B-121545, OCT 14, 1954

B-121545: Oct 14, 1954

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PRECIS-UNAVAILABLE RALPRIN SUPPLY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED AUGUST 12. THE MATERIAL WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER. THE LOSS OF WHICH YOU NOW COMPLAIN WAS OCCASIONED BY YOUR FAILURE TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID. AS FOG NOZZLES WITH 4 FOOT BAYONET APPLICATORS AND THAT INASMUCH AS NO FOG NOZZLES BUT ONLY BAYONET APPLICATORS WERE RECEIVED. A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO A PARTIAL REFUND OF THE AMOUNT PAID FOR SUCH MATERIAL. THAT: "ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE 'AS IS' AND 'WHERE IS. ' AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. *** THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION.

B-121545, OCT 14, 1954

PRECIS-UNAVAILABLE

RALPRIN SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1954, REQUESTING REVIEW OF THAT PORTION OF SETTLEMENT DATED AUGUST 12, 1954, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $298.62, REPRESENTING A PARTIAL REFUND OF THE AMOUNT PAID TO THE GOVERNMENT FOR SURPLUS MATERIAL PURCHASED UNDER ITEM 10 OF SALES CONTRACT NO. 04-513 01-(S)-36-54, DATED AUGUST 5, 1953.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED AUGUST 12, 1954, FOR THE REASONS THAT, UNDER THE TERMS OF THE CONTRACT, THE MATERIAL WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND THE LOSS OF WHICH YOU NOW COMPLAIN WAS OCCASIONED BY YOUR FAILURE TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID.

SPECIFICALLY, YOU CONTEND THAT SALES INVITATION NO. 04-513-S-54-5 DESCRIBED THE MATERIAL HERE INVOLVED, ITEM 10, AS FOG NOZZLES WITH 4 FOOT BAYONET APPLICATORS AND THAT INASMUCH AS NO FOG NOZZLES BUT ONLY BAYONET APPLICATORS WERE RECEIVED, A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO A PARTIAL REFUND OF THE AMOUNT PAID FOR SUCH MATERIAL. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE OF THE INVITATION PROVIDES, IN PERTINENT PART, THAT:

"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE 'AS IS' AND 'WHERE IS,' AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. *** 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."

FURTHERMORE, PARAGRAPH 1 OF THE SAME CONDITIONS ADVISED THAT BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, STATING THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

AS YOU WERE ADVISED IN THE SETTLEMENT, ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. THIS, IN EFFECT, IS THE THEORY UPON WHICH YOU BASE YOUR CLAIM. HOWEVER, IT IS FUNDAMENTAL THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE, IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W.E. HEDGER COMPANY V. UNITED STATES, 52 F. 2D 31, CERTIORARI DENIED, 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C. CLS. 151; AND I. SHAPIRO & COMPANY V. UNITED STATES, 66 C. CLS. 424.

THERE IS NO QUESTION THAT THE ABOVE-QUOTED LANGUAGE OF PARAGRAPH 2 REPRESENTS AN EXPRESS DISCLAIMER OF WARRANTY. THE RECORD BEFORE THIS OFFICE INDICATES THAT THE CONTRACTING AGENCY BELIEVED IN GOOD FAITH THAT THE MATERIAL WAS ACCURATELY DESCRIBED. IN THAT CONNECTION, THE ADMINISTRATIVE OFFICE REPORTED THAT THE PERSONNEL IN THE DISPOSAL BRANCH ARE NOT TECHNICALLY QUALIFIED TO CHECK THE DETAILS OF DESCRIPTIONS TO DETERMINE THE CORRECTNESS OF THE IDENTIFICATION. THAT IS THE VERY REASON WHY AN EXPRESS DISCLAIMER HAS BEEN FOUND NECESSARY IN SALES OF THIS KIND. THE DESCRIPTION IS NO MORE THAN A REPRESENTATION OF OPINION AND UNDERSTANDING OF THE CONDITION OR QUALITY OF THE PROPERTY AND IS NOT FURTHER TO BE RELIED UPON BY PROSPECTIVE BUYERS. SEE JOHNSON V. WAISMAN BROS. 36 A. 2D 634.

MOREOVER, IT APPEARS THAT NO INSPECTION OF THE MATERIAL WAS MADE BY YOU 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 FOR INACCURACIES OR DEFICIENCIES WHICH AN INSPECTION WOULD HAVE READILY DISCLOSED.

THE MATTER OF GRANTING RELIEF TO PURCHASERS OF SURPLUS PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF CONSIDERATION IN NUMEROUS DECISIONS OF THIS OFFICE AND OF THE COURTS, AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE 4 COMP. GEN. 286; 16 ID. 749; 18 ID. 594; 28 ID. 306; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C. CLS. 801; S. BRODY V. UNITED STATES, 64 ID. 538.

IN ONE CASE DECIDED IN 1949 (B-89667, DECEMBER 1, 1949), THE FACTS WERE ALMOST IDENTICAL TO THOSE IN THE PRESENT CASE. THE SALES CATALOGUE DESCRIBED THE MATERIAL AS "TACHOMETERS WITH ADAPTORS AND END FITTINGS." IT TURNED OUT THAT NO TACHOMETERS WERE IN THE LOT. THIS OFFICE CONCLUDED ON THE BASIS OF THE PRINCIPLES CITED ABOVE THAT NO ADJUSTMENT COULD BE ALLOWED.

I REALIZE THAT THE RESULTS IN THESE CASES MAY SOMETIMES SEEM HARSH. BUT THE GOVERNMENT HAS USED THE PLAINEST AND CLEAREST LANGUAGE POSSIBLE TO ADVISE PROSPECTIVE BIDDERS THAT IN THESE SURPLUS SALES, THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY.

ACCORDINGLY, THE SETTLEMENT OF AUGUST 12, 1954 IS SUSTAINED.