B-132162, JUL. 30, 1957

B-132162, JUL. 30, 1957

TO THE CHEMICAL SERVICE CORPORATION:

REFERENCE IS MADE TO YOUR LETTERS OF JUNE 26 AND 28, 1957, AND ENCLOSURES, PROTESTING THE DISALLOWANCE OF YOUR CLAIM FOR $51.15, WHICH ACTION WAS SUSTAINED ON APPEAL BY OUR DECISION OF JUNE 21, 1957, B- 132162.

THE BASIS OF YOUR PROTEST AROSE IN CONNECTION WITH INVITATION NO. 18 109- S-56-28, IN RESPONSE TO WHICH YOU OFFERED TO PURCHASE ITEM 283 BY LOT FOR $51.15, IDENTIFIED AS SODIUM HYDROXIDE PELLETS. AFTER AWARD OF THE CONTRACT AND DELIVERY OF THE MATERIAL, YOU NOTIFIED THE DISPOSAL AGENCY THAT THE LOT SHIPPED CONSISTED OF CAUSTIC SODA RATHER THAN SODIUM HYDROXIDE AND THEREFORE YOU FELT THE CONTRACT SHOULD HAVE BEEN RESCINDED. YOU NOW STATE THAT WHILE SODIUM HYDROXIDE ADMITTEDLY IS CAUSTIC SODA THE USE OF THE WORD "PELLET" DENOTES, PRESUMABLY UNDER TRADE CUSTOM, A MORE REFINED PRODUCT OF HIGHER VALUE.

CONCEDING THAT THE DESCRIPTION WAS NOT COMPLETELY ACCURATE, THE IDENTITY OF SURPLUS GOODS OFFERED FOR SALE BY THE GOVERNMENT GENERALLY IS TAKEN FROM INVENTORY LISTING, AND IN THE ABSENCE OF FRAUD OR BAD FAITH, THE COURTS HAVE HELD THAT UNDER THE DISCLAIMER OF WARRANTY PROVISION BUYERS HAVE NO RIGHT TO EXPECT ANY WARRANTIES WHATSOEVER. THERE IS NOTHING IN THE RECORD TENDING TO SHOW THAT THE DISPOSAL OFFICER OR ANY OTHER GOVERNMENT EMPLOYEE CONNECTED WITH THE TRANSACTION INTENTIONALLY MISDESCRIBED THE COMMODITY, IF IN FACT THERE WAS ANY MISDESCRIPTION. DISPOSING OF EXCESS MATERIALS AND SUPPLIES, THE GOVERNMENT IS NOT ALWAYS AWARE OF THE NATURE, QUALITY, OR CONDITION OF THE GOODS IT SELLS, AND THEREFORE PROSPECTIVE BIDDERS USUALLY ARE APPRISED BY THE TERMS OF THE INVITATION, SIMILAR TO THOSE HERE INVOLVED, THAT ANY RISK AS TO THE ACCURACY OF THE DESCRIPTION IS IMPOSED UPON THE PURCHASER. THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH THUS CREATING A VALID AND BINDING CONTRACT WHICH MAY NOT BE RESCINDED.