B-131627, JUN. 6, 1957

B-131627, JUN. 6, 1957

TO MIDWEST WASTE MATERIAL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 11, 1957, REGARDING YOUR CLAIM FOR REFUND OF $1,434.50 UNDER AN UNNUMBERED CONTRACT AWARDED TO YOU BY THE DEPARTMENT OF THE ARMY AS A CONSEQUENCE OF INVITATION NO. 38- 042-S-56-1, DATED AUGUST 15, 1955.

UNDER THE CONTRACT YOU AGREED TO PURCHASE ITEMS NOS. 33-78, 34-78A AND 35 -78B, COVERING AN ESTIMATED 80,000 POUNDS OF SALVAGE TENTAGE AT THE PRICES PER POUND THEREIN SPECIFIED, OR FOR A TOTAL PRICE OF $4,938. IT IS REPORTED THAT SUBSEQUENT TO THE AWARD OF THE CONTRACT, OR ON OR ABOUT OCTOBER 4, 1955, YOU MADE PAYMENT OF THE BALANCE DUE FOR 80,000 POUNDS OF TENTAGE AND AT THE SAME TIME AUTHORIZED THE DORN TRANSFER COMPANY OF COLUMBIA, SOUTH CAROLINA, TO PERFORM THE LOADING SERVICES AT THE FORT JACKSON ARMY BASE IN SOUTH CAROLINA. SUCH SERVICES WERE RENDERED BY THE DORN TRANSFER COMPANY AND THE TENTAGE MOVED TO ITS DESTINATION IN DETROIT, MICHIGAN. YOU ALLEGE THAT UPON ARRIVAL OF BOTH RAIL CARS AT DESTINATION, THE PROPERTY WAS FOUND TO CONTAIN AN ESTIMATED EXCESS MOISTURE OF APPROXIMATELY 25 PERCENT AND, BY REASON OF THIS, YOU ARE CLAIMING A REFUND OF $1,434.50--- 25 PERCENT OF $4,938 BEING ONLY $1,234.50--- ON THE BASIS THAT YOU WERE OBLIGED TO PAY THE UNIT BID PRICES AND RAIL FREIGHT CHARGES FOR THE WEIGHT OF THE MOISTURE.

THERE ARE IN THE RECORD 11 WEIGHT SLIPS OF THE PROPERTY DISPOSAL OFFICE, FORT JACKSON, SOUTH CAROLINA, SHOWING THAT A TOTAL OF 80,000 POUNDS (NET) OF TENTAGE WAS LOADED AT THE FORT JACKSON BASE FOR DELIVERY TO YOU AT DETROIT, MICHIGAN. MOREOVER, IT IS ADMITTED BY THE DEPARTMENT OF THE ARMY THAT LOADING WAS PERFORMED BY OUR AGENT,THE DORN TRANSFER COMPANY, DURING A LIGHT RAIN. WHAT APPEARS TO BE EVEN MORE PERTINENT IS THE FACT THAT A REPRESENTATIVE LOT OF THE SAME TENTAGE WAS WEIGHED BY THE OFFICE OF THE ARMY CONTRACTING OFFICER, BOTH BEFORE AND AFTER DRYING, WITH THE RESULT THAT THE MAXIMUM MOISTURE CONTENT WAS ESTIMATED AS NOT IN EXCESS OF 4 PERCENT. IN VIEW OF THIS, INSTRUCTIONS ARE TODAY BEING ISSUED TO OUR CLAIMS DIVISION FOR THE REFUND, UNDER ARTICLE 8 (ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT) OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SUBJECT CONTRACT, OF FOUR PERCENT OF THE TOTAL AMOUNT PAID FOR THE TENTAGE.

IN CONSIDERING THAT PART OF YOUR CLAIM REPRESENTING THE DIFFERENCE BETWEEN THE AMOUNT CONSIDERED PROPER FOR ALLOWANCE AND THE TOTAL AMOUNT OF THE $1,434.50 CLAIMED, OUR OFFICE MUST BE GOVERNED SOLELY ON THE BASIS OF THE PROOF FURNISHED BY YOU TO SUBSTANTIATE THE AMOUNT CLAIMED. IN THIS REGARD, NOT ONLY IS THE RECORD COMPLETELY LACKING OF PROOF AS TO THE 25 PERCENT MOISTURE CONTENT, UPON WHICH YOUR CLAIM IS BASED, BUT YOU ADMIT THAT YOUR ALLEGATION OF SUCH A PERCENTAGE OF MOISTURE CONTENT IS MERELY AN ESTIMATE. IN VIEW OF THIS, AND SINCE THERE APPEARS NO LEGAL LIABILITY ON THE PART OF THE GOVERNMENT FOR ANY AMOUNT OF FREIGHT CHARGES INVOLVED, THERE IS NO LEGAL BASIS FOR ALLOWANCE OF THE BALANCE OF THE TOTAL AMOUNT CLAIMED.

ACCORDINGLY, EXCEPT AS INDICATED HEREINABOVE, THE SETTLEMENT DATED APRIL 3, 1957, MUST BE SUSTAINED.