A-7218, APRIL 11, 1925, 4 COMP. GEN. 846

A-7218: Apr 11, 1925

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SALES OF SURPLUS PROPERTY - REFUNDS FOR SHORTAGE THE FACT THAT A SALE OF SURPLUS OIL WAS OFFERED "AS IS" AND "WHERE IS" DOES NOT BAR A REFUND COVERING A SHORTAGE IN THE QUANTITY OF OIL DELIVERED WHEN THE TERMS OF THE SALE EXPRESSLY STATED THAT THE QUANTITIES WERE APPROXIMATE AND THAT ANY OVERPAYMENT DUE TO SHORTAGE IN THE ACTUAL QUANTITY WOULD BE REFUNDED AND THAT THE PURCHASER WOULD BE REQUIRED TO PAY THE BALANCE DUE SHOULD THE QUANTITY BE FOUND TO BE MORE THAN ADVERTISED. DECISION IS REQUESTED WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED. THE SALIENT POINTS OF THESE CONDITIONS PROVIDE THAT THE MATERIAL IS OFFERED FOR SALE "AS IS. " "WHERE IS. " THAT THE BIDDER WILL BE REQUIRED TO ACCEPT THE MATERIAL "AS IS" AND "WHERE IS" IN ITS PRESENT CONDITION.

A-7218, APRIL 11, 1925, 4 COMP. GEN. 846

SALES OF SURPLUS PROPERTY - REFUNDS FOR SHORTAGE THE FACT THAT A SALE OF SURPLUS OIL WAS OFFERED "AS IS" AND "WHERE IS" DOES NOT BAR A REFUND COVERING A SHORTAGE IN THE QUANTITY OF OIL DELIVERED WHEN THE TERMS OF THE SALE EXPRESSLY STATED THAT THE QUANTITIES WERE APPROXIMATE AND THAT ANY OVERPAYMENT DUE TO SHORTAGE IN THE ACTUAL QUANTITY WOULD BE REFUNDED AND THAT THE PURCHASER WOULD BE REQUIRED TO PAY THE BALANCE DUE SHOULD THE QUANTITY BE FOUND TO BE MORE THAN ADVERTISED.

COMPTROLLER GENERAL MCCARL TO THE FINANCE OFFICER, WATERTOWN ARSENAL, APRIL 11, 1925:

THERE HAS BEEN RECEIVED THE COMMUNICATION OF THE COMMANDING OFFICER OF THE WATERTOWN ARSENAL, DATED DECEMBER 16, 1924, FORWARDING VOUCHER FOR $6 IN FAVOR OF THE NEWTON MACHINE SCREW CO., REPRESENTING A REFUND ON A SHORTAGE OF 300 GALLONS OF OIL PURCHASED BY THE PAYEE THEREOF UNDER CIRCULAR PROPOSAL NO. 184, DATED JANUARY 16, 1924. DECISION IS REQUESTED WHETHER PAYMENT OF SUCH VOUCHER IS AUTHORIZED.

THE CIRCULAR ADVERTISEMENT AND PROPOSAL OF JANUARY 15, 1924, REQUIRED BIDDERS TO SUBMIT SEALED BIDS FOR THE PURCHASE OF CERTAIN SURPLUS ORDNANCE PROPERTY IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF SALE SET FORTH THEREIN. THE SALIENT POINTS OF THESE CONDITIONS PROVIDE THAT THE MATERIAL IS OFFERED FOR SALE "AS IS," "WHERE IS," THAT THE BIDDER WILL BE REQUIRED TO ACCEPT THE MATERIAL "AS IS" AND "WHERE IS" IN ITS PRESENT CONDITION; THAT THE GOVERNMENT ASSUMES NO RESPONSIBILITY WHATEVER AS REGARDS QUANTITY, QUALITY, ANALYSIS, OR DESCRIPTION; THAT NO REPRESENTATIVE OF THE GOVERNMENT IS AUTHORIZED TO MAKE ANY STATEMENT OR REPRESENTATION AS TO ANY PROPERTY OFFERED FOR SALE; AND THAT NO REPRESENTATION OR STATEMENT MADE BY ANY REPRESENTATIVE OF THE GOVERNMENT CONCERNING ANY SUCH PROPERTY WOULD BE CONSIDERED AS GROUND FOR ANY CLAIM OF ADJUSTMENT OR RESCISSION OF THE SALE.

UNDER "TERMS OF SALE" IT IS PROVIDED:

ALL QUANTITIES ARE APPROXIMATE AND WHEN REMOVING MATERIAL, IF IT IS FOUND THAT THE QUANTITY IS MORE THAN THAT ADVERTISED, THE PURCHASER WILL BE REQUIRED TO PAY THE BALANCE DUE BEFORE MATERIAL IS REMOVED. IF QUANTITY IS LESS THAN THE AMOUNT PAID FOR, THE GOVERNMENT WILL PROMPTLY REFUND ANY OVERPAYMENT TO PURCHASER * * *.

THE PROPERTY PURCHASED BY THE CLAIMANT WAS DESCRIBED IN THE CIRCULAR AS:

LOT 65, APPROX. 1725 GALLONS MISC. OIL, CUTTING, MACHINE QUENCHING, ETC., IN BARRELS AND CANS. LOT.

THE BID FOR THIS LOT WAS $34.50, AN AVERAGE OF 2 CENTS PER GALLON, FOR THE ESTIMATED QUANTITY.

UPON DELIVERY IT WAS FOUND THAT DUE TO AN ERROR IN THE INVENTORY THERE WAS A SHORTAGE OF 300 GALLONS OF THE QUANTITY ADVERTISED AND PAID FOR. THE VOUCHER COVERS THIS SHORTAGE AT 2 CENTS PER GALLON.

IN CASES OF GOVERNMENT SALES OF SURPLUS PROPERTY WHERE THE GOODS ARE SOLD BY LOT "AS IS" AND ,WHERE IS" WITHOUT WARRANTY OF ANY KIND, THE GENERAL RULE IS THAT THE PURCHASER BIDS AND PAYS FOR THE "LOT" REGARDLESS OF QUANTITY, QUALITY, CONDITION, ETC., PROPER OPPORTUNITY BEING GIVEN TO THE PROSPECTIVE BIDDER TO INSPECT THE PROPERTY BEFORE HE MAKES HIS BID; MORE ESPECIALLY IS THIS SO WHEN THE ADVERTISEMENT WARNS THE PUBLIC THAT "THE GOVERNMENT ASSUMES NO RESPONSIBILITY WHATEVER AS REGARDS QUANTITY, QUALITY, ANALYSIS, OR DESCRIPTION.'

THERE ARE CERTAIN CONDITIONS, HOWEVER, PECULIAR AND APPLICABLE TO EACH PARTICULAR SALE WHICH MUST BE TAKEN INTO CONSIDERATION IN ORDER TO DETERMINE THE UNDERSTANDING OF THE PARTIES WHEN THE SALE WAS CONSUMMATED. THE OUTSTANDING PECULIARITIES OF THE SALE INVOLVED IN THE PRESENT CASE ARE THAT THE QUANTITIES ARE LISTED AS APPROXIMATE; THAT THE BIDS ARE TO BE ON THE LOT ON THE BASIS OF QUANTITIES ADVERTISED; AND THAT ANY SHORTAGE OR OVERAGE IS TO BE ADJUSTED UPON REMOVAL OF THE GOODS. THE BID WAS, THEREFORE, ONLY TENTATIVE TO BE FINALLY ADJUSTED OR PRORATED WHEN THE GOODS WERE DELIVERED, AND THE QUANTITY DELIVERED BEING LESS THAN THAT PAID FOR, AN ADJUSTMENT OF THE UNDELIVERED QUANTITY IS PROPER AND THE PURCHASER IS ENTITLED TO A REFUND OF THE OVERPAYMENT.

THE VOUCHER SUBMITTED BY YOU IS RETURNED HEREWITH TOGETHER WITH PAPERS RELATED, AND YOU ARE ADVISED THAT PAYMENT THEREON IS AUTHORIZED.