B-132434, AUG. 21, 1957

B-132434: Aug 21, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1. WAS ACCEPTED BY THEY BRYAN AIR FORCE BASE ON OCTOBER 19. WAS LOCATED AT THE BOTTOM OF THE PILE OF ALUMINUM COVERED BY ITEM NO. 1 AND WHEN THE LAST LOAD OR TWO WAS REMOVED THE SAID RESIDUE ALSO WAS LOADED ON THE TRUCK AND WEIGHED. YOU ARE CLAIMING A REFUND OF $1. THE FACT THAT YOU DID MAKE AN INSPECTION BEFORE SUBMITTING YOUR BID BUT SINCE THE CONTAMINATED RESIDUE WAS LOCATED AT THE BOTTOM OF THE PILE OF ALUMINUM COVERED BY ITEM NO. 1 IT COULD NOT BE SEEN. EVEN IF IT WERE CONCEDED THAT THE DISCLAIMER OF WARRANTY WERE NOT APPLICABLE IN THIS CASE. A MORE IMPORTANT ISSUE PERHAPS IS WHETHER THE GOVERNMENT OR YOUR WAS RESPONSIBLE FOR THE ACCUMULATION AND LOADING OF THE CONTAMINATED RESIDUE.

B-132434, AUG. 21, 1957

TO ACE SMELTING, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 19, 1957, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 6, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,057 UNDER CONTRACT NO. 01/41-628/S-57-1, DATED OCTOBER 19, 1956.

IN RESPONSE TO AN INVITATION ISSUED ON SEPTEMBER 17, 1956, BY THE BRYAN AIR FORCE BASE, DEPARTMENT OF THE AIR FORCE, YOU SUBMITTED A BID DATED OCTOBER 10, 1956, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 1, COVERING 55,000 POUNDS OF ALUMINUM SCRAP, WRECKED AIRCRAFT AT $0.1208 A POUND, OR FOR A TOTAL BID FOR THIS ITEM OF $6,644. YOUR BID ON ITEM NO. 1, IN ADDITION TO ITEM NO. 11, WAS ACCEPTED BY THEY BRYAN AIR FORCE BASE ON OCTOBER 19, 1956, THEREBY CONSUMMATING CONTRACT NO. 01/41-628/S/57-1. YOU STATE THAT CONSIDERABLE RESIDUE SUCH AS IRON, STEEL, PLEXIGLASS, LEAD WEIGHTS, RUBBER, ETC., WAS LOCATED AT THE BOTTOM OF THE PILE OF ALUMINUM COVERED BY ITEM NO. 1 AND WHEN THE LAST LOAD OR TWO WAS REMOVED THE SAID RESIDUE ALSO WAS LOADED ON THE TRUCK AND WEIGHED. YOU STATE FURTHER THAT THE RESIDUE, WHICH CONSISTED OF MATERIALS OTHER THAN ALUMINUM, TOTALED 8,750 POUNDS AND, THEREFORE, YOU ARE CLAIMING A REFUND OF $1,057, BASED ON THAT POUNDAGE, AT YOUR BID PRICE OF $0.1208 A POUND FOR ITEM NO. 1.

YOUR LETTER OF JUNE 19, 1957, REQUESTING A REVIEW OF THE PREVIOUS DISALLOWANCE OF YOUR CLAIM SETS FORTH, AS THE BASIS FOR THE REVIEW, THE FACT THAT YOU DID MAKE AN INSPECTION BEFORE SUBMITTING YOUR BID BUT SINCE THE CONTAMINATED RESIDUE WAS LOCATED AT THE BOTTOM OF THE PILE OF ALUMINUM COVERED BY ITEM NO. 1 IT COULD NOT BE SEEN.

IN THE FIRST INSTANCE IT WOULD APPEAR THAT THE SPECIFIC PROVISIONS OF ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS UNDER CONTRACT NO. 01/41-628/S-57-1 COVERING "CONDITION OF PROPERTY" WOULD, IN AND OF ITSELF, CONSTITUTE AN ADEQUATE BASIS FOR THE DISALLOWANCE OF YOUR CLAIM. EVEN IF IT WERE CONCEDED THAT THE DISCLAIMER OF WARRANTY WERE NOT APPLICABLE IN THIS CASE, A MORE IMPORTANT ISSUE PERHAPS IS WHETHER THE GOVERNMENT OR YOUR WAS RESPONSIBLE FOR THE ACCUMULATION AND LOADING OF THE CONTAMINATED RESIDUE. IN THIS REGARD, THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE DRIVERS OF THE TRUCKS, WHO LOADED THE LAST LOADS OF ALUMINUM, WERE ADVISED BY THE BRYAN AIR FORCE BASE DISPOSAL AGENT THAT A RAKE WOULD BE MADE AVAILABLE FOR AS HAD BEEN CUSTOMARY IN THE PAST. THE DEPARTMENT FURTHER REPORTS THAT WHILE RAKING OF THE GROUNDS WAS RECOMMENDED FOR YOUR BENEFIT IN CLAIMING ALL OF THE SCRAP MATERIAL, THE DRIVERS OF THE TRUCKS WERE NOT SPECIFICALLY INSTRUCTED TO DO SO. IN VIEW OF THIS, AND SINCE THE LOADING WAS PERFORMED MANUALLY AND ENTIRELY BY YOUR OWN EMPLOYEES OR AGENTS; SINCE THE ACCUMULATION OF THE CONTAMINATED RESIDUE WAS THE DIRECT RESULT OF THE ACTUAL LOADING OPERATION; AND SINCE NEITHER THE MANNER IN WHICH THE RAKE WAS USED NOR THE MANNER OF LOADING WAS DIRECTED, PERFORMED ON SUPERVISED IN ANYWAY BY GOVERNMENT EMPLOYEES, IT MUST BE CONCLUDED THAT THE CONDITION OF WHICH YOU NOW COMPLAIN WAS CREATED SOLELY BY YOUR OWN ACTS OR THOSE OF YOUR AGENTS AND UNDER SUCH CIRCUMSTANCES THE RESPONSIBILITY FOR THESE ACTS MUST BE BORNE BY YOU.

WHILE NOT INHERENTLY PERTINENT TO THE MERITS OF YOUR PRESENT CLAIM FOR $1,057 IT IS TO BE NOTED THAT THE DEPARTMENT OF THE AIR FORCE PREVIOUSLY HAS ALLOWED YOU A WEIGHT ADJUSTMENT ON THE BASIS OF 550 POUNDS ON THE LAST LOAD PICKED UP BY THE TRUCKS TO COMPENSATE YOU FOR ANY RESIDUE WHICH YOU MIGHT NOT HAVE BEEN REQUIRED TO ACCEPT. THIS ADJUSTMENT, WHICH IS REPORTED TO HAVE BEEN COMPLETELY AGREEABLE TO THE DRIVERS OF THE TRUCKS, WAS MADE BY THE DEPARTMENT OF THE AIR FORCE ON THE BASIS THAT IT REPRESENTED MUCH MORE ACCURATELY THE AMOUNT OF ANY SUCH RESIDUE. HOWEVER, IT SHOULD BE STATED HERE THAT A MORE COMPLETE EXAMINATION OF THE CIRCUMSTANCES ATTENDING THIS ADJUSTMENT MIGHT VERY WELL SHOW LITTLE, IF ANY, LEGAL JUSTIFICATION FOR THE ALLOWANCE OF AN ADJUSTMENT IN ANY AMOUNT.