B-158900, JUN. 22, 1966

B-158900, JUN. 22, 1966

TO AMERICAN NICKEL ALLOY MANUFACTURING CORP.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 25, 1966, WHEREIN YOU REFER TO YOUR DECISION OF MAY 9, 1966, B-158900, IN WHICH WE SUSTAINED THE ACTION OF OUR CLAIMS DIVISION IN DISALLOWING YOUR CLAIM FOR $450, REPRESENTING A PORTION OF THE AMOUNT PAID BY YOU TO THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA, FOR CERTAIN PROPERTY PURCHASED UNDER SALES CONTRACT NO. DSA-25-S-7252.

YOU CLAIM AN ADJUSTMENT IN THE SALES PRICE FOR SHORT WEIGHT OF SEVEN ARTICLES OF NICKEL ALLOY DUCT WELDMENT PURCHASED BY YOU AND YOU CONTEND THAT PARAGRAPH 8 (ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT) OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES FOR SUCH AN ADJUSTMENT.

AS STATED IN OUR DECISION, THE EXPRESS DISCLAIMER OF WARRANTY IN THE INVITATION PRECLUDES A CLAIM BASED ON MISDESCRIPTION IN THE ABSENCE OF EVIDENCE OF BAD FAITH OR FRAUD ON THE PART OF THE GOVERNMENT. THEREFORE, REGARDLESS OF THE WEIGHT OF THE MATERIAL, NO ADJUSTMENT OF THE PURCHASE PRICE MAY BE GRANTED ON ACCOUNT OF ANY ERROR IN THE DESCRIPTION OF THE MATERIAL. ALSO, IN THE DECISION WE STATED THAT THE ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT CLAUSE, PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS, HAS NO APPLICATION TO YOUR CASE. IT WAS POINTED OUT IN THE DECISION THAT THE ADJUSTMENT IN PARAGRAPH 8 APPLIES TO WEIGHT WHERE THE SALE IS OFFERED IN TERMS OF WEIGHT BUT WHERE, AS HERE, THE SALE IS OFFERED IN TERMS OF QUANTITY (7 EA), THE ADJUSTMENT APPLIES ONLY TO A VARIANCE IN QUANTITY.

IN YOUR LETTER REQUESTING REVIEW YOU STATE THAT PARAGRAPH 8 DOES NOT SAY THAT AN ADJUSTMENT APPLIES TO WEIGHT ONLY WHERE A SALE IS OFFERED IN TERMS OF WEIGHT, AND THAT IT APPLIES TO A VARIANCE IN QUANTITY ONLY IF THE SALE IS IN THE TERM OF QUANTITY (7 EA). YOU ALSO STATE THAT WHILE OUR INTERPRETATION MAY EVEN BE THE MEANING OF THE WORDING OF PARAGRAPH 8, YOUR FIRM ACTED BY THE WORDING ALONE WHICH, YOU ALLEGE, IS THAT AN ADJUSTMENT WILL BE MADE ON THE BASIS OF QUANTITY OR WEIGHT. FINALLY, YOU STATE THAT WHILE IT IS TRUE THAT SEVEN UNITS WERE OFFERED AND THAT YOU RECEIVED SEVEN UNITS, THE FACT NEVERTHELESS REMAINS THAT THE INVITATION ALSO SHOWED AN ESTIMATED TOTAL WEIGHT WHICH, YOU CONTEND, FALLS UNDER THE "GUARANTEED DESCRIPTION CLAUSE," AND THAT YOUR FIRM RECEIVED ONLY APPROXIMATELY ONE- HALF OF THIS WEIGHT.

OUR INTERPRETATION OF THE PROVISIONS OF PARAGRAPH 8 IS NOT WITHOUT ANY FOUNDATION. YOUR ATTENTION IS AGAIN INVITED TO THE CASE OF WESTERN NON- FERROUS METALS CORP. V. UNITED STATES, 192 F.SUPP. 774, A CASE INVOLVING A SALE OF SURPLUS PROPERTY ON A UNIT BASIS AND INVOLVING A PROVISION SIMILAR TO PARAGRAPH 8. IN THAT CASE THE COURT HELD THE PROVISION INAPPLICABLE AS A BASIS FOR RECOVERY, STATING THAT THE ESTIMATED WEIGHT IN THE SALES INVITATION WAS OFFERED ONLY AS PART OF THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY AND NOT AS A MEASURE OF QUANTITY, AND THAT THE UNIT OF SALE WAS "EACH" OR BY THE PIECE, RATHER THAN BY WEIGHT. SINCE THE NUMBER OF PIECES OFFERED WAS ACTUALLY DELIVERED, RECOVERY WAS DENIED. ANOTHER CASE INVOLVING A SALE OF SURPLUS PROPERTY ON A UNIT BASIS AND INVOLVING A PROVISION SIMILAR TO PARAGRAPH 8 WAS THAT OF PAUL VARKELL AND HYMAN NUTKIS V. UNITED STATES, 167 CT.CL. 522 (1964). IN THAT CASE THE UNITED STATES COURT OF CLAIMS HELD THAT THE PLAINTIFF WAS NOT ENTITLED TO RELIEF BECAUSE THE ROLLS OF FILM, WHICH HE HAD PURCHASED ON A PER ROLL BASIS, CONTAINED 100 FEET OF FILM RATHER THAN 400 FEET OF FILM AS STATED IN THE INVITATION.

IN REGARD TO YOUR STATEMENT THAT THE ESTIMATED TOTAL WEIGHT SHOWN IN THIS INVITATION FOR ITEM 77 IS COVERED BY THE "GUARANTEED DESCRIPTION CLAUSE," YOUR ATTENTION IS INVITED TO THAT PART OF SUB-PARAGRAPH (2) OF THE CLAUSE WHICH PROVIDES THAT "ESTIMATES AS TO "WEIGHT" OF PROPERTY OFFERED FOR SALE BY THE "UNIT" ARE NOT GUARANTEED.'