B-151239, MAY 31, 1963

B-151239, MAY 31, 1963

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO A LETTER DATED APRIL 3, 1963, WITH ENCLOSURES, DSAH- G, FROM THE ASSISTANT COUNSEL, CAMERON STATION, REQUESTING OUR DECISION AS TO WHETHER, UNDER THE FACTS REPORTED, A REFUND OF $125 MAY BE MADE TO THE ALLEY SEED COMPANY, MIAMI, MISSOURI, WHICH REPRESENTS THE PURCHASE PRICE PAID BY THE COMPANY FOR 5 AIRCRAFT TIRES UNDER CONTRACT NO. DSA 39-S-231.

IN RESPONSE TO SALE INVITATION NO. 39-S-63-18, WHICH WAS ISSUED ON OCTOBER 30, 1962, BY THE DEFENSE SURPLUS SALES OFFICE, FORT LEAVENWORTH, KANSAS, THE ALLEY SEED COMPANY SUBMITTED A BID DATED NOVEMBER 14, 1962, OFFERING TO PURCHASE ITEM NO. 137, COVERING 5 AIRCRAFT TIRES AT $25 EACH, OR FOR A TOTAL PRICE OF $125. AMONG OTHER DESCRIPTIVE DETAILS SET FORTH FOR THE ITEM WERE 16 INCH RIM, UNUSED, GOOD CONDITION, WITH A TOTAL ACQUISITION COST OF $745. THE BID OF THE ALLEY SEED COMPANY FOR ITEM NO. 137 WAS ACCEPTED ON NOVEMBER 26, 1962, THEREBY CONSUMMATING CONTRACT NO. DSA 39-S-231. SUBSEQUENTLY, PAYMENT WAS MADE IN FULL BY THE COMPANY AND DELIVERY OF THE ITEM MADE TO IT. UPON RECEIPT OF SHIPMENT, THE ALLEY SEED COMPANY, BY LETTER DATED DECEMBER 20, 1962, ADVISED THE GOVERNMENT CONTRACTING OFFICER THAT THE TIRES RECEIVED WERE NOT "UNUSED," AS DESCRIBED IN THE INVITATION, BUT WERE TIRES THAT HAD BEEN USED AND THAT 2 OF THEM CONTAINED BOOTS FROM BEING REPAIRED AT SOME TIME. BY LETTER DATED FEBRUARY 1, 1963, THE COMPANY ALSO ADVISED THE CONTRACTING OFFICER THAT THE TIRES WERE NOT 16 INCH RIM SIZE, AS DESCRIBED, BUT WERE 18 INCH RIM SIZE. THE ALLEY SEED COMPANY SEEKS REDRESS FOR THE RESULT OF THE MISDESCRIPTIONS.

THE 5 AIRCRAFT TIRES COVERED BY ITEM NO. 137 WERE DESCRIBED IN THE INVITATION AS BEING IN AN ,UNUSED, GOOD CONDITION," NOTWITHSTANDING THAT THE TURN-IN DOCUMENT SHOWED THEIR CONDITION AS BEING MERELY "SERVICEABLE.' IT IS OBVIOUS THAT THIS CHANGE IN THE DESCRIPTION OF THE CONDITION OF THE TIRES RESULTED SOLELY FROM AN INSPECTION OF THE TIRES UPON RECEIPT THEREOF BY THE PROPERTY DISPOSAL OFFICER. THE RECORD SHOWS THAT THE TIRES WERE INSPECTED AND CODED "N/3, UNUSED AND OUTDATED.' THE DISPOSAL OFFICER STATED THAT ONLY THE OUTSIDES OF THE TIRES WERE INSPECTED AND SINCE THEY SHOWED NO WEAR THE INSIDES WERE NOT CHECKED. IN THIS REGARD, WE BELIEVE THAT WHERE THE CONDITION OF SURPLUS PROPERTY IS CHANGED FROM THAT SHOWN ON THE TURN-IN DOCUMENT BY A DISPOSAL OFFICER BY REASON OF THE RECEIPT OF ADDITIONAL INFORMATION OR ON THE BASIS OF HIS OWN INSPECTION OF THE PROPERTY THE DISPOSAL OFFICER, OR SUCH OTHER PERSON AUTHORIZING THE CHANGE, OWES THE DUTY OF CAREFULLY EVALUATING ALL CIRCUMSTANCES ASSOCIATED WITH THE CONDITION OF THE PROPERTY TO INSURE THAT THE CHANGE IS BASED ON THE BEST AVAILABLE INFORMATION, AND THIS IS PARTICULARLY TRUE WHERE, AS HERE, THE CHANGE IN THE DESCRIPTION INDICATES THE PROPERTY BEING IN A BETTER CONDITION. IN THE INSTANT CASE, IT REASONABLY MAY NOT BE CONCLUDED THAT THE INSPECTION BY THE DISPOSAL OFFICER WAS CONDUCTED IN SUCH A MANNER AS TO WARRANT THE DETERMINATION THAT THE DESCRIPTION OF THE CONDITION OF THE 5 AIRCRAFT TIRES WAS BASED ON THE BEST AVAILABLE INFORMATION, AS STATED IN THE INVITATION.

ACCORDINGLY, IF IT IS SHOWN TO YOUR SATISFACTION THAT THE TIRES ARE IN THE USED CONDITION ALLEGED BY THE ALLEY SEED COMPANY, OUR OFFICE WILL NOT OBJECT TO THE CANCELLATION OF CONTRACT NO. DSA 39-S-231 AND A FULL REFUND OF THE PURCHASE PRICE TO THE COMPANY UPON ITS RETURN OF THE TIRES TO THE NEAREST MILITARY INSTALLATION AT GOVERNMENT EXPENSE.

A COPY OF THE ASSISTANT COUNSEL'S LETTER DATED APRIL 3, 1963, TOGETHER WITH THE ENCLOSURES, WITH THE EXCEPTION OF THE MEMORANDUM DATED MARCH 26, 1963, OF THE DEFENSE LOGISTICS SERVICES CENTER, THE CENTER'S UNDATED ADMINISTRATIVE REPORT, AND THE MEMORANDUM DATED FEBRUARY 28, 1963, OF THE SALES CONTRACTING OFFICER, IS RETURNED HEREWITH.