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B-127033, MAR. 2, 1956

B-127033 Mar 02, 1956
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TO WASHINGTON-FILLMORE FOUNDRY INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30. WAS ACCEPTED AND THE ITEMS WERE SHIPPED TO YOU ON MAY 24. BY LETTER OF THE SAME DATE YOU ADVISED THE CONTRACTING OFFICER THAT THE SCOOTERS WERE RECEIVED WITHOUT ANY WHEELS. YOU ADVISED THE CONTRACTING OFFICER THAT FOLLOWING A FURTHER INSPECTION YOU DISCOVERED THE CARBURATORS AND BEARINGS WERE MISSING. THE CLAIM WAS TRANSMITTED TO OUR OFFICE AND DISALLOWED IN THE SETTLEMENT DATED JANUARY 24. YOU BASE YOUR CLAIM FOR REFUND DUE TO THE FACT THAT BECAUSE OF THE MISSING PARTS THE SCOOTERS ARE VALUELESS TO YOU. THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION BUT HERE THERE WAS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION SET OUT IN PARAGRAPH 2 OF GENERAL SALE TERMS AND CONDITIONS AND THEREFORE NO SUCH WARRANTY MAY BE IMPLIED.

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B-127033, MAR. 2, 1956

TO WASHINGTON-FILLMORE FOUNDRY INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 30, 1956, IN EFFECT, REQUESTING REVIEW OF OUR SETTLEMENT DATED JANUARY 24, 1956, WHICH DISALLOWED YOUR CLAIM FOR $100, A PORTION OF WHICH, OR $45, REPRESENTS THE FULL AMOUNT DEPOSITED BY YOU AND WITHHELD BY THE DEPARTMENT OF THE NAVY IN CONNECTION WITH YOUR PURCHASE OF CERTAIN SCOOTERS UNDER SALES CONTRACT NO. N191S-41990, DATED MAY 16, 1955.

IN RESPONSE TO THE PERTINENT INVITATION REQUESTING BIDS ON MISCELLANEOUS SALVAGE EQUIPMENT TO BE SOLD ON MAY 6, 1955, YOU OFFERED TO PURCHASE ITEM NO. 8, COMPRISING THREE SEPARATELY LISTED CUSHMAN MOTOR SCOOTERS--- TWO BEING IDENTIFIED AS ONE CYLINDER, 4 H.P., WITH PNEUMATIC TIRES AND WITH A TOTAL ACQUISITION COST OF $244.01 AND A THIRD AS A TWO-WHEEL, ONE PASSENGER MODEL WITH A TOTAL ACQUISITION COST OF $172. AT THE END OF THE LISTING OF THREE ITEMS THERE APPEARS THE NOTATION "CONDITION--- SALVAGE.' YOUR BID OF $15 EACH, OR A TOTAL PRICE OF $45, WAS ACCEPTED AND THE ITEMS WERE SHIPPED TO YOU ON MAY 24, 1955. BY LETTER OF THE SAME DATE YOU ADVISED THE CONTRACTING OFFICER THAT THE SCOOTERS WERE RECEIVED WITHOUT ANY WHEELS. BY LETTER DATED MAY 26, 1955, YOU ADVISED THE CONTRACTING OFFICER THAT FOLLOWING A FURTHER INSPECTION YOU DISCOVERED THE CARBURATORS AND BEARINGS WERE MISSING. THE CONTRACTING OFFICER ADVISED YOU IN LETTER DATED JUNE 7, 1955, RELATIVE TO THE RESPONSIBILITIES YOU ASSUMED UNDER THE SALES CONTRACT IN QUESTION AND AS TO THE REASONS WHY NO ADJUSTMENT COULD BE MADE IN YOUR CASE. FOLLOWING A FURTHER EXCHANGE OF CORRESPONDENCE WITH YOU, THE CLAIM WAS TRANSMITTED TO OUR OFFICE AND DISALLOWED IN THE SETTLEMENT DATED JANUARY 24, 1956.

IN YOUR REQUEST FOR REVIEW, WHILE NOT DENYING THE LEGAL POSITION HERETOFORE TAKEN IN THE MATTER, YOU BASE YOUR CLAIM FOR REFUND DUE TO THE FACT THAT BECAUSE OF THE MISSING PARTS THE SCOOTERS ARE VALUELESS TO YOU.

ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION BUT HERE THERE WAS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION SET OUT IN PARAGRAPH 2 OF GENERAL SALE TERMS AND CONDITIONS AND THEREFORE NO SUCH WARRANTY MAY BE IMPLIED. FURTHERMORE, THE REPORTS SHOW THAT YOU MADE NO INSPECTION OF THE SCOOTERS PRIOR TO SUBMITTING YOUR BID NOTWITHSTANDING YOU WERE ON NOTICE REGARDING THE ADVERTISED CONDITION OF THE PROPERTY AND OTHERWISE URGED BY THE INVITATION TERMS TO INSPECT THE SCOOTERS PRIOR TO BIDDING. IN SUCH MATTERS, THE LAW IS CLEAR THAT WHERE SUPRLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" "WHERE IS" BASIS WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY 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. SEE TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; MOTTRAM V. UNITED STATES, 271 U.S. 15.

ACCORDINGLY, THE ACTION TAKEN IN THE SETTLEMENT OF JANUARY 24, 1956, IS SUSTAINED.

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