B-159510, AUG. 18, 1966

B-159510: Aug 18, 1966

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BARESEL AG: REFERENCE IS MADE TO YOUR LETTER OF APRIL 29. WHICH WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED OCTOBER 15. YOU ARE FILING A CLAIM AS THE ACTUAL CONTRACTOR STATING THAT YOU CONSIDER STETTMUND'S CLAIM TO BE VALID AND OUR DISALLOWANCE AS UNSUBSTANTIATED. IN SUPPORT OF YOUR CLAIM YOU ALLEGE THAT RECEIPT OF THE MATERIAL WAS ACKNOWLEDGED IN WRITING BY OFFICERS AND NONCOMMISSIONED OFFICERS OF THE 94TH ENGINEER BATTALION AND THAT YOU ARE IN POSSESSION OF THE PERTINENT DELIVERY RECEIPTS. ESTABLISHES THAT THE ADDITIONAL SHIPMENT WAS IN FACT DELIVERED. YOU ALSO STATE THAT IT HAS BEEN SHOWN THAT THE EXCESS QUANTITY OF SAND DELIVERED WAS UTILIZED BY UNITS STATIONED IN THE BARRACKS FOR OTHER PROJECTS AND THAT THE TAKING OF THIS MATERIAL WAS UNLAWFUL AND WAS MADE WITHOUT YOUR CONSENT.

B-159510, AUG. 18, 1966

TO C. BARESEL AG:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 29, 1966, REQUESTING CONSIDERATION OF YOUR CLAIM FOR PAYMENT OF 900 TONS OF SAND DELIVERED BY YOUR SUBCONTRACTOR, RHEIN-KIES-UND SANDWERKE W. STETTMUND OHG., IN EXCESS OF THE QUANTITY ORDERED UNDER CONTRACT NO. DA-91-530-EUC-271 DATED MAY 17, 1963. YOUR SUBCONTRACTOR PREVIOUSLY SUBMITTED A CLAIM TO OUR CLAIMS DIVISION FOR DM 9,813.53 (WEST GERMANY CURRENCY) FOR THIS SAND DELIVERED DURING THE PERIOD JUNE 11, 1963, THROUGH JUNE 26, 1963, WHICH WAS DISALLOWED BY SETTLEMENT CERTIFICATE DATED OCTOBER 15, 1965. THE SETTLEMENT CERTIFICATE STATED THAT STETTMUND MAY NOT BE RECOGNIZED AS A DIRECT CLAIMANT IN THE MATTER INASMUCH AS THE CONTRACT ENTERED INTO BETWEEN THE GOVERNMENT OF THE UNITED STATES AND YOUR FIRM CONFERRED NO RIGHT UPON STETTMUND AGAINST THE UNITED STATES. ACCORDINGLY, YOU ARE FILING A CLAIM AS THE ACTUAL CONTRACTOR STATING THAT YOU CONSIDER STETTMUND'S CLAIM TO BE VALID AND OUR DISALLOWANCE AS UNSUBSTANTIATED.

IN SUPPORT OF YOUR CLAIM YOU ALLEGE THAT RECEIPT OF THE MATERIAL WAS ACKNOWLEDGED IN WRITING BY OFFICERS AND NONCOMMISSIONED OFFICERS OF THE 94TH ENGINEER BATTALION AND THAT YOU ARE IN POSSESSION OF THE PERTINENT DELIVERY RECEIPTS. THIS, YOU ALLEGE, ESTABLISHES THAT THE ADDITIONAL SHIPMENT WAS IN FACT DELIVERED. YOU ALSO STATE THAT IT HAS BEEN SHOWN THAT THE EXCESS QUANTITY OF SAND DELIVERED WAS UTILIZED BY UNITS STATIONED IN THE BARRACKS FOR OTHER PROJECTS AND THAT THE TAKING OF THIS MATERIAL WAS UNLAWFUL AND WAS MADE WITHOUT YOUR CONSENT. YOU CONTEND THAT OUR DISALLOWANCE OF THE CLAIM COMPLETELY IGNORES THIS FACT.

THE ADMINISTRATIVE REPORT INDICATES THAT THE SUBCONTRACTOR SHIPPED 964.40 TONS OF RIVER SAND OVER AND ABOVE THE QUANTITIES ORDERED. THE CONTRACTING OFFICER BY LETTER DATED AUGUST 23, 1963, REQUESTED THAT YOU OR YOUR SUBCONTRACTOR TAKE NECESSARY ACTION TO REMOVE THESE MATERIALS FROM THEIR PRESENT STORAGE PLACE AND THAT YOU ADVISE THE PURCHASING AND CONTRACTING OFFICER, STUTTGART POST, WHEN THIS HAS BEEN ACCOMPLISHED. NEITHER YOUR FIRM NOR YOUR SUBCONTRACTOR ATTEMPTED TO REMOVE THE MATERIAL UNTIL SOME 13 MONTHS AFTER YOU WERE REQUESTED IN WRITING TO DO SO.

THE GOVERNMENT ACTED IN THE CAPACITY OF AN INVOLUNTARY BAILEE AS TO THE UNORDERED MATERIAL AND ALL RISKS RESULTING FROM FAILURE TO EFFECT PROMPT REMOVAL REST WITH YOUR COMPANY AND/OR YOUR SUBCONTRACTOR. MOREOVER, PAYMENT MAY NOT BE MADE IN THE ABSENCE OF AN AGREEMENT, EXPRESSED OR IMPLIED IN FACT, TO DO SO. IN THAT CONNECTION, THE RECORD BEFORE US SHOWS THAT THE GOVERNMENT DID NOT ORDER THE EXCESS SAND WHICH WAS DELIVERED BY THE SUBCONTRACTOR. FURTHER, THE CONTRACTING OFFICER ADVISED YOUR FIRM IN WRITING THAT THE EXCESS MATERIAL WAS TO BE REMOVED. ALTHOUGH NO TIME LIMIT WAS GIVEN FOR REMOVING THE MATERIAL, A REASONABLE TIME IS IMPLIED. NO ACTION WAS TAKEN OVER A PERIOD OF 13 MONTHS TOWARD REMOVING THE SAND WHICH IS INDICATED TO HAVE DISAPPEARED.

ALSO, IT HAS NOT BEEN ESTABLISHED THAT THE GOVERNMENT IN FACT USED THE SAND. YOU ALLEGE THAT IT HAS BEEN SHOWN THAT THE EXCESS QUANTITY OF SAND DELIVERED WAS UTILIZED BY UNITS STATIONED IN THE BARRACKS FOR OTHER PROJECTS. HOWEVER, YOU FAIL TO SUBSTANTIATE THIS ALLEGATION. THE CONTRACTING OFFICER STATES THAT INVESTIGATION HAS NOT ESTABLISHED BEYOND DOUBT THAT THE SAND WAS USED BY THE GOVERNMENT. IT IS REPORTED BY HEADQUARTERS, 94TH ENGINEER BATTALION (CONSTRUCTION) THAT THE MATERIAL IN QUESTION WAS NOT STORED ON THE NELLINGEN KASERNE WITH PERMISSION OF ANY AUTHORITY WITHIN THE 94TH ENGINEER BATTALION. IT IS ALSO REPORTED THAT THE AREA IN WHICH THE MATERIAL WAS STORED WAS AN OPEN AREA, NOT IN A SAND AND GRAVEL YARD CONTROLLED BY THE 94TH ENGINEER BATTALION WHICH HAS NO SAND AND GRAVEL STORAGE YARD. THE CONTRACTING OFFICER STATES THAT YOUR FIRM MADE NO EFFORT TO COORDINATE WITH THE 94TH ENGINEER BATTALION TO SAFEGUARD THIS MATERIAL DURING THE 13-MONTH PERIOD IN QUESTION AND THE UNIT HAD NO MEANS OF SAFEGUARDING THIS MATERIAL AND IS UNABLE TO DETERMINE THE PERSON OR PERSONS WHO REMOVED THE MATERIALS IN QUESTION.

THE SUBCONTRACTOR IN A LETTER TO THE POST ENGINEER DATED JANUARY 7, 1965, CONTENDS THAT THE PROCUREMENT OFFICER (MR. HAEHL) HAD ORIGINALLY INTENDED TO PAY FOR THIS LOT. HOWEVER, MR. HAEHL STATES THAT AT NO TIME DID HE PROMISE THE CONTRACTOR OR SUBCONTRACTOR THAT THE OVERSHIPMENT WOULD BE ACCEPTED OR PAID FOR.

THE RECORD BEFORE US FAILS TO INDICATE ANY INTENT ON THE PART OF THE GOVERNMENT TO ACCEPT OR USE THE EXCESS SAND DELIVERED. NOR DOES THE RECORD SHOW WHETHER THE GOVERNMENT USED THIS SAND AND IF SO HOW MUCH WAS USED. THE MERE FACT THAT THIS SAND IS REPORTED TO HAVE DISAPPEARED DOES NOT PROVE THAT THE SAND WAS USED BY THE GOVERNMENT. SINCE THE FACTS PRESENTED ARE CLEARLY INADEQUATE TO SUPPORT THE FINDING OF CONTRACT, EXPRESSED OR IMPLIED, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE SETTLEMENT OF OCTOBER 15, 1965, AND YOUR CLAIM MUST BE DISALLOWED.