B-124806, SEP. 20, 1955

B-124806: Sep 20, 1955

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED JUNE 9. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $1. PROVIDED THAT THE PROPERTY WAS OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION. THE BIDDERS WERE WARNED. NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHERE AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS. THE LOT WAS SHORT 164 CALIPERS. SINCE THE SALE INVOLVED WAS ON A LOT BASIS AND SINCE THE CONTRACT CONTAINED AN EXPRESS DISCLAIMER OF WARRANTY ON THE PART OF THE GOVERNMENT. YOUR CLAIM WAS DISALLOWED. THAT THE CALIPERS RECEIVED AS 526 WERE OFFERED FOR SALE UNDER THE INVITATION FOR BID AS 586 CALIPERS. IT WAS ASSUMED THAT THE DIFFERENCE IN QUANTITY OF 526 AS SHOWN ON THE RECEIVING DOCUMENT AND THE QUANTITY OF 586 AS SHOWN ON THE INVITATION FOR BID WAS DUE TO A TYPOGRAPHICAL ERROR.

B-124806, SEP. 20, 1955

TO VICTOR MACHINERY EXCHANGE, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 9, 1955, REQUESTING REVIEW OF SETTLEMENT DATED MAY 24, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $1,230, STATED TO BE DUE ON ACCOUNT OF AN ALLEGED SHORTAGE IN THE DELIVERY OF SURPLUS PROPERTY PURCHASED BY YOU FROM THE DEPARTMENT OF THE ARMY UNDER CONTRACT NO. DA/S/33-079-AII-94, DATED JULY 6, 1954.

THE CONTRACT COVERS THE PURCHASE BY YOU OF CERTAIN GOVERNMENT-OWNED PROPERTY, DESCRIBED AS MISCELLANEOUS TOOLS AND EQUIPMENT, ONE ITEM BEING MORE FULLY DESCRIBED AS 586 VERNIER CALIPERS, FOR A LOT PRICE OF $5,240.60. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE CONTRACT, PROVIDED THAT THE PROPERTY WAS OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, BUT THAT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, ETC. ALSO, THE BIDDERS WERE WARNED, UNDER PARAGRAPH 8, THAT IN THE EVENT OF ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER, NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHERE AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS. YOU ALLEGED THAT UPON THE DELIVERY OF THE PROPERTY, THE LOT WAS SHORT 164 CALIPERS. HOWEVER, SINCE THE SALE INVOLVED WAS ON A LOT BASIS AND SINCE THE CONTRACT CONTAINED AN EXPRESS DISCLAIMER OF WARRANTY ON THE PART OF THE GOVERNMENT, YOUR CLAIM WAS DISALLOWED.

YOU CONCEDE THAT THE GOVERNMENT SHOULD NOT BE HELD FOR SHORTAGES IN TRANSACTIONS SUCH AS THIS WHERE THE BIDDER FAILS TO INSPECT THE PROPERTY, BUT CONTEND THAT SINCE YOU INSPECTED THE PROPERTY PRIOR TO PLACING A BID AND "FOUND 586 PIECES VERNIER CALIPERS CONTAINED IN THIS LOT," YOUR CLAIM SHOULD BE ALLOWED.

IN THIS CONNECTION THE ADMINISTRATIVE OFFICE REPORTS THAT ON JANUARY 13, 1954, THE PROPERTY DISPOSAL OFFICER OF ROSSFORD ORDNANCE DEPOT, RECEIVED FROM THE STORAGE DEPOT A QUANTITY OF 526 CALIPERS, PACKED IN 12 BOXES, AND THAT THE CALIPERS RECEIVED AS 526 WERE OFFERED FOR SALE UNDER THE INVITATION FOR BID AS 586 CALIPERS. IT WAS ASSUMED THAT THE DIFFERENCE IN QUANTITY OF 526 AS SHOWN ON THE RECEIVING DOCUMENT AND THE QUANTITY OF 586 AS SHOWN ON THE INVITATION FOR BID WAS DUE TO A TYPOGRAPHICAL ERROR. ALSO, IT IS REPORTED THAT SOME OF THE BOXES CONTAINING THE CALIPERS WERE NEVER OPENED DURING THE INSPECTION OF THE PROPERTY BY THE BIDDERS. THUS, THE RECORD SHOWS THAT ONLY 526 CALIPERS WERE AVAILABLE FOR SALE AND THAT THE CONTRACTING AGENCY BELIEVED IN GOOD FAITH THAT THE NUMBER OF CALIPERS WAS ACCURATELY DESCRIBED IN THE INVITATION FOR BID. THAT IS THE VERY REASON WHY AN EXPRESS DISCLAIMER HAS BEEN FOUND NECESSARY IN SALES OF THIS KIND. AS POINTED OUT ABOVE, THE MERCHANDISE WAS OFFERED FOR SALE "AS IS" AND "WHERE IS" WITHOUT GUARANTY OR WARRANTY AS TO QUANTITY AND THE SALE WAS DESIGNATED SPECIFICALLY AS ONE "BY LOT.' YOUR BID WAS MADE AND ACCEPTED ON THESE TERMS. HENCE, IT CANNOT BE SAID THAT THE GOVERNMENT IN ANY WAY BREACHED THE TERMS AND CONDITIONS OF THE SALE OR THAT THERE WAS A MISREPRESENTATION OF THE CALIPERS BY THE GOVERNMENT EITHER AS TO QUALITY OR QUANTITY. THIS CONCLUSION IS IN ACCORDANCE WITH ESTABLISHED PRINCIPLES OF LAW APPLICABLE TO SIMILAR SITUATIONS. LYNCH V. CURFMAN, 65 MINN. 170, 68 N.W. 5, 7; WILLISTON ON SALES (2D ED.), SECTION 213. IN THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, WHEREIN IT WAS UNSUCCESSFULLY CONTENDED THAT THE UNITED STATES WAS LIABLE IN DAMAGES FOR A SHORTAGE IN DELIVERY OF SPECIFIED LOTS OF SCRAP IRON AND STEEL WHICH HAD BEEN OFFERED FOR SALE IN A SCHEDULE SHOWING THE VARIOUS FORTS WHERE THE SCRAP IRON WAS ACCUMULATED AND THE APPROXIMATE WEIGHTS AT EACH LOCATION AND WHICH HAD BEEN PURCHASED "AS IS" FOR A STIPULATED LUMP-SUM PRICE, THE COURT STATED ON PAGE 92:

"* * * THE NAMING OF QUANTITIES CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.' ALSO, SEE IN THIS CONNECTION BRAWLEY V. UNITED STATES, 96 U.S. 168, AND MOTTRAM V. UNITED STATES, 271 U.S. 15.

FROM THE FOREGOING, IT FOLLOWS AS A NECESSARY CONCLUSION THAT YOUR CLAIM FOR AN AMOUNT REPRESENTING THE VALUE OF THE CALIPERS ALLEGED TO HAVE BEEN MISSING UPON DELIVERY OF THE LOT OF MERCHANDISE INVOLVED WAS PROPERLY DENIED.