A-83171, FEBRUARY 9, 1937, 16 COMP. GEN. 749

A-83171: Feb 9, 1937

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SALES - SURPLUS GOVERNMENT PROPERTY - RESCINDING OF EXECUTED CONTRACT AND RETURN OF PURCHASE PRICE - QUANTITY DEFICIENCIES WHERE AN ADVERTISEMENT LISTS FOR SALE VARIOUS SURPLUS MATERIALS ON AN "AS IS. " "WHERE IS. " "IF IS. IS NOT AUTHORIZED. IS AS FOLLOWS: THE STATE PROCUREMENT OFFICER FOR THE STATE OF ILLINOIS. WAS HIGH BIDDER ON ITEM 4. AN AWARD WAS MADE TO THIS CONCERN AND THE ERROR IN THE LISTING OF THE NUMBER OF SCREWS WAS NOT DISCOVERED UNTIL AFTER THE AWARD HAD BEEN MADE. A RECOUNT WAS VERIFIED BY A CORRECT AND APPROVED INVENTORY FROM THE WORKS PROGRESS ADMINISTRATION. YOUR APPROVAL IS REQUESTED FOR THE GRANTING OF AUTHORITY TO THE STATE PROCUREMENT OFFICER FOR THE EXECUTION OF THE NECESSARY STANDARD FORMS TO THE DISBURSING CLERK FOR THE RETURN OF THE BIDDER'S DEPOSIT.

A-83171, FEBRUARY 9, 1937, 16 COMP. GEN. 749

SALES - SURPLUS GOVERNMENT PROPERTY - RESCINDING OF EXECUTED CONTRACT AND RETURN OF PURCHASE PRICE - QUANTITY DEFICIENCIES WHERE AN ADVERTISEMENT LISTS FOR SALE VARIOUS SURPLUS MATERIALS ON AN "AS IS," "WHERE IS," "IF IS," "WITHOUT RECOURSE" BASIS, WITHOUT WARRANTY OR GUARANTY AS TO EXACT QUANTITY, WITH VARIOUS OTHER PROVISIONS DEFINITELY PLACING DETERMINATION AND RISK AS TO EXACT QUANTITY ON THE BIDDER, AND SPECIFICALLY REQUIRING THAT LOT PURCHASES BE PAID AT LOT BID PRICES, REGARDLESS OF QUANTITY, RETURN OF THE PURCHASE PRICE AFTER AWARD MADE, BECAUSE OF A DEFICIENCY IN QUANTITY, IS NOT AUTHORIZED. AN ADMINISTRATIVE OFFICE HAS NO EQUITABLE AUTHORITY TO RESCIND AN EXECUTED CONTRACT NOR MAY THE GENERAL ACCOUNTING OFFICE APPROVE A RETURN OF THE PURCHASE PRICE ON A COMPLETED SALE OF GOVERNMENT SURPLUS PROPERTY.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE SECRETARY OF THE TREASURY, FEBRUARY 9, 1937:

YOUR LETTER OF JANUARY 18, 1937, IN MATERIAL PART, IS AS FOLLOWS:

THE STATE PROCUREMENT OFFICER FOR THE STATE OF ILLINOIS, AS AUTHORIZED BY LETTER FROM THE PROCUREMENT DIVISION OF NOVEMBER 17TH, CIRCULARIZED INVITATIONS TO BIDDERS COVERING A DECLARATION OF SURPLUS PROPERTY FROM WORKS PROGRESS ADMINISTRATION.

THE SURPLUS MATERIALS CORPORATION OF 410 SOUTH CLINTON STREET, CHICAGO, ILLINOIS, WAS HIGH BIDDER ON ITEM 4, IN THE SUM OF $25.00, FOR A QUANTITY OF LAG SCREWS THROUGH ERROR LISTED TO THE BIDDER AS AN ITEM OF 3,000 1/2 INCH BY 7 INCH LAG SCREWS. AN AWARD WAS MADE TO THIS CONCERN AND THE ERROR IN THE LISTING OF THE NUMBER OF SCREWS WAS NOT DISCOVERED UNTIL AFTER THE AWARD HAD BEEN MADE. A RECOUNT WAS VERIFIED BY A CORRECT AND APPROVED INVENTORY FROM THE WORKS PROGRESS ADMINISTRATION.

YOUR APPROVAL IS REQUESTED FOR THE GRANTING OF AUTHORITY TO THE STATE PROCUREMENT OFFICER FOR THE EXECUTION OF THE NECESSARY STANDARD FORMS TO THE DISBURSING CLERK FOR THE RETURN OF THE BIDDER'S DEPOSIT.

THE FORMAL CONTRACT ER-TPS-54S-13 OF NOVEMBER 17, 1936, COVERING THE DESCRIBED SALE WAS FILED IN THIS OFFICE NOVEMBER 19, 1936. THE SAID CONTRACT IS SIGNED BY THE CONTRACTING PARTIES, CARRIES A RECITATION ON ITS FACE THAT AWARD WAS MADE TO THE HIGHEST BIDDER AS TO PRICE AFTER ADVERTISING BY CIRCULAR LETTERS SENT TO 402 DEALERS AND EMBRACES THE TERMS OF THE INVITATION CONTROLLING OF ACTION ON THE CLAIM FOR REFUND OF THE $25 CONTRACT PURCHASE PRICE AS FOLLOWS:

3. * * * WHEN THE AMOUNT OF THE BID IS $50.00 OR LESS, DEPOSIT OF THE FULL AMOUNT WILL BE REQUIRED. * * *

6. ALL MATERIAL LISTED HEREIN IS OFFERED BY SEALED BID SALE "AS IS," "WHERE IS," "IF IS," WITHOUT RECOURSE. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT NO WARRANTY OR GUARANTY IS GIVEN BY THE PROCUREMENT DIVISION AS TO THE EXACT QUANTITY * * *. FAILURE TO INSPECT THE MATERIAL WILL NOT CONSTITUTE GROUNDS FOR ADJUSTMENT OR RESCISSION OF CONTRACT.

7. THE ESTIMATES OF QUANTITY OR WEIGHT OF THE VARIOUS LOTS, AS SHOWN HEREIN ARE FOR THE GENERAL GUIDANCE OF BIDDERS AND HAVE NO EFFECT UPON THE SALE. ANY DISCREPANCY BETWEEN ESTIMATED AND ACTUAL QUANTITY OR WEIGHT WILL NOT INVALIDATE A SALE NOR BE CONSIDERED THE BASIS OF A CLAIM. * * * WHEN LOTS ARE SOLD ON A LOT BASIS THE PURCHASER WILL BE REQUIRED TO PAY THE PRICE BID FOR THE LOT, REGARDLESS OF ACTUAL WEIGHT OR QUANTITY * * *.

9. UPON PAYMENT OF THE PURCHASE PRICE IN FULL, TITLE TO THE MATERIAL PASSES TO THE PURCHASER AND ALL HANDLING THEREAFTER SHALL BE AT THE RISK OF THE PURCHASER * * *.

THE SALE OF ITEM 4, HERE INVOLVED, WAS BY LOT. THE CLAIMANT WAS ON NOTICE BEFORE THE SALE THAT IF IT BID AND PURCHASED THE LOT IT COULD NOT CLAIM ANY ALLOWANCE ON ACCOUNT OF DEFICIENCY IN QUANTITY. IN A COURT OTHERWISE HAVING JURISDICTION TO GRANT RELIEF IN BOTH LAW AND IN EQUITY NO RESCISSION OR OTHER RELIEF COULD BE HAD BY THE PURCHASER IN VIEW OF THE SPECIFIC TERMS OF THE CONTRACT. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, 92; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67, 69. EVEN IF THE BID HAD BEEN UPON THE UNIT BASIS INSTEAD OF UPON THE LOT BASIS, NO RESCISSION OR RECOVERY OF THE FULL PURCHASE PRICE COULD BE HAD. SNYDER CORPORATION V. UNITED STATES, 68 CT.CLS. 667.

ASIDE FROM THESE CONSIDERATIONS, HOWEVER, I AM NOT INFORMED OF ANY EQUITABLE AUTHORITY VESTED IN AN ADMINISTRATIVE OFFICE TO RESCIND AN EXECUTED CONTRACT NOR OF ANY AUTHORITY IN THIS OFFICE TO APPROVE RETURN OF THE PURCHASE PRICE ON A COMPLETED SALE OF GOVERNMENT SURPLUS PROPERTY. SEE IN THIS CONNECTION PACIFIC HARDWARE CO. V. UNITED STATES, 49 CT.CLS. 327, 335. ACCORDINGLY, I AM UNABLE TO GRANT MY APPROVAL AS YOU REQUEST.