B-140617, OCT. 19, 1959

B-140617: Oct 19, 1959

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TO THE SECRETARY OF AGRICULTURE: WE HAVE BEFORE US FOR DETERMINATION A MATTER INVOLVING THE SPOILAGE OF A QUANTITY OF RED KIDNEY BEANS WHICH WERE DONATED TO THE STATE OF NEW YORK. THE BEANS WERE PURCHASED WITH SECTION 32 FUNDS AND WERE SHIPPED TO THE NEW YORK STATE DEPARTMENT OF EDUCATION. IT IS CONTENDED BY THE AGRICULTURAL MARKETING SERVICE THAT THE BEANS WERE PERMITTED TO REMAIN IN STORAGE. THE AGRICULTURAL MARKETING SERVICE STATES THAT INVESTIGATION DISCLOSED THAT THE STATE DEPARTMENT OF EDUCATION WAS NEGLIGENT IN ITS RESPONSIBILITY OF SAFEGUARDING THE COMMODITY BY PERMITTING THE BEANS TO REMAIN UNUSED BEYOND WHAT COULD REASONABLY BE ACCEPTED AS A SAFE STORAGE PERIOD. THE NEW YORK STATE DEPARTMENT OF EDUCATION MAINTAINS THAT IT WAS NOT NEGLIGENT IN HANDLING THE BEANS AND THEREFORE DENIES LIABILITY.

B-140617, OCT. 19, 1959

TO THE SECRETARY OF AGRICULTURE:

WE HAVE BEFORE US FOR DETERMINATION A MATTER INVOLVING THE SPOILAGE OF A QUANTITY OF RED KIDNEY BEANS WHICH WERE DONATED TO THE STATE OF NEW YORK, DEPARTMENT OF EDUCATION, DURING THE SECOND QUARTER 1954-1955 BY THE FOOD DISTRIBUTION DIVISION, AGRICULTURAL MARKETING SERVICE, DEPARTMENT OF AGRICULTURE.

THE BEANS WERE PURCHASED WITH SECTION 32 FUNDS AND WERE SHIPPED TO THE NEW YORK STATE DEPARTMENT OF EDUCATION, ALBANY, NEW YORK, UNDER DELIVERY ORDER NO. 1211-V-13, RECEIVED ON NOVEMBER 4, 1954, AND DELIVERY ORDER NO. 1211-V-12, RECEIVED DECEMBER 8, 1954.

IT IS CONTENDED BY THE AGRICULTURAL MARKETING SERVICE THAT THE BEANS WERE PERMITTED TO REMAIN IN STORAGE, BY THE STATE AUTHORITIES, UNTIL THEY BECAME UNFIT FOR HUMAN CONSUMPTION. THE AGRICULTURAL MARKETING SERVICE STATES THAT INVESTIGATION DISCLOSED THAT THE STATE DEPARTMENT OF EDUCATION WAS NEGLIGENT IN ITS RESPONSIBILITY OF SAFEGUARDING THE COMMODITY BY PERMITTING THE BEANS TO REMAIN UNUSED BEYOND WHAT COULD REASONABLY BE ACCEPTED AS A SAFE STORAGE PERIOD. IN ACCORDANCE WITH ITS FINDINGS THE AGRICULTURAL MARKETING SERVICE DEMANDED PAYMENT FROM THE NEW YORK STATE DEPARTMENT OF EDUCATION FOR THE VALUE OF THE SPOILED BEANS.

THE NEW YORK STATE DEPARTMENT OF EDUCATION MAINTAINS THAT IT WAS NOT NEGLIGENT IN HANDLING THE BEANS AND THEREFORE DENIES LIABILITY. CONTENDS THAT THE HANDBOOK ON STORING DIRECT DISTRIBUTION FOODS INDICATES THAT DRY BEANS WILL KEEP FROM ONE TO TWO YEARS IN ORDINARY DRY STORAGE; THAT THE BEANS SPOILED PRIOR TO THE EXPIRATION OF THE TWO YEAR PERIOD; AND THAT IT WAS ANTICIPATED WHEN THE BEANS WERE ORDERED THAT THEY WOULD BE UTILIZED IN LESS THAN ONE YEAR. SINCE THE MATTER HAS BEEN ADMINISTRATIVELY DETERMINED TO BE UNCOLLECTIBLE, IT HAS BEEN SUBMITTED HERE.

THE RECORD HERE DOES NOT CONTAIN SUFFICIENT INFORMATION TO OVERCOME THE CONTENTIONS OF THE STATE AUTHORITIES. SPECIFICALLY, IT DOES NOT DISCLOSE THE BASIS UPON WHICH IT WAS DETERMINED THAT THE SPOILAGE OF THE BEANS WAS DUE TO THE NEGLIGENCE OF THE STATE AUTHORITIES OTHER THAN TO STATE THAT THEY WERE ORDERED IN EXCESSIVE QUANTITIES AND KEPT BEYOND A REASONABLY SAFE STORAGE PERIOD. NOR IS THE BASIS FOR THE CLAIMED VALUE OF THE BEANS ADEQUATELY STATED AND THE STATE AUTHORITIES, IN LETTER OF AUGUST 11, 1958, TO US, HAVE QUESTIONED THE CLAIMED VALUE OF THE BEANS. THE RECORD ALSO FAILS TO SHOW THE FINAL DISPOSITION OF THE BEANS INVOLVED.

IN VIEW OF THE INSUFFICIENCY OF THE INFORMATION MADE AVAILABLE TO US, AND SINCE THE STATE OF NEW YORK DENIES LIABILITY, WE FEEL THAT IT IS NECESSARY TO REQUEST FURTHER INFORMATION, AS OUTLINED ABOVE.

WE WOULD ALSO APPRECIATE YOUR FURNISHING US WITH A COPY OF THE COMPLETE AGREEMENT WITH THE NEW YORK STATE DEPARTMENT OF EDUCATION AND YOUR VIEWS AS TO THE EFFECT OF THE LAST PARAGRAPH THEREOF WHICH PROVIDES THAT "NO LIABILITY SHALL BE INCURRED BY THE NEW YORK STATE EDUCATION DEPARTMENT AND/OR THE PEOPLE OF THE STATE OF NEW YORK BEYOND THE MONEY AVAILABLE FOR SUCH PURPOSE," IN THE LIGHT OF THEIR CONTENTION THAT COLLECTION BY SETOFF WOULD BE NECESSARY "AS THE LOSS OCCURRED IN A PRIOR FISCAL YEAR" AND THAT "THERE IS NO PROVISION UNDER PRESENT BUDGETARY ALLOTMENTS FOR THE PAYMENT OF SUCH A CLAIM.'