B-142653, MAY 13, 1960

B-142653, MAY 13, 1960

TO METAL RECLAIMING COMPANY OF NEW YORK, INC.:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 7, 1960, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 19, 1960, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $1,679.05 ITEMIZED AS FOLLOWS IN YOUR LETTER OF AUGUST 11, 1959:

TABLE

"1. DEMURRAGE CHARGES AT WATERVILLE, CONN. 24.00

2. 7/13/59 EXPENSES COVERING TRIP OF OUR

MR. J. LORCH TO WATERVILLE, CONN. 19.70

3. FREIGHT CHARGES FROM WATERVILLE TO BROOKLYN, N.Y. 322.08

4. FREIGHT CHARGES FROM BROOKLYN TO WATERVILLE, CONN. 324.58

5. UNLOADING, SORTING AND RELOADING FROM 7/21 TO

7/29/59, ACTUAL WAGES, INCLUDING WORKMEN'S

COMPENSATION AND SOCIAL SECURITY 503.72

6. TRUCKING FROM NEW YORK DOCK RAILWAY TERMINAL

IN BROOKLYN TO OUR WAREHOUSE 150.98

7. (FOR RELOADING RAILROAD CAR). TRUCKING FROM

OUR WAREHOUSE TO NEW YORK DOCK RAILWAY

TERMINAL 150.45

8. 5 1/4 PERCENT INTEREST TO BANK FOR ADDITIONAL

30 DAYS 105.00

9. TELEPHONE CALLS AND TELEGRAMS TO:

A. SIDNEY, NEBRASKA

B. JOLIET, ILLINOIS

C. WASHINGTON, D.C.

D. WATERBURY, CONN.

E. NEW YORK, N.Y.

(ESTIMATED) 40.00

$1,640.51

(WE HAVE NOT AS YET BEEN BILLED FOR THESE ITEMS.

EXACT FIGURES WILL BE FURNISHED AS SOON AS THEY

ARE RECEIVED)

IN ADDITION TO OUR EXPENSES, THERE IS DUE BY

WAY OF ADJUSTMENT OF THE PRICE ON THE 350 LBS.

OF CONTAMINATED MATERIAL THE SUM OF 38.54

MAKING AN OVERALL TOTAL OF $1,679.05"

BY INVITATION NO. 25-044-S-59-24 ISSUED MAY 25, 1959, BY THE SALVAGE BRANCH, SIOUX ORDNANCE DEPOT, SIDNEY, NEBRASKA, BIDS WERE SOLICITED FOR SEVERAL ITEMS OF "FERROUS, NONFERROUS AND OTHER SCRAP," THE PROPERTY INCLUDED IN ITEM NO. 9 BEING DESCRIBED AS FOLLOWS:

"SCRAP BRASS

FIRED SMALL ARMS CART. CASES.

50 CAL. UNIT WT. 2 OZ. APPROX.

4 INCHES IN LENGTH. UAC .40

TOTAL AC: $57,783.20 APPROX. 144458 LBS.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OF $0.23072 PER POUND- -- A TOTAL OF $33,329.35--- ON ITEM NO. 9. ON JUNE 12, 1959, AWARD WAS MADE TO YOU AS THE HIGHEST BIDDER ON ITEM NO. 9 (CONTRACT NO. DA/S/-25-044 -AV-150), AND YOU COMPLETED PAYMENT OF THE AMOUNT OF YOUR BID. BY YOUR LETTER OF JUNE 19, 1959, YOU REQUESTED THAT SHIPMENT BE MADE TO CHASE BRASS AND COPPER CO., INC., WATERVILLE, CONNECTICUT.

IT APPEARS THAT ON JUNE 25, 1959, WHILE THE SECOND AND LAST RAILROAD CAR WAS BEING LOADED BY THE SALVAGE BRANCH, THE PROPERTY DISPOSAL OFFICER STATED TO YOU BY TELEPHONE THAT AN ESTIMATED 20,000 POUNDS OF SCRAP BRASS MORE THAN ANTICIPATED WHEN THE INVITATION WAS PREPARED WOULD BE AVAILABLE FOR LOADING IN THE SECOND CAR FOR AN ADDITIONAL PAYMENT OF $4,614.40 AND THAT AFTER CONTACTING CHASE BRASS AND COPPER CO., INC., YOU AUTHORIZED THE ADDITIONAL SHIPMENT AND MADE THE ADDITIONAL PAYMENT. IN ALL, YOU RECEIVED 171,060 POUNDS OF MATERIAL FOR WHICH YOU MADE PAYMENTS AGGREGATING $39,466.96.

YOU STATE THAT THE MATERIAL SHIPPED IN THE FIRST CAR WAS SATISFACTORY BUT THAT SOON AFTER BEGINNING TO UNLOAD THE SECOND CAR CHASE BRASS AND COPPER CO., INC., FOUND A SMALL AMOUNT OF MATERIAL CONTAMINATED WITH IRON NAILS, STEEL BULLETS, ETC., AND THAT YOU HAD THE CAR SENT FROM WATERVILLE, CONNECTICUT, TO YOUR WAREHOUSE IN BROOKLYN, WHERE YOU UNLOADED IT, FINDING 350 POUNDS OF CONTAMINATED MATERIAL, ALL LOCATED IN THE CENTER OF THE CAR. YOUR CLAIM IN THE AMOUNT OF $1,679.05, ITEMIZED AS ABOVE, WAS DISALLOWED BY THE SIOUX ORDNANCE DEPOT AND SUBSEQUENTLY WAS DISALLOWED BY GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JANUARY 19, 1960, FOR THE REASONS SET OUT THEREIN.

PARAGRAPH 2 OF GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATION AND QUOTED IN THE SETTLEMENT PROVIDES:

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

IN YOUR LETTER OF APRIL 7, 1960, YOU STATE, IN SUBSTANCE, THAT THE ABOVE- QUOTED PARAGRAPH 2 WOULD NEGATIVE ANY CLAIM ARISING FROM RECEIPT OF MATERIAL NOT CONFORMING TO THE DESCRIPTION IN THE INVITATION, IF THE MATERIAL WERE "PURCHASED UNDER OUR BID AND PURSUANT TO THE ORIGINAL OFFERING.' IT IS TO BE OBSERVED THAT THE INVITATION DESCRIBED THE MATERIAL COVERED BY ITEM NO. 9 AS PPROX.' 144,458 POUNDS. IN THIS CONNECTION, PARAGRAPH M OF "ADDITIONAL SPECIAL CONDITIONS AND INSTRUCTIONS" INCLUDED IN THE INVITATION PROVIDES:

"ADJUSTMENT FOR VARIATION IN QUANTITY: AS TO ANY ITEM FOR WHICH A PRICE PER UNIT IS SPECIFIED IN THE SCHEDULE OF PROPERTY TO BE SOLD, THE PURCHASER AGREES TO ACCEPT AND PAY AT THE QUOTED UNIT PRICE FOR ANY NUMBER OF UNITS DELIVERED OR OFFERED FOR DELIVERY BY THE GOVERNMENT UP TO AND INCLUDING TWENTY-FIVE (25 PERCENT) MORE OR LESS THAN THE ESTIMATED QUANTITY STATED IN THE SCHEDULE. THIS VARIATION CONDITION DOES NOT PERMIT SUBTRACTION FROM OR ADDITION TO THE PHYSICAL MATERIAL OFFERED FOR SALE, BUT IT IS ONLY CONCERNED WITH POSSIBLE INACCURACIES IN STATED ESTIMATED QUANTITIES.'

THE AMOUNT ACTUALLY DELIVERED TO YOU WAS 171,060 POUNDS (26,602 POUNDS IN EXCESS OF THE ESTIMATED AMOUNT SHOWN IN THE INVITATION), WHICH IS WELL WITHIN THE LIMIT PERMITTED BY THE ABOVE-QUOTED PARAGRAPH M. THE ADMINISTRATIVE OFFICE STATES THAT ALL OF THE MATERIAL DELIVERED TO YOU IN EXCESS OF 144,458 POUNDS WAS "A PART OF THE ORIGINAL QUANTITY OFFERED FOR SALE AND NOT A SEPARATE AND DISTINCT LOT.'

IN VIEW OF THE FOREGOING, IT MUST BE HELD THAT ALL OF THE MATERIAL DELIVERED TO YOU WAS PURCHASED BY YOU AND DELIVERED PURSUANT TO THE TERMS OF THE INVITATION AND THE CONTRACT AND THAT ALL SUCH TERMS--- INCLUDING THE EXPRESS DISCLAIMER OF ANY WARRANTY--- ARE APPLICABLE TO THE ENTIRE AMOUNT DELIVERED (171,060 POUNDS). THEREFORE, HAVING REGARD FOR THE PROVISIONS OF THE CONTRACT, EVEN IF IT WERE ESTABLISHED THAT THE CONTAMINATED MATERIAL WAS A PART OF THE 26,602 POUNDS OF MATERIAL LOADED IN EXCESS OF THE WEIGHT STATED IN THE INVITATION, THERE WOULD BE NO LIABILITY ON THE PART OF THE GOVERNMENT TO REFUND ANY PORTION OF THE CONTRACT PRICE OR TO REIMBURSE YOU FOR ANY EXPENSES INCURRED BY YOU AS A RESULT OF THE DELIVERY OF CONTAMINATED MATERIAL.

FOR THE REASONS ABOVE SET FORTH, THE SETTLEMENT OF JANUARY 19, 1960, DISALLOWING YOUR CLAIM, APPEARS CORRECT AND HEREBY IS SUSTAINED.