B-128211, JUN. 26, 1956

B-128211: Jun 26, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 5. DA/S) 28-009-AI-346 SO FAR AS THE PROPERTY INCLUDED IN LOT NO. 4 IS CONCERNED. WILL RESELL THE PROPERTY SO AWARDED FOR USE WITHIN THE UNITED STATES OR ITS TERRITORIES.'. LOT NO. 4 AS TO WHICH RELIEF IS SOUGHT BY THE PURCHASER CONSISTS OF 20. IT NOW REQUESTS ACTION WHICH WILL ENABLE IT TO DISPOSE OF THE PROPERTY WITHIN THE UNITED STATES AND IN SUPPORT OF THIS REQUEST MAKES REFERENCE TO BUT FURNISHES NO EVIDENCE OF A RECENT TRANSACTION AT THE UNITED STATES NAVAL SUPPLY DEPOT AT MECHANICSBURG. WHERE A BUYER OF CLOTH "FOR EXPORT ONLY" WAS GRANTED THE SAME RELIEF AS IS SOUGHT HERE. WHERE IT APPEARED THAT THE MUFFLERS IN QUESTION WERE NOT IMPACT ITEMS.

B-128211, JUN. 26, 1956

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 5, 1956, WITH ENCLOSURES, REQUESTING A DECISION AS TO WHETHER OR NOT THE M AND S EXPORT COMPANY MAY BE RELIEVED OF THE NECESSITY FOR COMPLIANCE WITH ARTICLE 22 OF THE GENERAL SALES TERMS AND CONDITIONS OF CONTRACT NO. DA/S) 28-009-AI-346 SO FAR AS THE PROPERTY INCLUDED IN LOT NO. 4 IS CONCERNED. ARTICLE 22 OF THE CONTRACT REFERRED TO PROVIDES THAT "NEITHER THE PURCHASER NOR AN AGENT ACTING FOR HIM, WILL RESELL THE PROPERTY SO AWARDED FOR USE WITHIN THE UNITED STATES OR ITS TERRITORIES.' LOT NO. 4 AS TO WHICH RELIEF IS SOUGHT BY THE PURCHASER CONSISTS OF 20,000 YARDS OF COTTON COATED RUBBER SHEETING FOR WHICH THE GOVERNMENT RECEIVED THE SUM OF $5,655.88.

THE CONTRACTOR MAINTAINS THAT IT HAS BEEN UNABLE TO DISPOSE OF THIS MATERIAL IN FOREIGN MARKETS ALTHOUGH IT HAS MADE DILIGENT EFFORTS TO DO SO AND HAS THEREFORE BEEN REQUIRED TO STORE THE GOODS IN A WAREHOUSE FOR MORE THAN ONE YEAR. IT NOW REQUESTS ACTION WHICH WILL ENABLE IT TO DISPOSE OF THE PROPERTY WITHIN THE UNITED STATES AND IN SUPPORT OF THIS REQUEST MAKES REFERENCE TO BUT FURNISHES NO EVIDENCE OF A RECENT TRANSACTION AT THE UNITED STATES NAVAL SUPPLY DEPOT AT MECHANICSBURG, PENNSYLVANIA, WHERE A BUYER OF CLOTH "FOR EXPORT ONLY" WAS GRANTED THE SAME RELIEF AS IS SOUGHT HERE.

IN A RECENT DECISION B-125769, 35 COMP. GEN. 230, WE HELD THAT A PURCHASER OF WOOL MUFFLERS MIGHT BE RELIEVED FROM THE REQUIREMENT OF SALE FOR EXPORT ONLY CONTAINED IN CONTRACT NO. N407S-1195, WHERE IT APPEARED THAT THE MUFFLERS IN QUESTION WERE NOT IMPACT ITEMS, AND THE CONTRACTOR OFFERED AN ADDITIONAL AMOUNT SUFFICIENT TO BRING ITS QUOTATION WITHIN THE CURRENT PRICE RANGE OF SIMILAR ARTICLES. THE CONTRACTOR IN THE INSTANT MATTER HAS OFFERED NO INCREASE IN ITS BID PRICE, BUT HAS FURNISHED AN ANALYSIS OF ITS COSTS WHICH TENDS TO SHOW THAT THE PRICE ALREADY PAID BY IT, INCLUDING ITS BOND PREMIUM AND OTHER COSTS, IS NOT OUT OF LINE WITH PRICES RECEIVED FOR COMPARABLE MATERIAL PURCHASED BY OTHERS FOR DOMESTIC RESALE.

IN THE 2ND INDORSEMENT TRANSMITTED WITH YOUR LETTER THE STATEMENT IS MADE THAT THE ITEM HERE INVOLVED IS NO LONGER A MARKET IMPACT ARTICLE. IT DOES NOT APPEAR, HOWEVER, THAT IT WAS NOT PROPERLY CLASSIFIED AS SUCH AT THE TIME OF THE SALE.

WHILE THE REMOVAL OF THE MATERIAL FROM THE CATEGORY OF AN IMPACT ARTICLE APPEARS TO ELIMINATE ANY BENEFIT TO THE PUBLIC INTEREST FROM CONTINUATION OF THE RESTRICTION AGAINST DOMESTIC SALE, IT IS PRESUMED THAT THE INCLUSION OF THE RESTRICTION IN THE TERMS OF SALE WAS IN SOME DEGREE PREJUDICIAL TO THE FINANCIAL INTEREST OF THE GOVERNMENT. WE THEREFORE CONCLUDE THAT THE RELEASE OF THE PURCHASER FROM THE RESTRICTION SHOULD BE SUPPORTED BY SOME COMMENSURATE CONSIDERATION. SINCE THE RECORD FURNISHED FAILS TO SHOW ANY DETERMINATION BY YOUR DEPARTMENT AS TO THE EXTENT TO WHICH THE PRICE BID MAY HAVE BEEN AFFECTED BY THE CONDITION, WE ARE UNABLE TO REACH ANY CONCLUSION CONCERNING THE PROPER AMOUNT, WHICH SHOULD IN ANY EVENT BE DETERMINED BY YOUR DEPARTMENT.

YOU ARE ACCORDINGLY ADVISED THAT WE WILL NOT OBJECT TO THE ELIMINATION OF THE "EXPORT ONLY" CONDITION OF THE SALE, AS TO ITEM 4, UPON SUCH TERMS AS YOU MAY DETERMINE WILL PROVIDE FAIR COMPENSATION TO THE GOVERNMENT FOR SUCH LOSS, IF ANY, AS REASONABLY APPEARS TO HAVE BEEN OCCASIONED BY THE RESTRICTIVE TERMS OF SALE.

THE PAPERS TRANSMITTED WITH YOUR LETTER OF JUNE 5, 1956, ARE RETURNED HEREWITH.

Sep 27, 2016

Sep 22, 2016

Sep 21, 2016

Sep 20, 2016

Looking for more? Browse all our products here