B-124115, JUN. 21, 1955

B-124115, JUN. 21, 1955

TO MR. ROBERT L. SIMS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1955, PRESENTING YOUR CLAIMS AGAINST THE UNITED STATES FOR DAMAGES IN THE AMOUNTS OF $103.41 AND $396.75 ARISING FROM THE MISDESCRIPTION OF SURPLUS PROPERTY PURCHASED BY YOU UNDER INVITATIONS TO BID NOS. 304-S-101 AND 304-S 103, RESPECTIVELY, ISSUED BY THE DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION, PARKER- DAVIS PROJECT, PHOENIX, ARIZONA. ALSO, THERE HAS BEEN RECEIVED FROM HONORABLE BARRY GOLDWATER, UNITED STATES SENATE, A LETTER RELATIVE TO THE MATTER.

A REPORT IN THE MATTER HAS BEEN OBTAINED FROM THE DEPARTMENT OF THE INTERIOR, WHICH SHOWS THAT IN RESPONSE TO INVITATION NO. 304-S-101 YOU SUBMITTED A BID DATED NOVEMBER 29, 1954, OFFERING TO PURCHASE THE MISCELLANEOUS SURPLUS MATERIAL LISTED AS ITEM NO. 2 FOR A LUMP-SUM PRICE OF $122.50. THE BID WAS ACCEPTED NOVEMBER 29, 1954, AND BECAME THE BASIS OF CONTRACT NO. 14-06-304-470. THE PROPERTY INVOLVED IN THIS CLAIM, WHICH WAS PART OF ITEM 2, WAS DESCRIBED AS "660 EACH SCREW, CAP 3/8 INCHES BY 16 INCHES, 1 1/2 INCH HEX HEAD, MCH BOLTS, H.M. HARPER SILICON BRONZE.' IS REPORTED THAT THE CORRECT DESCRIPTION AS IT APPEARED ON THE STOREHOUSE CARD WAS "SCREW, CAP 3/8 INCH - 16 - 1 1/2 INCH HEX HEAD MACHINE BOLTS - H. M. HARPER SILICON BRONZE" AND THAT THE ERRONEOUS DESCRIPTION ON THE INVITATION FOR BIDS RESULTED FROM A TYPOGRAPHICAL ERROR.

IN RESPONSE TO INVITATION NO. 304-S-103, YOU SUBMITTED A BID DATED NOVEMBER 30, 1954, OFFERING TO PURCHASE THE MISCELLANEOUS SURPLUS MATERIAL LISTED AS ITEM NO. 2 FOR A LUMP-SUM PRICE OF $211. THE BID WAS ACCEPTED NOVEMBER 30, 1954, AND BECAME THE BASIS OF CONTRACT NO. 14-06-304-473. THE PROPERTY INVOLVED IN THIS CLAIM IS DESCRIBED IN ITEM NO. 2 AS "SHEET METAL, STAINLESS SEALING STRIP, MONEL, 9 INCHES BY 60 INCHES, 16-GA; " YOU STATE, HOWEVER, THAT THE MATERIAL WHEN DELIVERED TO YOU WAS FOUND TO BE STAINLESS STEEL AND NOT MONEL METAL. IT APPEARS THAT THE STAINLESS STEEL MAY HAVE BEEN ERRONEOUSLY DESCRIBED AS MONEL IN THE INVITATION FOR BIDS BECAUSE OF THE SIMILARITY OF APPEARANCE OF THE TWO MATERIALS, BUT THE ADMINISTRATIVE OFFICE REPORTS THAT SINCE THE MATERIAL HAS BEEN REMOVED IT IS UNABLE TO DETERMINE HOW MUCH OF THE MATERIAL MAY HAVE BEEN MONEL. WAS, HOWEVER, CARRIED ON THE PROPERTY RECORDS AS MONEL METAL AND IT DOES NOT APPEAR THAT ITS ACTUAL CHARACTER WAS KNOWN TO THE DISPOSAL AUTHORITIES.

IT IS REPORTED BY THE ADMINISTRATIVE OFFICE THAT YOU DID NOT INSPECT EITHER LOT OF MATERIAL BEFORE SUBMITTING BIDS, ALTHOUGH PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATIONS PROVIDED:

"BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.'

IT IS REPORTED, ALSO, THAT AT THE TIME OF THESE TRANSACTIONS YOU WERE AN EMPLOYEE OF THE SUPPLY DIVISION OF THE PARKER-DAVIS PROJECT, WHICH DIVISION WAS RESPONSIBLE FOR CONDUCTING THE SALE OF SURPLUS PROPERTY.

ASSUMING THAT YOUR CONTENTIONS AS TO THE AMOUNT AND KIND OF MATERIALS DELIVERED TO YOU ARE CORRECT, THIS WOULD AFFORD NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM UNDER CONTRACT NO. 14-06-304-473 RELATING TO MONEL METAL. THE GENERAL SALES TERMS AND CONDITIONS OF THE INVITATIONS ADVISED BIDDERS THAT THE MATERIAL WAS OFFERED "AS IS" AND THAT NO ADJUSTMENT WOULD BE MADE FOR VARIATIONS BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER WHERE AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS. THE INVITATION ALSO ADVISED BIDDERS THAT:

"* * * 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.'

IT IS DIFFICULT TO PERCEIVE HOW CLEARER OR MORE EXPLICIT LANGUAGE COULD HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF THE LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE HELD REPEATEDLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY, AND THAT UNDER THEM THE GOVERNMENT IS UNDER NO OBLIGATION EXCEPT TO EXERCISE GOOD FAITH. LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THOSE CASES, AND OTHERS TOO NUMEROUS TO MENTION, CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT ALL RISK AS TO THE CHARACTER OR CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN.

FOR THE REASONS HEREINABOVE SET OUT YOUR CLAIM UNDER CONTRACT NO. 14-06- 304-473 IS NOT FOR ALLOWANCE IN ANY AMOUNT. SEE 16 COMP. GEN. 749; 18 ID. 594, AND 32 ID. 181 AND AUTHORITIES CITED IN THOSE DECISIONS.

THE CIRCUMSTANCES PERTAINING TO YOUR PURCHASE OF BOLTS UNDER CONTRACT NO. 14-06-304-470 WERE GENERALLY SIMILAR TO THOSE PERTAINING TO YOUR PURCHASE OF METAL UNDER CONTRACT NO. 14-06-304-473. HOWEVER, SINCE THE DESCRIPTION OF THE BOLTS ON THE INVITATION FOR BIDS, DUE TO AN ERROR IN COPYING, DID NOT AGREE WITH THE DESCRIPTION ON THE STOREHOUSE CARD, THE GOVERNMENT'S RECORD OF THE PROPERTY OFFERED, IT MAY BE HELD THAT THE ERRONEOUS DESCRIPTION DID NOT FURNISH "THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION. ACCORDINGLY, IF YOU WILL FURNISH EVIDENCE AS TO THE TOTAL AMOUNT RECEIVED BY YOU FOR ALL OF THE PROPERTY PURCHASED AS ITEM NO. 2 UNDER INVITATION NO. 304-S 101, CONSIDERATION WILL BE GIVEN TO ALLOWANCE OF THE DIFFERENCE BETWEEN THAT AMOUNT AND THE AMOUNT OF YOUR BID ON THAT ITEM, YOUR ATTENTION BEING DIRECTED TO THE PROVISION OF PARAGRAPH 11 OF THE GENERAL TERMS AND CONDITIONS OF SALE, WHICH LIMITS THE LIABILITY OF THE GOVERNMENT IN ANY EVENT TO THE AMOUNT OF THE PURCHASE PRICE.