B-132567, OCT. 24, 1957

B-132567: Oct 24, 1957

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TO WOLVERINE METAL COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 1. YOUR RECENT LETTERS REFERRED TO ABOVE CONTEND THAT MATERIAL OTHER THAN THAT CONTAINED IN LOT 28 WAS INCLUDED IN THE SHIPMENT MADE AGAINST YOUR PURCHASE. APPARENTLY WAS INCLUDED IN SAID SHIPMENT TO BRING THE QUANTITY THEREOF WITHIN THE 25 PERCENT VARIATION CLAUSE OF THE CONTRACT. AS YOU WERE ADVISED IN LETTER OF AUGUST 27. WAS FORWARDED TO THE DEPARTMENT OF THE AIR FORCE WITH A REQUEST THAT A COMPLETE REPORT BE FURNISHED ON THE CONTENTIONS SET FORTH IN YOUR APPEAL. IN RESPONSE THERETO THE DESIRED REPORT WAS FURNISHED WHICH STATES THAT ONLY MATERIAL COVERED BY LOT 28 WAS DELIVERED TO THE CARRIER AND THAT ASSERTION IS SUPPORTED BY A CERTIFICATE EXECUTED BY THE BASE DISPOSAL AGENT.

B-132567, OCT. 24, 1957

TO WOLVERINE METAL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 1, 1957, ALSO TO SUPPLEMENTAL LETTER DATED SEPTEMBER 12, 1957, REQUESTING RECONSIDERATION OF THE ACTION TAKEN IN OUR SETTLEMENT OF JUNE 24, 1957, DISALLOWING YOUR CLAIM FOR $3,860.18, ALLEGED TO BE DUE AS AN ADJUSTMENT IN THE PRICE PAID FOR THE QUANTITY OF SCRAP METAL PURCHASED UNDER CONTRACT NO. (47-602/S 57- 43. YOUR RECENT LETTERS REFERRED TO ABOVE CONTEND THAT MATERIAL OTHER THAN THAT CONTAINED IN LOT 28 WAS INCLUDED IN THE SHIPMENT MADE AGAINST YOUR PURCHASE; THAT PART OF THE MATERIAL UNDER ITEMS 27 AND 29, APPARENTLY WAS INCLUDED IN SAID SHIPMENT TO BRING THE QUANTITY THEREOF WITHIN THE 25 PERCENT VARIATION CLAUSE OF THE CONTRACT; AND THAT THE QUESTIONABLE MATERIAL HAS BEEN SEGREGATED WHICH SHOWS THE IDENTIFYING PART NUMBERS.

AS YOU WERE ADVISED IN LETTER OF AUGUST 27, 1957, YOU LETTER OF JULY 1, 1957, WAS FORWARDED TO THE DEPARTMENT OF THE AIR FORCE WITH A REQUEST THAT A COMPLETE REPORT BE FURNISHED ON THE CONTENTIONS SET FORTH IN YOUR APPEAL. IN RESPONSE THERETO THE DESIRED REPORT WAS FURNISHED WHICH STATES THAT ONLY MATERIAL COVERED BY LOT 28 WAS DELIVERED TO THE CARRIER AND THAT ASSERTION IS SUPPORTED BY A CERTIFICATE EXECUTED BY THE BASE DISPOSAL AGENT. THE REPORT FURTHER DISCLOSES THAT LOTS 27 AND 29 WERE SOLD AND DELIVERED TO OTHER PURCHASERS WHO APPARENTLY WERE SATISFIED THAT THEY RECEIVED THE MATERIAL COVERED BY THEIR RESPECTIVE CONTRACTS. SINCE YOU ADMIT NOT HAVING INSPECTED LOT 28 PRIOR TO THE SUBMISSION OF YOUR BID IT WOULD APPEAR THAT YOU ARE RELYING SOLELY ON THE DESCRIPTION OF THE METAL SET FORTH IN THE INVITATION. FOR THAT REASON THE DISCLAIMER OF WARRANTIES PROVISION CLEARLY IS FOR APPLICATION.

MOREOVER, IN CASES WHERE, AS HERE, THERE IS A DIRECT CONFLICT BETWEEN THE FACTS ALLEGED BY A CLAIMANT AND THOSE REPORTED BY THE ADMINISTRATIVE OFFICER OF THE GOVERNMENT, THE DISALLOWANCE OF SUCH CLAIM, IN THE ABSENCE OF A CLEAR SHOWING OF ERROR IN THE ADMINISTRATIVE REPORT, IS SUPPORTED BY THE COURTS. SEE LONGWILL V. UNITED STATES, 17 C.CLS. 288; CHARLES V. UNITED STATES, 19 ID. 316.

THEREFORE, THE DISALLOWANCE OF YOUR CLAIM WAS CORRECT AND MUST BE SUSTAINED.