B-132162, JUN. 21, 1957

B-132162, JUN. 21, 1957

TO THE CHEMICAL SERVICE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF MAY 23, 1957, EXPRESSING DISSATISFACTION WITH OUR SETTLEMENT DATED MAY 21, 1957, WHICH DISALLOWED YOUR CLAIM FOR $51.15, REPRESENTING THE AMOUNT PAID BY YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED FROM THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. 18-109-S-56-28, DATED MAY 29, 1956, ISSUED BY THE PROPERTY DISPOSAL OFFICER, FORT NOLABIRD, BALTIMORE, MARYLAND, YOU SUBMITTED A BID DATED JUNE 15, 1956, OFFERING TO PURCHASE ITEM NO. 283 WHICH SPECIFIED SODIUM HYDROXIDE PELLETS, GLASS OR METAL CONTAINERS, 5 POUNDS, PHOTOGRAPHICALLY PURE. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $11 WAS ACCEPTED AND AWARD MADE TO YOU THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MERCHANDISE TO YOU, YOU CLAIMED A REFUND OF THE PURCHASE PRICE ALLEGING MISREPRESENTATION IN THE DESCRIPTION IN THAT YOU PURCHASED SODIUM HYDROXIDE AND INSTEAD RECEIVED CAUSTIC SODA. AS STATED ABOVE, THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF MAY 21, 1957.

THE CONTRACTING OFFICER HAS ADVISED THAT YOU DID NOT INSPECT THE MERCHANDISE AND THAT THE MATERIAL DELIVERED WAS IN FACT SODIUM HYDROXIDE, CHEMICALLY PURE, ALTHOUGH IT WAS ERRONEOUSLY DESCRIBED AS IN PELLETS INSTEAD OF FLAKES.

PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS INVITED AND URGED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND SPECIFICALLY PROVIDES THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM.

PARAGRAPH 2 OF THE SAME DOCUMENT PROVIDES THAT THE GOVERNMENT "MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON THE FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED: THIS IS NOT A SALE BY SAMPLE.' SUCH LANGUAGE WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES ARE MADE BY THE GOVERNMENT, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY OFFERED FOR SALE WILL CORRESPOND WITH THE DESCRIPTION, WHERE THERE IS A DISCLAIMER OF WARRANTY AS IN THIS CASE, NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION, AND THE COURTS HAVE UNIFORMLY REFUSED RELIEF TO PURCHASERS IN SUCH CASES. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W.E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

IT WOULD APPEAR FROM THE RECORD THAT YOU FAILED TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. IF YOU HAD MADE SUCH INSPECTION, AS YOU WERE CAUTIONED TO DO BY THE INVITATION, YOU WOULD HAVE DISCOVERED THE DISCREPANCY OF WHICH YOU NOW COMPLAIN.

UNDER THE CIRCUMSTANCES IN THIS CASE THE LAW IS CLEAR THAT THE CONTRACT MADE BY ACCEPTANCE OF YOUR BID WAS VALID AND BINDING UPON BOTH PARTIES, AND NEITHER THIS OFFICE NOR ANY OTHER AGENT OF THE GOVERNMENT HAS AUTHORITY TO WAIVE OR GIVE AWAY THE GOVERNMENT'S CONTRACTUAL RIGHTS.