B-157538, SEP. 14, 1965

B-157538, SEP. 14, 1965

TO M. LOWENSTEIN AND SONS, INC.:

YOUR LETTER OF AUGUST 12, 1965, REFERENCING CLAIM NO. Z2283878, REQUESTS REVIEW OF OUR SETTLEMENT OF JULY 21, 1965, WHICH DISALLOWED YOUR CLAIM FOR $1,865.50. THIS AMOUNT WAS WITHHELD FROM MONIES OWED YOU UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-1-6735 AND APPLIED TO AN INDEBTEDNESS ARISING UNDER GENERAL SERVICES ADMINISTRATION CONTRACT NO. GS-00S-29939, IN THAT AMOUNT FOR EXCESS CUBAGE COSTS CHARGED TO THE GOVERNMENT BY THE OCEAN CARRIER TRANSPORTING THIS SHIPMENT.

UNDER CONTRACT GS-00S-29939, YOU AGREED TO MANUFACTURE CERTAIN QUANTITIES OF TEXTILE FABRICS FOR SHIPMENT TO INDONESIA. PARAGRAPH 5 OF THE SPECIAL PROVISIONS OF THE CONTRACT PROVIDED THAT THE COTTON DRILL CLOTH WAS TO BE PACKED IN 765 CONTAINERS AND THE COTTON PERCALE CLOTH WAS TO BE PACKED IN 508 CONTAINERS. EACH PACKED CONTAINER WOULD HAVE A GROSS WEIGHT OF 250 POUNDS, WITH A NET WEIGHT OF 240 POUNDS, AND WOULD MEASURE 38 INCHES BY 20 INCHES BY 16 INCHES. THIS WOULD RESULT IN A CUBAGE OF 8,958.1 CUBIC FEET FOR THE ENTIRE SHIPMENT; HOWEVER, YOU TENDERED THE QUANTITY PACKED IN 1,251 LARGER CONTAINERS WITH A TOTAL CUBAGE OF 10,393 CUBIC FEET, RESULTING IN EXCESS SHIPPING COSTS OF $1,865.50. NOT ONLY WERE THE CARTONS LARGER THAN THE MEASUREMENTS SPECIFIED IN THE CONTRACT, BUT THEY WERE BULGING AT THE SIDES AND AT THE TOP AND BOTTOM. THIS BULGING ADDED FROM ONE TO SEVERAL INCHES IN HEIGHT AND WIDTH TO EACH CARTON AND ALSO GAVE THEM A ROUNDED, BALE-LIKE SHAPE. THE RESULT WAS THAT THE CARTONS COULD NOT BE PLACED AS CLOSELY TOGETHER AS CONTEMPLATED AND, IN EFFECT, EACH CARTON HADLARGER DIMENSIONS. YOU CONTEND THAT LARGER CARTONS WERE USED BECAUSE OF AN ORDER BY MR. A. W. DAVIS, A GOVERNMENT INSPECTOR, FOR YOU TO PACK NO MORE THAN ONE COLOR AND/OR PATTERN IN EACH CONTAINER.

MR. DAVIS DISPUTES THIS ALLEGATION AND SAYS HE WOULD HAVE NO REASON TO GIVE SUCH AN ORDER. IN CASES WHERE THERE IS A FACTUAL DISPUTE BETWEEN THE ADMINISTRATIVE AGENCY AND A CONTRACTOR, THIS OFFICE WILL ACCEPT THE STATEMENTS OF THE ADMINISTRATIVE OFFICE, IN THE ABSENCE OF A CLEAR SHOWING TO THE CONTRARY. 42 COMP. GEN. 124; 37 COMP. GEN. 568. FURTHERMORE, EVEN IF SUCH ORDER HAD BEEN GIVEN, THERE IS NO EVIDENCE THAT MR. DAVIS HAD ANY AUTHORITY TO VARY THE TERMS OF THE CONTRACT IN THIS RESPECT. THUS, SUCH AN ORDER COULD NOT BE BINDING ON THE GOVERNMENT. FEDERAL CROP INSURANCE CORPORATION V. MERRILL, 332 U.S. 380; WILBER NATIONAL BANK V. UNITED STATES, 294 U.S. 120.

YOU HAVE SUBMITTED A COPY OF GSA FORM 308, NOTICE OF INSPECTION, SIGNED BY MR. DAVIS, AS EVIDENCE THAT MR. DAVIS APPROVED THE CHANGE IN PACKING, AND YOU STATE THAT THIS ESTABLISHES YOUR POSITION. THIS DOCUMENT IN NO WAY PROVES THAT MR. DAVIS GAVE AN ORDER TO PACK THE CLOTH IN A PARTICULAR MANNER. AT MOST, THE NOTICE MIGHT BE USED TO SHOW THAT MR. DAVIS ACQUIESCED IN THE CHANGE, WHICH AUTHORITY MR. DAVIS DID NOT HAVE. THUS, SUCH AN ACQUIESCENCE COULD NOT BIND THE GOVERNMENT.

FINALLY, EVEN IF THE ORDER HAD BEEN GIVEN, AND BY PROPER AUTHORITY, WE FAIL TO SEE HOW THIS WOULD NECESSITATE THE USE OF LARGER CARTONS, SINCE THE QUANTITY OF CLOTH TO BE SHIPPED REMAINED THE SAME. FURTHER, THE ADMINISTRATIVE OFFICE ADVISED THAT THE PRIMARY CAUSE OF THE EXCESS CUBAGE WAS THE BULGING OF THE CARTONS, WHICH BULGING WOULD HAVE OCCURRED WHETHER THE COLORS AND PATTERNS WERE PACKED SEPARATELY OR MIXED. THE EXCESS CUBAGE, THEREFORE, RESULTED FROM YOUR FAILURE TO CONSIDER THAT THESE CARTONS WOULD BULGE WHEN PACKED AND WOULD HAVE DIMENSIONS GREATER THAN WHEN EMPTY. THE GOVERNMENT CAN NOT BE RESPONSIBLE FOR SUCH A MISCALCULATION.