B-142169, MAY 5, 1960

B-142169, MAY 5, 1960

TO MICRO PHOTO, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTERS DATED FEBRUARY 26 AND APRIL 5, 1960, RELATIVE TO YOUR CLAIM FOR REFUND OF $350, REPRESENTING AN AMOUNT PAID BY YOU FOR CERTAIN PROPERTY PURCHASED BY YOU ON SALES CONTRACT NO. AF 33/604/-S-506 AWARDED JANUARY 14, 1960.

BY SALES INVITATION NO. 33-604-S-60-5 DATED NOVEMBER 20, 1959, THE REDISTRIBUTION AND MARKETING DIVISION, DAYTON AIR FORCE DEPOT, SOLICITED BIDS--- OPENING DATE DECEMBER 30, 1959--- FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS ITEMS OF SURPLUS PROPERTY, INCLUDING ITEM NO. 24 DESCRIBED THEREIN AS ONE MICROFILM PRINTING MACHINE IN A "USED" CONDITION. IN RESPONSE, YOU SUBMITTED A BID OFFERING TO PURCHASE, SUBJECT TO THE GENERAL SALE TERMS AND CONDITIONS AND ADDITIONAL SPECIAL SALE TERMS AND CONDITIONS CONTAINED IN THE INVITATION WHICH WOULD BECOME A MATERIAL PART OF ANY CONTRACT AWARDED THEREUNDER, ITEM NO. 24 AT $350. YOUR BID, BEING THE HIGHEST, WAS ACCEPTED ON JANUARY 14, 1960, BY THE CONTRACTING OFFICER AND AWARD OF THE SALE OF THAT ITEM MADE TO YOU ON CONTRACT NO. AF 33/604/-S/506. THE CONTRACT PROVIDED THAT THE PROPERTY MUST BE REMOVED BY YOU "WITHIN 20 WORKING DAYS AFTER NOTICE OF AWARD, * * * TIME TO BE COMPUTED FROM THE DATE OF MAILING OR OTHERWISE FURNISHING SAID NOTICE.'

THE RECORD SHOWS THAT YOU HAVE PAID THE FULL PURCHASE PRICE FOR THE MATERIAL IN QUESTION BUT HAVE NOT REMOVED THE PROPERTY. THE RECORD FURTHER SHOWS THAT BY LETTER DATED FEBRUARY 19, 1960, THE CONTRACTING OFFICER ADVISED YOU THAT REMOVAL OF THE PROPERTY IN QUESTION HAD NOT BEEN ACCOMPLISHED IN ACCORDANCE WITH GENERAL PROVISION 7 OF THE CONTRACT AND, ACCORDINGLY, YOU WERE NOTIFIED THAT AFTER THE EXPIRATION OF 22 DAYS FROM THE MAILING OF THAT LETTER THE GOVERNMENT WOULD, PURSUANT TO GENERAL PROVISION 7, RESELL THE PROPERTY IF IT HAD NOT BEEN REMOVED BY YOU, APPLYING THE PROCEEDS FROM THE SALE AGAINST THE STORAGE AND ANY OTHER COSTS (INCLUDING GOVERNMENT'S LOSS ON RESALE, IF ANY) INCURRED FOR YOUR ACCOUNT. IT WAS SUGGESTED IN THAT LETTER, IN THE EVENT YOU WERE NOT INTERESTED IN TAKING POSSESSION OF THE PROPERTY TO WHICH YOU HAD TITLE, THAT YOU AUTHORIZE THE GOVERNMENT IN WRITING TO IMMEDIATELY PROCEED WITH THE RESALE OF THE PROPERTY, AND THAT SUCH ACTION MIGHT MINIMIZE THE COSTS WHICH WOULD BE ASSESSABLE BY THE GOVERNMENT AGAINST YOUR ACCOUNT.

PROVISION 10 OF THE GENERAL SALE TERMS AND CONDITIONS, ABOVE REFERRED TO, PROVIDES AS FOLLOWS:

"RISK OF LOSS.--- (1) AFTER MAILING NOTICE OF AWARD, AND PRIOR TO PASSAGE OF TITLE TO THE PURCHASER, THE GOVERNMENT WILL BE RESPONSIBLE FOR THE CARE AND PROTECTION OF THE PROPERTY AND ANY LOSS, DAMAGE, OR DESTRUCTION OCCURRING DURING SUCH PERIOD WILL BE ADJUSTED BY THE CONTRACTING OFFICER. (2) AFTER PASSAGE OF TITLE TO THE PURCHASER, AND PRIOR TO THE DATE SPECIFIED FOR REMOVAL, THE GOVERNMENT'S RESPONSIBILITY WILL BE LIMITED TO THE EXERCISE OF REASONABLE CARE FOR THE PROTECTION OF THE PROPERTY. (3) AFTER THE DATE SPECIFIED FOR REMOVAL OF THE PROPERTY, ALL RISK OF LOSS, DAMAGE, OR DESTRUCTION FROM ANY CAUSE WHATSOEVER SHALL BE BORNE BY THE PURCHASER.'

YOU CONTEND THAT THE DAMAGE TO THE MACHINE OCCURRED DURING THE PERIOD BETWEEN DECEMBER 22, 1959, THE DATE OF YOUR INSPECTION OF THE MACHINE PRIOR TO AWARD OF THE SALE CONTRACT, AND FEBRUARY 23, 1960, WHEN YOU WENT TO PICK IT UP. A DIFFERENT VIEWPOINT, HOWEVER, IS TAKEN BY REPRESENTATIVES OF THE REDISTRIBUTION AND MARKETING DIVISION PERSONNEL WHO HAVE STATED THAT THE PROPERTY IN QUESTION WAS EXTENSIVELY DAMAGED WHEN RECEIVED AT THE DISPOSAL ACTIVITY AND PRIOR TO ITS AVAILABILITY FOR INSPECTION BY PROSPECTIVE BUYERS, AND THAT THE ITEM HAS NOT SUSTAINED FURTHER DAMAGE WHILE UNDER THEIR SUPERVISION.

OUR OFFICE, HAVING NO FIRSTHAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE RELATIVE THERETO. IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENTS OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS. 3 COMP. GEN. 51; 15 ID. 253; 16 ID. 410; AND ID. 1105; AND 31 ID. 288.

ASSUMING, HOWEVER, BUT NOT ADMITTING, THAT ADDITIONAL DAMAGE TO THE EQUIPMENT OCCURRED DURING THE PERIOD ALLEGED BY YOU, YOUR ATTENTION IS INVITED TO THE STIPULATION IN GENERAL PROVISION 10 (3), ABOVE QUOTED.

ACCORDINGLY, SINCE THE MICROFILM PRINTING MACHINE WAS SOLD TO YOU ON AN "AS IS" AND "WHERE IS" BASIS WITHOUT EXPRESS OR IMPLIED WARRANTY OF ANY KIND, THERE APPEARS TO BE NO LEGAL BASIS FOR REFUNDING ANY PART OF THE PURCHASE PRICE PAID BY YOU UNDER CONTRACT NO. AF 33/604-S/506.