A-96779, AUGUST 17, 1938, 18 COMP. GEN. 176

A-96779: Aug 17, 1938

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SALES - MISTAKES - BIDS - MISDESCRIPTION OF GOVERNMENT ARTICLES WHERE THE INVITATION FOR BIDS ON SURPLUS GOVERNMENT PROPERTY CLEARLY STATED THAT THE MATERIAL WAS OFFERED FOR SALE "AS IS. IF IS. WHERE IS. " THAT THE DESCRIPTION FURNISHED WAS BASED ON BEST AVAILABLE INFORMATION. SUCH ERROR AS WAS MADE BY THE BIDDER HAVING BEEN DUE SOLELY TO ITS FAILURE TO INSPECT THE ARTICLES AND ITS COMPLETE RELIANCE ON THE ADMINISTRATIVE DESCRIPTION. AMONG OTHER ITEMS OF PROPERTY THERE WERE OFFERED FOR SALE (ITEM 4) 1 EA. THERE IS ATTACHED HERETO A SAMPLE FORM OF THE PROPOSAL LISTING THE PROPERTY OFFERED FOR SALE. ALL OF WHICH ARE SELF-EXPLANATORY. THE INVITATION TO BID CLEARLY INDICATED THAT "MATERIAL LISTED IS OFFERED FOR SALE "AS IS.

A-96779, AUGUST 17, 1938, 18 COMP. GEN. 176

SALES - MISTAKES - BIDS - MISDESCRIPTION OF GOVERNMENT ARTICLES WHERE THE INVITATION FOR BIDS ON SURPLUS GOVERNMENT PROPERTY CLEARLY STATED THAT THE MATERIAL WAS OFFERED FOR SALE "AS IS, IF IS, AND WHERE IS, WITHOUT RECOURSE; " THAT THE DESCRIPTION FURNISHED WAS BASED ON BEST AVAILABLE INFORMATION; AND THAT FAILURE TO INSPECT THE PROPERTY OFFERED WOULD NOT CONSTITUTE A CLAIM FOR ADJUSTMENT, THE LONE BIDDER, AS TO CERTAIN OF THE ARTICLES INVOLVED, MAY NOT BE RELIEVED FROM ITS ACCEPTED BID, AND REFUND MADE OF THE PURCHASE PRICE, ON THE BASIS OF MISDESCRIPTION OF THE ARTICLES OFFERED, SUCH ERROR AS WAS MADE BY THE BIDDER HAVING BEEN DUE SOLELY TO ITS FAILURE TO INSPECT THE ARTICLES AND ITS COMPLETE RELIANCE ON THE ADMINISTRATIVE DESCRIPTION, AND THE BID HAVING BEEN SUBMITTED ON THE BASIS OF A WAIVER OF "ANY CLAIM FOR ADJUSTMENT ON ACCOUNT OF NOT HAVING INSPECTED THE MATERIAL.'

ACTING COMPTROLLER GENERAL ELLIOTT TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, AUGUST 17, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF JULY 27, 1938, AS FOLLOWS:

ON MARCH 25, 1938, THE VETERANS' ADMINISTRATION FACILITY AT SUNMOUNT, NEW YORK, CIRCULATED INVITATIONS TO BID ON CERTAIN PROPERTY WHICH ISSURPLUS TO THE NEEDS OF THE VETERANS' ADMINISTRATION, BIDS TO BE OPENED ON APRIL 8, 1938. AMONG OTHER ITEMS OF PROPERTY THERE WERE OFFERED FOR SALE (ITEM 4) 1 EA. ENGINE, DENTAL, ELECTRIC, BRACKET TYPE, S.S. WHITE NO. 10717, AND (ITEM 7) 1 EA. PEDESTAL, DENTAL UNIT, RITTER, CONTROLLER BOX AND CORDS, MAH. FINISH, 110-VOLT, 60-CYCLE A.C.

THERE IS ATTACHED HERETO A SAMPLE FORM OF THE PROPOSAL LISTING THE PROPERTY OFFERED FOR SALE, ALSO LETTERS FROM THE RUBINSTEIN DENTAL EQUIPMENT COMPANY, 141-147 FIFTH AVENUE, NEW YORK, N.Y., DATED MAY 19, 1938, AND THE FACILITY AT SUNMOUNT, N.Y., DATED MAY 27 AND JUNE 21, 1938, ALL OF WHICH ARE SELF-EXPLANATORY, WITH THE REQUEST THAT THE FILE BE RETURNED AFTER SAME HAS SERVED ITS PURPOSE.

THE INVITATION TO BID CLEARLY INDICATED THAT "MATERIAL LISTED IS OFFERED FOR SALE "AS IS, IF IS, AND WHERE IS," WITHOUT RECOURSE, AND DESCRIPTION FURNISHED IS BASED ON BEST AVAILABLE INFORMATION. FULL OPPORTUNITY FOR ACTUAL INSPECTION OF THE MATERIAL LISTED WILL BE OFFERED AND BIDDERS ARE EXPECTED TO MAKE PHYSICAL INSPECTION OF THE MATERIAL DESIRED BEFORE SUBMITTING BIDS. FAILURE TO INSPECT WILL NOT CONSTITUTE CLAIM FOR ADJUSTMENT.' IT IS EVIDENT THAT THE BIDDER FAILED TO INSPECT THE PROPERTY ON WHICH HE BID. OUR FACILITY ERRED IN DESCRIBING THE PROPERTY, AS INDICATED IN THEIR LETTER OF JUNE 21, 1938.

YOUR DECISION IS REQUESTED AS TO WHETHER OR NOT THE VETERANS' ADMINISTRATION MAY DISREGARD THE BID SUBMITTED BY THE RUBINSTEIN DENTAL EQUIPMENT COMPANY AND RETURN THEIR CHECK IN THE AMOUNT OF $87.50, OR WHETHER THEIR CHECK SHOULD BE RETAINED AND THE BIDDER REQUIRED TO REMOVE THE PROPERTY ON WHICH HE BID.

THE LETTER OF MAY 19, 1938, FROM THE BIDDER IS AS FOLLOWS:

ON MARCH 25, 1938, WE RECEIVED A CIRCULAR FROM SUNMOUNT OFFERING FOR SALE, AMONGST OTHER THINGS, THE FOLLOWING TWO ITEMS:

CHART ITEM NO. 4--- 1 EA. ENGINE, DENTAL, ELECTRIC, BRACKET TYPE, S.S. WHITE

NO. 10717. ITEM NO. 7--- 1 EA. PEDESTAL, DENTAL UNIT, RITTER, CONTROLLER BOX AND

CORDS, MAH. FINISH--- 110-VOLT, 60-CYCLE A.C.

WE TOOK IT FOR GRANTED THAT YOUR DESCRIPTION TO EACH OF THE ABOVE MENTIONED ITEMS WAS ACCURATE AND DRAWN UP BY A PROFESSIONAL. THEREFORE, FROM OUR KNOWLEDGE AND 30 YEARS EXPERIENCE IN THE LINE, SUBMITTED OUR BID FOR $87.50, WHICH WAS ACCEPTED BY YOUR DEPARTMENT.

ON MAY 10TH OUR MR. RUBINSTEIN VISITED SUNMOUNT WITH THE OBJECT OF PICKING UP THESE TWO ITEMS BUT TO HIS AMAZEMENT HE FOUND TWO ITEMS NOT IN ACCORDANCE WITH THE DESCRIPTION OF YOUR OFFER.

ON ITEM NO. 4 INSTEAD OF BEING AN S.S. WHITE ENGINE IT WAS AN ELECTRO DENTAL ENGINE.

ON ITEM NO. 7 INSTEAD OF BEING A UNIT WAS JUST AN ORDINARY STAND WHICH CAN BE USED FOR ANY ENGINE. A UNIT SHOULD CONSIST OF A CUSPIDOR, BRACKET AND TABLE, AND AN ENGINE WITH CONTROLLER.

MR. RUBINSTEIN DID NOT PICK THESE ITEMS UP AS THEY ARE OF NO VALUE TO US. WE THEREFORE ASK YOU TO KINDLY REFUND TO US THE FULL AMOUNT OF $87.50.

THE COMBINED VALUE OF ITEMS NO. 4 AND NO. 7 IS $10.00.

WITH REFERENCE TO THE BIDDER'S CONTENTIONS, THE MANAGER OF THE VETERANS' ADMINISTRATION FACILITY, IN LETTER DATED MAY 27, 1938, STATED:

WE BELIEVE THAT THE DESCRIPTION USED IN OUR CIRCULAR ADVERTISEMENT COVERING THE TWO ITEMS IN QUESTION WAS NOT MISLEADING. ITEM NO. 4 COVERS THE ENGINE, DENTAL, ELECTRIC, BRACKET TYPE, S.S. WHITE NO. 10717, AND YOU WILL NOTE THAT WE STATED, UNDER THE CONDITIONS COLUMN, THAT THE ENGINE WAS INCOMPLETE, FOR WHICH THE RUBINSTEIN DENTAL EQUIPMENT COMPANY BID $10.00

ITEM NO. 7 COVERS THE PEDESTAL, DENTAL UNIT, RITTER, CONTROLLER BOX AND CORDS, MAHOGANY FINISH, 110-VOLT, 60-CYCLE, A.C., AND THE CONDITION, AS DESCRIBED ON OUR CIRCULAR, WAS "USED, BUT SERVICEABLE.' IT WILL BE NOTED THAT THE DESCRIPTION USED DID NOT COVER A COMPLETE DENTAL UNIT, AND WE BELIEVE THAT IF THE BID WAS GIVEN INTELLIGENT CONSIDERATION THAT THE ABOVE FIRM COULD NOT MISCONSTRUE THE DESCRIPTION, AS IT STATED SPECIFICALLY THAT THE ITEM IS A "PEDESTAL" AND NOT A ,DENTAL UNIT.' BID RECEIVED WAS $77.50.

ON THE SECOND PAGE OR OUR ADVERTISEMENT, YOUR ATTENTION IS CALLED TO PARAGRAPH NO. 1, WHICH READS AS FOLLOWS:

"FULL OPPORTUNITY FOR ACTUAL INSPECTION OF THE MATERIAL LISTED WILL BE OFFERED AND BIDDERS ARE EXPECTED TO MAKE PHYSICAL INSPECTION OF THE MATERIAL DESIRED BEFORE SUBMITTING BIDS. FAILURE TO INSPECT WILL NOT CONSTITUTE CLAIM FOR ADJUSTMENT.'

AND ALSO TO PARAGRAPH NO. 7, WHICH READS AS FOLLOWS:

"HAVING CAREFULLY EXAMINED AND CONSIDERED THE FOREGOING TERMS OF SALE, I (WE) HEREBY OFFER THE PRICE SET OPPOSITE THE LOTS (AND/OR) ITEMS DESIRED AND SPECIFICALLY WAIVE ANY CLAIM FOR ADJUSTMENT ON ACCOUNT OF NOT HAVING INSPECTED THE MATERIAL.'

THE VETERANS' ADMINISTRATION FACILITY GAVE NO GUARANTEE THAT THE DESCRIPTION OF THE PROPERTY CONTAINED IN THE INVITATION WAS ACCURATE AND CORRECT, BUT STATED THAT IT WAS BASED ON THE "BEST AVAILABLE INFORMATION.' IT FURTHER OFFERED FULL OPPORTUNITY FOR AN INSPECTION OF THE PROPERTY SO OFFERED IN ORDER THAT THE BIDDER MIGHT KNOW UPON WHAT THE BID WAS SUBMITTED AND ADVISED THE BIDDERS THAT ITS FAILURE TO INSPECT WOULD NOT CONSTITUTE A CLAIM FOR ADJUSTMENT.

SUCH ERROR AS MAY HAVE BEEN MADE IN THE BID--- WHICH WAS THE ONLY BID RECEIVED ON THE TWO ITEMS INVOLVED--- WAS DUE SOLELY TO THE FAILURE OF THE BIDDER TO INSPECT THE ARTICLES OFFERED; AND IN SUBMITTING ITS BID THE BIDDER SPECIFICALLY WAIVED "ANY CLAIM FOR ADJUSTMENT ON ACCOUNT OF NOT HAVING INSPECTED THE MATERIAL.' CONSEQUENTLY, THERE IS NO LEGAL BASIS TO RELIEVE THE RUBINSTEIN DENTAL EQUIPMENT CO. FROM ITS ACCEPTED BID. SEE 16 COMP. GEN. 596; 17 ID. 601; ID. 662, AND CASES CITED THEREIN.