B-130401, JUL. 25, 1957

B-130401, JUL. 25, 1957

TO MR. ROBERT S. WEINTRAUB:

YOUR LETTER OF OCTOBER 23, 1956, WITH ENCLOSURES, REQUESTS ON BEHALF OF YOUR CLIENT, THE OTTO NACHMANN IMPORT-EXPORT COMPANY OF GERMANY, AN ADJUSTMENT BETWEEN THE PRICE PAID AND THE VALUE OF MERCHANDISE CONTAINED IN LOT NO. 15 DELIVERED PURSUANT TO CONTRACT NO. DA/S) 91-503 EUC-443, AWARDED AUGUST 3, 1954.

INVITATION FOR BIDS NO. DA/S) 91-503-EUC-123 COVERED THE SALE OF SURPLUS PERSONAL PROPERTY AT THE GIESSEN QUARTERMASTER DEPOT, GIESSEN, GERMANY.

LOT NO. 15 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"APPROXIMATELY 189,945 LBS OF MISCELLANEOUS CLOTHING, ASSORTED SIZES, DYED BLUE-BLACK, GENERALLY DESCRIBED AS FOLLOWS:

TABLE

14,650 PR. TROUSERS, WOOL

2,310 EA. JACKETS, FIELD WOOL

84,100 EA. COATS, WOOL

QUANTITY: 1 (NUMBER OF UNITS)

UNIT OF MEASURE: LOT.'

THE INVITATION CONTAINED THE TERMS AND CONDITIONS USUAL IN THE SALE OF SURPLUS PROPERTY URGING BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, ADVISING THE BIDDERS THAT THE PROPERTY IS SOLD "AS IS, WHERE IS," WITHOUT ANY WARRANTIES EXPRESS OR IMPLIED, AND THAT NO ADJUSTMENT FOR VARIATION WILL BE MADE WHERE AN AWARD IS BASED ON A PRICE FOR THE LOT.

IT IS STATED IN YOUR LETTER AND IN A SWORN AFFIDAVIT ENCLOSED THEREWITH THAT AN INSPECTION OF THE LOT WAS PERFORMED BY AN EXPERT IN SUCH MATTERS ON BEHALF OF YOUR CLIENT PRIOR TO THE SUBMISSION OF ITS BID. THE EXPERT DETERMINED THAT THE DESCRIPTION WAS SUBSTANTIALLY CORRECT. YOUR CLIENT WAS THE SUCCESSFUL BIDDER ON THE LOT. SUBSEQUENT TO DELIVERY OF THE LOT TO THE PURCHASER, IT WAS ALLEGED THAT THE MATERIAL ACTUALLY RECEIVED WAS SUBSTANTIALLY LESS THAN THE AMOUNT ADVERTISED AND THE AMOUNT DETERMINED TO BE INCLUDED IN THE LOT BY THE EXPERT AT THE TIME OF HIS INSPECTION.

THE ADMINISTRATIVE REPORT RECEIVED FROM THE DEPARTMENT OF THE ARMY STATES AS A CONCLUSION OF FACT DETERMINED BY THE USAREUR BOARD OF CONTRACT APPEALS IN ITS FINDINGS WITH REGARD TO YOUR REQUEST FOR RELIEF BEFORE THAT TRIBUNAL THAT THE MATERIAL RECEIVED AS LOT NO. 15 WAS IN FACT THE SAME MATERIAL CONTAINED IN THE LOT AT THE TIME OF THE INSPECTION MADE ON BEHALF OF YOUR CLIENT.

THE SWORN AFFIDAVIT REFERRED TO ABOVE STATES THAT YOUR CLIENT HAD FULL KNOWLEDGE OF THE SALE CONDITIONS INCLUDED IN INVITATIONS OF THIS KIND. THEREFORE, AND ON THE BASIS OF THE THOROUGH INSPECTION STATED TO HAVE BEEN MADE, IT IS ASSUMED THAT YOU RECOGNIZE THE GENERAL RULE THAT THE PROVISIONS OF SUCH INVITATIONS EXEMPT THE UNITED STATES FROM ANY LIABILITY BECAUSE OF MISDESCRIPTION MADE IN GOOD FAITH AS TO QUANTITY OR QUALITY OF ANY MATERIAL SOLD ON A LOT BASIS.

YOUR REQUEST FOR ADJUSTMENT IS BASED ON THE ALLEGATION THAT THE LOT INSPECTED WAS NOT THE LOT DELIVERED. THIS ALLEGATION, HOWEVER, IS CONTRARY TO THE FINDINGS OF THE ADMINISTRATIVE AGENCY. UPON DISPUTED QUESTIONS OF FACT BETWEEN A CLAIMANT AND THE ADMINISTRATIVE OFFICERS OF THE GOVERNMENT, THE UNBROKEN RULE OF THE ACCOUNTING OFFICERS IS TO ACCEPT THE STATEMENT OF FACTS FURNISHED BY THE ADMINISTRATIVE AGENCY. 16 COMP. GEN. 325, 329. FURTHER, IT IS REGARDED AS THE DUTY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT WHERE SUBSTANTIAL DOUBT EXISTS AS TO THE VALIDITY IN FACT OR LAW OF A CLAIM TO DENY THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN THE COURTS. CHARLES V. UNITED STATES, 19 C.CLS. 316, 319. IN ACCORDANCE WITH THE FOREGOING, THERE IS NO LEGAL BASIS UPON WHICH OUR OFFICE MAY AUTHORIZE THE ADJUSTMENT REQUESTED.