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B-174190, OCT 4, 1972

B-174190 Oct 04, 1972
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ROBINSON JR.: REFERENCE IS MADE TO LETTER DSAH-G DATED NOVEMBER 17. THE PROPERTY WAS NOT REMOVED SINCE BARSTOW REFUSED TO PERFORM TO ITS ALLEGED DETRIMENT IN ACCORDANCE WITH THE SPECIFIC SEQUENCE OF REMOVAL DEMANDED BY THE PROPERTY DISPOSAL OFFICER. THE RECORD IS REPLETE WITH DISPUTES OF FACT CONCERNING PRIOR NOTICE TO BARSTOW OF THE REMOVAL SEQUENCE AND THE CLAIM OF PROPERTY MISDESCRIPTION. IT IS ADMITTED THAT THE CONTRACT CONTAINED NO PROVISION FOR A SPECIFIC SEQUENCE OF REMOVAL. THE PROPERTY WAS SUBSEQUENTLY DISPOSED OF UNDER A READVERTISEMENT WHICH APPRISED PROSPECTIVE BIDDERS OF THE REQUIRED SEQUENCE OF REMOVAL. IT IS REASONABLE TO CONCLUDE THAT THE GOVERNMENT SOUGHT TO REQUIRE A SEQUENCE OF PROPERTY REMOVAL NOT SPECIFICALLY REQUIRED BY THE TERMS OF THE CONTRACT.

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B-174190, OCT 4, 1972

CONTRACT - RELIEF - GOVERNMENT MODIFICATION DECISION ALLOWING BARSTOW TRUCK PARTS & EQUIPMENT CO., INC., RELIEF FROM THE TERMS OF A SURPLUS SALES CONTRACT AWARDED BY THE DEFENSE SURPLUS SALES OFFICE, FLEET STATION, SAN DIEGO, CALIF. WHERE THE GOVERNMENT SEEKS TO REQUIRE A SEQUENCE OF PROPERTY REMOVAL NOT SPECIFICALLY REQUIRED BY THE TERMS OF A SURPLUS SALES CONTRACT, THE CONTRACTOR SHOULD BE RELIEVED OF ITS OBLIGATIONS UNDER THE CONTRACT.

TO GENERAL WALLACE H. ROBINSON JR.:

REFERENCE IS MADE TO LETTER DSAH-G DATED NOVEMBER 17, 1971, FROM THE ASSISTANT COUNSEL, HEADQUARTERS, CAMERON STATION, REPORTING ON THE REQUEST OF BARSTOW TRUCK PARTS & EQUIPMENT CO., INC., FOR RELIEF FROM THE TERMS OF SURPLUS SALES CONTRACT NO. 46-1141-055, AWARDED BY THE DEFENSE SURPLUS SALES OFFICE, FLEET STATION, SAN DIEGO, CALIFORNIA.

THE FILE DISCLOSES THAT, AFTER THE AWARD OF THE CONTRACT FOR SCRAP WRECKED AIRCRAFT ALUMINUM, THE CONTRACTOR ARRIVED AT THE PROPERTY DISPOSAL AREA WITH FOUR FLAT BED TRUCKS TO REMOVE THE SCRAP AIRCRAFT FUSELAGES. HOWEVER, THE PROPERTY WAS NOT REMOVED SINCE BARSTOW REFUSED TO PERFORM TO ITS ALLEGED DETRIMENT IN ACCORDANCE WITH THE SPECIFIC SEQUENCE OF REMOVAL DEMANDED BY THE PROPERTY DISPOSAL OFFICER. THE CONTRACTOR FURTHER CLAIMED THAT THE PROPERTY HAD BEEN MISDESCRIBED IN THE SALES INVITATION. ADDITIONALLY, THE RECORD IS REPLETE WITH DISPUTES OF FACT CONCERNING PRIOR NOTICE TO BARSTOW OF THE REMOVAL SEQUENCE AND THE CLAIM OF PROPERTY MISDESCRIPTION. BUT WE DO NOT FIND IT NECESSARY TO RESOLVE THESE DISPUTES IN REACHING OUR CONCLUSION.

IN REQUIRING SPECIFIC SEQUENCE OF REMOVAL - BEGINNING WITH THE SMALLER PIECES AND CONCLUDING WITH THE LARGER AIRCRAFT CARCASSES - THE PROPERTY DISPOSAL OFFICER RELIED ON A CLAUSE IN THE CONTRACT PROVIDING THAT SEGREGATION, CULLING OR SELECTION OF PROPERTY FOR THE PURPOSE OF EFFECTING PARTIAL OR INCREMENTAL REMOVALS WOULD BE PERMITTED ONLY AS SPECIFICALLY AUTHORIZED AND PRESCRIBED BY THE GOVERNMENT. BUT, IT IS ADMITTED THAT THE CONTRACT CONTAINED NO PROVISION FOR A SPECIFIC SEQUENCE OF REMOVAL. NOTE, IN THIS REGARD, THE PROPERTY WAS SUBSEQUENTLY DISPOSED OF UNDER A READVERTISEMENT WHICH APPRISED PROSPECTIVE BIDDERS OF THE REQUIRED SEQUENCE OF REMOVAL.

UPON A REVIEW OF THE RECORD, IT IS REASONABLE TO CONCLUDE THAT THE GOVERNMENT SOUGHT TO REQUIRE A SEQUENCE OF PROPERTY REMOVAL NOT SPECIFICALLY REQUIRED BY THE TERMS OF THE CONTRACT. WE THEREFORE BELIEVE THAT THE CONTRACTOR SHOULD BE RELIEVED OF ITS OBLIGATIONS UNDER THE SALES CONTRACT.

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