B-144593, DEC. 27, 1960

B-144593: Dec 27, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

INC.: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 16. YOU CONTEND THAT THE ALLOWANCE OF 250 POUNDS FOR ICE AND SNOW IN THE MATERIAL DELIVERED TO YOU WAS INADEQUATE BECAUSE THE "ACTUAL WEIGHT OF THE ICE. SNOW AND/OR WATER" WAS 1. 108 POUNDS MORE THAN THE 250-POUND ALLOWANCE FOR WHICH ADJUSTMENT OF $57.58 WAS MADE IN THE CONTRACT PRICE AT THE TIME OF DELIVERY OF THE MATERIAL TO YOU. WHICH ALLOWANCE WAS CONSIDERED BY HIM TO BE FAIR AND REASONABLE AND TO WHICH YOU AGREED. THE MATERIAL WAS REMOVED TO YOUR WAREHOUSE AND WAS REWEIGHED BY YOU SOMETIME THEREAFTER WITHOUT GOVERNMENT SUPERVISION. THE BURDEN IS ON THE CLAIMANT TO PROVE ITS CLAIM AND ALL MATTERS INCIDENT THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT.

B-144593, DEC. 27, 1960

TO METAL RECLAIMING COMPANY OF NEW YORK, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 16, 1960, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED OCTOBER 17, 1960, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $255.18 REPRESENTING A PART OF THE AMOUNT YOU PAID THE GOVERNMENT FOR CERTAIN SCRAP BRASS PURCHASED BY YOU FROM THE DEPARTMENT OF THE ARMY, FRANKFORD ARSENAL, UNDER SALES CONTRACT NO. DAI-36-038-507-ORD-S-98.

YOU CONTEND THAT THE ALLOWANCE OF 250 POUNDS FOR ICE AND SNOW IN THE MATERIAL DELIVERED TO YOU WAS INADEQUATE BECAUSE THE "ACTUAL WEIGHT OF THE ICE, SNOW AND/OR WATER" WAS 1,358 POUNDS, OR 1,108 POUNDS MORE THAN THE 250-POUND ALLOWANCE FOR WHICH ADJUSTMENT OF $57.58 WAS MADE IN THE CONTRACT PRICE AT THE TIME OF DELIVERY OF THE MATERIAL TO YOU. YOU, THEREFORE, REQUEST REFUND OF $255.18, THE PURCHASE PRICE PAID FOR THE 1,108 POUNDS.

THE RECORD SHOWS THAT THE PROPERTY DISPOSAL OFFICER, PRIOR TO DELIVERY TO YOU OF THE MATERIAL PURCHASED UNDER THE CONTRACT, MADE AN ADJUSTMENT IN THE CONTRACT PRICE ON THE BASIS OF AN ALLOWANCE OF 250 POUNDS ON ACCOUNT OF ICE AND SNOW IN THE MATERIAL, WHICH ALLOWANCE WAS CONSIDERED BY HIM TO BE FAIR AND REASONABLE AND TO WHICH YOU AGREED. THE MATERIAL WAS REMOVED TO YOUR WAREHOUSE AND WAS REWEIGHED BY YOU SOMETIME THEREAFTER WITHOUT GOVERNMENT SUPERVISION.

THE BURDEN IS ON THE CLAIMANT TO PROVE ITS CLAIM AND ALL MATTERS INCIDENT THERETO REQUISITE TO ESTABLISH THE CLEAR LEGAL LIABILITY OF THE UNITED STATES AND THE CLAIMANT'S RIGHT TO PAYMENT. THE ONLY EVIDENCE SUBMITTED BY YOU TO SUBSTANTIATE YOUR CLAIM CONSISTS OF YOUR MORE SELF-SERVING STATEMENT THAT THE "ACTUAL WEIGHT OF ICE, SNOW AND/OR WATER WAS 1,358 POUNDS," OR, 1,108 POUNDS IN EXCESS OF THE 250 POUNDS ALREADY ALLOWED ON THAT ACCOUNT. SUCH SELF-SERVING DECLARATION MAY NOT BE ACCEPTED AS EVIDENCE TO ESTABLISH YOUR CLAIM.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 17, 1960, DISALLOWING YOUR CLAIM, IS SUSTAINED.