B-133881, OCT. 30, 1957
Highlights
T. OVERSTREET COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 9. YOU STATE IN YOUR LETTER THAT YOU DO NOT CLAIM BAD FAITH ON THE PART OF THE DISPOSAL OFFICER BUT DO CLAIM THAT POOR ATTENTION WAS GIVEN TO THE FACTS BY THE PERSON WHO SUBMITTED TO THE DISPOSAL OFFICER A DESCRIPTION OF THE COMPRESSOR. WE NORMALLY ASSUME THAT EVERY DISPOSAL OFFICER BELIEVES IN THE ACCURACY OF HIS DESCRIPTION AND THE PROPERTY RECORDS FROM WHICH THEY WERE PREPARED. IF HE KNEW OR HAD REASON FOR BELIEVING THAT THEY WERE NOT ACCURATE. BY THE EXPRESS TERMS OF THE OFFERING ALL OF THE RISKS AS TO THE ACCURACY OF THE DESCRIPTION WERE ACCEPTED BY YOU WHEN YOU BID. WERE IMPOSED UPON YOU BY THE ACCEPTANCE OF YOUR OFFER.
B-133881, OCT. 30, 1957
TO R. T. OVERSTREET COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 9, 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. 189S-25395A/S).
YOU STATE IN YOUR LETTER THAT YOU DO NOT CLAIM BAD FAITH ON THE PART OF THE DISPOSAL OFFICER BUT DO CLAIM THAT POOR ATTENTION WAS GIVEN TO THE FACTS BY THE PERSON WHO SUBMITTED TO THE DISPOSAL OFFICER A DESCRIPTION OF THE COMPRESSOR.
WE NORMALLY ASSUME THAT EVERY DISPOSAL OFFICER BELIEVES IN THE ACCURACY OF HIS DESCRIPTION AND THE PROPERTY RECORDS FROM WHICH THEY WERE PREPARED. IF HE KNEW OR HAD REASON FOR BELIEVING THAT THEY WERE NOT ACCURATE, THERE COULD WELL BE A QUESTION OF BAD FAITH WHICH MIGHT JUSTIFY AVOIDANCE OF THE CONTRACT. IT APPEARS IN THIS INSTANCE HE ACTUALLY HAD NO MORE PERSONAL KNOWLEDGE OF THE TRUE FACTS THAN YOU, BUT BY THE EXPRESS TERMS OF THE OFFERING ALL OF THE RISKS AS TO THE ACCURACY OF THE DESCRIPTION WERE ACCEPTED BY YOU WHEN YOU BID, AND WERE IMPOSED UPON YOU BY THE ACCEPTANCE OF YOUR OFFER. AS YOU WERE ADVISED BEFORE, IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT HELD THAT THE TERMS OF THE SALE CONTRACT THEN UNDER CONSIDERATION INCLUDING ITS "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF DOES NOT ENTITLE YOU TO RELIEF. SEE LUMBRAZO V. WOODRUFF, 175 W.E. WAS LEGALLY BOUND BY THEM. 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 COMPRESSOR 525, 75 A.L.A. 1017; AND HOOVER V. UTAH NURSERY COMPANY, 7 F.2D 270.