B-127282, APR. 19, 1956

B-127282: Apr 19, 1956

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TO NORMANDY ELECTRIC WIRE COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 29. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $286.61. YOUR BID WAS ACCEPTED AS TO THIS ITEM ON AUGUST 25. IT APPEARS THAT AT THE TIME A REPRESENTATIVE OF YOUR COMPANY CALLED AT THE GOVERNMENT INSTALLATION TO PICK UP THE PROPERTY HE ALLEGED TWO REELS OF THE CABLE WERE MISSING FROM ITEM NO. 48. THE CABLE HOWEVER WAS LOADED AND A NOTATION MADE BY THE REPRESENTATIVE OF THE ALLEGED MISSING REELS. AS A RESULT OF THIS YOU HAVE CLAIMED A REFUND OF $286.61. YOU ADMIT THAT THE ELECTRICAL POWER CABLE WAS PURCHASED ON A "LOT" BASIS. THAT WHEN PROPERTY IS SOLD ON A "LOT" BASIS IT IS INCUMBENT UPON THE GOVERNMENT TO DELIVER ALL PROPERTY COMPRISING THE "LOT" BUT THAT IN THE INSTANT CASE WHEN THE CABLE UNDER ITEM NO. 48 WAS LOADED TWO REELS WERE MISSING WHICH.

B-127282, APR. 19, 1956

TO NORMANDY ELECTRIC WIRE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 29, 1956, RELATIVE TO SETTLEMENT DATED FEBRUARY 27, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $286.61, UNDER CONTRACT NO. N161S-5888A, DATED AUGUST 25, 1954.

IN RESPONSE TO INVITATION NO. B-20-55 ISSUED ON JULY 9, 1954, BY THE NAVAL GUN FACTORY, WASHINGTON, D.C., YOU SUBMITTED A BID DATED AUGUST 10, 1954, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 48, COVERING ONE LOT OF ELECTRICAL POWER CABLE FOR $1,195. YOUR BID WAS ACCEPTED AS TO THIS ITEM ON AUGUST 25, 1954, CONSUMMATING CONTRACT NO. N171S 5888A. IT APPEARS THAT AT THE TIME A REPRESENTATIVE OF YOUR COMPANY CALLED AT THE GOVERNMENT INSTALLATION TO PICK UP THE PROPERTY HE ALLEGED TWO REELS OF THE CABLE WERE MISSING FROM ITEM NO. 48. THE CABLE HOWEVER WAS LOADED AND A NOTATION MADE BY THE REPRESENTATIVE OF THE ALLEGED MISSING REELS. AS A RESULT OF THIS YOU HAVE CLAIMED A REFUND OF $286.61, THE PROPORTIONATE AMOUNT OF YOUR BID FOR THE SHORTAGE.

IN THE LETTER OF FEBRUARY 29, 1956, YOU ADMIT THAT THE ELECTRICAL POWER CABLE WAS PURCHASED ON A "LOT" BASIS. YOU ALSO AGREE THAT THE GOVERNMENT MADE NO WARRANTY AS TO CONDITION OR STANDARDS. HOWEVER, YOU STATE, AND CORRECTLY SO, THAT WHEN PROPERTY IS SOLD ON A "LOT" BASIS IT IS INCUMBENT UPON THE GOVERNMENT TO DELIVER ALL PROPERTY COMPRISING THE "LOT" BUT THAT IN THE INSTANT CASE WHEN THE CABLE UNDER ITEM NO. 48 WAS LOADED TWO REELS WERE MISSING WHICH, UPON PREVIOUS INSPECTION, HAD BEEN NOTED AS BEING A PART OF THE SUBJECT ITEM.

ON THE BASIS OF YOUR CONTENTION IT APPEARS THAT WE ARE CONCERNED HERE ONLY WITH THE QUESTION AS TO THE AMOUNT OF PROPERTY WHICH COMPRISED ITEM NO. 48 AT THE TIME THE MATERIAL WAS OFFERED FOR SALE AND AT THE TIME OF ACTUAL DELIVERY. IN THIS CONNECTION, THE GOVERNMENT HOLDING ACTIVITY--- NAVAL ORDNANCE LABORATORY, WHITE OAK, SILVER SPRING, MARYLAND--- EXPRESSLY STATES THAT SEVEN REELS OF THE ELECTRICAL POWER CABLE COMPRISED ALL OF THE PROPERTY COVERED BY ITEM NO. 48 AND THAT SEVEN REELS WERE DELIVERED TO YOU. HENCE, IT MUST BE CONCLUDED THAT YOU RECEIVED ALL OF THE CABLE ADVERTISED FOR SALE UNDER ITEM NO. 48 OF INVITATION NO. B-20-55. WHEN THERE IS A COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY A CLAIMANT, SUCH AS HERE, THE FACTS AS ADMINISTRATIVELY REPORTED MUST, UNDER SUCH CIRCUMSTANCES, BE ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE TO OVERCOME THE CORRECTNESS OF SUCH REPORTED FACTS. IT IS HIGHLY PROBABLE, HOWEVER, THAT THERE WAS AN ACTUAL SHORTAGE IN THE TOTAL FOOTAGE ADVERTISED ON THE SEVEN REELS BUT IF THIS WERE THE CASE THAT PART OF THE DISCLAIMER OF WARRANTY PERTAINING TO QUANTITY, THE IMPORT OF WHICH IS FULLY ACKNOWLEDGED BY YOU, WOULD BE FOR FULL APPLICATION.

UNDER THE CIRCUMSTANCES, THE SETTLEMENT OF FEBRUARY 27, 1956, MUST BE SUSTAINED.