B-123449, JUN. 24, 1955

B-123449, JUN. 24, 1955

TO HAROLD DESSAU, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 1, 1955, REQUESTING REVIEW OF SETTLEMENT DATED FEBRUARY 25, 1955, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $528, REPRESENTING THE AMOUNT PAID FOR EIGHT HOISTS PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N-60038S 6235, DATED JULY 12, 1954, ISSUED PURSUANT TO INVITATION NO. B-57-54.

YOUR CONTENTION APPEARS TO BE THAT, DUE TO THE CONDITIONS EXISTING AT THE POINT OF STORAGE, YOU WERE UNABLE TO MAKE A COMPLETE INSPECTION OF THE MATERIAL IN THIS CASE, THERE BEING NO FACILITIES AVAILABLE FOR OPENING ANY OF THE CASES OTHER THAN THOSE ALREADY OPENED AS SAMPLES, OR FOR LIFTING THE CASES, WHICH WERE PILED ONE UPON THE OTHER. IT IS ALLEGED THAT EIGHT OF THE TOTAL OF 50 HOISTS PURCHASED WERE NOT NEW AS REPRESENTED IN THE SALES INVITATION.

THE NAVAL SUPPLY DEPOT, SCOTIA, NEW YORK, REPORTS THAT THE ADVERTISED DESCRIPTION OF THE STS,"UNUSED, CONDITION--- GOOD," WAS BASED UPON THE BEST INFORMATION AVAILABLE TO THAT DEPOT WITHOUT UNPACKING AND INSPECTING EACH ITEM. IT IS REPORTED FURTHER THAT IT IS THE POLICY OF THAT DEPOT TO ALLOW BIDDERS TO OPEN ADDITIONAL CRATES, BOXES, ETC., AT THEIR EXPENSE IN CONFORMANCE WITH PARAGRAPH 1 OF THE SALES INVITATION.

BY THE INVITATION TO BID IN THIS CASE, BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. THEY WERE ADVISED THAT THE PROPERTY WOULD BE AVAILABLE FOR INSPECTION AT THE PLACE AND TIMES SPECIFIED IN THE INVITATION; THAT THE GOVERNMENT WOULD NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE; AND THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. HOWEVER, WHERE, AS HERE, THERE IS AN EXPRESS DISCLAIMER OF WARRANTY NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD, AS THE DISCLAIMER EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 25; 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 AND COMPANY V. UNITED STATES, 66 C.CLS. 424. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, QUOTED IN THE SETTLEMENT, ADVISED PROSPECTIVE BIDDERS THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS; " THAT IT WAS NOT A SALE BY SAMPLE; THAT THE GOVERNMENT MADE NO GUARANTY, WARRANTY, OR REPRESENTATION AS TO THE QUALITY OR DESCRIPTION OF THE PROPERTY OR AS TO ITS FITNESS FOR ANY USE OR PURPOSE; AND THAT "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.' THUS, THE DISCLAIMER WAS SPECIFIC AS TO THE DESCRIPTION OF THE HOISTS.

YOU ADMIT THAT EXCEPT FOR THE CASES ALREADY OPENED THERE WAS NO INSPECTION PRIOR TO THE SUBMISSION OF YOUR BID. IT IS CLEAR THAT WHERE PROPERTY OF THE CHARACTER HERE INVOLVED IS 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 THE OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUND THAT THE QUALITY OF THE PROPERTY WAS INFERIOR TO THAT EXPECTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; S. BRODY V. UNITED STATES, 64 ID. 538; SILBERSTEIN AND SON V. UNITED STATES, 69 ID. 412; SACHS MERCANTILE COMPANY V. UNITED STATES, 78 ID. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MOTTRAM V. UNITED STATES, 271 ID. 15; MAGUIRE AND COMPANY V. UNITED STATES, 273 ID. 67. IN THE CASE OF THE TRIAD CORPORATION V. UNITED STATES, SUPRA, THE COURT STATED:

"* * * THE PLAINTIFF WAS THUS NOTIFIED BEFORE THE SALE THAT IF IT BID AND PURCHASED THE LOT OF MATERIAL IT COULD NOT CLAIM ANY ALLOWANCE ON ACCOUNT OF DEFICIENCY IN QUALITY, CHARACTER, OR KIND OF MATERIAL SOLD AND DELIVERED.

"THE PLAINTIFF DID NOT TAKE ADVANTAGE OF ITS RIGHT TO INSPECT BUT BOUGHT THE LOT WITHOUT INSPECTING IT.

"UNDER THE TERMS OF THE CATALOGUE IT IS DIFFICULT TO PERCEIVE HOW THE GOVERNMENT COULD HAVE GIVEN PURCHASERS MORE SPECIFIC WARNING THAN IT DID, THAT THEY BOUGHT AT THEIR RISK WHAT MATERIAL IT HAD AND WAS OFFERING FOR SALE; THAT IF A PURCHASER WISHED TO PROTECT HIMSELF HE COULD DO SO BY INSPECTION, FULL OPPORTUNITIES FOR WHICH WERE OFFERED, AND THAT IF HE FAILED TO INSPECT AND RECEIVED SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING HE COULD HAVE NO REDRESS AND COULD NOT CLAIM ALLOWANCES BY REASON THEREOF. MORE THAN THAT, HE WAS DISTINCTLY TOLD THAT FAILURE TO INSPECT WOULD NOT BE CONSIDERED AS A GROUND FOR ADJUSTMENT. IF PLAINTIFF NEGLECTED TO EMBRACE THE OPPORTUNITY OFFERED TO INSPECT AND PURCHASED THE PROPERTY WITHOUT DOING SO, WITH NOTICE THAT IT BOUGHT AT ITS OWN RISK, IT CREATED BY ITS OWN NEGLIGENCE THE SITUATION FROM WHICH IT NOW SEEKS RELIEF.'

WHILE THE DESCRIPTION OF THE PROPERTY MAY NOT HAVE BEEN ACCURATE, SUCH DESCRIPTION APPEARS TO HAVE BEEN PREPARED IN GOOD FAITH AND THE VERY PURPOSE OF URGING PROSPECTIVE BIDDERS TO INSPECT THE HOISTS PRIOR TO SUBMITTING BIDS WAS TO REQUIRE THE BIDDERS TO ASCERTAIN FOR THEMSELVES THE ACTUAL CONDITION OF THE PROPERTY.