B-148553, MAY 8, 1962

B-148553, MAY 8, 1962

TO BEARINGS AND MOTIVE SPECIALTIES COMPANY, INC:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED APRIL 19, 1962, REQUESTING RECONSIDERATION OF OUR DECISION OF APRIL 17, 1962, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR AN ADJUSTMENT OR REFUND OF A PART OF THE PURCHASE PRICE FOR ITEM NO. 75 OF THE GRANITE CITY ENGINEER DEPOT SPOT BID SALE NO. 11-052-S-61-31.

YOUR CLAIM RESULTED FROM THE DISCOVERY THAT 60 PERCENT OF THE QUANTITY OF ANNULAR BALL BEARINGS PURCHASED BY YOU FROM THE ENGINEER DEPOT WERE NOT THE SEAL CLOSURE TYPE OF BEARING, AS DESCRIBED IN THE INVITATION, BUT RATHER WERE OPEN BEARINGS WHICH YOU ALLEGE TO BE OF MUCH LESS VALUE.

IN YOUR LETTER OF APRIL 19, 1962, YOU CONTEND THAT A STEEL SHIELD OR CLOSURE IS SOMETHING PHYSICAL THAT CAN READILY BE SEEN AND THAT ITS PURPOSE OF FUNCTIONING IN A BEARING CANNOT BE COMPARED WITH THE IDENTIFYING FEATURES OF THE MATERIALS INVOLVED IN THE PRECEDENT CASES CITED IN OUR DECISION TO YOU OF APRIL 17, 1962. IT IS OUR VIEW THAT THE LANGUAGE "2 SEAL CLOSURE," AS SET FORTH IN THE INVITATION, CAN ONLY BE CONSIDERED, WHETHER BY REASON OF THE BEARING'S FUNCTION OR STRUCTURE, AS BEING DESCRIPTIVE TO SOME EXTENT OF THE TYPE OF BALL BEARING THAT WAS BEING OFFERED FOR SALE. THIS BEING THE CASE, AND SINCE ON THE RECORD BEFORE OUR OFFICE, IT MUST BE ASSUMED THAT ANY VARIATION IN THIS PART OF THE DESCRIPTIVE DETAILS RESULTED SOLELY FROM A HONEST MISTAKE BY THE GOVERNMENT, THE "DISCLAIMER OF WARRANTY" CLAUSE IS INTENDED TO, AND DOES, COMPLETELY PROTECT THE SELLER IN THE EVENT OF JUST SUCH A MISTAKE. THIS CONCLUSION IS SUPPORTED BY AN OVERWHELMING WEIGHT OF COURT AUTHORITY ON QUESTIONS OF THIS KIND ARISING OUT OF THIS TYPE OF GOVERNMENT SALES CONTRACT.

FOR YOUR FUTURE GUIDANCE IN SUBMITTING BIDS ON GOVERNMENT SURPLUS PROPERTY, WE FEEL WE SHOULD ADD THAT UNDER AND INVITATION CONTAINING THE USUAL PROVISIONS AS TO "INSPECTION" AND CONDITION OF THE PROPERTY," SUCH AS WERE APPLICABLE UNDER YOUR CONTRACT, THERE EXIST NO CONDITIONS UNDER WHICH IT MAY BE HELD THAT THE GOVERNMENT GUARANTEES THE PROPERTY SOLD. YOU PREVIOUSLY HAVE BEEN ADVISED, THE GOVERNMENT EXPRESSLY DISCLAIMS, UNDER SUCH PROVISIONS, ALL WARRANTIES, GUARANTIES, ETC., PERTAINING TO ANY OF THE DESCRIPTIVE MATERIAL SET FORTH IN THE INVITATION AS TO THE PROPERTY TO BE SOLD. IT NECESSARILY FOLLOWS THAT ALL BIDDERS SHOULD CAREFULLY CONSIDER ANY INSPECTION DISADVANTAGES WHICH POSSIBLY COULD EXIST AND MAKE A CHOICE OF EITHER SUBMITTING ABID ON THE BASIS THAT THEY WILL HAVE TO ASSUME ANY RISK WHICH MIGHT RESULT BY REASON OF THE PROPERTY NOT CORRESPONDING IN EVERY DETAIL WITH THE DESCRIPTION SHOWN, OR ELECT NOT TO SUBMIT A BID AT ALL UNDER SUCH CIRCUMSTANCES.