B-133881, NOV. 21, 1957

B-133881, NOV. 21, 1957

TO R. T. OVERSTREET COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 1, 1957, REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED OCTOBER 7, 1957, TO YOU, WHICH SUSTAINED THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR $809, ALLEGED TO BE DUE AS REFUND OF THE AMOUNT PAID FOR AN AIR COMPRESSOR UNIT PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. 189A-25395A (E).

YOU STATE THAT "WE DO NOT CLAIM A REFUND. WE SIMPLY ASK THAT WE MIGHT EXCHANGE AN AIR COMPRESSOR BACK TO YOU FOR $809 WHICH WE PAID YOU.' THIS WAS FULLY UNDERSTOOD, BUT REGARDLESS OF THE LANGUAGE USED WE ARE UNABLE TO FIND A LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER. THE PRESENT RECORD APPEARS TO REQUIRE THE CONCLUSION THAT YOUR BID WAS ACCEPTED IN GOOD FAITH. THE ACCEPTANCE UNDER SUCH CIRCUMSTANCES GAVE RISE TO A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE CONTRACT FOR THE PRICE QUOTED IN YOUR BID WHICH VESTED IN THE GOVERNMENT CANNOT BE GIVEN AWAY OR SURRENDERED BY ANY OFFICER OF THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141 AND CERTIORARI DENIED 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, CERTIORARI DENIED 292 U.S. 645.

IT NOW APPEARS TO BE YOUR CONTENTION THAT THE DESCRIPTION OF THE AIR COMPRESSOR WAS "SO GROSSLY ERRONEOUS AS NECESSARILY TO IMPLY BAD FAITH.' IN YOUR LETTER OF OCTOBER 9, 1957, TO OUR OFFICE YOU STATED THAT "WE DO NOT CLAIM BAD FAITH ON THE PART OF THE DISPOSAL OFFICER BUT DO CLAIM POOR ATTENTION TO THE FACTS BY THE PERSON WHO SUBMITTED TO THE DISPOSAL OFFICER DESCRIPTION.'

AS YOU WERE ADVISED BY OUR DECISION OF OCTOBER 7, 1957, THERE IS NOTHING IN THE FILE TO JUSTIFY THE CONCLUSION THAT THE DISPOSAL OFFICER OR ANY OTHER GOVERNMENT EMPLOYEE CONNECTED WITH THE TRANSACTION COMMITTED ANY ACT CONSTITUTING FRAUD OR BAD FAITH, AND NO EVIDENCE HAD BEEN SUBMITTED BY YOU TENDING TO SHOW THAT THE CONDITION OF THE EQUIPMENT WAS INTENTIONALLY MISREPRESENTED. THERE WAS AN EXPRESS DISCLAIMER OF ANY WARRANTY THAT THE PROPERTY WAS AS DESCRIBED. THE MERE FACT THAT THE GOVERNMENT WAS HONESTLY MISTAKEN ABOUT THE CONDITION OF THE MACHINE DOES NOT ENTITLE YOU TO RELIEF. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525, 75 A.L.R. 1017; AND HOOVER V. UTAH NURSERY COMPANY, 7 F.2D 270. WE HAVE NO AUTHORITY TO ALLOW ANY RELIEF EXCEPT IN STRICT COMPLIANCE WITH THE LAW, AND THE LAW APPLICABLE TO CASES OF THIS KIND HAS BEEN CLEARLY DECLARED BY THE COURTS.