B-125893, DEC. 12, 1955

B-125893, DEC. 12, 1955

TO QUEEN CITY INDUSTRIES:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 12, 1955, CONCERNING SETTLEMENT DATED OCTOBER 3, 1955, WHICH DISALLOWED YOUR CLAIM FOR $101.93, REPRESENTING AN AMOUNT PAID TO THE GOVERNMENT FOR LIFE JACKETS PURCHASED UNDER SALES CONTRACT NO. N151S-1554A, PLUS TRANSPORTATION COSTS IN THE AMOUNT OF $20.63.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF OCTOBER 3, 1955, FOR THE REASON THAT, UNDER THE TERMS OF THE CONTRACT, THE LIFE JACKETS WERE SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, EXPRESS OR IMPLIED, AND THAT YOU FAILED TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID.

SPECIFICALLY, YOU CONTEND THAT OF THE JACKETS RECEIVED 70 PERCENT WERE MUTILATED GLASS FIBRE AND THAT INASMUCH AS THE INVITATION DESCRIBED THE LIFE JACKETS AS BEING MUTILATED KAPOK, A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO REFUND OF THE PURCHASE PRICE PLUS THE COST OF TRANSPORTATION.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDED, IN PERTINENT PART, THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS," WITHOUT RECOURSE AGAINST THE GOVERNMENT AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, DESCRIPTION, OR QUALITY. FURTHERMORE, PARAGRAPH 1 OF THE SAME CONDITIONS ADVISED THAT BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, STATING THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. THIS, IN EFFECT, IS THE THEORY UPON WHICH YOU BASE YOUR CLAIM. HOWEVER, IT IS FUNDAMENTAL THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. 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.

THERE IS NO QUESTION THAT THE LANGUAGE OF PARAGRAPH 2 REPRESENTS AN EXPRESS DISCLAIMER OF WARRANTY. THE RECORD HERE INDICATES THAT THE CONTRACTING AGENCY BELIEVED IN GOOD FAITH THAT THE LIFE JACKETS WERE ACCURATELY DESCRIBED. IN THAT CONNECTION, THE CONTRACTING OFFICER REPORTED THAT AN INVESTIGATION REVEALED THAT THE FIBRE-GLASS USED IN THE LIFE JACKETS HAD ALL THE APPEARANCES OF WATER-IMPREGNATED KAPOK AND FURTHER, THAT THE MATERIAL WAS SOFT TO THE TOUCH AND SHOWED NO EVIDENCES OF GLASS SLIVERS CHARACTERISTIC OF MOST FIBRE-GLASS. AS A CONSEQUENCE, THE MATERIAL WAS ADVERTISED AS KAPOK BASED ON THE BEST INFORMATION AVAILABLE AT THE TIME. THAT IS THE VERY REASON WHY AN EXPRESS DISCLAIMER HAS BEEN FOUND NECESSARY IN SALES OF THIS KIND. THE DESCRIPTION IS NO MORE THAN A REPRESENTATION OF OPINION AND UNDERSTANDING OF THE CONDITION OR QUALITY OF THE PROPERTY AND IS NOT FURTHER TO BE RELIED UPON BY PROSPECTIVE BUYERS. SEE JOHNSON V. WAISMAN BROS., 36 A.2D 634.

MOREOVER, IT APPEARS THAT NO INSPECTION OF THE LIFE JACKETS WAS MADE BY YOU PRIOR TO THE SUBMISSION OF YOUR BID. THE LAW IS CLEAR THAT WHEN SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER FOR INACCURACIES OR DEFICIENCIES WHICH AN INSPECTION WOULD HAVE READILY DISCLOSED.

THE MATTER OF GRANTING RELIEF TO PURCHASERS OF SURPLUS PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF CONSIDERATION IN NUMEROUS DECISIONS OF OUR OFFICE AND OF THE COURTS, AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE 4 COMP. GEN. 286; 16 ID. 749; 18 ID. 594; 28 ID. 306; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; S. BRODY V. UNITED STATES, 64 ID. 538.

ACCORDINGLY, THE SETTLEMENT OF OCTOBER 3, 1955, IS SUSTAINED.

WITH RESPECT TO YOUR REQUEST FOR "PERMISSION TO SUE THE GOVERNMENT," YOU ARE ADVISED THAT YOU HAVE THE RIGHT TO FILE SUIT AGAINST THE UNITED STATES AS AUTHORIZED IN 28 U.S.C. 1346.