B-126084, JAN. 5, 1956

B-126084, JAN. 5, 1956

TO H. LOEB AND SON:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1955, REQUESTING REVIEW OF SETTLEMENT DATED OCTOBER 21, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $51, REPRESENTING THE PURCHASE PRICE UNDER INVITATION NO. 18-035-S-55-17, ISSUED ON APRIL 22, 1955, BY THE ARMY CHEMICAL CENTER, MARYLAND.

IT APPEARS THAT YOU SUBMITTED A BID OF $51 FOR ITEM NO. 5 OF THE INVITATION COVERING ONE GLASS SUCTION PUMP AND FORWARDED A CHECK IN THE FULL PURCHASE PRICE WITH THE BID. UPON LATER BEING ADVISED THAT YOU HAD BEEN AWARDED ITEM NO. 5 YOU CALLED AT THE ARMY CHEMICAL CENTER TO PICK UP THE PUMP. AT THAT TIME YOU FOUND THE GLASS ENCLOSURE OF THE PUMP CRACKED OR BROKEN AND, THEREFORE, REFUSED TO ACCEPT DELIVERY SINCE YOU CONTENDED THAT AT THE TIME INSPECTION OF THE SUCTION PUMP WAS MADE BY YOU, WHICH WAS PRIOR TO THE SUBMISSION OF YOUR BID, THE PUMP WAS FOUND TO BE IN FIRST- CLASS CONDITION. YOU THEREFORE ARE CLAIMING A REFUND OF THE FULL PURCHASE PRICE OF $51.

WHILE YOUR REQUEST FOR REVIEW OF THIS MATTER IS NOT PREDICATED UPON ANY PARTICULAR CONTENTION YOU ASK THAT THE FACTS BE MORE THOROUGHLY CONSIDERED.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE IN MATTERS INVOLVING THE SALE OF SURPLUS PROPERTY THAT THE "WHERE IS, AS IS" PROVISION WHICH WAS INCORPORATED IN INVITATION NO. 18-035-S-55-17, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. 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 L. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

IN VIEW OF THE FOREGOING THERE BECOMES PARTICULARLY PERTINENT IN THE CASE BEFORE US THE TIME ELEMENT AS TO JUST WHEN THE GLASS ON THE PUMP WAS CRACKED OR BROKEN. IN THIS CONNECTION YOU CONTEND THAT AT THE TIME THE PUMP WAS INSPECTED BY YOU IT WAS FOUND TO BE IN FIRST-CLASS CONDITION AND THAT THE PUMP HAD BEEN MOVED AFTER YOU INSPECTED IT. THE ARMY CHEMICAL CENTER DOES NOT DENY THAT THE GLASS ON THE PUMP IS CRACKED; HOWEVER, IT REPORTS VERY EMPHATICALLY THAT THE PUMP WAS NOT MOVED AFTER BEING ADVERTISED FOR SALE. THE CHEMICAL CENTER FURTHER REPORTS THAT WHILE IT CANNOT STATE WHETHER THE GLASS WAS CRACKED AT THE TIME YOU INSPECTED THE PUMP THE FACT REMAINS THAT IT WOULD HAVE HAD TO BE INSPECTED VERY CAREFULLY TO DETECT THE CRACKED GLASS. THE CHEMICAL CENTER ADVANCES THE BELIEF THAT YOU COULD HAVE INSPECTED THE PUMP AT A TIME WHEN YOU ALSO WERE INSPECTING PROPERTY OFFERED FOR SALE ON AN EARLIER INVITATION WHICH WOULD HAVE BEEN BEFORE THE PUMP WAS PUSHED INTO LINE FOR THE SALE UNDER THE SUBJECT INVITATION. IN THIS CONNECTION, AT LEAST THE TIMELINESS OF THE INSPECTION MADE BY MR. A. G. LOEB APPEARS QUESTIONABLE WHEN IT IS NOTED FROM YOUR LETTER OF MAY 31, 1955, THAT HE MADE HIS INSPECTION AT LEAST PRIOR TO THAT MADE BY MR. L. REABACH WHICH ALLEGEDLY WAS MADE TWO FULL WEEKS PRIOR TO THE SALE. IN ANY EVENT, IT REASONABLY MAY NOT BE CONCLUDED ON THE BASIS OF THE PRESENT RECORD THAT THE GLASS ON THE SUCTION PUMP WAS CRACKED OR BROKEN AFTER IT WAS OFFICIALLY MADE AVAILABLE FOR INSPECTION UNDER THE INVITATION AND, THEREFORE, THE EXPRESS DISCLAIMER OF WARRANTY IS FOR FULL APPLICATION IN THIS MATTER.