B-167926, JAN. 15, 1970

B-167926, JAN. 15, 1970

SALES--MISDESCRIPTION--REFUND DECISION TO DIRECTOR, DEFENSE SUPPLY AGENCY, AUTHORIZING REFUND OF PURCHASE PRICE UNDER SURPLUS SALES CONTRACT WITH S. MICHELSON WHICH CONTRACT WAS TERMINATED FOR DEFAULT WHEN CONTRACTOR FAILED TO REMOVE PROPERTY. WHERE SURPLUS WIRE OFFERED FOR SALE WAS DESCRIBED AS 64 SPOOLS WEIGHING 4,800 POUNDS WHEN ACTUAL WEIGHT WAS ONLY 1,920 POUNDS BECAUSE DISPOSAL OFFICER BASED DESCRIPTION ON HANDWRITTEN PORTION OF TURN-IN DOCUMENT RATHER THAN TYPEWRITTEN PORTION SHOWING WEIGHT AS 1,600 POUNDS, DESCRIPTION WAS NOT BASED ON BEST INFORMATION AVAILABLE. WHERE INCONSISTENCY APPEARS IN TURN-IN DOCUMENT DISPOSAL OFFICERS OWES DUTY OF CAREFULLY EVALUATING CIRCUMSTANCES OF CONDITION OF PROPERTY TO GET BEST INFORMATION. HENCE PURCHASER IS ENTITLED TO REFUND.

TO GENERAL HEDLUND:

THIS IS IN REFERENCE TO THE LETTER OF OCTOBER 24, 1969, WITH ENCLOSURES, REFERENCE: DSAH-G, FROM COUNSEL, HEADQUARTERS, DEFENSE SUPPLY AGENCY, REGARDING THE REQUEST FROM S. MICHELSON FOR REFUND OF $430.21 WHICH IS PRESENTLY BEING RETAINED BY THE GOVERNMENT UNDER CONTRACT NO. 44-0010- 057.

SURPLUS SALES SOLICITATION NO. 440010, WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA, WITH A SCHEDULED OPENING DATE OF JULY 31, 1969.

ITEM NO. 27 WAS DESCRIBED IN THE SOLICITATION AS FOLLOWS:

"27. MAGNET WIRE: ONE CONDUCTOR SOLID,

ENAMELED, 12 AWG.

FSN 6145-929-6618.

OUTSIDE - ON SPOOL AND IN CARTON -

UNUSED - GOOD CONDITION.

TOTAL COST $1216

EST. TOTAL WT. 4800 LBS. 64 SPOOL"

S. MICHELSON'S BID OF $33.61 PER SPOOL WAS THE HIGHEST BID RECEIVED FOR ITEM NO. 27 AND A CONTRACT FOR THAT ITEM IN THE AMOUNT OF $2,151.04 WAS AWARDED TO THAT FIRM ON AUGUST 8, 1969. AFTER AWARD, THE SALES CONTRACTING OFFICER RECEIVED SEVERAL LETTERS FROM S. MICHELSON REQUESTING RESCISSION OF THE CONTRACT AND REFUND OF THE PURCHASE PRICE. MICHELSON'S CONTRACT WAS TERMINATED FOR DEFAULT WHEN THE CONTRACTOR FAILED TO REMOVE THE PROPERTY IN ACCORDANCE WITH THE REQUIREMENTS OF THE CONTRACT. UPON TERMINATION LIQUIDATED DAMAGES IN THE AMOUNT OF $430.21 (20 PERCENT OF THE PURCHASE PRICE) WERE RETAINED AND THE BALANCE WAS RETURNED TO THE PURCHASER.

IT IS CONCEDED THAT THE GOVERNMENT OFFERED 64 SPOOLS FOR SALE WITH AN ESTIMATED TOTAL WEIGHT OF 4,800 POUNDS AND THAT THE SPOOLS OFFERED FOR DELIVERY WEIGHED ON AN AVERAGE LESS THAN 30 POUNDS EACH OR A TOTAL OF 1,920 POUNDS. IT IS RECOMMENDED BY YOUR AGENCY THAT OUR OFFICE EITHER APPROVE THE REMISSION OF$430.21 IN LIQUIDATED DAMAGES PURSUANT TO 41 U.S.C. 256 (A) OR THAT THE CONTRACT BE RESCINDED.

PARAGRAPH 27 OF THE "GENERAL SALE TERMS AND CONDITIONS - ALL SALES" OF THE "SALE BY REFERENCE" PAMPHLET, MARCH 1969, WHICH WAS INCORPORATED INTO THE SOLICITATION IS A GUARANTEED DESCRIPTION CLAUSE WHICH PROVIDES THAT THE GOVERNMENT DOES NOT GUARANTEE ESTIMATES AS TO THE "WEIGHT" OF PROPERTY OFFERED FOR SALE BY THE "UNIT". PARAGRAPH 2 OF THE SAME PROVISIONS STATES THAT ALL PROPERTY IS SOLD ON AN "AS IS" AND "WHERE IS" BASIS AND THAT THE DESCRIPTION OF THE PROPERTY IS BASED ON THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE.

THE TURN-IN DOCUMENT, FORM 1343-1, JANUARY 1, 1964, INDICATED THAT THE PROPERTY WHICH MADE UP ITEM NO. 27 WAS INITIALLY TURNED INTO THE SHARPE ARMY DEPOT BY THE DEFENSE DEPOT TRACY. THE INFORMATION IN THE TURN-IN DOCUMENT WAS THE BASIS FOR THE DESCRIPTION OF ITEM NO. 27 IN THE SOLICITATION. THE UPPER PORTION OF THE TURN-IN DOCUMENT INDICATED THAT THERE WERE 64 REELS AND THE WEIGHT PER REEL WAS TYPEWRITTEN ON THE FORM AS 25 POUNDS. THIS WOULD MEAN THAT THE TOTAL WEIGHT WOULD BE ABOUT 1,600 POUNDS. THE LOWER PORTION OF THE TURN-IN DOCUMENT INDICATED IN HANDWRITTEN FORM THAT THERE WERE 64 CONTAINERS WITH A TOTAL WEIGHT OF 4,800 POUNDS. THE ADMINISTRATIVE REPORT FROM THE DEFENSE LOGISTICS SERVICES CENTER, STATES THAT THE PROPERTY DISPOSAL OFFICER AT THE SHARPE ARMY DEPOT ADVISED THAT THE HANDWRITTEN PORTION OF THE TURN-IN DOCUMENT NORMALLY PROVES TO BE MORE ACCURATE THAN THE TYPEWRITTEN PORTION AND, THEREFORE, THE SHARPE ARMY DEPOT IN REPORTING THE PROPERTY TO THE OAKLAND SALES OFFICE DESCRIBED THE PROPERTY AS 64 SPOOLS WITH AN ESTIMATED TOTAL WEIGHT OF 4,800 POUNDS.

THE INSTANT CASE INVOLVES AN INCONSISTENCY IN THE TURN-IN DOCUMENT WHERE ONE FIGURE IN THE DOCUMENT IS CHOSEN OVER ANOTHER FIGURE IN DRAFTING THE PURCHASE DESCRIPTION WHICH RESULTS IN A MISDESCRIPTION OF THE PROPERTY. IT IS OUR VIEW THAT WHERE A TURN-IN DOCUMENT CONTAINS AN INCONSISTENCY IT IS NOT SUFFICIENT TO TAKE ONE FIGURE OVER ANOTHER MERELY BECAUSE ONE IS IN HANDWRITTEN FORM AND THE OTHER IS IN PRINTED FORM. WHERE AN INCONSISTENCY APPEARS IN A TURN-IN DOCUMENT, SOME STEPS SHOULD BE TAKEN TO RESOLVE THE INCONSISTENCY.

IN B-151239, MAY 31, 1963, OUR OFFICE CONSIDERED A SOMEWHAT ANALOGOUS SITUATION IN WHICH A DISPOSAL OFFICER, AFTER MAKING A PERSONAL INSPECTION, CHANGED A DESCRIPTION IN A TURN-IN DOCUMENT FROM "SERVICEABLE" TO "UNUSED, GOOD CONDITION." THE ACTUAL CONDITION OF THE GOODS WAS FOUND TO MORE NEARLY CONFORM TO THE DESCRIPTION IN THE TURN-IN DOCUMENT. WE HELD THAT WHERE THE DESCRIPTION OF THE CONDITION OF THE PROPERTY IS CHANGED FROM THAT SHOWN ON THE TURN-IN DOCUMENT BY A DISPOSAL OFFICER, HE OWES THE DUTY OF CAREFULLY EVALUATING ALL CIRCUMSTANCES ASSOCIATED WITH THE CONDITION OF THE PROPERTY TO INSURE THAT THE CHANGE IS BASED ON THE BEST AVAILABLE INFORMATION. IN OUR JUDGMENT, THE SAME RATIONALE APPLIES WHERE AN INCONSISTENCY APPEARS IN A TURN-IN DOCUMENT AND THE MORE FAVORABLE OF THE ALTERNATIVES IS INCLUDED IN THE PURCHASE DESCRIPTION.

PURSUANT TO OUR REVIEW WE FIND THAT THE GOVERNMENT DID NOT USE THE BEST AVAILABLE INFORMATION IN DESCRIBING ITEM NO. 27. IT, THEREFORE, WOULD HAVE BEEN PROPER TO RESCIND S. MICHELSON'S CONTRACT AND TO REFUND THE FULL PURCHASE PRICE TO THE PURCHASER. THIS RESULT IS NOT CHANGED BY THE FACT THAT S. MICHELSON'S CONTRACT WAS TERMINATED FOR DEFAULT RATHER THAN RESCINDED. ACCORDINGLY, THE $430.21 WHICH IS PRESENTLY BEING RETAINED BY THE GOVERNMENT MAY BE REFUNDED TO S. MICHELSON.

IN VIEW OF OUR FINDING THAT THE $430.21 MAY BE REFUNDED, WE DO NOT FIND IT NECESSARY TO DECIDE WHETHER THE AUTHORITY IN 41 U.S.C. 256 (A) REGARDING THE REMISSION OF LIQUIDATED DAMAGES WOULD BE APPLICABLE TO THE SITUATION PRESENTED BY THE INSTANT CASE.