B-127444, JUL. 25, 1956

B-127444, JUL. 25, 1956

TO THE CHEMICAL SERVICE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 7, 1956, REQUESTING RECONSIDERATION OF OUR DECISION DATED JUNE 4, 1956, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $169.52 UNDER CONTACT NO. G.I. 33 167-55- 246S, DATED FEBRUARY 2, 1955.

YOUR REQUEST FOR FURTHER CONSIDERATION OF THIS MATTER IS BASED PRIMARILY ON OBSERVATIONS ADVANCED BY YOU TO ESTABLISH, AS A FACT, THAT THERE DID EXIST CERTAIN SHORTAGES IN THE QUANTITY OF BENZOL PURCHASED UNDER THE CONTRACT. IN THIS REGARD YOU STATE IN THE THIRD PARAGRAPH OF YOUR LETTER THAT:

"IN THE CASE IN QUESTION, IT IS QUITE LIKELY THAT THE 103 GALLONS EXAMINED BY COLUMBUS WERE FOUND TO BE "FULL.' YOU, HOWEVER, OVERLOOK A VERY IMPORTANT FACTOR. THIS MATERIAL WAS FROZEN SOLID, CAUSING AN EXPANSION FROM ITS NORMALLY LIQUID FORM, SO THAT WHEN SUCH A CAN IS EXAMINED, EVEN IF THERE HAD BEEN AN EVAPORATION, IT WOULD, SUPERFICIALLY AT LEAST, APPEAR TO BE FULL. THIS PRODUCT BEING HIGHLY VOLATILE, THERE COULD QUITE READILY HAVE BEEN AN EVAPORATION DURING WARM WEATHER, EVEN IN UNOPENED CONTAINERS, UNLESS SUCH CONTAINERS WERE HERMETICALLY SEALED, WHICH THEY WERE NOT. VAPORS WILL FIND OUTLETS SOMEHOW, EXCEPT FOR HERMETICALLY SEALED UNITS.'

ALSO, YOU REITERATE YOUR CONTENTION--- SETTING FORTH OTHER TRANSACTIONS IN SUPPORT THEREOF--- THAT IT NOT ONLY IS PHYSICALLY IMPOSSIBLE TO MANY INSTANCES TO MAKE COMPLETE OR PROPER INSPECTIONS PRIOR TO SUBMITTING BIDS BUT THAT SUCH INSPECTIONS ARE PROHIBITED BY VARIOUS DISPOSAL DEPOTS.

SINCE ALL PERTINENT FACTS RELATIVE TO THE ISSUE INVOLVED IN THIS CASE WERE FULLY AND COMPLETELY SET FORTH IN OUR DECISION OF JUNE 4, 1956, THEY NEED NOT BE REPEATED AT THIS TIME.

THE MATTERS WHICH YOU HAVE AGAIN PRESENTED FOR CONSIDERATION, NAMELY, THE PROOF OR CAUSE OF THE SHORTAGE AND THE INSPECTION LIABILITY, WERE FULLY CONSIDERED IN OUR PREVIOUS DECISIONS. WHILE THERE MAY BE ACCEPTED YOUR OBSERVATIONS AS TO THE CONDITIONS UNDER WHICH A CONTAINER OF BENZOL APPEARS TO BE FULL, AS WELL AS TO THE EVAPORATIVE NATURE OF THE MATERIAL, YOU HAVE PRESENTED NO NEW OR MATERIAL EVIDENCE TO ESTABLISH EITHER THAT AN INCORRECT QUANTITY OF THE BENZOL WAS, IN THE FIRST INSTANCE, ADVERTISED FOR SALE IN THE SUBJECT INVITATION OR THAT THE ALLEGED SHORTAGE OCCURRED BETWEEN THE TIME THE PROPERTY WAS OFFERED FOR SALE AND THE TIME TITLE THERETO PASSED TO YOU. NEITHER HAVE YOU PRESENTED ANY EVIDENCE AS TO WHEN THE BENZOL WAS FROZEN AND IF SUCH CONDITION, IN FACT, COULD HAVE CAUSED THE SHORTAGE.

WITH RESPECT TO INSPECTION THERE ONLY MAY BE REEMPHASIZED HERE THE APPLICABILITY OF THE ,ASSUMPTION OF RISK" PRINCIPLE SET FORTH IN THE FOURTH PARAGRAPH OF OUR DECISION DATED JUNE 4, 1956. IT WAS ATTEMPTED TO POINT OUT THERE THAT IF YOU WERE UNWILLING TO ASSUME THE RISK WHICH MIGHT EXIST BY REASON OF NOT BEING AFFORDED ADEQUATE OPPORTUNITY TO INSPECT EITHER YOU SHOULD NOT HAVE SUBMITTED A BID--- WHICH IS THE POSITION YOU STATE THAT YOU WERE COMPELLED TO TAKE IN OTHER TRANSACTIONS--- OR YOUR BID SHOULD HAVE BEEN ADJUSTED TO FIT THE CIRCUMSTANCES.