B-153583, MAR. 19, 1964

B-153583, MAR. 19, 1964

TO CHEMICAL SERVICE CORPORATION:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 12, 1964, REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 7, 1964, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF PART OF THE PURCHASE PRICE PAID BY YOU FOR ITEM NO. 190, SPOT BID SALE NO. 46-S-63-84, AND PARTIAL REFUND OF FREIGHT CHARGES.

THIS SALE WAS CONDUCTED ON JUNE 26, 1963, BY THE DEFENSE SURPLUS SALES OFFICE AT THE LONG BEACH NAVAL SHIPYARD, TORRANCE, CALIFORNIA. AS THE HIGH BIDDER, YOU WERE AWARDED ITEM NO. 190, WHICH WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"COATING COMPOUND KITS, METAL PRETREATMENT, SENTRY PAINT AND CHEMICAL CO., YEAR 1960. EACH KIT CONSISTS OF 4 GAL. OF POLYVINYL BUTYRAL RESIN AND ONE GAL. PLASTIC BOTTLE OF PHOSPHORIC ACID, WITH PIGMENTS AND THINNERS. DRYS HARD IN 30 MINUTES, 24 HR. MAX. EFFECTIVE TIME AFTER APPLICATION. MUST BE USED WITHIN 8 HOURS AFTER MIXING. EST. WEIGHT 35,160 LBS., 1,060 CU.FT. COND. UNUSED--- PACKED IN 5 GAL. PAILS. STORED OUTSIDE ON PALLETS.

ACQ. COST $10,122.00 964 KITS"

UPON PAYMENT OF THE PURCHASE PRICE OF $1.26 EACH THE KITS WERE REMOVED BY YOUR AGENT ON JULY 18, 1963. THEREAFTER YOU FILED A CLAIM, ALLEGING THAT PART OF THE PROPERTY WHICH WAS IN THE LOT PURCHASED WAS MISDESCRIBED IN THAT 73 KITS OF 963 KITS WHICH YOU RECEIVED WERE INCOMPLETE, I.E., 64 KITS WERE SHORT THE 4-GALLON COMPONENT AND 9 KITS WERE SHORT THE 1-GALLON COMPONENT. YOU REQUESTED REFUND OF THE PURCHASE PRICE OF 73 KITS IN THE SUM OF $91.98 AND FREIGHT REFUND OF 73 KITS IN THE AMOUNT OF $80.64.

IT IS REPORTED THAT THE TURN-IN DOCUMENT FOR THIS ITEM CITED A FEDERAL STOCK NUMBER WHICH WAS THE PROPER STOCK NUMBER FOR THE KITS AS DESCRIBED IN THE CATALOG AND THAT THE SALES OFFICE, IN PREPARING THE DESCRIPTION FOR THE CATALOG, RELIED UPON THE FEDERAL STOCK NUMBER AND IN ADDITION, OPENED ONE CONTAINER TO VERIFY THAT THE CONTENTS CORRESPONDED WITH THE FSN. THE CONTAINER WHICH WAS OPENED PROVED TO BE THE KIT AS DESCRIBED. IT IS FURTHER REPORTED THAT YOU DID NOT INSPECT THE PROPERTY PRIOR TO SUBMITTING YOUR BID THEREON.

YOUR ATTENTION IS DIRECTED TO PARAGRAPH 2, CONDITION AND LOCATION 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, OR ITS FITNESS FOR ANY USE OR 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. 190 WAS NOTHING MORE THAN A MERE STATEMENT OF OPINION THAT ALL KITS WERE COMPLETE.

WHILE THE DESCRIPTION OF ITEM NO. 190 WAS NOT ENTIRELY ACCURATE, AS TO THE NUMBER OF COMPLETE KITS, 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 NUMBER OF COMPLETE KITS WAS INTENTIONALLY MISDESCRIBED IN THE BID INVITATION, OR THAT THE GOVERNMENT ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE SALE TRANSACTION.

IN THE CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, (1959), THE COURT STATED THAT:

"A BIDDER FAILS TO INSPECT AT HIS PERIL. * * * 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.

IT IS PRECISELY BECAUSE OF THE POSSIBILITY THAT AN ERRONEOUS DESCRIPTION OF SOME OR ALL THE PROPERTY MAY INADVERTENTLY BE USED THAT THE GOVERNMENT DISCLAIMS RESPONSIBILITY THEREFOR BY THE CLEAR TERMS OF THE INVITATION AND URGES BIDDERS TO INSPECT. THE FACT THAT THE EXPENSE OF INSPECTION DID NOT JUSTIFY DOING SO IN YOUR PARTICULAR CASE IS NO FAULT OF THE GOVERNMENT AND CANNOT CHANGE THE LEGAL CONSEQUENCES OF NONINSPECTION.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR GRANTING RELIEF AND OUR CLAIMS DIVISION SETTLEMENT OF FEBRUARY 7, 1964, IS SUSTAINED.