B-147912, MAY 8, 1962

B-147912: May 8, 1962

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TO AMERICAN NICKEL ALLOY MANUFACTURING CORP: FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26. INCLUDING ITEM NO. 7 HERE INVOLVED WHICH WAS LISTED AND DESCRIBED ON PAGE 8 OF THE INVITATION AS FOLLOWS: "INCONEL SOLIDS. WITH THE NOTATION PLACED THEREON THAT "THIS BID IS MADE WITH THE EXPRESS STIPULATION THAT WE WILL ACCEPT ONLY INCONEL SCRAP AS ADVERTISED.'. YOUR BID WAS ACCEPTED AND AWARD OF ITEM NO. 7 WAS MADE TO YOU. AFTER THE MATERIAL PURCHASED UNDER THE CONTRACT WAS RECEIVED AT YOUR COMPANY'S WEEKAWKEN. THAT THERE WAS RECEIVED WITH THE BOX OF MATERIAL A BILL OF LADING WHICH SHOWED THAT ONE BOX OF A GROSS WEIGHT OF 920 POUNDS WAS SHIPPED FROM THE NAVAL ORDNANCE PLANT. YOU STATED THAT THE BOX WAS UNDAMAGED WHEN RECEIVED.

B-147912, MAY 8, 1962

TO AMERICAN NICKEL ALLOY MANUFACTURING CORP:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 26, 1961, RELATIVE TO YOUR CLAIM FOR $65.42 REPRESENTING A PARTIAL REFUND OF THE AMOUNT PAID BY YOU FOR CERTAIN GOVERNMENT SALVAGE MATERIAL PURCHASED FROM THE GOVERNMENT UNDER AN UNNUMBERED CONTRACT (BID INVITATION NO. 15-010-S-62- 8).

UNDER THE INVITATION CONSOLIDATED SURPLUS SALES OFFICE, LEXINGTON SIGNAL DEPOT, UNITED STATES ARMY, LEXINGTON, KENTUCKY, OFFERED FOR SALE A NUMBER OF ITEMS OF SALVAGE GOVERNMENT PROPERTY, INCLUDING ITEM NO. 7 HERE INVOLVED WHICH WAS LISTED AND DESCRIBED ON PAGE 8 OF THE INVITATION AS FOLLOWS:

"INCONEL SOLIDS, SCRAP: 800 LBS.'

IN RESPONSE TO THE INVITATION YOU SUBMITTED A BID OF $0.47112 PER POUND, AND A TOTAL OF $376.90 FOR THE ADVERTISED QUANTITY SHOWN UNDER ITEM NO. 7, WITH THE NOTATION PLACED THEREON THAT "THIS BID IS MADE WITH THE EXPRESS STIPULATION THAT WE WILL ACCEPT ONLY INCONEL SCRAP AS ADVERTISED.' YOUR BID WAS ACCEPTED AND AWARD OF ITEM NO. 7 WAS MADE TO YOU.

AFTER THE MATERIAL PURCHASED UNDER THE CONTRACT WAS RECEIVED AT YOUR COMPANY'S WEEKAWKEN, NEW JERSEY, PLANT, YOU ADVISED THE CONTRACTING OFFICER, IN LETTER DATED OCTOBER 16, 1961, THAT THERE WAS RECEIVED WITH THE BOX OF MATERIAL A BILL OF LADING WHICH SHOWED THAT ONE BOX OF A GROSS WEIGHT OF 920 POUNDS WAS SHIPPED FROM THE NAVAL ORDNANCE PLANT, LOUISVILLE, KENTUCKY, VIA RISS AND COMPANY. YOU STATED THAT THE BOX WAS UNDAMAGED WHEN RECEIVED, BUT THAT IT WEIGHED ONLY 871 POUNDS, OR 49 POUNDS SHORT. YOU STATED FURTHER THAT UPON EXAMINATION OF THE CONTENTS OF THE BOX IT WAS FOUND TO CONTAIN 572 POUNDS OF INCONEL SCRAP AND 200 POUNDS OF A DIFFERENT NICKEL CHROME ALLOY SCRAP. YOU ALLEGED THAT WHEN THE 200 POUNDS OF THE DIFFERENT NICKEL CHROME ALLOY WAS ANALYZED BY THE INTERNATIONAL TESTING LABORATORIES IT WAS FOUND TO HAVE A NICKEL CONTENT OF ONLY 35 PERCENT WHICH IS NOT INCONEL, AND A VALUE OF ONLY $0.21 PER POUND. YOU THEN FILED A CLAIM FOR REFUND OF $65.42, WHICH REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT OF $376.90 PAID BY YOU FOR THE 800 POUNDS OF INCONEL SOLIDS, SCRAP ADVERTISED UNDER ITEM NO. 7 AND THE VALUE OF THE 772 POUNDS OF MATERIAL ALLEGEDLY RECEIVED BY YOU, COMPUTED AS FOLLOWS:

TABLE

572 POUNDS OF INCONEL SCRAP AT $0.47112 PER POUND $269.48

200 POUNDS OF 35 PERCENT NICKEL ALLOY AT $0.21 PER POUND 42.00

$311.48

THE RECORD SHOWS THAT WHEN THE MATERIAL IN ITEM NO. 7 WAS DISPLAYED FOR SALE BY THE NAVAL ORDNANCE PLANT, THE WOODEN BOX WAS PLACED ON A SCALE, WHICH SHOWED ITS WEIGHT AS 120 POUNDS, AND THEN SCRAP INCONEL WAS PLACED THEREIN BY HAND UNTIL THE SCALE REGISTERED 920 POUNDS. NOTHING WAS REMOVED FROM THE BOX PRIOR TO THE TIME THE TOP WAS NAILED ON IT AND IT WAS SHIPPED TO YOU, WITH A GROSS WEIGHT AT THE TIME OF RELEASE TO THE CARRIER OF 920 POUNDS. UNDER PARAGRAPH 9 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES CONTRACT IT IS PROVIDED THAT "GOVERNMENT-APPROVED WEIGHING SHALL ESTABLISH THE EXACT PURCHASE PRICE AND GOVERN THE MAKING OF FULL PAYMENT" UNDER THE SALE. CONSEQUENTLY, YOUR CLAIM OF A 28-POUND SHORTAGE (800 POUNDS LESS 772 ALLEGED TO HAVE BEEN RECEIVED BY YOU) IN THE TOTAL WEIGHT OF THE MATERIAL DELIVERED TO YOU, BEING BASED UPON A WEIGHING OF THE MATERIAL ON YOUR SCALES, AFFORDS NO LEGAL BASIS FOR ALLOWING A REFUND OF ANY PART OF THE PURCHASE PRICE UNDER THE CONTRACT ON THE GROUND OF A SHORTAGE OF MATERIAL DELIVERED. HOWEVER, IN VIEW OF THE STIPULATION IN YOUR BID THAT YOU WOULD ACCEPT ONLY INCONEL SCRAP AS ADVERTISED, IT IS PROPOSED TO AUTHORIZE, IN FINAL SETTLEMENT OF YOUR CLAIM UNDER THE CONTRACT, A REFUND OF $52.22 REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT YOU PAID AT YOUR BID PRICE OF $0.47112 PER POUND AND THE FAIR MARKET VALUE OF $0.21 PER POUND FOR THE 200 POUNDS OF MATERIAL DELIVERED TO YOU WHICH WAS FOUND NOT TO BE INCONEL.

THEREFORE, UPON RECEIPT OF ADVICE THAT YOU ARE WILLING TO ACCEPT SETTLEMENT UNDER THESE CONDITIONS, YOUR CLAIM WILL BE SETTLED ACCORDINGLY.