B-139153, JUL. 23, 1959

B-139153, JUL. 23, 1959

TO THE SUPERIOR IRON AND METAL CO., INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MARCH 9, 1959, IN WHICH YOU REQUEST REVIEW OF OUR SETTLEMENT DATED MARCH 4, 1959, WHICH DISALLOWED YOUR CLAIM UNDER CONTRACT NO. AF 12/621/S-15, DATED JULY 29, 1958. YOU STATE THAT YOU DID NOT BASE YOUR CLAIM ON A SHORTAGE OF WEIGHT, BUT INCLUDED THE WEIGHT TICKETS AS PROOF THAT YOU DID NOT RECEIVE COMPLETE UNITS AND DID NOT RECEIVE THE MATERIAL YOU INSPECTED AND BID ON. YOU ALLEGE THAT UNITS WERE MISSING BY COUNT AND WEIGHT.

UNDER THE CITED CONTRACT YOU AGREED TO PURCHASE FROM THE GOVERNMENT, AT YOUR BID PRICE OF $101.18 EACH, SIX UNITS OF SURPLUS PROPERTY LISTED AND DESCRIBED UNDER ITEM NO. 6 IN BID INVITATION NO. 12-617-S 58-3, AS FOLLOWS:

"MAINTENANCE SHELTER, AIRCRAFT, J-LA ACQ. COST $1,476.07 EA. APPROX. COMBINED WT. 67,849 LBS. CODE 49. USED.'

REGARDING YOUR ALLEGATION THAT IN THE MATERIAL RECEIVED BY YOU UNDER THE CONTRACT "UNITS WERE MISSING BY COUNT AND BY WEIGHT" FROM THE MATERIAL INSPECTED BY YOU PRIOR TO SUBMITTING YOUR BID, WHILE YOU HAVE SUBMITTED COPIES OF FORT WAYNE CITY SCALES WEIGHT TICKETS PURPORTEDLY SHOWING THAT YOU RECEIVED ONLY 14,390 POUNDS WHEN THE APPROXIMATE WEIGHT OF THE MATERIAL WAS GIVEN IN THE BID INVITATION AS APPROXIMATELY 67,840 POUNDS, THIS DOES NOT IN AND OF ITSELF SHOW A SHORTAGE IN THE NUMBER OF UNITS ACTUALLY DELIVERED TO AND RECEIVED BY YOU. FURTHERMORE, AS WAS STATED IN OUR CERTIFICATE OF SETTLEMENT, THE MAINTENANCE SHELTERS UNDER ITEM NO. 6 WERE OFFERED FOR SALE ON A PER EACH BASIS, AND BY ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE BID INVITATION--- WHICH BECAME A MATERIAL PART OF THE CONTRACT- - PROSPECTIVE BIDDERS WERE PUT ON NOTICE THAT THE PROPERTY WAS BEING SOLD "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. THAT ARTICLE ALSO PROVIDED THAT THE DESCRIPTION OF THE PROPERTY WAS BASED UPON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MADE NO GUARANTY, WARRANTY, OR REPRESENTATION WHATSOEVER AS TO THE QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF THE PROPERTY, AND THAT NO CLAIM WOULD BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON THE FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.

THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE REDISTRIBUTION AND MARKETING ACTIVITY OFFICER AT BUNKER HILL AIR FORCE BASE, INDIANA, STATES THAT THE RECORDS OF THE ACTIVITY DO NOT REFLECT ANY DIFFERENCE BETWEEN THE NUMBER OF UNITS SPECIFIED IN THE BID INVITATION AND THE NUMBER DELIVERED TO YOU. THUS, THE QUESTION IN THE INSTANT CASE RESOLVES ITSELF INTO A DISPUTED QUESTION OF FACT AS TO THE NUMBER OF UNITS DELIVERED TO YOU.

IT IS THE ESTABLISHED RULE OF OUR OFFICE, WHEN THERE IS A COMPLETE DISAGREEMENT, AS HERE, BETWEEN THE FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICE AND THOSE STATED BY THE CLAIMANT, TO ACCEPT THE FACTS ADMINISTRATIVELY REPORTED AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE PRESUMPTION OF THEIR CORRECTNESS. SEE 16 COMP. GEN. 325; 18 ID. 799, 800. CONSEQUENTLY, SINCE NO SUCH EVIDENCE HAS BEEN PRESENTED, WE HAVE NO ALTERNATIVE BUT TO ACCEPT THE STATEMENT OF THE DISPOSAL AGENCY AS TO THE NUMBER OF UNITS DELIVERED TO YOU UNDER THE CONTRACT.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT IN THE PRICE ON CONTRACT NO. AF 12/621/S-15. ACCORDINGLY, THE SETTLEMENT OF MARCH 4, 1959, IS SUSTAINED.