B-124846, AUG. 16, 1955

B-124846: Aug 16, 1955

Additional Materials:

Contact:

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

 

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

L. GEBHARDT CO.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 27. WAS ACCEPTED AND AWARD WAS MADE TO YOU. YOUR REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM IS BASED UPON THE CONTENTION THAT THE MATERIAL PURCHASED DID NOT MEET THE STANDARD EXPECTED. THAT IS. THE LEATHER RECEIVED WAS SIDE LEATHER RATHER THAN BACK LEATHER. - ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND . WHERE IS. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD. THEN "WHERE IS" MEANS F.O.B. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. 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.

B-124846, AUG. 16, 1955

TO A. L. GEBHARDT CO.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 27, 1955, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 22, 1955, WHICH DISALLOWED YOUR CLAIM FOR PARTIAL REFUND OF THE AMOUNT DEPOSITED FOR THE PURCHASE OF GOVERNMENT-OWNED PROPERTY UNDER SALES CONTRACT NO. N665S-19059.

IN RESPONSE TO INVITATION NO. B-91-55 DATED SEPTEMBER 13, 1954, ISSUED BY THE U.S. NAVAL SUPPLY DEPOT, CLEAR FIELD, OGDEN, UTAH, YOU SUBMITTED A BID DATED SEPTEMBER 30, 1954, OFFERING TO PURCHASE ITEM 19, ONE LOT OF MISCELLANEOUS TEXTILES, CONSISTING OF 1,969 SQUARE FEET STRAP-BACK LEATHER FOR THE LOT PRICE OF $590. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $118, WAS ACCEPTED AND AWARD WAS MADE TO YOU. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MERCHANDISE TO YOU, YOU CLAIMED A REFUND OF A PART OF THE PURCHASE PRICE.

YOUR REQUEST FOR RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM IS BASED UPON THE CONTENTION THAT THE MATERIAL PURCHASED DID NOT MEET THE STANDARD EXPECTED, THAT IS, THE LEATHER RECEIVED WAS SIDE LEATHER RATHER THAN BACK LEATHER.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES AS FOLLOWS:

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. 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 OF 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.'

PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES AS FOLLOWS:

"1. INSPECTION.--- 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. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.'

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 UNDER A 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 THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THIS TRANSACTION.

EQUALLY IMPORTANT IN SUCH A CASE IS THE FACT THAT YOU ADMIT THAT YOU DID NOT MAKE AN INSPECTION OF THE MERCHANDISE OFFERED FOR SALE. UNDER PARAGRAPH 1 REFERRED TO ABOVE, BIDDERS WERE NOT ONLY INVITED BUT URGED TO INSPECT THE MATERIALS BEFORE SUBMITTING BIDS. IT PROVIDED THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' CONSEQUENTLY, UNDER SUCH A PROVISION IT REASONABLY MAY BE CONCLUDED THAT A BIDDER WHO FAILS TO INSPECT 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 THE RISK OF WHETHER THE PROPERTY CONFORMED TO THE DESCRIPTION SET FORTH IN THE INVITATION, YOU SHOULD NOT HAVE SUBMITTED SUCH A BID.