B-126406, JAN. 25, 1956

B-126406: Jan 25, 1956

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TO CALIFORNIA BAG AND METAL COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $1. YOUR BID WAS ACCEPTED ON FEBRUARY 8. PAYMENT WAS MADE ON FEBRUARY 18. INASMUCH AS THE SALES INVITATION SPECIFIED CORROSION-RESISTANT WIRE YOU ARE CLAIMING A REFUND OF $1. 931 POUNDS OF GALVANIZED WIRE ALLEGED TO HAVE BEEN RECEIVED AT THE PURCHASE PRICE OF $0.28 A POUND. FOR REVIEW OF THE SETTLEMENT IS BASED PRIMARILY ON YOUR CONTENTION THAT YOU DID EVERYTHING POSSIBLE UNDER THE CIRCUMSTANCES TO MAKE A REASONABLE INSPECTION. THAT NOT ONLY WOULD IT HAVE BEEN IMPRACTICAL TO MAKE A COMPLETE INSPECTION BUT THAT THE OAKLAND NAVAL SUPPLY CENTER WOULD HAVE REFUSED PERMISSION TO MAKE SUCH AN INSPECTION.

B-126406, JAN. 25, 1956

TO CALIFORNIA BAG AND METAL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 14, 1955, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 4, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $1,660.68, UNDER CONTRACT NO. N228S-8115, DATED FEBRUARY 10, 1955.

IT APPEARS THAT IN RESPONSE TO SALES INVITATION NO. B-227-55, DATED JANUARY 14, 1955, YOU OFFERED TO PURCHASE FROM THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, ITEMS NOS. 21, 22, 23 AND 24, COVERING A TOTAL OF 21,957 POUNDS OF WIRE; STEEL, ROUND, CORROSION-RESISTANT, ET CETERA, AT $0.28 A POUND FOR EACH ITEM, OR FOR A TOTAL PRICE OF $6,147.96. YOUR BID WAS ACCEPTED ON FEBRUARY 8, 1955, AND FORMAL CONTRACT NO. N228S-8115, AWARDED ON FEBRUARY 10, 1955. PAYMENT WAS MADE ON FEBRUARY 18, 1955, AND FULL DELIVERY ACCOMPLISHED ON THAT DATE. BY LETTER DATED APRIL 6, 1955, YOU ADVISED THE OAKLAND NAVAL SUPPLY CENTER, THAT UPON OPENING SOME OF THE BOXES YOU DISCOVERED A CERTAIN AMOUNT OF GALVANIZED WIRE. INASMUCH AS THE SALES INVITATION SPECIFIED CORROSION-RESISTANT WIRE YOU ARE CLAIMING A REFUND OF $1,660.68, BASED ON A TOTAL OF 5,931 POUNDS OF GALVANIZED WIRE ALLEGED TO HAVE BEEN RECEIVED AT THE PURCHASE PRICE OF $0.28 A POUND.

IT APPEARS THAT YOUR REQUEST OF NOVEMBER 14, 1955, FOR REVIEW OF THE SETTLEMENT IS BASED PRIMARILY ON YOUR CONTENTION THAT YOU DID EVERYTHING POSSIBLE UNDER THE CIRCUMSTANCES TO MAKE A REASONABLE INSPECTION. ALSO, THAT NOT ONLY WOULD IT HAVE BEEN IMPRACTICAL TO MAKE A COMPLETE INSPECTION BUT THAT THE OAKLAND NAVAL SUPPLY CENTER WOULD HAVE REFUSED PERMISSION TO MAKE SUCH AN INSPECTION.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE, UNDER A CONTRACT CONTAINING, AS IN THE INSTANT CASE, THE USUAL "AS IS" PROVISION, THAT THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. 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 NOTHING IN THE RECORD TO SHOW OR INDICATE, NOR DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION. THE RECORD DOES SHOW, HOWEVER, THAT NOTWITHSTANDING THE ALLEGED DELIVERY TO YOU OF SOME GALVANIZED WIRE INSTEAD OF THE CORROSIVE- RESISTANT WIRE DESCRIBED IN THE SALES INVITATION, YOU DID RECEIVE WIRE, WHICH WAS THE SPECIFIC ITEM ADVERTISED FOR SALE.

WITH RESPECT TO THE CIRCUMSTANCES ATTENDING THE INSPECTION YOU WERE FULLY APPRISED OF THE FACT THAT THE GOVERNMENT'S DESCRIPTION OF THE WIRE WAS BASED ON THE BEST AVAILABLE INFORMATION AND THAT NO ADJUSTMENT WOULD BE MADE FOR ANY VARIANCE IN THE DESCRIPTION. NOTWITHSTANDING THIS, AND EVEN THOUGH IT BE CONCEDED--- ALTHOUGH NOT SUBSTANTIATED BY THE RECORD--- SOLELY FOR THE PURPOSE OF A FURTHER DISCUSSION OF THE MERITS OF YOUR CLAIM THAT IT NOT ONLY WOULD HAVE BEEN IMPRACTICAL TO MAKE A COMPLETE INSPECTION BUT THE OAKLAND NAVAL SUPPLY CENTER WOULD NOT HAVE PERMITTED SUCH AN INSPECTION, YOU NEVERTHELESS SUBMITTED A BID UNDER WHICH YOU EXPRESSLY AGREED TO WAIVE ANY CLAIM FOR ADJUSTMENT WHICH WAS BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED. UNDER SUCH CIRCUMSTANCES, IT MUST BE CONCLUDED THAT YOU ASSUMED ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE SALES INVITATION AND PROPERTY ACTUALLY DELIVERED. IF YOU WERE NOT WILLING TO ASSUME SUCH A RISK UNDER THESE CONDITIONS YOU SHOULD NOT HAVE SUBMITTED A BID. YOUR CONTENTIONS, EVEN IF CORRECT, OFFERED AS JUSTIFICATION FOR YOUR FAILURE TO MAKE A COMPLETE INSPECTION IN NO WAY MAY BE ACCEPTED AS AFFECTING THIS CONCLUSION.