B-146402, SEP. 26, 1961

B-146402, SEP. 26, 1961

TO THE RADA SHOPFITTERS, LTD.:

WE REFER TO YOUR LETTER OF JUNE 29, 1961, REQUESTING RECONSIDERATION OF OUR CLAIMS DIVISION'S SETTLEMENT OF JUNE 15, 1961, WHICH DISALLOWED YOUR CLAIM FOR 740.18.3 POUNDS STERLING, REPRESENTING A PARTIAL REFUND OF THE PURCHASE PRICE OF SIX LOTS OF WIRE AND CABLE UNDERCONTRACT NO. (61-703/S- 59-543, DATED JUNE 19, 1959.

THE RECORD SHOWS THAT RADA SHOPFITTERS, LTD., ACTING THROUGH ITS AGENT, MR. J. KODESH, INSPECTED AND BID ON A NUMBER OF ITEMS LISTED IN SALES INVITATION NO. 61-703-S-59-89. RADA WAS THE SUCCESSFUL BIDDER ON TWENTY ITEMS AND WAS AWARDED A CONTRACT FOR THOSE ITEMS ON JUNE 19, 1959.

THE VOUCHER COPIES OF THE SHIPPING DOCUMENTS SHOW THAT THIRTEEN OF THE ITEMS WERE LOADED ON THREE VEHICLES DESIGNATED BY MR. KODESH AND REMOVED FROM RAF STATION BURTONWOOD ON JUNE 30, 1959. THE REMAINING SEVEN ITEMS WERE REMOVED ON JULY 6, 1959. MR. KODESH SIGNED THE VOUCHER COPIES OF THE SHIPPING DOCUMENTS FOR EACH OF THE TWENTY ITEMS, ACKNOWLEDGING RECEIPT OF THE MATERIAL.

BY LETTER OF JULY 24, 1959, MR. A. D. DION OF RADA SHOPFITTERS ADVISED THE CONTRACTING OFFICER THAT ITEMS NUMBERS 155, 156, 157, 206, 208 AND 228 WERE SHIPPED DIRECT FROM BURTONWOOD TO THE RHONNDA METAL CO., LTD., OF PORTH FOR REFINING TO RECOVER THE RESIDUAL COPPER. MR. DION STATED THAT THE COPPER CONTENT OF THE CABLES WAS ESTIMATED BY MR. KODESH AT 7 TONS, 9 CWTS., BUT AFTER ALL THE MATERIAL WAS REFINED THE RESIDUAL COPPER WAS FOUND TO BE 3 TONS, 11 CWTS, 0 QR. 5 LBS. MR. DION STATED THAT IN ORDER TO ESTABLISH THAT THERE COULD BE NO POSSIBILITY OF DISPUTE CONCERNING QUANTITIES, THE VEHICLES AND CONTENTS WERE WEIGHED AT BURTONWOOD PRIOR TO LEAVING, AND THE WEIGHTS TAKEN AT PORTH BY THE RHONNDA METAL CO. COINCIDED WITH THOSE TAKEN AT BURTONWOOD. MR. DION CONCLUDED FROM THESE FACTS THAT A SUBSTANTIAL AMOUNT OF MATERIAL WAS REMOVED FROM THE LOTS BETWEEN THE DATE OF INSPECTION AND THE REMOVAL FROM BURTONWOOD AND HE ASKED THE CONTRACTING OFFICER TO FURNISH SUFFICIENT WIRE AND CABLE TO MAKE UP THE DIFFERENCE BETWEEN THE YIELD OF COPPER ESTIMATED BY MR. KODESH AND THE ACTUAL YIELD REPORTED BY THE RHONNDA METAL CO.

THE CONTRACTING OFFICER REQUESTED AN INVESTIGATION OF THE ALLEGED SHORTAGES IN DELIVERY. STOREMAN G. WILLIAMS FURNISHED A STATEMENT THAT INSPECTION TO THE TIME OF DELIVERY TO MR. KODESH. THE CHIEF OF THE STORAGE UNIT REPORTED THAT A CHECK OF THE STOCKROOMS REVEALED NO PROPERTY BEARING THE IDENTIFICATION NUMBERS USED ON THE DISPUTED ITEMS. SINCE MR. KODESH SIGNED SHIPPING DOCUMENTS ACKNOWLEDGING RECEIPT OF THE PROPERTY IN QUESTION, THE CONTRACTING OFFICER DISALLOWED THE CLAIM FOR AN ADJUSTMENT, POINTING OUT THAT THE ITEMS WERE SOLD ON A "PRICE FOR THE LOT" BASIS AND CLAUSE 8 OF THE GENERAL SALES TERMS AND CONDITIONS PROVIDED THAT NO ADJUSTMENT FOR VARIATION IN QUANTITY WILL BE MADE WHEN AWARD IS ON SUCH BASIS.

APPEAL OF THE CONTRACTING OFFICER'S DECISION WAS TAKEN TO THE USAFE BOARD OF CONTRACT APPEALS AND TESTIMONY OF MR. KODESH AND MR. DION WAS PRESENTED AT A HEARING ON APRIL 19, 1960. THE GOVERNMENT INTRODUCED NO EVIDENCE AT THE HEARING, BUT RELIED ON ITS MOTION TO DISMISS THE APPEAL FOR LACK OF JURISDICTION ON THE PART OF THE BOARD. IN A DECISION DATED AUGUST 25, 1960, ESBCA NO. 60-3, THE BOARD DECIDED THAT THE RELIEF SOUGHT WAS IN THE NATURE OF DAMAGES FOR BREACH OF CONTRACT. SINCE THE BOARD HAD NO JURISDICTION IN MATTERS INVOLVING BREACH OF CONTRACT, IT GRANTED THE GOVERNMENT'S MOTION AND DISMISSED THE APPEAL.

AFTER STATING THE FACTS IN ACCORDANCE WITH THE TESTIMONY OF MR. KODESH AND MR. DION, THE BOARD ADDED THE FOLLOWING STATEMENT:

"* * * THIS BOARD IS PERSUADED THAT THE DESCRIPTIONS OF THE ITEMS INVOLVED IN THIS APPEAL WERE CORRECT AND ADEQUATE WITHIN A REASONABLE DEGREE, BUT THAT THE FULL AMOUNT OF ELECTRICAL WIRE AND CABLE SO DESCRIBED AND IN THOSE LOTS WAS NOT DELIVERED TO THE APPELLANT. WE ARE UNABLE TO DETERMINE FROM THE RECORD, HOWEVER, WHAT WAS MISSING FROM ANY PARTICULAR LOT; NOR CAN WE SPECULATE REGARDING THE DISPOSITION OF THE MISSING MATERIAL. THE RESOLUTION OF THESE QUESTIONS IS NOT NECESSARY FOR THE DECISION OF THIS BOARD.'

ON OCTOBER 13, 1960, THE BOARD DENIED THE GOVERNMENT'S MOTION TO VACATE AND STRIKE THE LANGUAGE QUOTED ABOVE. DESPITE THE BOARD'S DENIAL OF THE MOTION, WE ARE INCLINED TO THE VIEW THAT THE LANGUAGE QUOTED IS MERE OBITER DICTUM, SINCE THE BOARD'S DECISION WAS THAT IT HAD NO JURISDICTION TO GRANT RELIEF AND IT IS OUR OPINION THAT NO FINDING OF FACT WAS NECESSARY IN ARRIVING AT THAT DECISION.

EVEN IF WE ASSUME, FOR THE PURPOSE OF ARGUMENT, THAT THE STATEMENT BY THE BOARD SHOULD BE TREATED AS A FINDING OF FACT, IT IS NOT A FINDING OF SUFFICIENT PARTICULARITY TO JUSTIFY PAYMENT OF THE AMOUNT CLAIMED. THE CLAIM IS BASED ON THE DIFFERENCE BETWEEN MR. KODESH'S ESTIMATE OF A YIELD OF 7 TONS, 10 CWTS. OF COPPER AND THE ACTUAL AMOUNT OF COPPER RECOVERED, 3 TONS, 11 CWTS., 5 LBS. THE BOARD DID NOT FIND THAT AN IDENTIFIABLE AMOUNT OF MATERIAL WAS MISSING WHICH WOULD HAVE INCREASED THE YIELD OF COPPER TO EQUAL THE TOTAL ESTIMATED AMOUNT. IN ADDITION, THE BOARD LEFT UNRESOLVED A NUMBER OF QUESTIONS SUCH AS WHETHER MATERIAL WAS REMOVED FROM THE LOTS BEFORE OR AFTER PASSAGE OF TITLE AND WHETHER THE RISK OF LOSS WAS ON THE GOVERNMENT OR THE PURCHASER AT THE TIME MATERIAL WAS LOST. ANOTHER QUESTION REGARDING THE CLAIM ARISES FROM THE FACT THAT MR. KODESH TESTIFIED THAT THE GROSS WEIGHT OF THE TWO LORRIES OF RHONNDA METAL CO. WAS 48,000 POUNDS WHEN LOADED AT BURTONWOOD, BUT RHONNDA CERTIFIED THE GROSS WEIGHT UPON ARRIVAL AT PORTH TO BE 18 TONS, 13 CWTS. AND 2 QUARTERS, OR 41,832 POUNDS. WE ARE AWARE OF NO THEORY OF LIABILITY UNDER WHICH THE GOVERNMENT COULD BE CHARGED WITH RESPONSIBILITY FOR 6,168 POUNDS OF MATERIAL WHICH WAS LOADED ON RHONDA'S LORRIES AT BURTONWOOD BUT WHICH DID NOT ARRIVE AT PORTH.

IT IS NOT PRIMARILY THE FUNCTION OF OUR OFFICE TO RESOLVE DISPUTED QUESTIONS OF FACT, BUT RATHER TO DETERMINE WHETHER THE RECORD BEFORE US IS SUCH THAT IT CLEARLY AUTHORIZES PAYMENT OF GOVERNMENT FUNDS. WHEN THE FACTS OF A CASE RAISE A QUESTION AS TO THE PROPRIETY OR VALIDITY OF A CLAIM IT IS NOT ONLY THE RIGHT BUT THE DUTY OF ACCOUNTING OFFICERS OF THE GOVERNMENT TO REJECT THE CLAIM AND LEAVE THE CLAIMANT TO HIS REMEDY IN A COURT OF LAW. LONGWILL V. UNITED STATES, 17 CT.CL. 288; CHARLES V. UNITED STATES, 19 CT.CL. 316.

IN VIEW OF THE MANY QUESTIONS WHICH REMAIN UNRESOLVED IN THIS MATTER, EVEN WHEN THE FACTS ARE CONSTRUED MOST STRICTLY AGAINST THE GOVERNMENT, WE MUST CONCLUDE THAT YOUR CLAIM REMAINS UNPROVEN AND THERE IS NO BASIS UPON WHICH WE MAY ALLOW PAYMENT OF THE AMOUNT CLAIMED. ACCORDINGLY, THE DISALLOWANCE OF JUNE 15, 1961, IS SUSTAINED.