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STATEMENT OF FACTS
On October 28, 1938, the salvage officer of the West Virginia district, Civilian Conservation Corps, Charleston, W. Va., issued a circular advertisement for bids on certain articles to be offered for sale by the Government on November 28, 1938. Among the articles described to be sold were “shoes, mismates (used, loose in bags), 8,306 pounds." Subsequently, the advertisement was altered to read "each in lieu of pounds. At the sale, Joe Koor submitted an offer of $0.0958 each, which was the highest bid, and the shoes were sold to him.
It appears that prior to sale, Mr. Koor called at the salvage office to see the shoes. He was unable to get permission to see the entire lot, but appears to have been shown a small sample of about 15 shoes. He further claims that the Government agent in charge advised him that the shoes were repairable for resale, which was his sole interest in purchasing the shoes. It is also his contention that, in salvage terminology, unless the advertisement specifically describes the goods as unserviceable, unusable, unrepairabie, worn out, or useless, the contrary is presumed to be true; and that, in the instant case, the advertisement of the shoes as being "mismates," with no further description as to condition, led him to believe that the shoes could be repaired and resold. In other words, according to him, the advertisement was a misrepresentation, by reason of which the purchaser was misled to his hurt and damage.
When he received the shoes, he found them different from the sample, and not capable of being repaired for resale. He states that he found them utterly worthless and was unable to make any monetary disposition whatever of them, and that the Government refused to take them back and refund his money. Since the transaction, Mr. Koor has been making a constant effort to obtain some relief, but to no avail.
Mr. Koor paid $795.72 for the shoes, and his expenses in connection with the transaction, including transportation, storage, and labor, were $134.69, making a total of $930.41 which he has been out on the transaction.
During the preceding Congress, a large box of the shoes were brought before your committee for examination, and found to be incapable of repair and apparently worthless.
Mr. Koor appears to be a small merchant, with litt capital, and he states that he has had to mortgage his home to carry on his business, and that the transaction in question threatens to put him out of business.
He further states that he has the shoes and is ready, anxious, and willing to return them to the Government and get his money back.
Your committee feel that the claim is meritorious and that the claimant is entitled to the relief requested, and, therefore, recommend favorable consideration of the proposed legislation.
Appended hereto is the report of the War Department, together with other pertinent evidence, all of which is made a part of this report.
Washington, May 22, 1939. Hon. AMBROSE J. KENNEDY,
Chairman, Committee on Claims, House of Representatives, DEAR MR. KENNEDY: Careful consideration has been given to H. R. 6007, a bill to provide for the relief of Joe Koor, which you transmitted to the War Department under date of May 8, 1939, with request for a report of facts in the case, and the views of the Department relative thereto.
No existing laws will be affected by this bill.
There is enclosed herewith copy of circular advertisement, photostatic copy of report submitted by the district quartermaster, West Virginia district, Civilian Conservation Corps, Charleston, W. Va., and copy of letter dated April 15, 1939, to the Comptroller General of the United States.
The facts are as follows:
On October 28, 1938, the salvage officer, West Virginia district Civilian Conservation Corps, Charleston, W. Va., issued circular proposal No. 5505-39–2-CCCSalvage, on which bids were to be opened November 28, 1938. Item No. 81 of this circular proposal listed under the caption "Shoes, mismates"—8,306 pounds mismates, used (loose in bags). Addendum to circular proposal issued under date of November 1, 1938, changed the unit of item 81 (shoes, mismates, used) to read “each” in lieu of pounds. Mr. Koor submitted an offer of $0.0958 each,
The following bids were received on this item: Bidder No.
Item 81 7..
. 0958 15.
. 0613 19.
.0131 It will be noted that Mr. Koor's bid was $0.0208 bigher than the bid submitted by the next highest bidder but was $0.0109 less than the average price of $0.1067 each, received from sales of mismated shoes throughout the United States for the period November 1, 1938, to January 31, 1939, inclusive.
The records indicate that this salvage property was advertised by the contracting officer in accordance with existing regulations, and the shoes were awarded in good faith to the highest bidder in the absence of any notice that the claimant's bid was in error.
In view of the foregoing, it is the opinion of this Department that Mr. Koor has no claim against the Government as a result of this transaction. Sincerely yours,
Louis JOHNSON, Acting Secretary of War.
INDIANAPOLIS, IND., April 21, 1939. Hon. Louis Ludlow,
House of Representatives, Washington, D. C. My Dear MR. Ludlow: You have my full consent to introduce the said special bill, and I pray for its passage.
I paid the Government the sum of $795.71 for the lot of useless shoes. There is $8,306 shoes, the unit price was $0.0958, per shoe. The hauling charges was $45 via truck from Charleston, W. Va., to Indianapolis. The storage charges from December 15, 1938, has been and is today $18 per month. The bus fare was $8.85 per round trip. I made two trips to Charleston, W. Va., on account of these shoes. One trip on November 27, 1938, and one trip on December 12, 1938, also one man and myself labored for 2 weeks sorting and checking these shoes, but we failed to find even 1 percent of these shoes that are repairable. The entire lot are positively worthless.
I am enclosing a copy of the advertisement, circular proposal, serial No. 550539-2CCC, salvage, West Virginia district, Charleston, W. Va., dated October 28, 1938. There was an addendum to the circular issued November 1, 1938, which changed the item No. 81 to read (each) in lieu of pounds. I do not have the addendum circular.
You will notice that item No. 81 states that the shoes are mismates, used, but it does not state that ese shoes are unserviceable and unrepairable. Usually when the Government sells shoes that are unserviceable and unrepairable they advertise it to be so. This advertisement states that the shoes are mismates and led me to believe that these shoes could be repaired and serviceable, otherwise I would never have bid on them. The reason the Government had other bids on these shoes was because the other bidders were also misled by the Advertisement.
The correct way to advertise shoes in the condition that these were, would be, "Shoes, mismates, unserviceable, unrepairable, worn out, worthless, and useless. These shoes were misrepresented to me and were erroneously advertised by the Government, and I stand to lose the entire amount of $795.71 for which I paid for the worthless shoes, plus the other incidental expenses which I had.
The Government and I enter into a contract for which the Government was supposed to deliver to me 8.306 shoes, used mismates, serviceable and repairable, for which I promise to pay them $795.71. I fulfilled my contract but the Govern. ment did not fulfill their contract to me.
Trust this letter finds you in the best of health, and if there is anything else I can do please let me know, I am, Yours very respectfully,
INDIANAPOLIS, IND., January 28, 1999. Hon. LOUIS LUDLOW,
House Office Building, Washington, D. C. MY DEAR SIR: Can you assist me in a matter of a claim that I filed with the Claims Division, General Accounting Office, Washington, D. C., on January 11, 1939, for the sum of $795.72.
The reason for the claim is: On 28th of November 1938, the Salvage Officer at Charelston, W. Va., of the West Virginia distirct, Civilian Conservation Corps, advetsied for sale on invitation for bids No. 5505-39-2-CCC-Salvage, "8,306 shoes, Mismates." These shoes were advertisted as mismates and did not state that they were unserviceable. I bid $0.0958 per shoe. I was awarded the bid.
When I unpacked these shoes I did not find 1 percent of these shoes serviceable or in a fair enough condition that they could be repaired and resold. The entire lot of these shoes are useless and must be burned.
I paid $795.72 for this lot of shoes, and the total sum plus the hauling charges is a loss to me. It will be impossible for me to derive one cent from these shoes.
When the Government advertises shoes in the condition that these shoes are, they state in the invitation for bids that the shoes are unserviceable, mismates, and unrepairable.
I was misled by the error in the Government's advertisement for bids on these shoes.
This is a tremendous loss for me as I am a small merchant and this $795.72 represents most of my capital. This loss will put me out of business, also I had to mortgage my home to buy these shoes.
Your Honor, I trust you will assist me, by getting me a refund and allowing me to return these shoes to the Government, or any agency that they would suggest. May I hear from you as soon as possible, regarding this matter. Yours very respectfully,
INDIANAPOLIS. IND., May 5, 1941. Hon. Louis Ludlow,
House of Representatives, Washington, D. C. MY DEAR MR. LUDLOW: I received your most welcome letter today, and need not say how pleased I was, that you have reintroduced another bill in my behalf.
As for additional evidence, if I haven't told you this before, it that when I called to inspect the shoes, the man showed me one sack of shoes as a sample, and when I asked to see some more, he refused on the grounds he did not have the space to show them, and all that I saw was about 15 shoes of the entire lot. When I told him that it was not a representative sample of a lot of shoes that size, he stated that 70 percent of the shoes were repairable. Also I have tried to sell these shoes at any price, but could not get one offer. I have been burning them up to dispose of them.
I trust this is additional evidence, and again I thank you for the interest and
WAR DEPARTMENT QMC Form No. 328 (Old No. 269)
Revised Oct. 2. 1928
CIRCULAR-PROPOSAL-SALE OF WASTE MATERIAL
SERIAL No. 5505-39-2-CCC-Salvage Place: Office of the Salvage Officer,
West Virginia District, CCĆ,
Charleston, W. Va.
Date: October 28, 1938. Sealed proposuis, in uuplicate, will be received in this office until 1:00 p. m. November 28, 1938, at which time and place they will be opened in the presence of attending bidders, for the sale of waste materials and salvaged property as specified below. The Government reserves the right to reject or accept any or all bids, or any part thereof.
TERMS AND CONDITIONS
1. No proposal which deviates in any particular, financial or otherwise, from the terms and conditions of this circular proposal will be considered.
2. The accompanying list of property offered for sale, and its description, has been compiled from available data, but there is no guaranty or warranty on the part of the United States relative thereto as to number or quantity, kind, character, description, condition, suitability for use for which it may be desired, or in any other respect whatsoever, or that the same or a portion thereof may not be withdrawn prior to the sale. All property is sold "as is," and "where is,” or if otherwise specified herein may be delivered f. o. b. truck, cars, or wharf,' at or nearest present respective locations.
3. Bidders are invited and urged to inspect said property prior to submitting proposals. Reasonable opportunity will be afforded for inspection, up to the time for opening proposals, but no labor will be furnished for such purpose. Under no circumstances will a refund or adjustment be made on account of property not coming up to the standard expected, nor will failure to inspect be considered ground for a claim.
4. Should any article of uniform of the United States Army be sold hereunder the purchaser is cautioned to remove all buttons and insignia, etc., before a resale. Section 125 of the act of Congress approved June 3, 1916 (39 Stat. 216) probibits the wearing by unauthorized persons of distinctive articles of uniform or articles similar thereto.
The attention of all purchasers of mattresses, pillows, and other bedding is invited to State laws and local regulations with respect to resale, reuse, etc., of such equipment prior to sterilization thereof. Any such property as may be included in this sale is sold without responsibility on the part of the United States. The purchaser of condemned subsistence stores must abide by the Federal and State laws and regulations against resale of such articles for use as human food.
5. The purchaser is to assume all liability for the property after award is made. The Government will exercise its usual care for protection up to the time limit for removal,, but will not be responsible for any loss or damage from any cause
6. Proposals will be submitted on the unit basis of each, or pound, or one hundred (100) pounds, or ton (2,000 pounds), as the case may be. 7. Proposals must be accompanied by cash, certified
check, or other acceptable form of remittance which is not subject to stoppage or revocation, in an amount of at least 20 percent
of the total sum involved in the proposal. If the bidder does mito receive an award, such remittance will be returned to him. In case he be given an award, the amount inclosed with his proposal will be retained for applicatona as follows: (a) As guaranty to secure full compliance with the terms and conditions of the purchase, and in the event of purchaser's failure to so comply, which he otherwise complies with the terms and conditions of purchase. Should hias the final part of the purchase price of all items awarded to him and as to much failure applies shall be retained as liquidated damages, and not as a penalty; there be any balance, the same will be returned to him.
be made within ten (10) days after the date of award; "and in the event the purchaser fails to pay within with period, the United States may rescind the sale and apply the amount inclosed with the proposal as fiquidated damages, as provided in paragraph 7. No propent shall be removed by the purchaser prior to full payment of the purchase price and
other . within 30 days from date of award. Should any such property remain thereafter
ith Removal of the property purchased and fully paid for must be accomplished storage thereon will apply at the rate of one dollar ($1) per day at each post, or
or where is will in 'nocase cexceed 30 days, and on the expiration thereof the property will be sold for the account of the purchaser, in such manner as the officer in charge may elect, deducting from the proceeds the amount of storage charges, expenses of Sale, and any other amounts then chargeable to such purchaser
, or, if the value property so remaining shall not, in the opinion of such officer, be such as to justify further storage or sale, he may destroy or otherwise dispose of same as he shall deem fit, without further liability of any kind to the purchaser.
10. Certified checks should be made payable to “The Quartermaster” Civilian Conservation Corps, Charleston, W. Va.
11. Proposals in duplicate will be signed by the bidder and, together with the remittance, inclosed in a sealed envelope, postage fully prepaid, addressed to the undersigned, marked "Proposals for sale of Waste Material to be opened 1 p. m., November 28, 1938."
OTTO R. Koch,
Twenty-ninth Infantry, Salvage Officer.
Date In accordance with the above, the undersigned proposes to purchase the supplies, or material, listed below, at the prices specified.
Articles and description
NOTE.-The salvage officer will not pack, crate, haul, or arrange for shipment of or negotiate with others for sucb services on behalf of successful bidders. All such arrangements must be made by the purchaser.