B-121794, JUN. 23, 1955

B-121794, JUN. 23, 1955

TO THE HONORABLE EDMUND F. MANSURE, ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO A LETTER OF MAY 3, 1955, WITH ENCLOSURES, FROM THE ASSISTANT ADMINISTRATOR REQUESTING A DECISION AS TO WHETHER BILL OF SALE-- - NEGOTIATED CONTRACT GS-00-B/S/-1763--- DATED JUNE 29, 1954, WITH INDUSTRIAL FORGE AND STEEL, INC., MAY BE AMENDED FURTHER TO REFLECT THE UNDERSTANDING AND AGREEMENT OF PARTIES. THE CONTRACT WAS THE SUBJECT OF DECISION OF NOVEMBER 1, 1954, IN WHICH YOU WERE AUTHORIZED TO AMEND THE BILL OF SALE TO SHOW 114 SPARE BOILER TUBES AS ACTUALLY INTENDED INSTEAD OF 14 SPECIFIED.

THE BILL OF SALE COVERED 2 BOILERS, INVENTORY NUMBERS 650-657 AND 650- 745, AND ACCESSORIES AVAILABLE. A FOOTNOTE IDENTIFIED WITH THE BOILERS IS AS FOLLOWS:

"MISSING ACCESSORY PARTS TO BOILERS, INV. NOS. 650-657 AND 65-645 (EVIDENTLY INTENDED AS 650-745) (WITH COMPARABLE INVENTORY NUMBERS SUFFIXED BY A THROUGH N) CAN BE REMOVED AND SUBSTITUTED FROM REMAINING BOILERS, INV. 650-655 AND 650-656.'

YOU REQUEST AUTHORITY TO AMEND THE BILL OF SALE BY DELETING FROM THE FOOTNOTE THE PARENTHETICAL PHRASE "/WITH COMPARABLE INVENTORY NUMBERS SUFFIXED BY A THROUGH N).'

THE RECORD INDICATES THAT FOUR BOILERS BELONGING TO THE GOVERNMENT, BEARING INVENTORY NOS. 650-655, 650-656, 650-657 AND 650-745, WERE LOCATED AT THE WEST VIRGINIA ORDNANCE WORKS, POINT PLEASANT, WEST VIRGINIA. INDUSTRIAL FORGE AND STEEL, INC., SUBMITTED AN OFFER TO BUY THE FIRST TWO NUMBERED BOILERS WITH ACCESSORIES AND SPARES. THE CHIEF OF ORDNANCE, DEPARTMENT OF THE ARMY, WOULD APPROVE A SALE ONLY OF THE LAST TWO NUMBERED BOILERS. IT WAS THEN DISCOVERED THAT BOILERS NOS. 650-659 AND 650-745 WERE INCOMPLETE IN THAT SOME ACCESSORIES HAD BEEN REMOVED (CANNIBALIZED), AND ONLY AFTER NEGOTIATIONS IN WHICH THE GOVERNMENT REPRESENTATIVE OFFERED THE SAID BOILERS AND AGREED THAT ACCESSORIES MISSING THEREFROM COULD BE REMOVED AND SUBSTITUTED FROM BOILERS NOS. 650-655 AND 650-656, DID INDUSTRIAL FORGE AND STEEL, INC., AGREE TO PURCHASE BOILERS NOS. 650-657 AND 650-745. PURSUANT TO AUTHORIZATION OF THE DIRECTOR,REAL PROPERTY MANAGEMENT OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE, BY A LETTER OF JUNE 28, 1954, THE FOOTNOTE QUOTED HEREINABOVE WAS INSERTED AND THE BILL OF SALE EXECUTED ON JUNE 29, 1954.

UPON REMOVAL OF THE BOILERS AND ACCESSORIES BY THE PURCHASER, THE STOREHOUSE MANAGER OF THE WEST VIRGINIA ORDNANCE WORKS REFUSED TO ALLOW THE REMOVAL OF ANY PARTS AND ACCESSORIES FOR BOILERS NOS. 650 655 AND 650- 656 ON THE GROUND THAT THE SALE OF BOILERS NOS. 650-657 AND 650-745 WAS MADE ON AN "AS IS" "WHERE IS" BASIS AND THAT THERE WERE NOT "COMPARABLE INVENTORY NUMBERS SUFFIXED BY A THROUGH N.'

THE CONTRACTING OFFICER HAS REPORTED THAT THE FOOTNOTE WAS INTENDED AS A QUALIFICATION OF THE ,AS IS" "WHERE IS" CLAUSE OF THE BILL OF SALE TO THE EXTENT NECESSARY TO CARRY OUT THE AGREEMENT OF THE PARTIES THAT THE SALE COVERED TWO COMPLETE BOILERS AND ACCESSORIES; AND IN A LETTER OF FEBRUARY 24, 1955, THE DIRECTOR, REAL PROPERTY MANAGEMENT, OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE, CONFIRMED ITS PRIOR APPROVAL OF THE SALE OF THE BOILERS NOS. 650-657 AND 650-745 WITH THE UNDERSTANDING THAT ALL AVAILABLE OPERATIONAL AND ACCESSORY PARTS MISSING THEREFROM COULD BE OBTAINED BY REMOVAL FROM BOILERS NOS. 650 655 AND 650-656. THUS,WHETHER THERE WERE OR ARE OFFICIAL INVENTORY NUMBERS SUFFIXED BY A THROUGH N, OR WHETHER SUCH DESIGNATION IN THE FOOTNOTE TO THE BILL OF SALE HAD REFERENCE TO THE DESIGNATIONS MADE IN THE CONTRACTOR'S ORIGINAL QUOTATION OF JUNE 1, 1954, THE RECORD REASONABLY ESTABLISHES THAT THE SALE, AS AGREED TO AND UNDERSTOOD BY THE PARTIES THERETO, COVERED THE REMOVAL AND SUBSTITUTION FROM BOILERS NOS. 650-655 AND 650-656 OF SUCH OPERATIONAL AND ACCESSORY PARTS AS WERE REQUIRED TO MAKE BOILERS NOS. 650-657 AND 650-745 COMPLETE ON THE DATE OF THE SALE. THE BILL OF SALE--- NEGOTIATED CONTRACT NO. GS- OO-B/S/-1736--- MAY BE REGARDED AS REFLECTING THE SALE ON SUCH BASIS AND DELIVERY IS AUTHORIZED TO BE MADE IN ACCORDANCE WITH THE BILL OF SALE AS SO INTERPRETED.

THE PAPERS, WITH THE EXCEPTION OF THE COPY OF LETTER OF FEBRUARY 16, 1955, FROM THE CONTRACTING OFFICER TO THE ASSISTANT SECRETARY OF DEFENSE AND THE CONTRACTING OFFICER'S MEMORANDUM DATED MAY 26, 1955, ARE RETURNED HEREWITH.