B-156065, APR. 22, 1965

B-156065, APR. 22, 1965

TO VITRO ELECTRONICS:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 30, 1965, IN WHICH YOU REQUEST RECONSIDERATION OF OUR DECISION OF FEBRUARY 23, 1965, WHICH SUSTAINED THE SETTLEMENT OF JUNE 30, 1964, DISALLOWING YOUR CLAIM FOR $2,345, REPRESENTING THE COST OF REPAIRING A SPECIAL PURPOSE RECEIVER FURNISHED THE DEPARTMENT OF THE AIR FORCE UNDER CONTRACT NO. AF 41/621/-398.

THE FACTS AND CIRCUMSTANCES INVOLVED WERE SET OUT IN OUR DECISION OF FEBRUARY 23, 1965, AND WILL NOT BE REPEATED HERE.

THE CLAIM INVOLVES DAMAGE TO A RECEIVER NUMBERED 113 SHIPPED BY YOU, F.O.B. DESTINATION, KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, ON AUGUST 31, 1962. THE RECEIVER SHIPPED BY ROADWAY EXPRESS, INC., ARRIVED AT KELLY AIR FORCE BASE, SAN ANTONIO, TEXAS, ON SEPTEMBER 10, 1962, AND YOU ALLEGE THAT IT WAS NOT REJECTED BECAUSE OF ANY VISIBLE DAMAGE TO THE SHIPMENT BUT WAS ACCEPTED AS BEING IN APPARENT GOOD CONDITION. THE RECORDS OF OUR OFFICE DO NOT SHOW ANYTHING TO THE CONTRARY. HOWEVER, UPON UNCRATING, IT WAS DISCOVERED THAT THE RECEIVER WAS DAMAGED AND ON SEPTEMBER 20, 1962, A DAMAGE REPORT, DD FORM 6, WAS EXECUTED AND SENT TO YOU. THIS REPORT COULD HAVE BEEN USED FOR TAKING THE MATTER UP PROMPTLY WITH ROADWAY EXPRESS. THE RECEIVER WAS THEN HELD AT KELLY AIR FORCE BASE PENDING RECEIPT OF INSTRUCTIONS FROM YOUR FIRM AS TO THE DISPOSITION OF THE RECEIVER. WHEN NO REPLY FROM YOU HAD BEEN RECEIVED FOR APPROXIMATELY THREE MONTHS ONE SERGEANT JOHNSON TELEPHONED YOUR FIRM ON DECEMBER 19, 1962, TO DISCUSS THE DAMAGE. HE TALKED TO A MR. ELLENBERGER OF YOUR FIRM WHO TOLD HIM (SERGEANT JOHNSON) THAT HE HAD THE GOVERNMENT REPORT OF THE DAMAGE AND THAT THE RECEIVER SHOULD BE RETURNED TO YOU FOR REPAIR OR REPLACEMENT AT NO EXPENSE TO THE GOVERNMENT. YOU HAVE DENIED THAT YOU RECEIVED THE REPORT OF SEPTEMBER 20, 1962, REGARDING THE DAMAGE. IN THE ABSENCE OF CLEAR AND CONVINCING EVIDENCE TO THE CONTRARY ON THE QUESTION OF DISPUTED FACTS, IT HAS LONG BEEN THE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE ADMINISTRATIVE OFFICE VERSION OF THE FACTS. ACTING ON SUCH INSTRUCTIONS FROM YOUR FIRM THE RECEIVER WAS RETURNED ON DECEMBER 21, 1962, BY RAILWAY EXPRESS AGENCY, INC., AND ON JANUARY 15, 1963, A REPLACEMENT RECEIVER NUMBERED 133 WAS RECEIVED BY THE GOVERNMENT ON A "NO CHARGE" INVOICE.

INSOFAR AS OUR RECORDS SHOW, IT WAS NOT UNTIL SEPTEMBER 6, 1963, OR AFTER RECEIVER NO. 113 WAS IN YOUR POSSESSION FOR SEVEN MONTHS, THAT YOU ATTEMPTED TO DETERMINE LIABILITY FOR THE DAMAGE, AND WHILE IN THE LAST PARAGRAPH OF THE FIRST PAGE OF YOUR RECENT LETTER YOU STATE THAT THE GOVERNMENT DID NOT FOLLOW INSTRUCTIONS IN PARAGRAPH 6 "ON THE BACK OF THE GOVERNMENT BILL OF LADING" WHEN THE DAMAGES WERE DISCOVERED AFTER ROADWAY EXPRESS HAD DELIVERED RECEIVER NO. 113 TO KELLY AIR FORCE BASE, THE RECORDS INDICATE THAT THE RECEIVER WAS SHIPPED F.O.B. DESTINATION ON A COMMERCIAL BILL OF LADING WITH NO SHOWING THAT THE BILL OF LADING WAS TO BE CONVERTED TO A GOVERNMENT BILL OF LADING. HENCE, THE PROVISIONS OF THE GOVERNMENT BILL OF LADING AS SUCH WERE NOT APPLICABLE TO THE SHIPMENT INVOLVED.

ALSO, YOU STATE THAT THE LOSS OCCASIONED BY THE DAMAGE TO RECEIVER NO. 113 WAS NOT CAUSED BY ANYTHING YOU DID OR NEGLECTED TO DO BUT WAS CAUSED SOLELY BY THE AIR FORCE. THIS STATEMENT OVERLOOKS THE QUESTION AS TO WHETHER ROADWAY EXPRESS MISHANDLED THE SHIPMENT AND THE DETERMINATION IN REGARD TO THIS MATTER THAT COULD HAVE BEEN MADE HAD YOUR FIRM CONTACTED ROADWAY EXPRESS PROMPTLY AFTER YOU WERE FURNISHED WITH THE REPORT OF DAMAGE ON DD FORM 6. WHILE YOU IMPLY THAT THE GOVERNMENT ACTED IMPROPERLY IN NOT ADEQUATELY INSURING THE DAMAGED EQUIPMENT WHEN IT GRATUITOUSLY RETURNED IT TO YOU, IT WAS STATED IN THE NEXT TO THE LAST PARAGRAPH OF OUR DECISION OF FEBRUARY 23, 1965, THAT IN THE ABSENCE OF A SPECIAL OR EXPRESS AGREEMENT TO THE CONTRARY THE GOVERNMENT'S RESPONSIBILITY IN THE MATTER WAS FULLY DISCHARGED WHEN IT RETURNED THE RECEIVER ,RELEASE/D) AT THE MAXIMUM VALUE APPLICABLE TO THE LOWEST PUBLISHED RATE.'

NOTHING HAS BEEN PRESENTED IN YOUR LETTER WHICH WARRANTS ANY CHANGE IN THE CONCLUSION HERETOFORE REACHED IN THE MATTER AND THE DECISION OF FEBRUARY 23, 1965, IS AFFIRMED.