B-145602, MAY 3, 1961

B-145602: May 3, 1961

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED APRIL 13. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 110AND 122 ON MARCH 9. IT IS STATED THAT ON MARCH 17. HE WAS ADVISED THAT THE WELDER UNIT COVERED BY ITEM 122 WAS NOT AVAILABLE AS IT HAD BEEN WITHDRAWN FROM THE INVITATION AND DONATED TO THE STATE OF LOUISIANA. IT IS FURTHER STATED THAT THE NAVAL ORDNANCE PLANT ADVISED THE CONSOLIDATED SURPLUS SALES OFFICE BY LETTER OF JANUARY 27. THAT ITEM 122 WAS TO BE WITHDRAWN FROM THE SALES INVITATION FOR DONATION TO THE STATE OF LOUISIANA AND THAT THE ITEM HAD BEEN SHIPPED TO THE DONEE. THAT THROUGH ADMINISTRATIVE ERROR ITEM 122 WAS NOT MARKED "WITHDRAWN" ON THE SALES INVITATION.

B-145602, MAY 3, 1961

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED APRIL 13, 1961, WITH ENCLOSURES, FROM THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO WHETHER THE REQUEST OF THE DOCKERY MANUFACTURING COMPANY, ROCKINGHAM, NORTH CAROLINA, FOR RELIEF UNDER CONTRACT NO. N63067-3069 MAY BE GRANTED.

THE CONSOLIDATED SURPLUS SALES OFFICE, NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, BY INVITATION NO. B-139-61-63067, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS SURPLUS MACHINE TOOLS LOCATED AT THE NAVAL ORDNANCE PLANT, SOUTH CHARLESTON, WEST VIRGINIA. ITEM 110 COVERED ONE PRESS AND ITEM 122 COVERED ONE WELDER UNIT. IN RESPONSE THE DOCKERY MANUFACTURING COMPANY SUBMITTED A BID DATED FEBRUARY 24, 1961, OFFERING TO PURCHASE, AMONG OTHER ITEMS, THE PRESS COVERED BY ITEM 110 AT A PRICE OF $288 AND TO PURCHASE THE WELDER UNIT COVERED BY ITEM 122 AT A PRICE OF $128. THE BID OF THE COMPANY WAS ACCEPTED AS TO ITEMS 110AND 122 ON MARCH 9, 1961.

IN A REPORT DATED MARCH 24, 1961, FROM THE OFFICER IN CHARGE, CONSOLIDATED SURPLUS SALES OFFICE, TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, IT IS STATED THAT ON MARCH 17, 1961, WHEN MR. DOCKERY OF THE DOCKERY MANUFACTURING COMPANY VISITED THE NAVAL SUPPLY CENTER FOR THE PURPOSE OF PICKING UP THE MACHINE TOOLS COVERED BY ITEMS 110 AND 122 AND OTHER ITEMS PURCHASED UNDER OTHER INVITATIONS, HE WAS ADVISED THAT THE WELDER UNIT COVERED BY ITEM 122 WAS NOT AVAILABLE AS IT HAD BEEN WITHDRAWN FROM THE INVITATION AND DONATED TO THE STATE OF LOUISIANA. IT IS FURTHER STATED THAT THE NAVAL ORDNANCE PLANT ADVISED THE CONSOLIDATED SURPLUS SALES OFFICE BY LETTER OF JANUARY 27, 1961, THAT ITEM 122 WAS TO BE WITHDRAWN FROM THE SALES INVITATION FOR DONATION TO THE STATE OF LOUISIANA AND THAT THE ITEM HAD BEEN SHIPPED TO THE DONEE; AND THAT THROUGH ADMINISTRATIVE ERROR ITEM 122 WAS NOT MARKED "WITHDRAWN" ON THE SALES INVITATION.

BY LETTER DATED MARCH 20, 1961, MR. DOCKERY OF THE DOCKERY MANUFACTURING COMPANY ADVISED THAT HE HAD INSPECTED ITEM 122 AT THE HOLDING ACTIVITY AT THE SAME TIME INSPECTION WAS MADE OF ITEM 10; THAT AFTER RECEIVING THE AWARD, HE SOLD BOTH ITEMS AT A PROFIT TO A SINGLE CUSTOMER; THAT HIS INABILITY TO DELIVER THE UNITS COVERED BY ITEMS 110 AND 122 HAS CAUSED HIM TO LOSE THE SALE OF BOTH ITEMS AND THAT THEREFORE HE WAS REQUESTING CANCELLATION OF THE CONTRACT WITHOUT LIABILITY TO THE COMPANY. MR. DOCKERY ALSO STATED THAT THE COMPANY HAS A TRAILER LOAD OF ITEMS BOUGHT ON OTHER SALES, THAT THERE IS NOT ROOM FOR ITEM 110, AND THAT IF HE IS FORCED TO PICK UP THAT ITEM IT WILL COST THE COMPANY ANOTHER $100 BESIDES THE LOST PROFIT.

SINCE MR. DOCKERY'S APPARENT AGREEMENT TO WAIVE ANY RIGHTS HE MIGHT HAVE IN RESPECT TO THE GOVERNMENT'S FAILURE TO DELIVER ITEM 122 TO HIM WOULD APPEAR TO BE ADEQUATE CONSIDERATION FOR RELIEVING HIM OF THE OBLIGATION TO PURCHASE ITEM 110, CONTRACT NO. N63067-3069 SHOULD BE CANCELED WITHOUT LIABILITY.