B-142845, JUN. 9, 1960

B-142845: Jun 9, 1960

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MAURICE ZAJAC: REFERENCE IS MADE TO YOUR LETTER OF APRIL 22. YOUR CLAIM IS ITEMIZED AS COVERING 1. - WERE SOLICITED ON 76 ITEMS OF SURPLUS GOVERNMENT PROPERTY. AWARD WAS MADE TO MEL. PAYMENT OF THE AMOUNT OF THE BID WAS COMPLETED ON MAY 17. THAT INFORMATION WAS REPEATED IN YOUR LETTER OF AUGUST 16. STATED THAT THE EXTRA GOODS NOT LISTED IN THE INVITATION WERE FOUND IN FIVE BALES MARKED "SHIRTS. SINCE THE GOODS WERE ADVERTISED AND SOLD ON A "PRICE FOR THE LOT" BASIS. ALSO STATED THAT HE WAS WITHOUT AUTHORITY TO SETTLE YOUR CLAIM SINCE. IT WAS BASED ON A MISREPRESENTATION BY THE GOVERNMENT. YOUR SUBSEQUENT APPEAL TO THE USAREUR BOARD OF CONTRACT APPEALS WAS DISMISSED BY THE BOARD AS UNTIMELY.

B-142845, JUN. 9, 1960

TO MR. MAURICE ZAJAC:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 22, 1960, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 4, 1959, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF DM 17,566.07 FOR PARTIAL REFUND OF AN AMOUNT PAID BY MEL. J. WATSON AND CO. FOR SURPLUS PROPERTY PURCHASED FROM THE USAREUR PROPERTY DISPOSAL OFFICER, GIESSEN QUARTERMASTER DEPOT, GIESSEN, GERMANY. IN YOUR LETTER OF APRIL 11, 1959, TO THE PROPERTY DISPOSAL DETACHMENT, FRANKFURT/MAIN, GERMANY, YOUR CLAIM IS ITEMIZED AS COVERING 1,129 COTTON SHIRTS AT DM 2.65 EACH AND 3,206 FLANNEL AND WORSTED SHIRTS AT DM 6 EACH, LESS A CREDIT OF DM 4,717.50 FOR JACKETS RECEIVED BY YOU NOT COVERED BY THE INVITATION.

BY INVITATION NO. DA/S) 91-503-EUC-55-37 DATED FEBRUARY 28, 1955, BIDS--- TO BE OPENED MARCH 29, 1955--- WERE SOLICITED ON 76 ITEMS OF SURPLUS GOVERNMENT PROPERTY, THE PROPERTY INCLUDED IN ITEM NO. 56 BEING DESCRIBED AS FOLLOWS:

TABLE "MISCELLANEOUS SHIRTS, CONSISTING OF 1 LOT

APPROXIMATELY THE FOLLOWING:

9,949 EA SHIRTS, COTTON, KHAKI; 7,125 EA SHIRTS, FLANNEL, OD;

721 EA SHIRTS, WORSTED; 2,400 EA SHIRTS, WOOL,

BLUE-BLACK; "

2,187 EA SHIRTS, HERRINGBONE TW. OD.

IN RESPONSE TO THE INVITATION, MEL. J. WATSON AND CO. SUBMITTED A BID ON SEVERAL ITEMS, INCLUDING A BID OF DM 85,250 ON ITEM NO. 56. ON APRIL 19, 1955, AWARD WAS MADE TO MEL. J. WATSON AND CO. ON ITEMS NOS. 15 AND 56 (CONTRACT NO. DA/S) 91-503-EUC-1115). PAYMENT OF THE AMOUNT OF THE BID WAS COMPLETED ON MAY 17, 1955, AND ON APRIL 25 AND MAY 25, 1955, THE CONTRACTOR AUTHORIZED YOU TO ACCEPT DELIVERY OF THE PROPERTY. YOU SIGNED FOR RECEIPT OF ITEM NO. 56 ON MAY 26, 1955.

IN A LETTER DATED JULY 23, 1955, KIFFE SALES COMPANY OF NEW YORK--- TO WHICH YOU HAD SOLD THE GOODS--- ADVISED THE CONTRACTING OFFICER THAT THE SHIPMENT (THEN AT ROTTERDAM) INCLUDED 8,820 COTTON KHAKI SHIRTS, 4,640 FLANNEL AND WORSTED SHIRTS, 2,400 WOOL SHIRTS, 2,220 HERRINGBONE JACKETS, 1,110 SERGE JACKETS, 2 BALES OF USED TROUSERS, 1 BALE OF USED TIES, AND 1 BALE OF USED PAILLASSES. THAT INFORMATION WAS REPEATED IN YOUR LETTER OF AUGUST 16, 1955, IN WHICH YOU ALLEGED A SHORTAGE OF 1,129 COTTON SHIRTS AND 3,206 FLANNEL AND WORSTED SHIRTS, AND YOU REQUESTED AN ADJUSTMENT. A REPORT DATED JULY 29, 1955, THE QUARTERMASTER MARKET CENTER, THE HAGUE, NETHERLANDS, STATED THAT THE EXTRA GOODS NOT LISTED IN THE INVITATION WERE FOUND IN FIVE BALES MARKED "SHIRTS," AND ONE BALE MARKED "JACKETS.'

THE CONTRACTING OFFICER DENIED YOUR CLAIM IN A LETTER DATED OCTOBER 26, 1955, SINCE THE GOODS WERE ADVERTISED AND SOLD ON A "PRICE FOR THE LOT" BASIS. IN YOUR LETTER OF NOVEMBER 18, 1955, YOU REQUESTED THE CONTRACTING OFFICER TO RECONSIDER HIS DECISION, STATING YOUR BELIEF THAT THE SHORTAGE RESULTED FROM NEGLIGENT LOSS OF THE GOODS AFTER THE SALE AND BEFORE DELIVERY AND STATING FURTHER THAT YOU ACCEPTED DELIVERY ON THE BASIS OF ASSURANCE BY THE CONTRACTING OFFICER AND COLONEL DELANEY THAT THEY WOULD RECOMMEND AN ADJUSTMENT. IN HIS REPLY DATED DECEMBER 16, 1955, THE CONTRACTING OFFICER NOTED THAT YOU HAD NOT APPEALED TO THE USAREUR BOARD OF CONTRACT APPEALS WITHIN 30 DAYS FROM RECEIPT OF HIS DECISION OF OCTOBER 26, 1955, AND ALSO STATED THAT HE WAS WITHOUT AUTHORITY TO SETTLE YOUR CLAIM SINCE, AS SET OUT IN YOUR LETTER OF NOVEMBER 18, 1955, IT WAS BASED ON A MISREPRESENTATION BY THE GOVERNMENT.

YOUR SUBSEQUENT APPEAL TO THE USAREUR BOARD OF CONTRACT APPEALS WAS DISMISSED BY THE BOARD AS UNTIMELY, SINCE YOU HAD NOT APPEALED WITHIN 30 DAYS FROM RECEIPT OF THE CONTRACTING OFFICER'S DECISION (USAREUR BCA NO. 47, NOVEMBER 20, 1957). UNDER DATE OF MAY 27, 1959, THE DEPARTMENT OF THE ARMY TRANSMITTED YOUR CLAIM TO THE GENERAL ACCOUNTING OFFICE FOR DIRECT SETTLEMENT AND BY SETTLEMENT DATED NOVEMBER 4, 1959, THE CLAIM WAS DISALLOWED FOR THE REASONS SET OUT THEREIN.

IT IS UNDERSTOOD FROM YOUR LETTER OF APRIL 22, 1960, THAT YOU AGREE THAT PARAGRAPHS 2 AND 8 OF THE GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATION FOR BIDS AND QUOTED IN THE SETTLEMENT WOULD NEGATIVE ANY CLAIM BASED ON SHORTAGE OR RECEIPT OF MATERIAL NOT CONFORMING TO THE DESCRIPTION IN THE INVITATION, IF THE ENTIRE LOT REFERRED TO IN THE INVITATION HAD BEEN DELIVERED TO YOU. YOU STATE, HOWEVER, AS THE BASIS OF YOUR CLAIM,"THAT AFTER THE GOODS WERE INSPECTED AND FOUND TO CORRESPOND WITH DESCRIPTION SOME WERE SUBSTITUTED "PRIOR TO PASSAGE OF TITLE TO THE PURCHASER" AND ACCORDING TO PAR. 10 OF GENERAL SALE TERMS AND CONDITIONS "LOSS SHOULD BE ADJUSTED BY THE CONTRACTING OFFICER.'" YOU STATE ALSO THAT THE SUBJECT CLAIM IS "ABSOLUTELY SIMILAR" TO TWO OTHER CLAIMS WHICH WERE ALLOWED BY THE USAREUR BOARD OF CONTRACT APPEALS (USAREUR BCA 44 AND USAREUR BCA 48) AND ON WHICH REFUNDS HAVE BEEN MADE TO YOU.

PARAGRAPH 10 OF THE GENERAL SALE TERMS AND CONDITIONS, REFERRED TO IN YOUR LETTER, PROVIDES:

"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.'

IN THE INSTANT MATTER, HOWEVER, THERE IS NOT FOUND ANY SATISFACTORY EVIDENCE THAT THE PROPERTY DELIVERED TO YOU WAS NOT THE IDENTICAL PROPERTY COVERED BY THE INVITATION. AT THE HEARING BEFORE THE BOARD OF CONTRACT APPEALS YOU TESTIFIED THAT THE LOT ADVERTISED CONTAINED APPROXIMATELY 250 BALES AND THAT YOU RECEIVED APPROXIMATELY 250 BALES. YOU ALSO TESTIFIED THAT YOU HAD INSPECTED ONLY 20 OR 25 BALES BEFORE THE SALE. HEREINABOVE STATED, IT IS REPORTED THAT EXCEPTING ONE BALE MARKED "JACKETS" ALL OF THE EXTRA GOODS DELIVERED WERE IN BALES MARKED "SHIRTS.'

WITH RESPECT TO YOUR CONTENTION THAT THE SUBJECT CLAIM IS "ABSOLUTELY SIMILAR" TO THE TWO OTHER CLAIMS ABOVE REFERRED TO (BCA 44 AND BCA 48), IT IS TO BE OBSERVED THAT IN BOTH BGA 44 AND BCA 48 THE GOVERNMENT AGENTS STATED THAT PORTIONS OF THE LOTS OF GOODS DESCRIBED IN THE INVITATIONS WERE NOT DELIVERED TO THE PURCHASER; AND THE USAREUR BOARD OF CONTRACT APPEALS HELD THAT THE SHORTAGES RESULTED FROM THE NEGLIGENCE OF THE GOVERNMENT IN BOTH CASES. IN THE INSTANT MATTER, HOWEVER, THE BOARD OF CONTRACT APPEALS DISMISSED YOUR APPEAL AS UNTIMELY AND MADE NO FINDING AS TO THE ALLEGED SHORTAGE; AND THE AGENTS OF THE GOVERNMENT STATE THAT THERE IS NO SATISFACTORY SHOWING THAT ANY GOODS ORIGINALLY INCLUDED IN ITEM NO. 56 OF THE INVITATION WERE NOT DELIVERED TO YOU.

MOREOVER, THE LOSS OR SUBSTITUTION OF PROPERTY APPEARS MUCH LESS PROBABLE IN THE INSTANT MATTER THAN IN THE TWO OTHER CASES MENTIONED (BCA 44 AND BCA 48) BECAUSE OF THE DIFFERENT DATES INVOLVED. WITH RESPECT TO BCA 44, THE BID OPENING WAS APRIL 14, 1955, AWARD WAS MADE JUNE 15, 1955, AND THE GOODS WERE DELIVERED AUGUST 22, 1955. AS TO BCA 48, THE BID OPENING WAS APRIL 26, 1955, AWARD WAS MADE JUNE 15, 1955, AND DELIVERY WAS MADE IN OCTOBER 1955. IN THE INSTANT MATTER (BCA 47), THE BID OPENING WAS MARCH 29, 1955, AWARD WAS MADE APRIL 19, 1955, AND DELIVERY WAS MADE MAY 26, 1955. IT THUS APPEARS THAT DELIVERY IN THE INSTANT MATTER WAS MADE APPROXIMATELY THREE MONTHS BEFORE DELIVERY IN THE CASE INVOLVED IN BCA 44 AND FIVE MONTHS BEFORE DELIVERY IN THE CASE INVOLVED IN BCA 48. THEREFORE, THE FACT THAT THERE WERE LOSSES OR SUBSTITUTIONS OF THE PROPERTY IN THE LATTER CASES WOULD NOT NECESSARILY INDICATE THAT THERE WAS A LOSS OR SUBSTITUTION OF PROPERTY IN THE INSTANT EARLIER CASE.

IN YOUR LETTER OF APRIL 22, 1960, IT IS STATED:

"THAT THE PROPERTY WAS SUBSTITUTED WAS DISCOVERED WHILE SAME WAS LOADED IN GOVERNMENT DEPOT, THE WRITER REFUSED TO ACCEPT THE PROPERTY, AND SUBSEQUENTLY IN ORDER TO AVOID STORAGE COSTS, ACCEPTED TO TAKE DELIVERY OF PROPERTY UPON THE CONTRACTING OFFICER'S UNDERTAKING THAT PURCHASE PRICE WILL BE ADJUSTED TO QUANTITY RECEIVED.'

HOWEVER, BOTH COLONEL DELANEY, CHIEF OF THE PROPERTY DISPOSAL DIVISION, QUARTERMASTER MARKET CENTER, AND MAJOR ALBRIGHT, THE CONTRACTING OFFICER, TESTIFIED, IN SUBSTANCE, AT A HEARING THAT THERE WAS A CONDITIONAL AGREEMENT WITH YOU THAT AFTER CONSIDERATION OF THE EVIDENCE FURNISHED BY YOU AND SUCH OTHER EVIDENCE AS COULD BE OBTAINED, AN ADJUSTMENT WOULD BE RECOMMENDED IF DEEMED PROPER, BUT THAT IN VIEW OF THE EVIDENCE AVAILABLE SUCH RECOMMENDATION WAS NOT WARRANTED.

IT LONG HAS BEEN THE ESTABLISHED RULE OF OUR OFFICE AND THE COURTS THAT THOSE ASSERTING CLAIMS AGAINST THE UNITED STATES HAVE THE BURDEN OF ESTABLISHING THEIR VALIDITY AND THE ACCOUNTING OFFICERS ARE NOT REQUIRED OR AUTHORIZED TO CERTIFY FOR PAYMENT CLAIMS NOT SO ESTABLISHED. LONGWILL V. UNITED STATES, 17 C.CLS. 288, 291; CHARLES V. UNITED STATES, 19 C.CLS. 316, 319; 18 COMP. GEN. 199; 26 ID. 776, 781.

FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR ALLOWANCE OF ANY PORTION OF YOUR CLAIM. THEREFORE, THE SETTLEMENT DATED NOVEMBER 4, 1959, DISALLOWING THE CLAIM, IS SUSTAINED.