B-131007, MAY 16, 1957

B-131007: May 16, 1957

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TO GAINSVILLE SCRAP IRON AND METAL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14. WHEREIN WAS DISALLOWED YOUR CLAIM FOR $1. WHICH WAS PURCHASED BY YOU FROM THE ANNISTON ORDNANCE DEPOT. AMONG THE ITEMS ADVERTISED FOR SALE WAS ITEM 34 DESCRIBED AS "UNPREPARED IRON AND STEEL SCRAP. THE ESTIMATED QUANTITY WAS LISTED AT 185 GROSS TONS. THREE BIDS ON ITEM 34 WERE RECEIVED. WAS ACCEPTED BY THE GOVERNMENT ON SEPTEMBER 21. YOU DISCOVERED THAT THE SCRAP IRON WAS PACKED IN HEAVY WOODEN BOXES. YOU ADVISED THAT FOR OVER A FIFTEEN-YEAR PERIOD IN PURCHASING SCRAP FROM THE GOVERNMENT THE WEIGHT OF WOODEN CONTAINERS HAD NOT BEEN INCLUDED IN THE WEIGHT OF METAL SCRAP PURCHASED WHEN THE ITEM WAS SOLD BY WEIGHT.

B-131007, MAY 16, 1957

TO GAINSVILLE SCRAP IRON AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 14, 1957, IN WHICH YOU REQUEST REVIEW OF SETTLEMENT DATED FEBRUARY 8, 1957, WHEREIN WAS DISALLOWED YOUR CLAIM FOR $1,073.84, REPRESENTING AN ALLEGED LOSS ARISING FROM THE DIFFERENCE IN THE TONNAGE PAID FOR AND THE AMOUNT OF SCRAP IRON ACTUALLY RECEIVED UNDER ITEM 34 OF CONTRACT NO. O.I. NR. ANN-S-1766, DATED SEPTEMBER 21, 1955, WHICH WAS PURCHASED BY YOU FROM THE ANNISTON ORDNANCE DEPOT.

ON AUGUST 30, 1955, THE ANNISTON ORDNANCE DEPOT, PROPERTY DISPOSAL BRANCH, ISSUED INVITATION NO. 01-002-S-56-7 FOR THE SALE OF CERTAIN GOVERNMENT PROPERTY LOCATED AT ANNISTON ORDNANCE DEPOT, BYNUM, ALABAMA. AMONG THE ITEMS ADVERTISED FOR SALE WAS ITEM 34 DESCRIBED AS "UNPREPARED IRON AND STEEL SCRAP, CONTAMINATED AND BOXED, CONSISTING OF ROCKET LAUNCHERS (TO BE MUTILATED AND LOADED BY PURCHASER).' THE ESTIMATED QUANTITY WAS LISTED AT 185 GROSS TONS. THE INVITATION INDICATED THAT THE ITEMS TO BE SOLD WOULD BE AVAILABLE FOR INSPECTION BETWEEN CERTAIN HOURS, THREE DAYS PER WEEK, PRIOR TO THE BID OPENING ON SEPTEMBER 20, 1955. RESPONSE TO THE SAID INVITATION, THREE BIDS ON ITEM 34 WERE RECEIVED; ONE AT $6.11 PER GROSS TON, ONE AT $9.27 PER GROSS TON, AND YOUR BID OF $16.71 PER GROSS TON. YOUR BID ON THAT ITEM, AT A TOTAL PRICE OF $3,091.35, WAS ACCEPTED BY THE GOVERNMENT ON SEPTEMBER 21, 1955, RESULTING IN THE AFORESAID CONTRACT.

ON OCTOBER 12, 1955, 21 DAYS AFTER AWARD OF THE CONTRACT, YOU ADVISED THE CONTRACTING OFFICER THAT UPON TAKING DELIVERY OF ITEM 34, YOU DISCOVERED THAT THE SCRAP IRON WAS PACKED IN HEAVY WOODEN BOXES, AND THAT WHEN YOU SUBMITTED YOUR BID YOU HAD ASSUMED THAT THE WOODEN CONTAINERS WOULD NOT BE WEIGHED WITH THE SCRAP. ALSO, YOU ADVISED THAT FOR OVER A FIFTEEN-YEAR PERIOD IN PURCHASING SCRAP FROM THE GOVERNMENT THE WEIGHT OF WOODEN CONTAINERS HAD NOT BEEN INCLUDED IN THE WEIGHT OF METAL SCRAP PURCHASED WHEN THE ITEM WAS SOLD BY WEIGHT, AND THAT YOU SHOULD ONLY BE REQUIRED TO PAY FOR THE METAL SCRAP ITSELF. YOU STATED FURTHER THAT EVEN IF YOU HAD INSPECTED THIS MATERIAL PRIOR TO PURCHASE, YOU WOULD HAVE NEVER THOUGHT OF ASKING WHETHER YOU HAD TO PAY FOR THE SCRAP BASED ON THE WEIGHT INCLUDING THE BOXES SINCE YOU NEVER HAD TO PAY FOR SCRAP IRON ON A WEIGHT BASIS WHICH INCLUDED THE CONTAINERS.

YOUR BID WAS ON THE ENTIRE LOT OF "UNPREPARED IRON AND STEEL SCRAP, CONTAMINATED AND BOXED" AND WEIGHING AN ESTIMATED 185 GROSS TONS. THERE IS NOTHING IN THE CONTRACT TO INFER THAT IF THE SCRAP MATERIAL WERE IN WOODEN BOXES, THAT THE WEIGHT OF THE WOODEN BOXES SHOULD NOT BE INCLUDED IN THE WEIGHT OF THE SCRAP. IN FACT, THE USE OF THE WORDS "CONTAMINATED AND BOXED" MUST BE CONSTRUED AS MEANING THAT WHATEVER THE AMOUNT OF THE CONTAMINATION MIGHT BE OR WHATEVER MIGHT BE THE WEIGHT OF THE BOXES, THE PURCHASER WAS REQUIRED TO PAY FOR THE SCRAP, WITH THE WEIGHT OF THE CONTAMINATION AND BOXES INCLUDED. WHILE IT MAY BE THAT THE LANGUAGE IN OTHER INVITATIONS TO BID THE WORD "INCLUDED" WAS USED TO INDICATE THAT THE CONTAINERS WERE TO BE INCLUDED IN THE WEIGHT, THE FAILURE TO USE THAT WORD IN THIS CASE MAY NOT BE REGARDED AS RELIEVING YOU FROM LIABILITY OF MAKING PAYMENT FOR THE MATERIALS ON THE BASIS OF INCLUDING THE WEIGHT OF THE BOXES.

FOR THE FOREGOING REASONS WE ARE COMPELLED TO SUSTAIN THE SETTLEMENT OF FEBRUARY 8, 1957.