B-126070, NOV. 28, 1955

B-126070: Nov 28, 1955

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THE BID WAS ACCEPTED FEBRUARY 9. AFTER PAYMENT OF THE BALANCE OF THE PURCHASE PRICE AND DELIVERY OF THE WASHERS WAS ACCEPTED YOU FURNISHED A LABORATORY CERTIFICATE SHOWING THE PURE COPPER CONTENT OF THE WASHERS AS ONLY 61.27 PERCENT. ASSERTING THAT YOUR BID PRICE WAS BASED ON A PURE COPPER CONTENT OF 98 PERCENT. YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED THEREIN. IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. PROVIDED THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" WITHOUT RECOURSE AGAINST THE GOVERNMENT. - "* * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED * * *.'.

B-126070, NOV. 28, 1955

TO GLOBE SALES COMPANY:

YOUR LETTER OF NOVEMBER 7, 1955, WITH ENCLOSURES, ADDRESSED TO HONORABLE JOHN J. ALLEN, JR., MEMBER OF CONGRESS, REQUESTING REVIEW OF THE SETTLEMENT DATED OCTOBER 14, 1955, DISALLOWING YOUR CLAIM FOR $663.65, AS REFUND OF A PART OF THE CONSIDERATION PAID UNDER CONTRACT NO. N228S-8126, DATED FEBRUARY 9, 1955, HAS BEEN REFERRED TO US FOR FURTHER CONSIDERATION.

THE RECORD DISCLOSES THAT IN RESPONSE TO INVITATION NO. B-161-55 ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, ON JANUARY 14, 1955, YOU SUBMITTED A BID ACCOMPANIED BY A DEPOSIT OFFERING TO PURCHASE ITEM 14, COVERING 6,500 POUNDS OF COPPER WASHERS AT $0.2636 PER POUND, OR FOR TOTAL OF $1,713.40. THE BID WAS ACCEPTED FEBRUARY 9, 1955, AND ASSIGNED CONTRACT NO. N228S-8126. AFTER PAYMENT OF THE BALANCE OF THE PURCHASE PRICE AND DELIVERY OF THE WASHERS WAS ACCEPTED YOU FURNISHED A LABORATORY CERTIFICATE SHOWING THE PURE COPPER CONTENT OF THE WASHERS AS ONLY 61.27 PERCENT. ASSERTING THAT YOUR BID PRICE WAS BASED ON A PURE COPPER CONTENT OF 98 PERCENT, AS INDICATED IN THE INVITATION FOR BIDS, YOU MADE CLAIM FOR REFUND OF $663.65 REPRESENTING THE COPPER CONTENT DEFICIENCY COMPUTED ON THE BASIS OF YOUR PROPOSAL. BY THE SETTLEMENT DATED OCTOBER 14, 1955, YOUR CLAIM WAS DISALLOWED FOR THE REASONS STATED THEREIN.

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. HOWEVER, IN THE PRESENT CASE, PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATION FOR BIDS AND INCORPORATED IN THE CONTRACT, PROVIDED THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" WITHOUT RECOURSE AGAINST THE GOVERNMENT. IT FURTHER INFORMED ALL BIDDERS THAT---

"* * * 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 UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED * * *.'

THUS THE DISCLAIMER OF WARRANTIES WAS SPECIFIC AS TO THE DESCRIPTION OF THE WASHERS.

THERE ARE NUMEROUS CASES WHERE THE COURTS, IN CONSIDERING VARIANCES IN THE CONDITION OF THE PROPERTY FROM THAT OF THE DESCRIPTION IN THE INVITATION, CONCLUDE THAT UNDER CIRCUMSTANCES AND CONDITIONS SUCH AS ARE INVOLVED HERE, BUYERS HAVE NO RIGHT TO EXPECT ANY WARRANTIES WHATSOEVER. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31. IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND OFTEN ITS AGENTS ARE NOT FULLY OR CORRECTLY INFORMED AS TO THE QUALITY OR CONDITION OF THE PROPERTY IT SELLS. THAT FACT IS MADE KNOWN TO PROSPECTIVE BUYERS BY THE "AS IS" PROVISION OF THE INVITATION AND THE RISK AS TO THE CONDITION OF THE PROPERTY IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. SILBERSTEIN AND SON, INC. V. UNITED STATES, 69 C.CLS. 412; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

IN VIEW OF THE CLEAR AND UNAMBIGUOUS TERMS OF THE CONTRACT AND THE LAW APPLICABLE THERETO, THIS OFFICE IS WITHOUT AUTHORITY TO REFUND ANY PART OF THE PURCHASE PRICE PAID FOR THE MATERIAL ..END :