B-127782, FEB. 18, 1957

B-127782, FEB. 18, 1957

TO GAISER IRON AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 18, 1957, AND PREVIOUS CORRESPONDENCE REQUESTING RECONSIDERATION OF OUR DECISION OF MAY 31, 1956, SUSTAINING DISALLOWANCE OF YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE ON ITEM 16C UNDER CONTRACT NO. 33-167-55-1062S, DATED JUNE 28, 1955.

IN OUR LETTER OF JANUARY 15, 1957, YOU WERE ADVISED THAT BEFORE THE MATTER COULD BE GIVEN ANY ADDITIONAL CONSIDERATION WE WOULD REQUIRE EVIDENCE WHICH WOULD CLEARLY ESTABLISH THAT THE TWO PIECES OF TUBING SHOWN TO YOU PRIOR TO THE SALE WERE MADE TO COPPER, AND THAT THE REMAINDER OF THE TUBING DELIVERED UNDER ITEM NO. 16C WAS MADE OF STEEL AND THAT THE GOVERNMENT'S REPRESENTATIVE WHO DISPLAYED THE "SAMPLES" DID SO UNDER CIRCUMSTANCES WHICH LED YOU TO BELIEVE THAT THE BULK OF THE LOT OF TUBING BEING SOLD CONFORMED TO THE SAMPLES. YOU HAVE FORWARDED HERE THREE PIECES OF TUBING, TWO OF WHICH APPEAR TO BE COPPER AND THE OTHER APPEARS TO BE STEEL. THE MERE FURNISHING OF THE TUBING MAY NOT BE ACCEPTED AS EVIDENCE THAT THE TUBING ACTUALLY SHOWN TO YOU WAS MADE OF COPPER. AS WE PREVIOUSLY STATED, YOUR SELF-SERVING STATEMENT MAY NOT BE ACCEPTED AS EVIDENCE AS TO THE TYPE OF TUBING DISPLAYED TO YOU.

FURTHERMORE, WE NOTE THAT THE MATERIAL UNDER ITEM 16C WAS ADVERTISED AS CONSISTING OF 13 PACKAGES, CONTAINING 1,198 PIECES. IN YOUR LETTER OF AUGUST 2, 1955, TO THE CONTRACTING OFFICER YOU STATED THAT THE PURCHASE WAS MADE ACCORDING TO YOUR INSPECTION OF THE SAMPLE SHOWN IN THE SAMPLE ROOM, WHICH CONSISTED OF A PIECE OF COPPER TUBING WEIGHING APPROXIMATELY ONE AND THREE QUARTER POUNDS. ALSO, YOU STATE THAT A SIMILAR PIECE OF TUBING WAS SHOWN TO YOU IN AN OPEN BOX LOCATED IN THE SALVAGE YARD; THAT THE OPEN BOX WAS ONE OF 13 BOXES IN THE ENTIRE LOT; AND THAT THE OTHER TWELVE BOXES WERE SEALED. THUS, IF THE ENTIRE LOT CONSISTED OF 1,198 PIECES OF TUBING AND ONE OF THE 13 BOXES CONTAINING THE ENTIRE LOT WAS OPEN, IT REASONABLY MAY BE CONCLUDED THAT THERE WERE AVAILABLE FOR YOUR INSPECTION IN THE OPEN BOX APPROXIMATELY 92 PIECES. IN OTHER WORDS, WHILE YOU ALLEGE THAT ONLY TWO OF THE 1,198 PIECES OF TUBING WERE COPPER, IT SEEMS APPARENT THAT A DETAILED INSPECTION OF THE BOX, WHICH YOU ADMIT WAS OPEN, WOULD HAVE REVEALED THE TRUE CHARACTER OF A MUCH LARGER QUANTITY OF THE TUBING. UNDER SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE TWO COPPER TUBES WERE DISPLAYED IN SUCH A MANNER AS TO MISLEAD YOU INTO BELIEVING THAT THEY WERE REPRESENTATIVE OF THE ENTIRE LOT OR THAT YOU PROPERLY COULD HAVE RELIED UPON SUCH SAMPLES AS REPRESENTATIVE OF THE LOT.

ACCORDINGLY, THE ACTION PREVIOUSLY TAKEN APPEARS PROPER.