B-124869, SEP. 1, 1955

B-124869: Sep 1, 1955

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 22. THE BID ON THESE ITEMS WAS ACCEPTED AND AWARD WAS MADE TO YOU. THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 21. YOUR REQUEST FOR RECONSIDERATION OF THAT ACTION APPEARS TO BE BASED UPON THE CONTENTION THAT THERE WAS AN IMPLIED REPRESENTATION AS TO THE QUANTITY OF THE MATERIAL AND THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT THOROUGHLY SINCE AN INSPECTION OF THAT TYPE COULD ONLY BE DONE BY REMOVING ALL OF THE STACKED CANS FROM THE PALLETS. - ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE " AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD. THEN "WHERE IS" MEANS F.O.B.

B-124869, SEP. 1, 1955

TO BARCLAY CHEMICAL COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 22, 1955, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 21, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE SUM OF $975.83 REPRESENTING A PART OF THE AMOUNT PAID BY YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N228S-7165.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. B-72-55, DATED DECEMBER 7, 1954, ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOU SUBMITTED A BID DATED DECEMBER 16, 1954, OFFERING TO PURCHASE ITEMS NOS. 49, 50, 51, 52, 53 AND 54, COMPRISING SIX LOTS OF CARBON, TETRACHLORIDE, DESCRIBED IN THE INVITATION AS MISCELLANEOUS SALVAGE MATERIAL, FOR THE PRICES SPECIFIED IN THE CONTRACT. THE BID ON THESE ITEMS WAS ACCEPTED AND AWARD WAS MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE FEDERAL GOVERNMENT AND YOU. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MATERIAL TO YOU, YOU FILED A CLAIM FOR A REFUND OF A PART OF THE PURCHASE PRICE REPRESENTING SHORTAGES IN THE QUANTITY RECEIVED. AS STATED ABOVE, THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 21, 1955.

YOUR REQUEST FOR RECONSIDERATION OF THAT ACTION APPEARS TO BE BASED UPON THE CONTENTION THAT THERE WAS AN IMPLIED REPRESENTATION AS TO THE QUANTITY OF THE MATERIAL AND THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT THOROUGHLY SINCE AN INSPECTION OF THAT TYPE COULD ONLY BE DONE BY REMOVING ALL OF THE STACKED CANS FROM THE PALLETS.

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

"CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE " 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 OR 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 INVITED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. PARAGRAPH 20 OF THESE SAME TERMS AND CONDITIONS SPECIFICALLY WARNED ALL BIDDERS THAT NO ADJUSTMENT FOR VARIATION IN QUANTITY LISTED FOR ANY ITEM AND THE QUANTITY DELIVERED TO THE PURCHASER WOULD BE MADE WHEN AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS.

ALTHOUGH IT IS NOT CLEAR FROM THE RECORD WHETHER YOU MADE ANY INSPECTION OF THE PROPERTY BEFORE YOU SUBMITTED YOUR BID, YOU INSIST THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT OR TO ASCERTAIN THAT THERE WERE EMPTY CONTAINERS FOR THE REASON THAT ALL THE CANS WERE STACKED IN ONE PILE ON PALLETS. CONCEDING THAT SUCH WAS THE CASE, YOU SHOULD HAVE ADJUSTED YOUR BID ACCORDINGLY. THE SIX ITEMS HERE INVOLVED WERE OFFERED FOR SALE ON A LOT BASIS AND THE GALLONAGE OF AT LEAST THREE ITEMS WAS SPECIFICALLY STATED AS BEING APPROXIMATELY A CERTAIN QUANTITY.

THE LANGUAGE OF THE CONTRACT WAS UNMISTAKABLY CLEAR THAT THE GOVERNMENT MADE NO GUARANTY OR WARRANTY AS TO THE QUANTITY OF THE MATERIAL TO BE SOLD AND THAT NO ADJUSTMENT WOULD BE MADE FOR VARIATION IN QUANTITY WHERE, AS HERE, THE PRICE WAS ON A LOT BASIS. IN THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, AN AGENT FOR THE GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK LOCATED AT SEVERAL FORTS, SETTING FORTH THE WEIGHTS AND KINDS OF EACH ITEM. ALTHOUGH THE QUANTITIES TURNED OUT TO BE APPROXIMATELY ONE-HALF OF THOSE SHOWN IN THE ADVERTISEMENT, THE PLAINTIFFS WERE HELD NOT TO HAVE ANY CAUSE OF ACTION SINCE, AS STATED BY THE SUPREME COURT, THE MENTIONING OF THE QUANTITIES "CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.' THE EVIDENCE OF RECORD DOES NOT ESTABLISH THAT THERE WAS ANY BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS IN MAKING THE ESTIMATE OF THE QUANTITY OF MATERIALS TO BE SOLD. ON THE CONTRARY, IT IS ADMINISTRATIVELY REPORTED THAT THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, ADVISED THAT THE DESCRIPTION OF THE MATERIAL OFFERED FOR SALE ON INVITATION B 72-55 "WAS BASED ON THE BEST INFORMATION AND DOCUMENTATION AVAILABLE.'

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT IN THE PRICE FIXED IN THE CONTRACT FOR THE LOT OF MATERIAL SOLD AND THE SETTLEMENT OF JUNE 21, 1955, IS SUSTAINED.