B-138475, OCT. 13, 1959

B-138475, OCT. 13, 1959

TO SIGBERT LOEB INDIA CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1959, AND SUBSEQUENT CORRESPONDENCE, REGARDING THE SETTLEMENT OF MARCH 25, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF DEDUCTIONS TOTALING $847.53 TAKEN IN MAKING PAYMENT FOR MICA FURNISHED UNDER CONTRACT NO. GS-OOP-/D/ 18157, DATED DECEMBER 2, 1957.

UNDER THE TERMS OF THE CONTRACT YOU WERE REQUIRED TO DELIVER CERTAIN QUANTITIES OF MICA INTO HARBOR SIDE WAREHOUSE, JERSEY CITY, NEW JERSEY, AT PRICES AS STATED FOR THE VARIOUS GRADES. INSOFAR AS THE GRADE OF MICA HERE INVOLVED IS CONCERNED YOU WERE TO PAY AND BEAR THE CUSTOMS DUTY IN CONNECTION THEREWITH AND THE DUTY WAS INCLUDED IN THE UNIT PRICES. THE MICA WAS TO BE DELIVERED TO THE WAREHOUSE EITHER "IN BOND" OR "DUTY PAID," AT YOUR OPTION, AND FOR YOUR ACCOUNT, PENDING INSPECTION AND ACCEPTANCE BY THE GOVERNMENT. ARTICLE IV OF THE SPECIAL TERMS, CONDITIONS AND SPECIFICATIONS PROVIDED IN PARAGRAPH B THAT IN THE EVENT THAT THE RATE OF DUTY WAS INCREASED OR DECREASED, THE UNIT PRICES WERE TO BE INCREASED OR DECREASED ACCORDINGLY.

THE IMPORT DUTY ON UNMANUFACTURED BLOCK MICA WAS REDUCED BY PUBLIC LAW 85 -808, 85TH CONGRESS, APPROVED AUGUST 28, 1958, 72 STAT. 796. AMENDMENT NO. 5 TO THE CONTRACT WAS EXECUTED ON OCTOBER 8, 1958, DECREASING THE UNIT PRICES BY THE AMOUNT OF THE REDUCTION AND IT WAS STIPULATED THAT THE UNIT PRICES SET OUT THEREIN WERE TO APPLY TO MICA DELIVERED ON AND AFTER AUGUST 28, 1958.

IT APPEARS THAT YOU HAD ON HAND ON AUGUST 28, 1958, A CERTAIN QUANTITY OF MICA ON WHICH YOU HAD PAID THE HIGHER DUTY APPLICABLE THERETO AND THAT THE MICA WAS PHYSICALLY DELIVERED TO THE GOVERNMENT AFTER THAT DATE. CONSEQUENTLY THE ADMINISTRATIVE OFFICE PAID THE LOWER UNIT PRICES SET OUT IN AMENDMENT NO. 5 TO THE CONTRACT. YOUR CLAIM FOR REFUND OF $847.53 DEDUCTED FROM THE UNIT PRICES AS SET OUT ORIGINALLY IN THE CONTRACT WHEN EXECUTED IS BASED ON YOUR CONTENTION THAT THE MICA INVOLVED WAS TENDERED FOR INSPECTION PRIOR TO AUGUST 28, 1958, EVEN THOUGH NOT PHYSICALLY DELIVERED UNTIL AFTER THAT DATE.

IT HAS BEEN INFORMALLY ASCERTAINED FROM REPRESENTATIVES OF THE GENERAL SERVICES ADMINISTRATION IN CHARGE OF THE MICA BUYING PROGRAM THAT THEY AGREE WITH YOU THAT DELIVERY WAS CONSIDERED AS HAVING BEEN ACCOMPLISHED WHEN YOU TENDERED THE MICA FOR INSPECTION. HOWEVER, THE ADMINISTRATIVE OFFICE HAS FURNISHED OUR OFFICE CERTIFIED TRUE COPIES OF TENDERS OF THE MICA WHICH SHOW THE TIME STAMPS ON THE BACK OF THE COPIES OF THE TENDERS, AND NONE OF THE DOCUMENTS WERE RECEIVED BY THE MICA INSPECTION FACILITY AT HARBOR SIDE TERMINAL BEFORE AUGUST 28, 1958. CONSEQUENTLY, THE MICA HERE INVOLVED MUST BE CONSIDERED AS HAVING BEEN DELIVERED ON OR AFTER AUGUST 28, 1958, AND UNDER THE TERMS OF AMENDMENT NO. 5 WHICH YOU ACCEPTED, YOU WERE ENTITLED TO PAYMENT AT THE REDUCED UNIT PRICES ONLY.