B-125693, MAR. 19, 1956

B-125693: Mar 19, 1956

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THE ITEM WAS FURTHER LISTED AS 269 EACH UNDER THE QUANTITY COLUMN WITH THE CONDITION BEING NOTED AS "USED R2.'. THE ESTIMATED COST OF LOT NO. 35 IS SHOWN IN THE AMOUNT OF $1. YOUR BID OF $362.15 FOR THE LOT WAS ACCEPTED AND THE PURCHASE PRICE WAS PAID BY YOU. PROVIDED THAT THE ITEMS IN QUESTION WERE OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION. BIDDERS WERE WARNED. NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHERE AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS. YOU ALLEGED THAT UPON DELIVERY OF THE LOT ITEM ONLY 63 COMPLETE TURNBUCKLES WERE RECEIVED. 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.

B-125693, MAR. 19, 1956

TO MARINE METAL AND SUPPLY CO., INC.:

YOUR LETTER OF FEBRUARY 8, 1956, REQUESTS REVIEW OF SETTLEMENT DATED JANUARY 31, 1956, WHICH DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT OF THE PURCHASE PRICE OF $362.15 PAID BY YOU TO THE DEPARTMENT OF THE ARMY FOR CERTAIN STEEL TURNBUCKLES LISTED AS LOT NO. 35, UNDER CONTRACT NO. 0I/S/30 -182-55-393, DATED JANUARY 6, 1955.

IN RESPONSE TO THE PERTINENT INVITATION, REQUESTING BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY TO BE SOLD ON JANUARY 3, 1955, YOU OFFERED TO PURCHASE, AMONG OTHERS, ITEM (LOT) NO. 35 DESCRIBED AS "TURNBUCKLE, STEEL DROP FORGED WELDLESS UPON BUCKLE EYE AND EYE GALV. 1 INCH DIA BY 24 INCHES LONG.' THE ITEM WAS FURTHER LISTED AS 269 EACH UNDER THE QUANTITY COLUMN WITH THE CONDITION BEING NOTED AS "USED R2.' THE ESTIMATED COST OF LOT NO. 35 IS SHOWN IN THE AMOUNT OF $1,008.75. YOUR BID OF $362.15 FOR THE LOT WAS ACCEPTED AND THE PURCHASE PRICE WAS PAID BY YOU.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE CONTRACT, PROVIDED THAT THE ITEMS IN QUESTION WERE 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, EXPRESS OR IMPLIED, AS TO QUANTITY, DESCRIPTION, ETC. ALSO, BIDDERS WERE WARNED, UNDER PARAGRAPH 8, THAT IN THE EVENT OF ANY VARIATION BETWEEN THE QUANTITY LISTED FOR ANY ITEM AND THE QUANTITY OF SUCH ITEM 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 DELIVERY OF THE LOT ITEM ONLY 63 COMPLETE TURNBUCKLES WERE RECEIVED, THE REMAINING ITEMS COMPRISING A LARGE BOX CONTAINING LOOSE MIXED PARTS OF TURNBUCKLES. 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 FOR REFUND OF THE BID PRICE OF ITEM 35 WAS DISALLOWED.

YOU IMPLY THAT NO CONSIDERATION WAS GIVEN YOUR PRIOR LETTERS WHEREIN YOU CONTENDED THAT SINCE THE INVITATION DESCRIPTION INCLUDED 269 TURNBUCKLES AND ONLY 63 WERE CONTAINED IN THE STOCKPILE, SUCH A DESCRIPTION IS A MISREPRESENTATION. ALSO, YOU STATED PREVIOUSLY THAT AT THE TIME OF YOUR INSPECTION, PRIOR TO BIDDING, YOU DID NOT COUNT THE ITEMS WHICH WERE TIERED ON PALLETS BUT, IN FACT, RELIED ON THE GOVERNMENT'S ADVERTISED COUNT. YOU DO NOT RECALL SEEING THE BOX OF PARTS. IT IS YOUR BELIEF THAT THE INVITATION SHOULD HAVE READ "63 TURNBUCKLES AND BOX OF PARTS OF TURNBUCKLES" AND, BECAUSE OF THE ACTUAL DESCRIPTION UPON WHICH YOU RELIED, AN APPROPRIATE ADJUSTMENT SHOULD BE MADE IN THE PURCHASE PRICE PAID THE GOVERNMENT BY YOU.

WITH THE ADMINISTRATIVE REPORT THERE HAS BEEN FURNISHED AN AFFIDAVIT OF THE EMPLOYEE WHO PREPARED THE SHIPMENT OF TURNBUCKLES FOR TRANSFER TO THE PROPERTY DISPOSAL DIVISION. IT EVIDENCES THAT THE SHIPMENT CONSISTED OF 269 TURNBUCKLES IN VARIOUS STATES OF DISREPAIR AND SINCE THE CONDITION R-2 (NOTED ON THE INVITATION AS "USED R2") INDICATES UNSERVICEABILITY, THE COUNT WAS DETERMINED BY THE NUMBER OF TURNBUCKLES OF WHICH THE MAJOR PORTION WAS PRESENT. THUS, TURNBUCKLES CONSISTING OF THE BODY AND ONE CONNECTION WERE CONSIDERED AS UNSERVICEABLE UNITS OF TURNBUCKLES BECAUSE THE ADDITION OF ANOTHER CONNECTION WOULD COMPLETE EACH.

WITH REGARD TO YOUR CONTENTIONS AS TO THE BOX OF PARTS AN AFFIDAVIT HAS BEEN FURNISHED BY THE EMPLOYEE WHO ORIGINALLY STACKED LOT 35. THE STACK CONSISTED OF TWO PALLET LOADS WITH AN OPEN BOX OF PARTS PLACED ON TOP. WHEN YOUR TRUCK ARRIVED FOR PICK-UP DELIVERY YOUR TRUCKMAN DESIRED TO FIRST LOAD THE PALLETS AND THEREFORE THE EMPLOYEE REMOVED THE BOX THE ANOTHER LOCATION TO FACILITATE LOADING. THE BOX WAS NOT REMOVED BY YOUR TRUCKMAN DURING HIS FIRST VISIT BECAUSE HE ELECTED TO PICK UP OTHER ITEMS AWARDED YOU. THE BOX WAS PICKED UP ON HIS SECOND VISIT. THIS SITUATION ACCOUNTS FOR THE STATEMENT MADE BY THE MENTIONED EMPLOYEE "THAT THE BOX WAS TAKEN FROM ANOTHER ROW TOWARDS THE REAR OF THE ISLE" SOME DISTANCE FROM THE TIERED PALLETS. OBVIOUSLY, THE STATEMENT REFERRED TO THE POSITION OF THE BOX AFTER IT HAD BEEN REMOVED FROM THE ORIGINAL PILING TO PERMIT YOUR TRUCKMAN TO LOAD AT HIS OWN ELECTION. YOUR FAILURE TO MAKE A MORE COMPLETE INSPECTION WAS IN NOWISE THE FAULT OF THE ADMINISTRATIVE OFFICIALS.

AS POINTED OUT ABOVE, THE TURNBUCKLES WERE OFFERED FOR SALE "AS IS" AND "WHERE IS" WITHOUT GUARANTY OR WARRANTY AS TO QUANTITY OR DESCRIPTION AND THE SALE WAS DESIGNATED AS ONE FOR "LOT.' YOUR BID WAS MADE AND ACCEPTED ON THESE TERMS. HENCE, IT CANNOT BE SAID THAT THE GOVERNMENT IN ANY WAY BREACHED THE TERMS OR CONDITIONS OF THE SALE OR THAT THERE WAS A MISREPRESENTATION OF THE TURNBUCKLES BY THE GOVERNMENT EITHER AS TO QUANTITY OR DESCRIPTION. 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; AND 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 DAMAGE 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 AT 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.'

ACCORDINGLY, IN THE LIGHT OF THE FOREGOING, THE SETTLEMENT OF JANUARY 31, 1956, IS SUSTAINED.