B-126181, JAN. 6, 1956

B-126181: Jan 6, 1956

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TO REGAL TRADING COMPANY: REFERENCE IS MADE TO A LETTER OF NOVEMBER 7. YOU STATE THAT YOUR CLAIM FOR RELIEF IS NOT BASED UPON THE CONDITION OF THE GOODS RECEIVED BUT RATHER UPON THE GOVERNMENT'S "GUARANTEE AS TO THE TYPE. " AND THAT "THE MERCHANDISE WAS NOT AT ALL LIKE THE GOODS QUOTED IN YOUR BROCHURE.'. THERE IS NOTHING IN THE RECORD TO SUPPORT THAT CONTENTION. YOUR COMPLAINT WAS PREDICATED ENTIRELY UPON THE CONDITION OF THE GOODS. ALLEGING THAT THE TENTS WERE TORN. ALL PROSPECTIVE BIDDERS WERE APPRISED OF THE FACT THAT THE TENTS WERE NOT NEW BUT. WERE SALVAGE. IT IS APPARENT THAT YOU LIKEWISE CONSIDERED THE MATERIAL TO BE SALVAGE SINCE YOU BID $348.75 FOR THE LOT AS COMPARED TO AN ACQUISITION COST OF $7.

B-126181, JAN. 6, 1956

TO REGAL TRADING COMPANY:

REFERENCE IS MADE TO A LETTER OF NOVEMBER 7, 1955, AND TO SUBSEQUENT CORRESPONDENCE FROM THE CENTURY TEXTILE COMPANY REQUESTING, IN YOUR BEHALF, REVIEW OF SETTLEMENT DATED OCTOBER 20, 1955, WHICH DENIED YOUR REQUEST FOR AN ADJUSTMENT IN THE CONTRACT PRICE OF THE SALVAGE MATERIAL PURCHASED BY YOU UNDER SALES ORDER (04-606) S-55-44, ENTERED INTO WITH THE DEPARTMENT OF THE AIR FORCE, SACRAMENTO AIR MATERIEL AREA, MCCLELLAN AIR FORCE BASE, CALIFORNIA.

YOU STATE THAT YOUR CLAIM FOR RELIEF IS NOT BASED UPON THE CONDITION OF THE GOODS RECEIVED BUT RATHER UPON THE GOVERNMENT'S "GUARANTEE AS TO THE TYPE," AND THAT "THE MERCHANDISE WAS NOT AT ALL LIKE THE GOODS QUOTED IN YOUR BROCHURE.'

THERE IS NOTHING IN THE RECORD TO SUPPORT THAT CONTENTION. PREVIOUSLY, YOUR COMPLAINT WAS PREDICATED ENTIRELY UPON THE CONDITION OF THE GOODS, ALLEGING THAT THE TENTS WERE TORN, ROTTEN, AND WATER SOAKED. AS TO YOUR RECENT CONTENTION REGARDING THE TYPE OF MATERIAL, THE CONTRACT OF SALE DESCRIBED THE ITEM IN QUESTION (NO. 86) AS BEING "8 MAN SQUAD TYPE" TENTS OF CANVAS CONSTRUCTION. AS TO THEIR CONDITION, ALL PROSPECTIVE BIDDERS WERE APPRISED OF THE FACT THAT THE TENTS WERE NOT NEW BUT, IN FACT, WERE SALVAGE, AND THEREFORE MIGHT NOT BE SATISFACTORY FOR ANY PARTICULAR USE OR PURPOSE. IT IS APPARENT THAT YOU LIKEWISE CONSIDERED THE MATERIAL TO BE SALVAGE SINCE YOU BID $348.75 FOR THE LOT AS COMPARED TO AN ACQUISITION COST OF $7,410.

MOREOVER, YOU DO NOT CONTEND THAT ANYTHING OTHER THAN THE PRECISE LOT OF GOODS YOU CONTRACTED FOR WAS DELIVERED. THE RECORD SHOWS THAT YOU RECEIVED THE VERY LOT BARGAINED FOR. IF, HOWEVER, THE CONDITION OF THE GOODS WAS SUCH THAT THEY WERE NO LONGER SUITABLE FOR TENTS, THAT POSSIBILITY WAS A RISK YOU CONTRACTED TO ASSUME UNDER THE PROVISIONS OF PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS MADE A PART OF THE SALES AGREEMENT.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES THAT THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE IS BASED UPON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE CHARACTER OR QUALITY THEREOF, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND THAT NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED. THE TRANSACTION WAS NOT A SALE BY SAMPLE.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND BY OUR OFFICE THAT SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND NO WARRANTY MAY BE IMPLIED. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525, AND W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THOSE CASES ALSO INVOLVING A VARIANCE IN THE CONDITION OF THE PROPERTY WITH THAT OF THE DESCRIPTION IN THE INVITATION, CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT, ANY WARRANTIES WHATSOEVER. IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS UNAWARE OF THE QUALITY OR CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN.

YOU PLACE CONSIDERABLE EMPHASIS UPON THE FACT THAT YOU WERE REQUIRED TO RELY UPON THE DESCRIPTION OF THE GOODS AS SET FORTH IN THE INVITATION BECAUSE OF THE DIFFICULTY WHICH YOU WOULD HAVE ENCOUNTERED IN ATTEMPTING A REASONABLE INSPECTION OF THE TENTS AND ITS LOCATION. WHILE SUCH SITUATION IS FULLY UNDERSTOOD, IT IS APPARENT THAT UNDER THOSE CIRCUMSTANCES NO LEGAL LIABILITY WOULD ATTACH TO THE GOVERNMENT IN THE ABSENCE OF BAD FAITH ON THE PART OF THE DISPOSAL OFFICER OR HIS AGENTS. YOU WERE AWARE THAT SALVAGE PROPERTY WAS BEING OFFERED FOR SALE AND IF YOU WERE UNABLE TO MAKE AN INSPECTION THEREOF IN SUCH A MANNER AS WOULD REASONABLY INSURE THE PROTECTION OF YOUR INTERESTS, YOUR ALTERNATIVE WOULD HAVE BEEN NOT TO SUBMIT A BID. THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT THE CONTRACTING OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE ENTIRE TRANSACTION.

WITH REGARD TO YOUR FURTHER CONTENTION THAT YOU HAD A RIGHT TO RELY UPON THE DESCRIPTION FURNISHED YOU BY AN EMPLOYEE OF THE AGENCY PURSUANT TO YOUR REQUEST BY TELEPHONE, YOU ARE ADVISED THAT THE COURTS HAVE HELD THAT THE GOVERNMENT IS NOT LIABLE FOR THE NONFEASANCE, MISFEASANCE, OR MALFEASANCE OF ITS OFFICERS AND EMPLOYEES. SEE GERMAN BANK OF MEMPHIS V. UNITED STATES, 148 U.S. 573.

SINCE THERE IS NO LEGAL BASIS UPON WHICH ANY PART OF THE PURCHASE PRICE MAY BE REFUNDED, THE SETTLEMENT OF OCTOBER 20, 1955, IS SUSTAINED.