B-119947, OCT 18, 1954

B-119947, OCT 18, 1954

PRECIS-UNAVAILABLE

PAUL VARKELL COMPANY, ATTORNEY AT LAW:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED APRIL 16, 1954, AS WELL AS YOUR AFFIDAVIT OF JULY 30, 1954, AND ENCLOSURES, FORWARDED BY YOUR ATTORNEY'S LETTER DATED AUGUST 2, 1954, AS A REQUEST FOR REVIEW OF SETTLEMENT DATED APRIL 9, 1954, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $7,640.77 UNDER CONTRACT NO. N146S-2237, DATED OCTOBER 2, 1953, WITH THE DEPARTMENT OF THE NAVY.

IN RESPONSE TO INVITATION B-8-54 (REPLACEMENT), YOU SUBMITTED A BID DATED SEPTEMBER 25, 1953, OFFERING TO PURCHASE 1,144 PAIRS OF VARIOUS SIZED FLYING BOOTS AT $7.27 A PAIR OR FOR THE TOTAL AMOUNT OF $8,316.88. THE BID WAS ACCEPTED ON OCTOBER 2, 1953, CONSUMMATING THE CONTRACT. UPON INSPECTION AFTER DELIVERY, YOU ALLEGEDLY DISCOVERED THAT A LARGE QUANTITY OF THE BOOTS WERE NOT IN AN "UNUSED CONDITION" BUT RATHER WERE SLIGHTLY USED OR USED AND IN A POOR CONDITION. IN VIEW OF THIS, YOU HAVE REQUESTED A RESCISSION OF THE CONTRACT, TOGETHER WITH A REFUND OF THE ADJUSTED CONTRACT PRICE OF $7,640.77 - ADJUSTED BY REASON OF SHIPMENT OF A LESSER NUMBER OF PAIRS OF FLYING BOOTS AFTER A SCREENING REVEALED SOME NOT TO BE IN A "VERY GOOD CONDITION" - AND THAT THE BOOTS BE RETURNED TO THE DEPARTMENT OF THE NAVY WITH NO FURTHER COST TO YOU.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED PRIMARILY ON THE CONTENTIONS THAT THE PROPERTY DELIVERED TO YOU WAS NOT THE PROPERTY OFFERED FOR SALE; THAT AN INSPECTION OF THE PROPERTY BY THE GOVERNMENT AT THIS TIME, WHICH YOU URGENTLY REQUEST IF PERTINENT TO THE CONSIDERATION OF YOUR CLAIM, WOULD READILY REVEAL THIS ALLEGATION TO BE A FACT; AND THAT IF THE DEPARTMENT OF THE NAVY HAD PROPERLY SCREENED THE BOOTS AND ELIMINATED ALL, RATHER THAN MERELY A PART, OF THE BOOTS FOUND TO BE IN POOR CONDITION, THE NUMBER SHIPPED WOULD HAVE BEEN LESS THAN 1,051 PAIRS AND, THEREFORE, WOULD HAVE BEEN BELOW THE 10 PERCENT VARIATION CLAUSE WHICH AUTOMATICALLY WOULD HAVE RELIEVED YOU OF ANY OBLIGATION TO ACCEPT THE SHIPMENT.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND THIS OFFICE THAT IN THE ABSENCE OF BAD FAITH OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE UNDER A CONTRACT CONTAINING, AS IN THE INSTANT CASE, THE USUAL "AS IS" PROVISION, THAT THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. SEE, IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D. 31, CERTIORARI DENIED, 284 U. S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C. CLS. 151; AND I. SHAPIRO & COMPANY V. UNITED STATES, 66 C. CLS. 424. THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE, NOR DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION. THE RECORD DOES SHOW, HOWEVER, THAT NOTWITHSTANDING THE ALLEGED CONDITION OF THE BOOTS, YOU RECEIVED FLYING BOOTS WHICH WERE THE SPECIFIC ARTICLES OFFERED FOR SALE.

EQUALLY IMPORTANT IN SUCH A CASE IS THE FACT THAT YOU DID NOT MAKE AN INSPECTION OF THE PROPERTY OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. IN THIS CONNECTION, PARAGRAPH 1 OF THE GENERAL SALES TERMS AND CONDITIONS OF THE INVITATION NOT ONLY INVITED BUT URGED BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS. IT PROVIDED FURTHER THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING." (UNDERSCORING SUPPLIED.) HENCE, WHERE A BIDDER SUBMITS A BID WITHOUT INSPECTING UNDER SUCH A PROVISION IT ONLY REASONABLY MAY BE CONCLUDED THAT THE BIDDER ASSUMES ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. YOUR CONTENTION THAT IT MAY HAVE BEEN IMPRACTICABLE, IF NOT IMPOSSIBLE, TO MAKE A COMPLETE INSPECTION OF ALL OF THE FLYING BOOTS IN NO WAY MAY BE ACCEPTED AS AFFECTING THIS CONCLUSION. IF YOU WERE NOT WILLING TO ASSUME SUCH A RISK, YOU SHOULD NOT HAVE SUBMITTED SUCH A BID.

WITH RESPECT TO YOUR REQUEST FOR AN INSPECTION AT THIS TIME, SINCE THE MERE CONDITION OF THE BOOTS UNDER SUCH A CONTRACT OF SALE IS NOT MATERIAL, AN INSPECTION WOULD APPEAR TO SERVE NO USEFUL PURPOSE. MOREOVER, YOUR CONTENTION THAT A NUMBER OF PAIRS OF BOOTS SHIPPED PROPERLY SHOULD HAVE BEEN BELOW THE 10 PERCENT VARIATION CLAUSE HAS NO MERIT, SINCE UNDER A CONTRACT CONTAINING THE USAL DISCLAIMER OF WARRANTY THE CONTRACTING OFFICER OWES NO OBLIGATION TO SCREEN ANY OF THE PROPERTY AS TO CONDITION PRIOR TO SHIPMENT. IN FACT THE LEGALITY OF SUCH ACTION UNDER A CONTRACT OF THIS KIND IS HIGHLY QUESTIONABLE.

ACCORDINGLY, THE SETTLEMENT OF APRIL 9, 1954, IS SUSTAINED.