B-142268, APR. 1, 1960

B-142268, APR. 1, 1960

TO TULSA ARMY AND NAVY STORE:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 29, 1960, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 19, 1960, WHICH DISALLOWED YOUR CLAIM FOR $655.61, REPRESENTING FREIGHT CHARGES AND THE AMOUNT PAID FOR SURPLUS PROPERTY PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. N228S-42834.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. B-67-60-228, ISSUED BY THE DISPOSAL DEPARTMENT, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM 66 BY LOT FOR $428.88, WHICH WAS DESCRIBED AS "HAMMOCKS, BED, WATER REPELLENT, WITH 4 WOODEN HOOKS BOTH ENDS. VARIOUS SIZES AND MFRS. APPROX. 1,600 EACH.' UPON DELIVERY OF THE PROPERTY COVERED BY ITEM 66, YOU ADVISED THE DISPOSAL AGENCY BY LETTER DATED NOVEMBER 25, 1959, THAT THE SURPLUS PROPERTY COVERED BY THAT ITEM WAS MISREPRESENTED IN THE SALES INVITATION, SINCE THE SURPLUS PROPERTY WAS DESCRIBED AS "HAMMOCKS, BED," WHEREAS THE PROPERTY YOU RECEIVED ACTUALLY WAS LIFE RAFT SIGNAL PANELS, MEASURING 43 INCHES BY 33 1/2 INCHES RATHER THAN BED HAMMOCKS ON WHICH ONE COULD SLEEP. YOU STATED FURTHER THAT YOU HAD SEEN THE ILLUSTRATION IN THE CATALOG AND PRESUMED THAT THE SIZE OF THE HAMMOCKS ADVERTISED UNDER ITEM 66 WOULD BE OF THE GENERAL SIZE; AND THAT YOU COULD NOT USE THE LIFE RAFT SIGNAL PANELS. BY LETTER DATED DECEMBER 1, 1959, THE CONTRACTING OFFICER ADVISED YOU THAT, IN VIEW OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, PARTICULARLY PARAGRAPHS 1 AND 2, WHICH INCLUDED THE STANDARD DISCLAIMER CLAUSE, THE BEST AVAILABLE DESCRIPTION CLAUSE, AND THE CAUTION TO INSPECT CLAUSE, NO BASIS EXISTED FOR FAVORABLE CONSIDERATION OR YOUR CLAIM FOR RELIEF.

YOUR REQUEST FOR REVIEW APPEARS TO BE BASED ON THE QUESTION WHETHER THE GOVERNMENT ACTED IN GOOD FAITH IN THIS TRANSACTION. YOU ALSO CONTEND THAT YOU ARE NOT REQUIRED TO COMPLETE A PHYSICAL INSPECTION OF THE PROPERTY BEFORE PURCHASING, STATING IN THAT REGARD THAT "IN THIS INSTANCE THE COST OF MAKING A PERSONAL INSPECTION WOULD BE ALMOST AS MUCH AS OUR AWARD.'

IN THAT CONNECTION, YOUR BID AND THE SALE WERE SUBJECT TO THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2 OF WHICH PROVIDE:

"1. INSPECTION.---BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE MATERIAL COVERED BY ITEM 66 WAS, IN FACT, HAMMOCK BEDS PROVIDED WITH EACH MARK II, MARK IV AND MARK VII LIFE RAFT FOR USE OF OCCUPANTS OF THE RAFT; THAT THESE HAMMOCKS ARE STRETCHED ACROSS THE RAFT AND HELD UP BY THE PATCHES PROVIDED ON THE RAFT; AND THAT THE PHOTOGRAPH IN THE INVITATION SHOULD HAVE PLACED YOU ON NOTICE THAT THE MATERIAL BEING OFFERED FOR SALE WAS NOT THE REGULAR NAVY HAMMOCK.

IT HAS BEEN HELD BY THE COURTS THAT THE ABOVE LANGUAGE, SUCH AS CONTAINED IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY; THAT THERE IS ESPECIALLY FOR APPLICATION THE PRINCIPLE THAT THE PURCHASER BUYS ENTIRELY AT HIS RISK; AND THAT RECOVERY CANNOT BE HAD AGAINST THE VENDOR ON THE GROUND THAT THE PURCHASER WAS MISTAKEN AS TO THE QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE. SEE LUMBRAZO V. WOODRUFF, 175 N.W. 525; W. B. MEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424; AND LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT OF CLAIMS HELD THAT THE TERMS OF THE SALES CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.

IT APPEARS FROM THE RECORD THAT YOU DID NOT INSPECT THE HAMMOCKS PRIOR TO THE SUBMISSION OF YOUR BID. THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS, WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUND THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE RENDERED NUMEROUS DECISIONS IN WHICH THESE PRINCIPLES ARE ASSORTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; S. BRODY V. UNITED STATES, 64 C.CLS. 538; S. SNYDER CORP. V. UNITED STATES, 68 C.CLS. 667; SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.CLS. 601; METTRAM V. UNITED STATES, 270 U.S. 15; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67. SEE, ALSO, 29 COMP. GEN. 310 AND 32 ID. 181.

ALTHOUGH IT IS ADMITTED THAT THE RESULTS IN THIS TYPE OF CASE SOMETIMES MAY SEEM HARSH, IT DOES NOT APPEAR THAT ANY REASONABLE INTERPRETATION OF THE PUBLISHED CONDITIONS OF SALE WOULD WARRANT THE CONCLUSION THAT THE GOVERNMENT OWED ANY HIGHER DEGREE OF CARE OR DUTY TO BIDDERS OTHER THAN TO DELIVER THE EXACT PROPERTY WHICH WAS AVAILABLE FOR INSPECTION. SEE PAXTON -MITCHELL CO. V. UNITED STATES, (C.CLS. APRIL 8, 1959), 172 F.SUPP. 463.

YOU CONTEND THAT THE FACTS IN THE CASE OF UNITED STATES V. HATHAWAY, 242 F.2D 897, CITED IN THE SETTLEMENT OF FEBRUARY 19, 1960, ARE DIFFERENT FROM THOSE IN YOUR CASE IN THAT THERE THE ITEM ADVERTISED, NAMELY, SUBMERGED LOCKS, WAS AVAILABLE TO THE BIDDER, ALTHOUGH SOME OF THE LOCKS COULD NOT BE REMOVED BECAUSE OF A SPRUNG LOCK. SINCE, AS STATED ABOVE, THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THE MATERIAL RECEIVED BY YOU WAS BED HAMMOCKS, WE CAN SEE NO DISTINCTION BETWEEN THE TWO CASES.

ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE FULL PURCHASE PRICE OF ITEM 66 PLUS FREIGHT CHARGES THEREON IS SUSTAINED.