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B-127444, JUN. 4, 1956

B-127444 Jun 04, 1956
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TO CHEMICAL SERVICE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $169.52 UNDER CONTRACT NO. YOUR BID WAS ACCEPTED ON FEBRUARY 2. O.I. 33-167-55 246S AND FULL PAYMENT WAS MADE THEREUNDER. YOU TAKE THE POSITION THAT IN MANY CASES IT IS IMPRACTICAL. YOU STATE THAT SINCE THE BENZOL WAS STORED OUT IN THE OPEN DURING THE COLD WEATHER AND WAS FROZEN SOLID AND ARRIVED IN THAT CONDITION. THE SHORTAGE COULD NOT HAVE OCCURRED AFTER YOU PICKED IT UP AT THE DEPOT. HELD FROM A LEGAL STANDPOINT THAT WHERE BIDDERS ARE FULLY APPRISED OF THE INSPECTION PROVISIONS AND UNDERSTAND HOW IMPRACTICAL. IT IS TO MAKE AN INSPECTION IN SOME CASES IN SUCH A MANNER AS TO FULLY PROTECT THEIR INTERESTS BUT STILL ELECT TO SUBMIT A BID.

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B-127444, JUN. 4, 1956

TO CHEMICAL SERVICE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1956, RELATIVE TO SETTLEMENT DATED FEBRUARY 29, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $169.52 UNDER CONTRACT NO. O.I. 33-167-55-246S, DATED FEBRUARY 2, 1955.

IN RESPONSE TO INVITATION NO. 33-167-S-55-5, ISSUED ON JANUARY 4, 1955, BY THE COLUMBUS GENERAL DEPOT, DEPARTMENT OF THE ARMY, YOU SUBMITTED A BID DATED JANUARY 21, 1955, OFFERING TO PURCHASE ITEMS NOS. 70, 70A AND 70B, COVERING A TOTAL OF 12,980 GALLONS OF BENZOL AT $0.0621 A GALLON, OR FOR A TOTAL PRICE OF $685.34. YOUR BID WAS ACCEPTED ON FEBRUARY 2, 1955, CONSUMMATING CONTRACT NO. O.I. 33-167-55 246S AND FULL PAYMENT WAS MADE THEREUNDER. SUBSEQUENT TO THE REMOVAL OF THE PROPERTY YOU ADVISED THE COLUMBUS GENERAL DEPOT THAT CERTAIN SHORTAGES HAD BEEN ENCOUNTERED IN THE BENZOL WHICH, BASED ON WEIGHT, VARIED FROM 8 PERCENT TO 10 PERCENT. YOU LATER ALLEGED SHORTAGES AS HIGH AS 30 PERCENT. AS A RESULT OF THE SHORTAGES YOU CLAIM A REFUND OF $169.52, BASED ON A 10 PERCENT SHORTAGE, OR 1,288 GALLONS, AT YOUR BID PRICE OF $0.0621 A GALLON, PLUS $89.54 FOR THE SHIPPING COSTS INVOLVED.

IN YOUR LETTER OF MARCH 2, 1956, YOU TAKE THE POSITION THAT IN MANY CASES IT IS IMPRACTICAL, IF NOT IMPOSSIBLE, TO MAKE COMPLETE INSPECTIONS AND THAT MANY OF THE MILITARY DEPOTS REFUSE TO PERMIT SUCH INSPECTIONS. ALSO, YOU STATE THAT SINCE THE BENZOL WAS STORED OUT IN THE OPEN DURING THE COLD WEATHER AND WAS FROZEN SOLID AND ARRIVED IN THAT CONDITION, THE SHORTAGE COULD NOT HAVE OCCURRED AFTER YOU PICKED IT UP AT THE DEPOT.

DUE TO THE SPECIFIC PROVISIONS OF THE INSPECTION ARTICLE OF THIS TYPE OF CONTRACT, IT CONSISTENTLY HAS BEEN, AND MUST BE, HELD FROM A LEGAL STANDPOINT THAT WHERE BIDDERS ARE FULLY APPRISED OF THE INSPECTION PROVISIONS AND UNDERSTAND HOW IMPRACTICAL, IF NOT INDEED IMPOSSIBLE, IT IS TO MAKE AN INSPECTION IN SOME CASES IN SUCH A MANNER AS TO FULLY PROTECT THEIR INTERESTS BUT STILL ELECT TO SUBMIT A BID, THE BIDDER ASSUMES ANY RISK THAT MIGHT EXIST UNDER SUCH CIRCUMSTANCES BY REASON OF A DISCREPANCY BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED.

WHAT IS EVEN MORE IMPORTANT IN THE CASE HERE UNDER CONSIDERATION, HOWEVER, IS THE QUESTION AS TO JUST WHEN THE ALLEGED SHORTAGE OCCURRED. IN THIS CONNECTION, THE CONTRACTING OFFICER OF THE COLUMBUS GENERAL DEPOT REPORTS THAT SUBSEQUENT TO RECEIPT OF YOUR LETTER REPORTING THE ALLEGED SHORTAGE, HE PERSONALLY INSPECTED THE 103 GALLONS OF BENZOL WHICH HAS NOT BEEN REMOVED FROM THE DEPOT BY YOU AND FOUND THAT ALL CANS WERE FULL AND TIGHTLY CLOSED WITH AN INNER SEAL AND A SCREW-DOWN CAP. MOREOVER, THE RECORD SHOWS THAT, AS STATED IN THE SETTLEMENT, YOU DID NOT REMOVE THE BENZOL WITHIN THE TIME LIMITATION SET FORTH IN THE CONTRACT. IN VIEW OF THIS AND SINCE THE RECORD BEFORE US FAILS TO DISCLOSE THAT AN INCORRECT QUANTITY OF THE BENZOL WAS, IN THE FIRST INSTANCE, ADVERTISED FOR SALE IN THE SUBJECT INVITATION, THAT THE ALLEGED SHORTAGE OCCURRED BETWEEN THE TIME THE PROPERTY WAS OFFERED FOR SALE AND THE TIME TITLE THERETO PASSED TO YOU OR JUST WHEN THE BENZOL WAS FROZEN AND IF SUCH CONDITION, IN FACT, COULD HAVE CAUSED THE SHORTAGE, THE LIABILITY FOR THE MATTER REVOLVES ITSELF INTO A QUESTION OF A VERY DOUBTFUL NATURE. THIS BEING THE CASE THERE APPEARS CLEARLY FOR APPLICATION THE WELL RECOGNIZED PRINCIPLE OF LAW LAID DOWN IN LONGWILL V. UNITED STATES 17 C.CLS. 288, 291 AND CHARLES V. UNITED STATES 19 C.CLS. 316, 319, WHEREIN THE COURTS FOUND THAT WHERE THERE EXISTS A REASONABLE DOUBT AS TO THE VALIDITY OF A CLAIM AGAINST THE GOVERNMENT, IT HAS BEEN THE ESTABLISHED RULE THAT THE ACCOUNTING OFFICERS OF THE GOVERNMENT PROPERLY MAY NOT CERTIFY SUCH A CLAIM FOR PAYMENT.

ACCORDINGLY, ON THE PRESENT RECORD THE SETTLEMENT OF FEBRUARY 29, 1956, MUST BE SUSTAINED.

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