B-129680, NOV. 15, 1956

B-129680: Nov 15, 1956

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INC.: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18. INCLUDED IN THE SURPLUS PROPERTY OFFERED FOR SALE WAS ITEM NO. 9. THE BID ON THAT ITEM WAS ACCEPTED AND AWARD MADE TO YOU. SNOW AND MOISTURE IN THE CONTAINERS WHEREIN THE COPPER CABLE AND WIRE WAS STORED. THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF SEPTEMBER 12. YOU CONTEND THAT THE CONTAINERS IN WHICH THE MATERIAL WAS STORED WERE NOT PROPERLY COVERED AND THAT DURING THE INTERVAL BETWEEN THE FILING OF YOUR BID AND THE DELIVERY OF THE MATERIAL THERE WAS AN 18 INCH SNOWFALL IN BOSTON. THAT THERE WERE ACTUALLY HUNDREDS OF GALLONS OF WATER AND LOTS OF SNOW AND ICE DISCOVERED WHEN THE CONTAINERS WERE DUMPED ON YOUR TRUCK. NO WEIGHT ALLOWANCE WILL BE MADE FOR EXTRANEOUS MATTER SUCH AS MOISTURE.

B-129680, NOV. 15, 1956

TO THE NATIONAL METALS COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 18, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED SEPTEMBER 12, 1956, WHICH DISALLOWED YOUR CLAIM FOR $389.85, REPRESENTING AN ALLEGEDLY EXCESSIVE AMOUNT PAID BY YOU ON THE BASIS OF WEIGHT FOR INSULATED COPPER CABLE AND WIRE PURCHASED FROM THE DEPARTMENT OF THE ARMY, UNDER CONTRACT NO. DAI-19- 066-505-ORD/S/-62, DATED MARCH 23, 1956.

THE RECORD SHOWS THAT ON MARCH 1, 1956, THE WATERTOWN ARSENAL, WATERTOWN, MASSACHUSETTS, ISSUED INVITATION NO. 19-006-S-56-24, FOR BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY. INCLUDED IN THE SURPLUS PROPERTY OFFERED FOR SALE WAS ITEM NO. 9, DESCRIBED IN THE INVITATION AS APPROXIMATELY 15,000 POUNDS OF INSULATED COPPER CABLE AND WIRE. IN RESPONSE TO THE INVITATION, YOU BID ON A NUMBER OF ITEMS, INCLUDING ITEM NO. 9 AT $0.1963 PER POUND. THE BID ON THAT ITEM WAS ACCEPTED AND AWARD MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT FOR PURCHASE BY YOU OF ITEM 9 AT THE PRICE SPECIFIED. AFTER PAYMENT OF THE PURCHASE PRICE ON THE WEIGHT ACTUALLY DETERMINED BY WEIGHING, AND DELIVERY OF THE ITEM TO YOU, YOU CLAIMED A REFUND OF A PART OF THE PURCHASE PRICE ALLEGING THAT THE WEIGHT PAID FOR INCLUDED AN ACCUMULATION OF ICE, SNOW AND MOISTURE IN THE CONTAINERS WHEREIN THE COPPER CABLE AND WIRE WAS STORED, WHICH YOU CLAIMED AMOUNTED FOR 15 PERCENT OF THE TOTAL WEIGHT. AS STATED ABOVE, THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF SEPTEMBER 12, 1956.

YOU CONTEND THAT THE CONTAINERS IN WHICH THE MATERIAL WAS STORED WERE NOT PROPERLY COVERED AND THAT DURING THE INTERVAL BETWEEN THE FILING OF YOUR BID AND THE DELIVERY OF THE MATERIAL THERE WAS AN 18 INCH SNOWFALL IN BOSTON, MASSACHUSETTS; THAT THE SNOW MELTED DURING THE WARM PART OF THE DAY AND THE WATER WENT TO THE BOTTOM OF THE BUCKETS AND FROZE; THAT THERE WERE ACTUALLY HUNDREDS OF GALLONS OF WATER AND LOTS OF SNOW AND ICE DISCOVERED WHEN THE CONTAINERS WERE DUMPED ON YOUR TRUCK.

"ADDITIONAL PROVISIONS AND SALES TERMS" MADE A PART OF THE CONTRACT, PROVIDES AS FOLLOWS:

"C. NO WEIGHT ALLOWANCE WILL BE MADE FOR EXTRANEOUS MATTER SUCH AS MOISTURE, OIL, INSULATION, WOOD ET CETERA. THIS SCRAP MAY BE SLIGHTLY CONTAMINATED WITH FOREIGN ELEMENTS; HOWEVER, IT IS BEING SOLD "AS IS.'"

THE CONTRACTING OFFICER HAS REPORTED THAT ITEM 9 HAD BEEN DISPLAYED IN DEMSTER DUMPSTER BUCKETS STORED IN AN OUTSIDE SCRAP YARD DURING THE PERIOD OF INSPECTION, AND PRIOR TO THIS SALE; THAT CANVAS COVERING HAS BEEN USED TO COVER THIS MATERIAL IN ORDER TO PROTECT IT FROM WEATHER CONDITIONS SUCH AS RAIN, SNOW AND ATMOSPHERIC MOISTURE; THAT ONE INCH DIAMETER HOLES HAD BEEN BURNED IN MANY OF THESE BUCKETS FOR DRAINAGE PURPOSES; THAT WHEN THE FIRST TWO BUCKETS LOADED ON YOUR TRUCK WERE FOUND TO CONTAIN LARGE PIECES OF ICE THEY WERE IMMEDIATELY REMOVED FROM YOUR TRUCK AFTER IT HAD BEEN LOADED; THAT THE CONTRACTING OFFICER THEN WENT TO THE SCRAP YARD TO WATCH FURTHER LOADING OF THE SUBJECT MATERIAL; THAT SEVERAL MORE BUCKETS WERE LOADED ON THE TRUCK WHICH CONTAINED SMALL AMOUNTS OF MOISTURE WHICH WERE DUMPED ON THE TRUCK; AND THAT IN A CONVERSATION WITH YOUR MR. SAMUEL FEINBERG, THE CONTRACTING OFFICER POINTED OUT THAT PARAGRAPH C OF THE ADDITIONAL PROVISIONS AND SALES TERMS OF THE CONTRACT COVERED THE LOADING OF SUCH EXTRANEOUS MATTER AS MOISTURE WHICH MIGHT BE MIXED IN WITH THE ADVERTISED MATERIAL. THE CONTRACTING OFFICER FURTHER STATED THAT ALL ICE DUMPED ONTO YOUR TRUCK BEFORE WEIGHING WAS REMOVED; THAT PRACTICALLY ALL OF THE WATER RAN OFF; AND THAT IT IS HIS BELIEF THAT PARAGRAPH C COVERS ANY SLIGHT AMOUNT OF MOISTURE WHICH MAY HAVE BEEN ON YOUR TRUCK AFTER IT WAS LOADED.

WITH REGARD TO THE CONTRACTING OFFICER'S REPORT, IT MAY BE SAID THAT OUR OFFICE HAS NO FIRST HAND KNOWLEDGE OF THE FACTS AND NECESSARILY MUST RELY ON THE REPORT OF THE ADMINISTRATIVE AGENCY RELATIVE TO THE CLAIM. IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF CORRECTNESS OF SUCH REPORT, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT IN CASES OF DISPUTED FACTS TO ACCEPT THE STATEMENT OF FACT AS REPORTED BY THE ADMINISTRATIVE OFFICERS. IT IS NOT PRIMARILY OUR FUNCTION TO RESOLVE DISPUTED QUESTIONS OF FACT, BUT RATHER TO DETERMINE WHETHER THE RECORD BEFORE US IS SUCH AS CLEARLY TO AUTHORIZE A PAYMENT OF GOVERNMENT FUNDS. ON THE PRESENT RECORD WE CANNOT CONCLUDE THAT PAYMENT SHOULD BE AUTHORIZED. WE AGREE THAT YOU SHOULD NOT BE REQUIRED TO PAY FOR WATER AND ICE, EXCEPT SUCH AMOUNT AS MIGHT REASONABLY BE EXPECTED TO BE ABSORBED BY THE MATERIAL AND WAS EXPRESSLY PROVIDED FOR IN PARAGRAPH C QUOTED ABOVE, BUT IN THE FACE OF THE CONTRACTING OFFICER'S STATEMENT WE CANNOT ACCEPT YOUR REPRESENTATION THAT 15 PERCENT OF THE WEIGHT CHARGED WAS WATER.

ACCORDINGLY, THE DISALLOWANCE OF SEPTEMBER 12, 1956, IS SUSTAINED.

IN RESPONSE TO YOUR LAST QUESTION YOU ARE ADVISED THAT OUR DISALLOWANCE IS BINDING UPON THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, BUT DOES NOT AFFECT SUCH RIGHTS AS YOU MAY HAVE TO ..END :