B-147941, FEB. 1, 1962

B-147941, FEB. 1, 1962

TO UNION SPECIAL MACHINE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 5, 1962, REQUESTING A REVIEW OF OUR SETTLEMENT DATED AUGUST 8, 1961, DISALLOWING YOUR CLAIM OF $355.46 UNDER CONTRACT NO. 45-021-0I-15-59, DATED DECEMBER 30, 1958.

UNDER THE CONTRACT YOU AGREED TO FURNISH TO THE DEPARTMENT OF THE ARMY, MT. RAINIER ORDNANCE DEPOT, TACOMA, WASHINGTON, FIVE INDUSTRIAL TYPE SEWING MACHINES IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THE APPLICABLE INVITATION FOR BIDS, SPECIFICATIONS, ETC., FOR A TOTAL PRICE OF $5,472.80. THE SEWING MACHINES WERE RECEIVED AT THE ORDNANCE DEPOT ON FEBRUARY 2, 1959, AND WERE TO BE INSTALLED BY A FACTORY REPRESENTATIVE OF YOUR COMPANY. SUBSEQUENTLY, IT WAS AGREED BETWEEN YOU AND THE ORDNANCE DEPOT THAT THERE WOULD BE RETURNED TO YOU TWO EACH OF THE NO. 51500BL, TWO NEEDLE MACHINES, IN EXCHANGE FOR TWO EACH OF THE NO. 53700B, ONE NEEDLE MACHINE, AS THE LATTER MACHINE WOULD BE MORE EFFICIENT IN THE TYPE OF WORK TO BE PERFORMED. AS A RESULT, MODIFICATION NO. 1 WAS EXECUTED ON APRIL 6, 1959, TO CONTRACT NO. 45 021-0I-15-59 TO EFFECT THIS CHANGE AND BY REASON OF THE MODIFICATION THE TOTAL CONTRACT PRICE WAS REDUCED FROM $5,472.80 TO $5,172.80. IT IS YOUR CONTENTION THAT WHILE THE MODIFICATION CONTEMPLATED THAT CERTAIN ITEMS, WHICH GO TO MAKE UP A COMPLETE INDUSTRIAL SEWING MACHINE WOULD BE RETURNED TO YOU IN THE EXCHANGE OF THE TWO MACHINES, SUCH ITEMS WERE NOT RETURNED AND, IN ADDITION, CERTAIN OTHER ITEMS OF THIS KIND WERE RETURNED IN A DAMAGED CONDITION. YOU PLACE A TOTAL VALUE OF $355.46 ON THESE UNRETURNED AND DAMAGED ITEMS, WHICH CONSTITUTES YOUR CLAIM.

MODIFICATION NO. 1 TO CONTRACT NO. 45-021-0I-15-59 WAS, OF COURSE, UNEQUIVOCALLY AGREED TO, AND IN EFFECTING THE EXCHANGE UNDER THE MODIFICATION IT IS NOTED, AS STATED IN OUR SETTLEMENT OF AUGUST 8, 1961, THAT A FACTORY REPRESENTATIVE OF YOUR COMPANY, WHO APPARENTLY WAS THE SAME PERSON WHO INSTALLED THE MACHINES AT THE ORDNANCE DEPOT, BOXED ALL PARTS AND ACCESSORIES THAT WERE NOT INSTALLED FOR RETURN TO YOU. THEREFORE, SINCE IT MUST BE ASSUMED THAT THIS REPRESENTATIVE WAS A PROPERLY AUTHORIZED AGENT OF YOUR COMPANY AND WAS FULLY AWARE OF YOUR RIGHTS UNDER THE EXCHANGE AGREEMENT, AND SINCE HE PERSONALLY BOXED AND CRATED THE ITEMS FOR RETURN, THERE MAY NOT BE IMPOSED UPON THE GOVERNMENT ANY LEGAL LIABILITY FOR THE ALLEGED FAILURE--- NOT PROVEN IN THE RECORD--- TO RETURN ANY ITEMS OR FOR ANY ITEMS RETURNED IN A DAMAGED CONDITION.

ACCORDINGLY, SINCE PAYMENT HAS BEEN MADE TO YOU IN THE FULL AMOUNT OF THE CONTRACT PRICE OF $5,172.80, AS MODIFIED, THE SETTLEMENT OF AUGUST 8, 1961, IS SUSTAINED.