B-124805, SEP. 1, 1955

B-124805: Sep 1, 1955

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO THE LEARNER COMPANY: REFERENCE IS MADE TO LETTER OF JUNE 24. INCLUDED IN THE LIST WAS ITEM NO. 16. IN THE PRINTED DESCRIPTION OF THE ITEM WAS THE STATEMENT "APPROX. YOUR LOSS IS REPRESENTED BY THE AMOUNT OF $897.75 NOW CLAIMED. THE CONTRACT OF SALE WAS MADE ON AN "AS IS" AND . WHERE IS" BASIS. YOUR ATTENTION WAS INVITED TO THE FACT THAT THE BIDDERS WERE URGED TO INSPECT THE PROPERTY. IT IS STATED YOUR CLAIM SPECIFICALLY FALLS WITHIN THE PURVIEW OF PARAGRAPHS 8 AND 20 OF THE GENERAL TERMS AND CONDITIONS OF THE CONTRACT. IT IS PROVIDED UNDER PARAGRAPH 8 THAT ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT OF AN ITEM AS LISTED AND THAT DELIVERED WILL BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED THEREFOR.

B-124805, SEP. 1, 1955

TO THE LEARNER COMPANY:

REFERENCE IS MADE TO LETTER OF JUNE 24, 1955, RECEIVED FROM YOUR ATTORNEY MR. LOUIS J. GLICKSBERG, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT OF MAY 13, 1955, WHICH DISALLOWED YOUR CLAIM FOR $897.75, IN CONNECTION WITH CERTAIN BATTERIES PURCHASED BY YOU FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N228S-6379, DATED SEPTEMBER 28, 1954.

IN RESPONSE TO FORMAL INVITATION NO. B-23-55, YOU OFFERED IN YOUR BID DATED SEPTEMBER 22, 1954, TO PURCHASE VARIOUS ITEMS OF LISTED SCRAP MATERIAL. INCLUDED IN THE LIST WAS ITEM NO. 16, THE ONLY ITEM IN DISPUTE, COVERING 25 STANDARD INDUSTRIAL TRUCK BATTERIES, ON WHICH YOU QUOTED A PRICE OF $81.61 EACH, OR A TOTAL PRICE OF $2,040.25. IN THE PRINTED DESCRIPTION OF THE ITEM WAS THE STATEMENT "APPROX. WGT. 2,500 LBS. EACH.' THE AWARD MADE TO YOU IN THE CIRCUMSTANCES AS HIGHEST BIDDER ON ITEM NO. 16 CONSTITUTED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. IN THE DELIVERY OF THE ITEM, YOU ALLEGED THAT EACH BATTERY WEIGHED 1,400 POUNDS AND THAT SINCE YOU HAD PREPARED YOUR BID ON THE BASIS OF A TOTAL WEIGHT OF 2,500 POUNDS, AS STATED IN THE DESCRIPTION OF THE ITEM, YOUR LOSS IS REPRESENTED BY THE AMOUNT OF $897.75 NOW CLAIMED.

AS STATED IN THE SETTLEMENT OF MAY 13, 1955, THE CONTRACT OF SALE WAS MADE ON AN "AS IS" AND ,WHERE IS" BASIS, WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER. YOUR ATTENTION WAS INVITED TO THE FACT THAT THE BIDDERS WERE URGED TO INSPECT THE PROPERTY, AND THAT FAILURE OF INSPECTION WOULD NOT CONSTITUTE GROUNDS FOR A CLAIM. IN THE REQUEST FOR REVIEW, IT IS STATED YOUR CLAIM SPECIFICALLY FALLS WITHIN THE PURVIEW OF PARAGRAPHS 8 AND 20 OF THE GENERAL TERMS AND CONDITIONS OF THE CONTRACT.

IT IS PROVIDED UNDER PARAGRAPH 8 THAT ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT OF AN ITEM AS LISTED AND THAT DELIVERED WILL BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED THEREFOR; BUT THAT "NO ADJUSTMENT FOR SUCH VARIATION WILL BE MADE WHERE AN AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS.' IT WILL BE OBSERVED THAT THE PROVISIONS OF PARAGRAPH 20 ARE MERELY AN EXTENSION OF THOSE CONTAINED UNDER PARAGRAPH 8 AND ARE INTENDED PRIMARILY TO SPECIFY THE APPLICATION OF PERCENTAGE TOLERANCE IN THOSE CASES WHERE THE ADJUSTMENT REFLECTS A BID FOR PROPERTY ON A UNIT PRICE BASIS. IT IS CLEAR THAT THE QUANTITY HERE OFFERED FOR SALE WAS 25 BATTERIES ON WHICH YOU BID A UNIT PRICE OF $81.61. THE VARIATION IN QUANTITY REFERRED TO IN PARAGRAPH 20, THEREFORE, HAS REFERENCE TO THE VARIATION IN THE NUMBER OF BATTERIES AND NOT TO THE DESCRIPTION OR WEIGHT. WHILE YOU MAY HAVE COMPUTED YOUR PRICE ON A UNIT BASE PER POUND, THE UNIT ON WHICH YOUR BID WAS SUBMITTED WAS ONE BATTERY. IT DOES NOT APPEAR THAT THE ADJUSTMENT ON THE UNIT PRICE BASIS AS REFERRED TO IN PARAGRAPH 8 AND 20 HAS ANY APPLICATION HERE FOR THE REASON THAT THE UNITS (25 BATTERIES) CONTRACTED FOR WERE DELIVERED.

FURTHERMORE, THE APPROXIMATE WEIGHT LISTED FOR ITEM 16 WAS STATED ON THE BEST INFORMATION AVAILABLE FOR IDENTIFICATION PURPOSES AND EACH BIDDER WAS ON NOTICE OF THE IMPORTANCE OF AN INSPECTION BEFORE PREPARING A BID. ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, BUT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THE INSTANT CASE--- NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD, AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. 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.

UNDER THE CIRCUMSTANCES, THERE APPEARS NO LEGAL BASIS UPON WHICH THE CLAIM FOR REFUND OF THE PURCHASE PRICE MAY BE ALLOWED, AND THE SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.