Albert Acan X-Ray Solutions, Inc.
| Decision Date | 04 January 1963 |
| Docket Number | B-150462 |
| Parties | ALBERT ACAN X-RAY SOLUTIONS, INC. |
| Court | Comptroller General of the United States |
We refer to your letter of December 5, 1962, in which you request review of the settlement certificate of November 21 1962, issued by our claims division. The settlement disallowed your claim for $453.37 (including freight), on item no. 16, under sales invitation no. 04-513 s-62-49 issued by sharpe consolidated surplus sales office, sharpe general depot, lathrop, California, on December 22, 1961.
Item no. 16 of the sales invitation was described as January 22, 1962, you received award of item no. 16 at your bid price of $329.94. Upon payment of that amount you removed the material. It is reported that on February 20, 1962, you advised the contracting officer by telephone that only a small percentage of item no. 16 was x-ray film. Letter of February 22, 1962, you alleged that only a few hundred pounds of 2, 340 pounds received on the item were scrap x-ray film and the remainder was polaroid and photographic paper which is of less value.
On February 28, 1962, an inspection of the material in question was made at your location at detroit, Michigan, by a government representative. Samples of the material were sent back to the depot and were examined by the supervisor medical maintenance. In each case he determined that the item concerned was x-ray film although the sample exhibits were of different types and sizes. It is further reported that the item description was determined by checking the federal stock numbers and specifications marked on the containers with personnel from the medical supply division and the medical section at the depot, and that these sources identified the material as x-ray film.
You claim $284.19 of the purchase price of $329.94 as a partial refund on the material you wish to return to the government PLUS freight of $169.18. This claim was disallowed by our claims division on the basis that under article 2 of the general sale terms and conditions of the contract (the "as is - where is" clause) you assumed all risk as to the character or condition of the material sold, and the record did not show that the government exercised any bad faith in the transaction.
In your request for review you state that the material you received was not x-ray film and could not be construed as such. You say...
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