B-124733, AUG. 15, 1955

B-124733: Aug 15, 1955

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TO AMERICAN IRON AND SUPPLY COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 8. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF JUNE 3. THE BUCKET WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER. A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO REFUND OF THE PURCHASE PRICE PLUS THE COST OF TRANSPORTATION. THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS. " WITHOUT RECOURSE AGAINST THE GOVERNMENT AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION. PARAGRAPH 1 OF THE SAME CONDITIONS ADVISED THAT BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS. THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS.

B-124733, AUG. 15, 1955

TO AMERICAN IRON AND SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 8, 1955, REQUESTING REVIEW OF SETTLEMENT DATED JUNE 3, 1955, WHICH DISALLOWED YOUR CLAIM FOR $632.04, REPRESENTING THE PRICE PAID FOR A GRAPPLE BUCKET PURCHASED FROM THE DEPARTMENT OF THE NAVY, PHILADELPHIA NAVAL SHIPYARD, NAVAL BASE, PHILADELPHIA, PENNSYLVANIA, UNDER CONTRACT NO. N151S-999-A, DATED JANUARY 6, 1955.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF JUNE 3, 1955, FOR THE REASON THAT, UNDER THE TERMS OF THE CONTRACT, THE BUCKET WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND THAT YOU FAILED TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID.

SPECIFICALLY, YOU CONTEND THAT THE SALES INVITATION DESCRIBED THE ITEM AS A GRAPPLE BUCKET, MODEL RA, SIZE 610, AND MANUFACTURED BY THE OWEN BUCKET COMPANY AND THAT INASMUCH AS THE BUCKET YOU RECEIVED HAD "NO NAME, PLATE, NUMBER OR MAKE ON IT," AND DID NOT CONFORM WITH THE DESCRIPTION AND PICTURE IN THE CATALOG OF AN OWEN BUCKET, A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO REFUND OF THE PURCHASE PRICE PLUS THE COST OF TRANSPORTATION.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDED, IN PERTINENT PART, THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS," WITHOUT RECOURSE AGAINST THE GOVERNMENT AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, DESCRIPTION, OR QUALITY. 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.

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS," WITHOUT RECOURSE AGAINST THE GOVERNMENT AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, DESCRIPTION, OR QUALITY. 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.

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 AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

THERE IS NO QUESTION THAT THE LANGUAGE OF PARAGRAPH 2 REPRESENTS AN EXPRESS DISCLAIMER OF WARRANTY. THE RECORD HERE INDICATES THAT THE CONTRACTING AGENCY BELIEVED IN GOOD FAITH THAT THE BUCKET WAS ACCURATELY DESCRIBED. IN THAT CONNECTION, THE ADMINISTRATIVE OFFICE REPORTED THAT THE GRAPPLE LISTED AS ITEM 14 WAS DELIVERED TO THE SHIPYARD WITH PAPERS INDICATING IT WAS AN OWENS GRAPPLE, SIZE 610, AND, IN SPITE OF THE FACT THAT IDENTIFYING MARKERS HAD BEEN REMOVED FROM THE GRAPPLE, IT DID FIT THE GENERAL DESCRIPTION. 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 BUCKET 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.