OPEN MESH MATERIAL OR DUCK, ALL OF WHICH WAS IN EXCESS OF THE SPECIFIED SIX OUNCES PER SQUARE YARD, AND WITH A CONSIDERABLE AMOUNT OF THIS PERCENTAGE EXCEEDING THE NINE OUNCES PER SQUARE YARD THAT WAS ESTABLISHED AS THE ABSOLUTE MAXIMUM WEIGHT PERMITTED. IN BOTH INSTANCES THE PERCENTAGE OF DEFICIENCIES EXCEEDED THE TOLERANCES ALLOWED.

A SUMMATION OF THE FACTS IN THE CASE REVEALS THAT APPROXIMATELY 75 PERCENT OF THE WIPING CLOTHS RECEIVED WAS FOUND TO BE UNSATISFACTORY IN ONE FORM OR ANOTHER AND THAT OF THIS AMOUNT 11.6 PERCENT AND 36 PERCENT WERE ENTIRELY UNRELATED TO THE SCRIM FEATURE. IT CONSISTENTLY HAS BEEN HELD BY THIS OFFICE THAT IT IS THE PROVINCE OF ADMINISTRATIVE OFFICERS, IN THIS INSTANCE THE OFFICERS OF THE GENERAL SERVICES ADMINISTRATION, TO DETERMINE FACTUALLY WHETHER ARTICLES OFFERED MEET THE SPECIFICATIONS DRAFTED BY THOSE OFFICIALS. 17 COMP. GEN. 554 AND 19 ID. 587. THE CONTRACTING OFFICER FOUND THAT THE WIPING CLOTHS FAILED TO MEET THE REQUIREMENTS OF THE SPECIFICATIONS AND THIS DETERMINATION WAS AFFIRMED BY THE BOARD OF REVIEW ON APPEAL. IN CONSIDERING THE OVERALL DEFICIENCIES WHICH EXISTED IN THE WIPING CLOTHS THE RECORD DOES NOT SHOW THAT THE MATERIALS WERE SUBJECTED TO INSPECTION REQUIREMENTS BEYOND THOSE REFLECTED TO BE REASONABLY ANTICIPATED IN THE APPLICABLE SPECIFICATIONS IN THE CIRCUMSTANCES.