B-124510, JUL. 22, 1955

B-124510, JUL. 22, 1955

TO PRODUCTION METALS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 16, 1955, REQUESTING RECONSIDERATION OF THE SETTLEMENT DATED MAY 11, 1955, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF THE PRICE FOR ALUMINUM ALLOY PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N61790S-629, DATED SEPTEMBER 1, 1954.

IN RESPONSE TO INVITATION NO. B-2-55 DATED JULY 28, 1954, ISSUED BY THE OFFICE OF SUPERVISING INSPECTOR OF NAVAL MATERIAL, PHILADELPHIA INSPECTION DISTRICT, UPPER DARBY, PENNSYLVANIA, YOU SUBMITTED YOUR BID DATED AUGUST 24, 1954, OFFERING TO PURCHASE, AMONG OTHER ITEMS, TWO LOTS OF ALUMINUM ALLOY (LOTS 28 AND 32) FOR THE TOTAL PRICE OF $3,652.23. YOUR BID AS TO LOTS 28 AND 32 WAS ACCEPTED ON SEPTEMBER 1, 1954. PAYMENT OF THE FULL PURCHASE PRICE WAS MADE BY YOU AND THEREAFTER ON SEPTEMBER 30, 1954, DELIVERY OF THE MATERIALS WAS ACCOMPLISHED. YOUR CLAIM FOR AN ADJUSTMENT OF THE CONTRACT PRICE BECAUSE OF ALLEGED MISDESCRIPTION OF THE PROPERTY WAS DISALLOWED BY THE SETTLEMENT OF MAY 11, 1955.

YOUR REQUEST FOR RECONSIDERATION APPEARS TO BE BASED PRIMARILY ON THE CONTENTION THAT THE MATERIALS YOU PURCHASED AS LOTS 28 AND 32 WERE DIFFERENT FROM THE DESCRIPTION IN THE SALES INVITATION AND, NOT BEING PRECISELY AS ADVERTISED IN THE CATALOGUE, THE GOVERNMENT SHOULD ALLOW YOU THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT LOWER BID, LESS ONE HALF CENT PER POUND AS BEING THE PROPER DIFFERENCE FOR THIS MATERIAL.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES THAT THE DESCRIPTION IS BASED UPON THE BEST AVAILABLE INFORMATION, BUT THAT 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 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 SINCE THIS IS NOT A SALE BY SAMPLE.

WITH REGARD TO THE DISCLAIMER AS TO THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE, IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND BY OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE UNDERA CONTRACT CONTAINING, AS IN THE INSTANT CASE, THE USUAL "AS IS" PROVISION, THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. SEE 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 AND COMPANY V. UNITED STATES, 66 C.CLS. 424. THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE, AND NEITHER DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION.

EQUALLY IMPORTANT IN SUCH A CASE IS THE FACT THAT YOU FAILED TO MAKE AN INSPECTION OF THE MATERIALS OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION NOT ONLY INVITED BUT URGED BIDDERS TO INSPECT THE MATERIALS PRIOR TO SUBMITTING BIDS. IT PROVIDED FURTHER THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' HENCE, UNDER SUCH A PROVISION, IT REASONABLY MAY BE CONCLUDED THAT WHERE A BIDDER SUBMITS A BID WITHOUT INSPECTING HE ASSUMES ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY SOLD. IF YOU WERE NOT WILLING TO ASSUME SUCH A RISK, YOU SHOULD NOT HAVE SUBMITTED SUCH A BID.

ACCORDINGLY, THE SETTLEMENT OF MAY 11, 1955, DISALLOWING YOUR CLAIM, IS SUSTAINED.