B-132154, NOV. 19, 1957

B-132154: Nov 19, 1957

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TO MUTNICK WOOL STOCK COMPANY: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. IN THE EVENT WE ARE UNABLE TO ADJUST THE CLAIM. AS YOU HAVE BEEN PREVIOUSLY ADVISED. IT IS NO PART OF THE DUTY OR AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO TAKE ANY ACTION FOR. THEREFORE WE ARE UNABLE TO COMPLY WITH YOUR REQUEST. YOU WERE CORRECTLY ADVISED BY THAT OFFICER THAT SINCE THE DISPUTE INVOLVED AN INTERPRETATION OF THE CONTRACT TERMS THE MATTER PROPERLY WAS FOR CONSIDERATION BY OUR OFFICE. YOU WILL NOTE FROM AN EXAMINATION OF THE FILE IN YOUR POSSESSION. THAT NO FINDING OF FACT WAS MADE BY THE CONTRACTING OFFICER AND CONSEQUENTLY THERE EXISTS NO DISPUTED QUESTION OF FACT BETWEEN YOU AND THE DISPOSAL AGENCY UPON WHICH AN APPEAL OTHERWISE MIGHT BE PREDICATED FOR A REVIEW THEREOF BY THE CONTRACT APPEALS BOARD.

B-132154, NOV. 19, 1957

TO MUTNICK WOOL STOCK COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1957, CONCERNING YOUR CLAIM FOR $1,826.83, REPRESENTING THE PURCHASE PRICE, PLUS FREIGHT CHARGES, PAID FOR A QUANTITY OF CHISEL BLANKS SOLD BY THE PUGET SOUND NAVAL SHIPYARD UNDER SALES CONTRACT NO. N251S-8661-A. YOU REQUEST THAT, IN THE EVENT WE ARE UNABLE TO ADJUST THE CLAIM, THE MATTER BE REFERRED TO THE ARMED SERVICES BOARD OF CONTRACT APPEALS.

AS YOU HAVE BEEN PREVIOUSLY ADVISED, IT IS NO PART OF THE DUTY OR AUTHORITY OF THE GENERAL ACCOUNTING OFFICE TO TAKE ANY ACTION FOR, OR IN BEHALF OF, CLAIMANTS, IN CONNECTION WITH THE PRESENTATION OR THE APPEAL OF THEIR CLAIMS AGAINST THE UNITED STATES. SUCH ACTION MUST BE UNDERTAKEN BY THE CLAIMANT, OR BY A DULY APPOINTED AGENT OR ATTORNEY ACTING IN HIS BEHALF, AND THEREFORE WE ARE UNABLE TO COMPLY WITH YOUR REQUEST.

HOWEVER, FROM A RESUME OF YOUR PREVIOUS CORRESPONDENCE IN THIS CASE THERE APPEARS TO BE WARRANTED AN EXPLANATION AS TO YOUR RIGHTS UNDER THE TERMS OF THE CONTRACT AND APPLICABLE ADMINISTRATIVE REGULATIONS. WITH RESPECT TO YOUR STATEMENT THAT YOU FORWARDED MATERIAL ADDRESSED TO THE SECRETARY OF THE NAVY IN ORDER TO OBTAIN A REVIEW OF THE CONTRACTING OFFICER'S DECISION BY THE ARMED SERVICES BOARD OF CONTRACT APPEALS, AS PROVIDED FOR UNDER ARTICLE 23 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, YOU WERE CORRECTLY ADVISED BY THAT OFFICER THAT SINCE THE DISPUTE INVOLVED AN INTERPRETATION OF THE CONTRACT TERMS THE MATTER PROPERLY WAS FOR CONSIDERATION BY OUR OFFICE. FOR THAT REASON, YOU WILL NOTE FROM AN EXAMINATION OF THE FILE IN YOUR POSSESSION, THAT NO FINDING OF FACT WAS MADE BY THE CONTRACTING OFFICER AND CONSEQUENTLY THERE EXISTS NO DISPUTED QUESTION OF FACT BETWEEN YOU AND THE DISPOSAL AGENCY UPON WHICH AN APPEAL OTHERWISE MIGHT BE PREDICATED FOR A REVIEW THEREOF BY THE CONTRACT APPEALS BOARD. SINCE THE RIGHTS AND LIABILITIES OF THE PARTIES UNDER THE TRANSACTION INVOLVE A QUESTION OF LAW ARTICLE 23 OF THE CONTRACT IS NOT FOR APPLICATION AND THEREFORE ON THE PRESENT RECORD, THE ARMED SERVICES BOARD OF CONTRACT APPEALS IS WITHOUT JURISDICTION TO CONSIDER THE MATTER.

IN REGARD TO YOUR ALLEGATION THAT THE CHISEL BLANKS PURCHASED WERE OBSOLETE ITEMS AND THEREFORE WORTHLESS, THE ADMINISTRATIVE OFFICE NEITHER ADMITS NOR DENIES SUCH CONTENTION, AND IN VIEW OF THE TERMS OF THE SALES AGREEMENT NO USEFUL PURPOSE WOULD BE SERVED BY ESTABLISHING THE CORRECTNESS OF SUCH ALLEGATION. FREQUENTLY THE DESCRIPTION OF SURPLUS GOODS TO BE SOLD BY GOVERNMENT AGENCIES, OF NECESSITY IS TAKEN FROM INVENTORY RECORDS BECAUSE THE GOODS ARE STORED AT LOCATIONS REMOVED FROM THE SALES OFFICES, OR FOR OTHER VALID REASONS. AND, IN DISPOSING OF SUCH MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE OR BUSINESS AND THEREFORE, ON OCCASIONS IS UNAWARE OF THE QUALITY OR CONDITION OF THE SURPLUS COMMODITIES IT SELLS. FOR THAT REASON PROSPECTIVE PURCHASERS ARE APPRISED OF THE FACT THAT THE PROPERTY IS TO BE SOLD WITHOUT ANY WARRANTY WHATEVER AS TO THE DESCRIPTION THEREOF IN THE INVITATION, AND ANY RISK IN THAT REGARD MUST, UNDER THE TERMS OF AGREEMENT BETWEEN THE PARTIES, BE ASSUMED BY THE PURCHASER.

BECAUSE OF THOSE FACTS YOUR CLAIM WAS DISALLOWED BY SETTLEMENT DATED FEBRUARY 13, 1957, AND SUCH ACTION WAS SUSTAINED BY OUR DECISION OF JULY 5, 1957, B-132154, IN ACCORDANCE WITH THE AUTHORITIES CITED THEREIN. THAT SETTLEMENT AND DECISION, AS WELL AS THOSE IN SIMILAR CASES PROPERLY FOR CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE, UNDER EXISTING LAW ARE BINDING UPON ALL OF THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT, AND ARE SUBJECT TO REVIEW ONLY BY THE UNITED STATES COURT OF CLAIMS OR THE FEDERAL DISTRICT COURTS. SEE 28 U.S.C. 1346 AND 1491.

THE ACTION HERETOFORE TAKEN IN DISALLOWING YOUR CLAIM WAS PROPER AND WILL NOT BE DISTURBED, AND IN VIEW OF THE FOREGOING WE ARE CLOSING THE FILE IN THIS CASE.