B-127877, JUL. 30, 1956

B-127877, JUL. 30, 1956

TO HERCULES FASTENER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1956, REQUESTING RECONSIDERATION OF OUR DECISION OF JUNE 1, 1956, SUSTAINING OUR CLAIMS DIVISION SETTLEMENT OF APRIL 18, 1956, WHICH DISALLOWED YOUR CLAIM FOR $451.60 UNDER SALES CONTRACT NO. DA/S/AII-156, DATED JUNE 16, 1955.

THE FACTS AND CIRCUMSTANCES GIVING RISE TO YOUR CLAIM FOR AN ADJUSTMENT OF THE PURCHASE PRICE PAID BY YOU BECAUSE A PORTION OF THE "LOT" RECEIVED WAS OTHER THAN DESCRIBED IN THE CONTRACT ARE FULLY SET FORTH IN THE SETTLEMENT AND THE DECISION AND NEED NOT BE REPEATED HERE. THE SUSTAINING DECISION SETS FORTH THE PRINCIPLE OF LAW APPLICABLE TO YOUR CLAIM UNDER THE SUBJECT CONTRACT UNDER WHICH THE PROPERTY WAS SOLD "AS IS" AND "WHERE IS," WITHOUT WARRANTY AS TO QUANTITY OR DESCRIPTION, AND AS A "LOT.' REQUESTING RECONSIDERATION, YOU CRITICIZE THE APPLICATION OF THE ANNOUNCED PRINCIPLE TO THE SUBJECT CLAIM AND SUGGEST THAT IN ANY COURT "THERE WOULD BE NO QUESTION BUT THAT THE GOVERNMENT WOULD BE HELD RESPONSIBLE FOR DELIVERING TO US 440,000 10-32 STOP NUTS, PARTS NO. H001-40-35581, WHICH WE DID NOT RECEIVE.'

ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION BUT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION--- SUCH AS CONTAINED IN THE SUBJECT CONTRACT--- NO SUCH WARRANTY MAY BE IMPLIED. FURTHERMORE, YOU ADMIT HAVING MADE ONLY A PARTIAL INSPECTION OF THE LOT AND ASSUMED THAT THE REMAINING UNINSPECTED PORTION WOULD BE IDENTICAL WITH THE INSPECTED ITEMS. IN THIS CONNECTION, THE LAW IS AS ANNOUNCED IN THE SUSTAINING DECISION THAT WHERE THE SURPLUS MATERIALS SOLD BY THE GOVERNMENT ON AN "AS IS" BASIS WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO MAKE COMPLETE INSPECTION OF ALL ITEMS CANNOT SUBSEQUENTLY RECOVER BECAUSE THE MATERIAL WAS EITHER INFERIOR IN QUALITY OR THAT THE ITEMS WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE RENDERED NUMEROUS DECISIONS IN WHICH THESE STATED LEGAL PRINCIPLES ARE ANNOUNCED. ADDITION TO THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, CITED IN OUR PRIOR DECISION TO YOU, SEE TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151 AND MOTTRAM V. UNITED STATES, 271 U.S. 15. IN ALL THESE CASES GOOD FAITH ON THE PART OF THE SELLING AGENTS OF THE GOVERNMENT ONLY IS REQUIRED IN DESCRIBING THE MATERIALS OFFERED FOR SALE. NO SHOWING OF BAD FAITH APPEARS IN THIS CASE NOR IS THERE ANY EVIDENCE THAT THERE WAS ANY CHANGE OR SUBSTITUTION OF MATERIALS SUBSEQUENT TO THE DATE THEY WERE OFFERED FOR INSPECTION.

IN THE SETTLEMENT OF CLAIMS PRESENTED TO OUR OFFICE IT IS ONLY THE LEGAL PRINCIPLES WHICH CONTROL. OUR OFFICE HAS NO AUTHORITY UNDER THE LAW TO ALLOW YOUR CLAIM UNLESS SUCH AN ALLOWANCE IS PROPER UNDER SOME PROVISION OF A STATUTE OR CONTRACT. WITH RESPECT TO YOUR REQUEST FOR ADVICE AS TO LITIGATING THE MATTER, YOUR ATTENTION IS INVITED TO SECTION 24, AS AMENDED, AND SECTION 145 OF THE JUDICIAL CODE, TITLE 28, U.S. CODE, SECTIONS 1491 AND 1346, PERTAINING TO SUITS AGAINST THE UNITED STATES WHICH ARE COGNIZABLE IN THE DISTRICT COURTS OF THE UNITED STATES AND IN THE COURT OF CLAIMS OF THE UNITED STATES.