B-145706, JAN. 12, 1962

B-145706, JAN. 12, 1962

TO AMERICAN NICKEL ALLOY MANUFACTURING CORP.:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 27, 1961, REQUESTING RECONSIDERATION OF OUR DECISION AFFIRMING PRIOR ACTION TAKEN ON YOUR CLAIM UNDER SALES CONTRACT NO. (41-608/S-61-563, AWARDED TO YOU BY THE REDISTRIBUTION AND MARKETING DIVISION, SALES CONTRACTING BRANCH, KELLY AIR FORCE BASE, TEXAS.

IN DETERMINING THE RIGHTS AND LIABILITIES OF THE PARTIES UNDER A PARTICULAR CONTRACT, DUE EFFECT MUST BE GIVEN TO THE CONTRACT AS A WHOLE. SEE NORTHROP AIRCRAFT, INC. V. UNITED STATES, 130 CT.CL. 629, 633. SUCH RIGHTS AND LIABILITIES ARE, OF COURSE, LIMITED BY THE TERMS OF THE CONTRACT, WHICH ARE TO BE INTERPRETED ACCORDING TO THE GENERAL RULES OF CONSTRUCTION. SEE 3 COMP. GEN. 54.

THE CONTRACT IS IN THE INSTANT CASE CONTAINED ON PAGE 2 THEREOF THE USUAL GENERAL SALE TERMS AND CONDITIONS WITH REGARD TO INSPECTION AND DISCLAIMER OF WARRANTY OF THE GOVERNMENT PROPERTY BEING SOLD (PARAGRAPHS NOS. 1 AND 2). IN THE SETTLEMENT CERTIFICATES AND OUR PRIOR DECISIONS OF MAY 16 AND JULY 11, 1961, DISALLOWING YOUR CLAIM, YOUR ATTENTION WAS DIRECTED SPECIFICALLY TO THE PROVISIONS OF THOSE PARAGRAPHS WHICH ARE APPLICABLE TO YOUR CASE AND TO VARIOUS COURT DECISIONS INTERPRETING THEM.

YOUR ATTENTION IS AGAIN INVITED TO THE CASE OF PAXTON-MITCHELL COMPANY V. THE UNITED STATES, 172 F.SUPP. 463, AND OTHER CASES CITED THEREIN, IN WHICH THE FACTS ARE SIMILAR TO THOSE OF THE CONTRACT AT HAND. IN THE PAXTON-MITCHELL CASE THE CONTRACT OF SALE WAS FOR STEEL SCRAP ON AN "AS IS, WHERE IS" BASIS, BUT THE STEEL SCRAP DELIVERED TO THE PURCHASER CONTAINED 49.7 PERCENT MALLEABLE IRON. STEEL AND MALLEABLE IRON ARE NOT DISTINGUISHABLE, ACCORDING TO THE AGREEMENT OF THE PARTIES IN THAT CASE, TO THE NAKED EYE. THE PLAINTIFF'S PETITION IN THAT CASE WAS DISMISSED UNDER THE TERMS OF THE CONTRACT. SIMILARLY, IN YOUR CONTRACT THE MATERIAL COVERED THEREBY WAS ADVERTISED AS "HIGH TEMPERATURE ALLOY SCRAP, GROUP NO. 10 MONEL.' YOU CLAIM THAT THE MATERIAL DELIVERED TO YOU WAS NEITHER "HIGH TEMPERATURE ALLOY SCRAP, NOR GROUP NUMBER 10 MATERIAL, NOR MONEL.' SEE THE CASE OF UNITED STATES V. SILVERTON, 200 F.2D 824, 827, IN WHICH THE FACTS ARE SIMILAR TO YOUR CASE, AND WHERE THE COURT SAID:

"* * * THE INVITATION TO BID WAS EVIDENTLY FRAMED TO SPARE THE GOVERNMENT THE NECESSITY OF ATTENDING TO THE NICETIES OF DETAIL IN DESCRIBING THE GOODS OFFERED, FOR EXAMPLE, TO MAKE THE DESCRIPTION CONFORM TO ANY POSSIBLE TRADE USAGES OF WHICH THE SALVAGE OFFICERS MIGHT NOT EVEN BE AWARE. UNDER THE TERMS OF THE SALE, WITH INSPECTION INVITED PRIOR TO THE SUBMISSION OF BIDS, CAVEAT EMPTOR WAS CERTAINLY INTENDED TO BE APPLIED TO THE FURTHEST LIMIT THAT CONTRACT STIPULATIONS COULD ACCOMPLISH IT. * * *"

SEE ALSO TRIAD CORP. V. UNITED STATES, 63 CT.CL. 151.

THE RECORD DOES NOT SUBSTANTIATE YOUR ALLEGATION OF MISREPRESENTATION BY THE GOVERNMENT OF THE PROPERTY SOLD, THE MATERIAL BEING DESCRIBED FOR WHAT THE GOVERNMENT THOUGHT IT TO BE. NEITHER IS THERE ANYTHING IN THE RECORD TO WARRANT THE CONCLUSION THAT THE CONTRACTING OFFICER OR ANY OTHER GOVERNMENT PERSONNEL ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE SALE TRANSACTION. FURTHERMORE, UNDER THE CONDITIONS OF THE SALE THE GOVERNMENT WAS ONLY OBLIGED TO ACT IN GOOD FAITH, AND THIS IT DID. SEE LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; LUMBRAZO V. WOODRUFF, 175 N.E. 525; AND UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED 253 F.2D 956.

CONSEQUENTLY, AND SINCE YOU HAVE FURNISHED NO NEW FACTS OR EVIDENCE NOT ALREADY CONSIDERED IN CONNECTION WITH YOUR CLAIM, OUR PREVIOUS DECISIONS, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM, ARE AFFIRMED.