B-136058, JUN. 11, 1958

B-136058, JUN. 11, 1958

TO MR. CHARLES P. CHASE, D/B/A:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 20, 1958, PROTESTING AGAINST BEING HELD LIABLE TO THE UNITED STATES FOR THE AMOUNT OF $1,575 BY REASON OF THE REJECTION OF THREE OVER-AGE CHIMPANZEES FURNISHED BY YOU TO THE PUBLIC HEALTH SERVICE UNDER CONTRACT DATED MARCH 8, 1954.

AS INDICATED IN OUR LETTER OF FEBRUARY 28, 1958, WHEREIN PAYMENT OF THE AMOUNT WAS DEMANDED, THE RECORD FURNISHED US BY THE PUBLIC HEALTH SERVICE SHOWS THAT THE CHIMPANZEES WERE REJECTED AND RETURNED TO YOU BECAUSE THEY WERE FOUND ON INSPECTION TO BE APPROXIMATELY EIGHT YEARS OLD, WHEREAS THE CONTRACT REQUIRED THAT THE ANIMALS BE ONE TO THREE YEARS OLD.

IN YOUR PRESENT LETTER YOU STATE THAT YOU DO NOT AGREE THAT THE CHIMPANZEES WERE ANYWHERE NEAR EIGHT YEARS OLD NOTWITHSTANDING THE OPINIONS OF THE VARIOUS PERSONS WHO GAVE THEIR ESTIMATES OF THE AGE OF THE ANIMALS TO THE CONTRARY. HOWEVER, YOU HAVE OFFERED NO EVIDENCE IN SUPPORT OF YOUR ASSERTED BELIEF AS TO THEIR AGE, OR MORE PARTICULARLY, THAT THEY WERE NOT MORE THAN THREE YEARS OLD, AS REQUIRED BY THE CONTRACT, AND IT APPEARS THAT YOU ARE IN NO POSITION TO SERIOUSLY URGE THIS AS A BASIS FOR DENYING YOUR RESPONSIBILITY TO REFUND THE PURCHASE PRICE OF THE CHIMPANZEES IN ANY EVENT. NEITHER DOES IT APPEAR THAT YOU ARE IN A POSITION TO COMPLAIN THAT THE PROCURING AGENCY DID NOT REJECT THE CHIMPANZEES SOONER THAN IT DID. THE RECORD SHOWS THAT THE VIRUS AND RICHETTSIA SECTION OF THE PUBLIC HEALTH SERVICE, MONTGOMERY, ALABAMA, TO WHICH THE CHIMPANZEES HAD BEEN DELIVERED, ADVISED YOU BY LETTER OF MARCH 16, 1955, AS FOLLOWS:

"* * * WE ARE CERTAIN THAT WE HAVE AT LEAST THREE CHIMPS THAT ARE EIGHT YEARS OF AGE OR MORE.

"THERE ARE TWO FEMALES, AND ONE MALE THAT WE ARE POSITIVE ARE OVER AGE AND POSSIBLY TWO OTHERS. WE CANNOT HANDLE THESE ANIMALS WITHOUT ENDANGERING THE LIVES OF THE HANDLERS AND THE RESEARCH WORKERS. OUR CONTRACT SPECIFIES 1-3 YEAR OLD ANIMALS, AND THESE VERY LARGE ANIMALS ARE NOT SUITABLE AND WILL HAVE TO BE EXCHANGED FOR ANIMALS OF THE CORRECT AGE RANGE.'

UNDER DATE OF JUNE 22, 1955, YOU WROTE THE PUBLIC HEALTH SERVICE AT THE ABOVE ADDRESS, IN PERTINENT PART, AS FOLLOWS:

"IN ACCORDANCE WITH OUR TELEPHONE CONVERSATION OF YESTERDAY WE ARE ENCLOSING HEREWITH SHIPPING INSTRUCTIONS COVERING THE 3 LARGER CHIMPANZEES (1 MALE AND 2 FEMALE). ENCLOSED ALSO WE ARE SHIPPING LABELS FOR YOUR CONVENIENCE.

"THE SHIPPING ADDRESS IS AS FOLLOWS: WILD ANIMAL COMPOUND, VERO BEACH, FLORIDA, SHIPMENT IS TO BE BY RAILWAY EXPRESS COLLECT.

"MR. MAJORS, THESE CHIMPANZEES MUST BE SHIPPED ON EITHER THE 27TH, 28TH, 29TH OR 30TH OF JUNE, SO THAT THEY WILL ARRIVE AT VERO BEACH PRIOR TO THAT CURRENT WEEKEND. WE ALSO DO NOT WISH THEM SHIPPED EARLIER THAN JUNE 27TH.

"WE SHALL BE IN TOUCH WITH YOU PRESENTLY RELATIVE TO REPLACING THESE 3 CHIMPANZEES AND ALSO IN COMPLETING YOUR ORDER BY REPLACEMENT OF THE 2 CHIMPANZEES WHICH ARRIVED IN POOR CONDITION IN OUR LAST SHIPMENT.'

IT APPEARS FROM THE RECORD THAT THE CHIMPANZEES INVOLVED WERE RETURNED TO YOU IN ACCORDANCE WITH THE INSTRUCTIONS CONTAINED IN THE ABOVE LETTER, AND THAT YOU WROTE THE PUBLIC HEALTH SERVICE ACTIVITY CONCERNED ON NOVEMBER 7, 1955, EXPRESSING REGRET THAT YOU HAD BEEN UNABLE TO FURNISH ,THE FIVE CHIMPANZEES WHICH ARE STILL DUE YOU ON THE OVERDUE CONTRACT.' IN THE LETTER, YOU REFERRED TO THE DIFFICULTIES YOU WERE HAVING IN SECURING PERMITS FOR EXPORTATION OF CHIMPANZEES FROM THE COUNTRIES WHICH WERE THE SOURCE OF YOUR SUPPLY AND REQUESTED "ANOTHER SIXTY-DAY XTENSION" TO ENABLE YOU TO COMPLETE THE ORDER. THE ADMINISTRATIVE OFFICER OF THE PUBLIC HEALTH SERVICE ACTIVITY INVOLVED REPLIED TO YOUR REQUEST BY LETTER OF NOVEMBER 21, 1955, AS FOLLOWS:

"INASMUCH AS YOU HAVE ATTEMPTED TO FILL THE ORDER AND FIND IT IMPOSSIBLE TO DO SO, WE FEEL THAT THE FAIREST ARRANGEMENT WOULD BE TO CANCEL THE ORDER; THIS WILL RELIEVE YOU OF THE RESPONSIBILITY OF SUPPLYING THE TWO CHIMPS THAT WE HAVE NOT PAID FOR. IT WILL OF COURSE BE NECESSARY FOR YOU TO SUPPLY REPLACEMENTS FOR THE THREE ANIMALS SENT BY US TO VERO BEACH IN JUNE.

"PLEASE ADVISE US IF A CANCELLATION OF THIS TYPE MEETS WITH YOUR APPROVAL AND IF SO WHAT ARRANGEMENTS CAN BE MADE ON THE THREE ANIMALS PAID FOR, BUT NOT NOW ON HAND.'

YOU REPLIED TO THE ABOVE LETTER BY LETTER OF DECEMBER 8, 1955, IN WHICH YOU STATED:

"I EXPECT TO RECEIVE A SHIPMENT OF CHIMPANZEES FROM AFRICA DURING THIS MONTH AND I WILL, OF COURSE, REPLACE THE THREE ANIMALS WHICH YOU SENT TO VERO BEACH IN JUNE. WILL YOU PLEASE LET ME KNOW THE LATEST POSSIBLE DATE WHICH YOU CAN USE THE OTHER TWO CHIMPANZEES REMAINING ON YOUR ORDER NUMBER 19555, IN ORDER THAT I MAY PLAN ACCORDINGLY. IF WE RECEIVE THE CHIMPANZEES WHICH WE ANTICIPATE, WE WILL BE ABLE TO REPLACE THE THREE AND SHIP THE OTHER TWO ALSO, IF THEY ARE STILL REQUIRED BY YOU. IF YOU CANNOT USE THEM AT THIS LATE DATE, I WILL OF COURSE AGREE TO CANCELLATION AS YOU REQUEST. * * *"

UNDER DATE OF JANUARY 11, 1956, AN AGREEMENT WAS ENTERED INTO BETWEEN YOU AND THE CONTRACTING OFFICER, ACTING ON BEHALF OF THE GOVERNMENT, WHEREBY THE NUMBER OF CHIMPANZEES REQUIRED TO BE FURNISHED UNDER THE CONTRACT WAS REDUCED BY TWO, LEAVING YOU WITH THE OBLIGATION OF REPLACING THE THREE CHIMPANZEES HERE INVOLVED. BY LETTER OF JULY 23, 1956, THE CONTRACTING OFFICER REQUESTED THAT YOU REFUND THE SUM OF $1,575, WHICH HAD BEEN PAID FOR THESE CHIMPANZEES, INASMUCH AS YOU HAD FAILED TO REPLACE THEM.

IN VIEW OF THE ABOVE-QUOTED CORRESPONDENCE AND THE REFERRED-TO AMENDMENT OF THE CONTRACT, YOU MUST BE HELD TO HAVE WAIVED WHATEVER RIGHTS YOU MAY HAVE HAD TO OBJECT TO THE REJECTION OF THE CHIMPANZEES AND TO HAVE AGREED UNQUALIFIEDLY TO REPLACE THEM. SINCE YOU FAILED TO REPLACE THE ANIMALS, IT FOLLOWS THAT YOU ARE UNDER A LEGAL OBLIGATION TO REFUND THE PURCHASE PRICE.

ACCORDINGLY, YOU ARE ADVISED THAT UNLESS PAYMENT OF THE AMOUNT INVOLVED IS RECEIVED FROM YOU WITHIN THE NEXT 30 DAYS, THE MATTER OF YOUR INDEBTEDNESS WILL BE REFERRED TO THE ATTORNEY GENERAL OF THE UNITED STATES FOR APPROPRIATE ACTION.