B-126809, APR. 2, 1956

B-126809, APR. 2, 1956

TO SURPLUS OUTLET, INC.:

FURTHER REFERENCE IS MADE TO A LETTER OF JANUARY 12, 1956, FROM YOUR ATTORNEY REQUESTING REVIEW OF OUR SETTLEMENT DATED SEPTEMBER 15, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $352.22, UNDER CONTRACT NO. DA/S/40-110-QM, DATED SEPTEMBER 30, 1954.

IN RESPONSE TO INVITATION NO. 40-110-S-55-6, ISSUED ON SEPTEMBER 13, 1954, BY THE DEPARTMENT OF THE ARMY, MEMPHIS GENERAL DEPOT, MEMPHIS, TENNESSEE, YOU SUBMITTED A BID DATED SEPTEMBER 16, 1954, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. SM-78, COVERING 22 BOATS; RECONNAISSANCE, CANVAS, USED, ETC., AT $16.01 EACH, OR FOR A TOTAL PRICE OF $352.22. YOUR BID WAS ACCEPTED AS TO THIS ITEM ON SEPTEMBER 30, 1954, CONSUMMATING CONTRACT NO. DA/S/40-110-QM. IT APPEARS THAT UPON RECEIPT OF THE BOATS YOU ALLEGED THAT THEY WERE NOTHING MORE THAN DIRTY, TORN PIECES OF CANVAS WITH NO VALUE FOR ANY PURPOSE. AS A RESULT OF THIS YOU HAVE CLAIMED A REFUND OF THE FULL PURCHASE PRICE OF $352.22.

IN THE ATTORNEY'S LETTER OF JANUARY 12, 1956, HE EXPRESSLY STATES THAT THE CLAIM IS NOT BASED ON THE PREMISE THAT THE GOVERNMENT MADE ANY GUARANTY, WARRANTY OR REPRESENTATION AS TO THE VARIOUS FEATURES OF THE BOATS, BUT RATHER BASES THE REQUEST FOR REVIEW SOLELY ON THE CONTENTION THAT YOU PURCHASED BOATS AND RECEIVED NOTHING MORE THAN A SHREDDED MASS OF DIRTY CANVAS. THEREFORE, IT APPEARS NECESSARY TO RESOLVE HERE ONLY THE VERY NATURE OR IDENTITY OF THE PROPERTY ACTUALLY DELIVERED TO YOU.

THE PROPERTY DISPOSAL OFFICER OF THE MEMPHIS GENERAL DEPOT STATES THAT HE CONDUCTED A RANDOM SAMPLE INSPECTION OF THE BOATS--- APPARENTLY PRIOR TO ADVERTISING--- AND THAT WHILE THERE COULD BE NO QUESTION THAT THE BOATS WERE NEITHER NEW NOR UNUSED HE OTHERWISE WAS PERSONALLY AWARE OF THE CONDITION OF THE BOATS OFFERED FOR SALE. SUCH A STATEMENT CARRIES WITH IT THE CLEAR IMPLICATION THAT THE PROPERTY OFFERED FOR SALE WAS ACTUALLY BOATS, AND READILY RECOGNIZABLE AS SUCH, REGARDLESS OF THE CONDITION THEY WERE IN. WHILE IT VERY WELL MAY BE THAT THE OVER-ALL CONDITION OF THE BOATS IS SUCH THAT THEY ARE OF LITTLE, IF ANY, USE AS BOATS, OR THAT THEY ARE BEYOND REPAIR FOR THE USE ORIGINALLY INTENDED, THE FACT REMAINS THAT ON THE BASIS OF THE PRESENT RECORD IT MUST BE CONCLUDED THAT YOU DID RECEIVE BOATS, WHICH WAS THE SPECIFIC PROPERTY ADVERTISED FOR SALE, NOTWITHSTANDING THE ALLEGED STATE OF DETERIORATION. FURTHER, IN THIS CONNECTION, IT APPEARS ADVISABLE TO AGAIN DIRECT YOUR ATTENTION TO ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF CONTRACT NO. DA/S/40-110-QM, RELATIVE TO THE CONDITION OF THE PROPERTY, WHEREIN THE DISCLAIMER OF WARRANTY, THE IMPORT OF WHICH IS FULLY ACKNOWLEDGED AND RECOGNIZED BY YOUR ATTORNEY, EXPRESSLY REFERS TO, AMONG OTHERS, THE FITNESS OF THE PROPERTY FOR ANY USE OR PURPOSE.

THE RECORD NOW BEFORE OUR OFFICE REVEALS A COMPLETE DISAGREEMENT BETWEEN THE FACTS AS ADMINISTRATIVELY REPORTED AND THOSE STATED BY YOU WITH RESPECT TO THE IDENTITY OF THE PROPERTY ACTUALLY DELIVERED. UNDER SUCH CIRCUMSTANCES, THE FACTS AS ADMINISTRATIVELY REPORTED MUST BE ACCEPTED BY OUR OFFICE AS CONTROLLING THE DISPOSITION OF THE CLAIM IN THE ABSENCE OF EVIDENCE--- NOT MERELY UNSUPPORTED ALLEGATIONS--- TO OVERCOME THE CORRECTNESS OF SUCH FACTS. IT IS A WELL-ESTABLISHED PRINCIPLE THAT THE OBLIGATION OF ASSEMBLING AND PRESENTING PERTINENT EVIDENCE IN ..END :