B-163929, NOV. 8, 1968

B-163929, NOV. 8, 1968

TO THERMAL REDUCTION CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 1, 1968, REQUESTING RECONSIDERATION OF OUR DECISION, B-163929, JULY 29, 1968, WHICH DENIED YOUR CLAIM ARISING OUT OF ITEM NO. 91 FOR THE SALE OF "BERYLLIUM SCRAP" PURSUANT TO A SALES INVITATION ISSUED BY THE DEFENSE SURPLUS SALES OFFICE.

THE FACTS AND CIRCUMSTANCES ARE SET FORTH FULLY IN OUR DECISION OF JULY 29, 1968, AND NEED NOT BE REPEATED HERE. WE HELD IN THE DECISION THAT THE FACTS SUPPORTED A CONCLUSION THAT THE PROPERTY WAS MISDESCRIBED SO THAT RECOVERY COULD BE OBTAINED UNDER THE "GUARANTEED DESCRIPTIONS" CLAUSE OF THE INVITATION IF THE REQUISITE NOTICE WAS PROVIDED IN WRITING WITHIN 20 DAYS AFTER THE REMOVAL OF THE PROPERTY. WE POINTED OUT IN THIS CONNECTION THAT YOU FAILED TO GIVE THE REQUIRED WRITTEN NOTICE EITHER FROM THE DATE OF REMOVAL OF THE PROPERTY OR THE DATE YOU WERE ADVISED OF THE ACTUAL CONTENT OF THE SCRAP.

IN OUR DECISION WE GAVE FULL CREDENCE TO YOUR STATEMENT THAT SCRAP BERYLLIUM MUST BE PROCESSED WITH EXTREME CARE AND THAT IT TAKES CONSIDERABLE TIME TO RECEIVE A REPORT AS TO QUALITY AND QUANTITY OF THE RECOVERED BERYLLIUM. WE ALSO EXTENDED THE SAME CREDENCE TO THE ANALYSIS REPORT OF YOUR AGENT, BERYLLIUM CORPORATION, SHOWING NONBERYLLIUM CONTENT IN SOME OF THE SHINGLES.

YOU STATE THAT OUR DECISION SUPPOSES NEGLIGENT MISREPRESENTATION ON THE PART OF THE DISPOSING ACTIVITY. THE RECORD BEFORE THIS OFFICE SHOWS THAT NO REPRESENTATION WAS MADE AS TO METAL CONTENT BY THE DISPOSING ACTIVITY. THEREFORE, A REPRESENTATIVE SAMPLE OF THE MATERIAL WAS TESTED BY SPECTROCHEMICAL TECHNIQUES. THE TEST RESULTS SENT TO THE SALES ACTIVITY WERE THE SAME AS THOSE INCLUDED IN THE INVITATION. SUCH CIRCUMSTANCES DO NOT SUBSTANTIATE A CONCLUSION OF NEGLIGENT MISREPRESENTATION.

IT DOES NOT APPEAR THAT THE GOVERNMENT FAILED TO USE THE "BEST AVAILABLE INFORMATION" AS THE BASIS FOR THE DESCRIPTION OF THE SURPLUS MATERIAL. RATHER, THE DESCRIPTION DERIVED FROM PROPER ANALYSIS OF A SAMPLE WHICH SEEMINGLY, AND UNKNOWN TO ALL PARTIES, WAS NOT REPRESENTATIVE OF THE BULK OF THE MATERIAL OFFERED FOR SALE UNDER THE ITEM. PRIOR TO THE INCLUSION OF THE "GUARANTEED DESCRIPTIONS" CLAUSE IN CONTRACTS OF THIS TYPE, NO RELIEF WAS AVAILABLE TO CONTRACTORS IN THIS KIND OF SITUATION. HOWEVER, THE RATHER STRINGENT NOTICE REQUIREMENTS WERE INCLUDED IN THE CLAUSE WHICH PROVIDED THE ADDITIONAL RELIEF TO CONTRACTORS TO PROTECT THE GOVERNMENT'S INTERESTS. AS WE POINTED OUT IN OUR EARLIER DISPOSITION OF THE CLAIM, YOU FAILED TO PROVIDE THE REQUISITE WRITTEN NOTICE WITHIN THE TIME PERMITTED UNDER THE CLAUSE. WE ALSO NOTED, INCIDENTALLY AND WITHOUT ANY INTENT TO BROADEN THE CLEAR LANGUAGE OF THE CLAUSE, THAT YOU EVEN FAILED TO GIVE THE REQUIRED WRITTEN NOTICE WITHIN 20 DAYS OF THE TIME YOU KNEW THE ACTUAL CONTENT OF THE MATERIAL.

WE HOPE YOU WILL APPRECIATE THAT THE ONLY VALID BASIS FOR THE EXPENDITURE OF PUBLIC FUNDS WHICH WOULD BE REQUIRED UPON FAVORABLE CONSIDERATION OF YOUR CLAIM IS THE LEGAL DUTY OF THE GOVERNMENT TO MAKE THAT PAYMENT. HAVE NO AUTHORITY TO PAY CLAIMS ON PURELY EQUITABLE CONSIDERATIONS. THE PAYMENT BASIS MUST BE FOUND IN THE RIGHTS AND OBLIGATIONS IMPOSED ON THE PARTIES BY THE TERMS OF THE CONTRACT. FOR THE REASONS STATED ABOVE, THE CONTRACT PROVIDES NO BASIS FOR FAVORABLE CONSIDERATION OF THE CLAIM.

ACCORDINGLY, UPON REVIEW OUR DECISION OF JULY 29, 1968, IS SUSTAINED.