B-127782, DEC. 18, 1956

B-127782, DEC. 18, 1956

TO GAISER IRON AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 29, 1956, AND PREVIOUS CORRESPONDENCE, REQUESTING RECONSIDERATION OF OUR DECISION DATED MAY 31, 1956, TO YOU, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE ON ITEM NO. 16C UNDER CONTRACT NO. 33-167-55-1062S, DATED JUNE 28, 1955.

IN YOUR LETTER OF JUNE 8, 1956, YOU STATE THAT THE FACTS AS SET FORTH IN THE DECISION ARE ACCURATE; HOWEVER, YOU REPEAT THAT YOU WERE MISLED BY THE SAMPLES ON DISPLAY INTO BELIEVING THAT ALL THE TUBING INCLUDED IN ITEM 16C WAS MADE OF COPPER AND THAT, SINCE YOU WERE DENIED PERMISSION TO MAKE A COMPLETE INSPECTION OF THE ENTIRE LOT, YOU WERE PREVENTED FROM DETERMINING THE TRUE NATURE OF THE TUBING.

AFTER A CAREFUL STUDY OF THE FACTS RELATING TO YOUR CLAIM AND THE LAW APPLICABLE TO THOSE FACTS WE HAVE CONCLUDED THAT THERE EXISTS NO LEGAL BASIS FOR THE PAYMENT OF YOUR CLAIM, AT LEAST ON THE PRESENT RECORD. YOU CONTEND, IN EFFECT, THAT THE SALE WAS ONE BY SAMPLE AND THAT THE SAMPLES SHOWN WERE MADE OF COPPER. REGARDING THE TYPE OF TUBING SHOWN TO YOU, THE ADMINISTRATIVE OFFICE HAS REPORTED THAT IT CANNOT BE DETERMINED DEFINITELY WHETHER THE TUBING WAS IN FACT MADE OF STEEL OR COPPER. THUS, OTHER THAN YOUR OWN SELF-SERVING STATEMENT, NO EVIDENCE HAS BEEN PRESENTED TO CLEARLY ESTABLISH THAT THE SAMPLE TUBING WAS IN FACT MADE OF COPPER. IN THE ABSENCE OF SUCH EVIDENCE TOGETHER WITH FURTHER EVIDENCE SHOWING THAT THE GOVERNMENT'S REPRESENTATIVE WHO DISPLAYED THE SAMPLES DID SO UNDER CIRCUMSTANCES WHICH LED YOU TO BELIEVE THAT THE BULK OF THE LOT OF TUBING BEING SOLD CONFORMED WITH THE SAMPLES WHICH WAS NOT THE CASE, WE WOULD NOT BE JUSTIFIED IN ALLOWING ANY PART OF YOUR CLAIM.