B-147932, JAN. 23, 1962

B-147932, JAN. 23, 1962

TO EDW. L. SIBLEY MFG. CO., INC.:

YOUR LETTER OF JANUARY 2, 1962, REQUESTED REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED DECEMBER 28, 1961, IN WHICH THERE WAS DISALLOWED YOUR CLAIM FOR REIMBURSEMENT IN THE AMOUNT OF $103.84.

BY SALES INVITATION NO. B-76-61-63066 ISSUED ON JUNE 1, 1961, THE CONSOLIDATED SURPLUS SALES OFFICE NEWPORT, RHODE ISLAND, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF 55 ITEMS OF MISCELLANEOUS MATERIAL. YOUR COMPANY SUBMITTED A HIGH BID OF $0.066352 ON ITEM NO. 26, WHICH ITEM WAS DESCRIBED AS FOLLOWS:

ITEM 26: STEEL, CARBON, TOOL: 2 3/16 INCHES ROUND, 4,235 LBS. 11 FEET TO 15 FEET 4 INCHES LENGTHS. (BLDG. NO. 212) CONDITION: UNUSED, GOOD. ACQ. COST: $1,312.85

UPON PAYMENT OF THE PURCHASE PRICE THE TOOLS WERE DELIVERED AS DIRECTED TO THE MELDON STEEL COMPANY, INC., WESTBURY, LONG ISLAND, NEW YORK. THE MELDON STEEL COMPANY, INC., REPORTED TO YOU THAT THE MATERIAL PURCHASED WAS NOT TOOL STEEL BUT RATHER "3120H" WHICH ISA NICKEL CHROMIUM ALLOY STEEL WITH 20 PERCENT CARBON.

ON NOVEMBER 16, 1961, YOU WROTE TO THE CONSOLIDATED SURPLUS SALES OFFICE AND REQUESTED AN ADJUSTMENT IN AN AMOUNT WHICH IN YOUR OPINION REPRESENTED THE DIFFERENCE BETWEEN THE FAIR MARKET VALUE OF THE MATERIAL RECEIVED AND THE MATERIAL AS DESCRIBED IN THE SALES INVITATION. YOUR CLAIM WAS FORWARDED TO OUR OFFICE FOR DIRECT SETTLEMENT.

YOUR ATTENTION IS AGAIN DIRECTED TO PARAGRAPH 2, CONDITION OF PROPERTY, OF THE GENERAL SALE TERMS AND CONDITIONS OF THE BID INVITATION, WHEREIN IT IS EXPRESSLY PROVIDED THAT ALL PROPERTY LISTED IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT; THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, CHARACTER, QUALITY, DESCRIPTION, ETC., OF ANY OF THE PROPERTY, OF ITS FITNESS FOR ANY USE OF PURPOSE; THAT NO CLAIM WHICH IS BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE. IT IS EVIDENT, THEREFORE, THAT YOU HAD ACTUAL NOTICE THAT THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY BEING SOLD UNDER ITEM NO. 26 WAS NOTHING MORE THAN A MERE STATEMENT OF OPINION.

WHILE THE DESCRIPTION OF ITEM NO. 26 WAS NOT ACCURATE, THE CONTRACTING OFFICER STATES THAT THE DESCRIPTION WAS BASED ON THE BEST INFORMATION AVAILABLE TO THE DISPOSAL AGENCY. THERE IS NOTHING IN THE RECORD TO INDICATE, AND YOU DO NOT ALLEGE, THAT THE MATERIAL WAS INTENTIONALLY MISDESCRIBED IN THE BID INVITATION, OR THAT THE GOVERNMENT ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE SALE TRANSACTION.

YOU ALLEGE IN YOUR LETTER OF JANUARY 2, 1962, THAT SINCE ALL COLD FINISH STEEL BARS LOOK ALIKE, YOU WERE COMPELLED TO RELY ON THE ACCURACY OF THE DESCRIPTION FOR ITEM NO. 26. APPARENTLY THIS CONCLUSION IS BASED ON THE ASSUMPTION THAT SINCE VISUAL INSPECTION WOULD NOT HAVE WARNED THE BUYER THAT THE ITEM WAS INACCURATELY DESCRIBED, YOU COULD NOT BE REQUIRED TO DISCOVER THE DISCREPANCY BY OTHER MEANS.

IN THIS RESPECT YOUR CASE IS SIMILAR TO PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959), WHERE THE GOVERNMENT CONTRACTED TO SELL 407.71 GROSS TONS OF MATERIAL THAT HAD BEEN ADVERTISED AS STEEL SCRAP, BUT WAS IN FACT 49.7 PERCENT MALLEABLE IRON. IN HOLDING AGAINST THE PURCHASER THE COURT MADE THE FOLLOWING OBSERVATIONS:

"A BIDDER FAILS TO INSPECT AT HIS PERIL. HAD PLAINTIFF MADE AN INSPECTION BEFORE MAKING ITS BID, AS IT DID AFTERWARDS, IT COULD HAVE DISCOVERED THAT MUCH OF THE MATERIAL WAS MALLEABLE IRON. VISUAL INSPECTION WAS INEFFECTUAL, BUT MICROSCOPIC INSPECTION WAS EFFECTUAL, AS WAS ALSO CHEMICAL ANALYSIS. PLAINTIFF WAS REQUIRED TO MAKE THE SORT OF INSPECTION THAT WAS EFFECTUAL. IT MADE NONE, NOT EVEN A VISUAL INSPECTION. ITS FAILURE TO DO SO LEAVES IT NO ROOM TO COMPLAIN.

"CLOSELY ANALOGOUS TO THE CASE AT BAR ARE S. SNYDER CORP. V. UNITED STATES, 68 CT.CL. 667; AND M. SAMUEL AND SONS V. UNITED STATES, 61 CT.CL. 373. SURPLUS SCRAP SHELLS WERE SOLD IN ALL THREE CASES. IN SNYDER THE ADVERTISEMENT SAID THEY HAD A COPPER CONTENT OF 3.34 POUNDS PER SHELL; WHEREAS THEY ONLY HAD 2.62 POUNDS. THE COMPLAINT IN THAT CASE WAS A DEFICIENCY IN COPPER CONTENT. HERE, THE COMPLAINT IS OVER AN EXCESSIVE AMOUNT OF CARBON. IN SAMUEL THE SHELLS WERE SAID TO BE MALLEABLE IRON; WHEREAS IT TURNED OUT ONLY 75 PERCENT WAS MALLEABLE IRON, AND 25 PERCENT STEEL--- THE REVERSE OF THE PRESENT SITUATION. IN BOTH CASES IT WAS HELD PLAINTIFF WAS NOT ENTITLED TO RECOVER.

"SEE ALSO UNITED STATES V. HATHAWAY, 9 CIR., 242 F.2D 897; UNITED STATES V. SILVERTON, 1 CIR., 200 F.2D 824; AND AMERICAN SANITARY RAG CO. V. UNITED STATES, CT.CL., 161 F.SUPP. 414, DECIDED MAY 7, 1958, AND CASES THERE CITED.'

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR GRANTING RELIEF AND OUR CLAIMS DIVISION ..END :