B-127018, FEB. 28, 1956

B-127018, FEB. 28, 1956

TO HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 14, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN BY YOUR DEPARTMENT IN CONNECTION WITH A REQUEST BY J. JACOB SHANNON AND COMPANY, 214 NORTH 22ND STREET, PHILADELPHIA 3, PENNSYLVANIA, FOR RELIEF UNDER CONTRACT NO. O.I. 6356-55, DATED JUNE 23, 1955, ISSUED BY THE GRANITE CITY ENGINEER DEPOT, GRANITE CITY, ILLINOIS, IT BEING ALLEGED BY THE CONTRACTOR THAT THERE WAS AN ERROR IN THE DESCRIPTION OF THE PROPERTY COVERED BY ITEM 61.

THE RECORD SHOWS THAT BY INVITATION NO. 11-052-S-55-17, DATED JUNE 2, 1955, THE PROPERTY DISPOSAL BRANCH, GRANITE CITY ENGINEER DEPOT, OFFERED FOR SALE VARIOUS QUANTITIES OF SURPLUS PROPERTY, THE BIDS TO BE OPENED JUNE 20, 1955. IN RESPONSE TO THE INVITATION, J. JACOB SHANNON AND COMPANY SUBMITTED ITS BIDS ON VARIOUS ITEMS OF THE PROPERTY BEING OFFERED FOR SALE AND UNDER DATE OF JUNE 23, 1955, THE SAME WERE ACCEPTED AS TO ITEMS 61, 72 AND 116. THE CONTRACTOR'S CLAIM RELATES ONLY TO ITEM 61, IDENTIFIED AS "BRUSH, VARNISH, OVAL, 1 3/4," OSBORN, NO. 441 OR EQUAL, STOCK NO. 38-4315-890-550N.

THE CONTRACTING OFFICER REPORTS THAT BY LETTER OF AUGUST 23, 1955, THE CONTRACTOR STATED THAT IT HAD RECEIVED THE MATERIAL COVERED BY ITEM 61 AND THAT UPON EXAMINING THE LOT THERE WERE NOT FOUND ANY OSBORN BRUSHES WHATSOEVER IN THE LOT AND THAT TO BE EQUAL THE ITEM SHOULD BE BRISTLE INSTEAD OF HORSEHAIR BRUSHES. IT IS REPORTED FURTHER THAT THIS PROPERTY WAS NOT INSPECTED BY ANY REPRESENTATIVE OF THE CONTRACTOR.

IT IS STATED IN THE RECORD THAT THE DESCRIPTION OF THE PROPERTY SOLD AS ITEM 61 UNDER THE INDICATED INVITATION WAS BASED UPON A DESCRIPTION SHOWN ON ARMY SHIPPING DOCUMENT VOUCHER NO. C5N-5283; THAT THE ITEM WAS SOLD ON THE DESCRIPTION CARRIED ON STOCK RECORD CARDS OF THE PROPERTY DISPOSAL BRANCH AND THAT THERE WAS NO INTENTION ON THE PART OF THE GOVERNMENT TO MISREPRESENT THE DESCRIPTION. THE CONTRACTING OFFICER RECOMMENDED THAT THE CONTRACTOR'S APPEAL BE DENIED.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS APPEARING ON PAGE 2 OF THE INVITATION PROVIDES, IN PERTINENT PART, AS FOLLOWS:

"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * 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 BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

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.

IN MANY CASES THE COURTS HAVE CONSIDERED SUCH CONTRACT STIPULATIONS INVOLVING THE SALE OF GOVERNMENT-OWNED SURPLUS PROPERTY, AND HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY, PRECLUDING ANY CLAIM FOR NONCONFORMITY OF THE GOODS WITH THE DESCRIPTIONS. SEE W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, AND SILBERSTEIN AND SONS V. UNITED STATES, 69 C.CLS. 412. THESE CASES AND OTHERS CONCLUDE THAT UNDER SUCH PROVISIONS BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT, ANY WARRANTIES WHATEVER. AS RECENTLY AS MARCH 1, 1955, IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, C.CLS. NO. 17869, CONGRESSIONAL, THE COURT OF CLAIMS HELD THAT THE TERMS OF THE SALE CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM. IN VIEW OF THE FACTS INVOLVED HEREIN, WE AGREE WITH THE RECOMMENDATION OF THE CONTRACTING OFFICER THAT THERE IS NO BASIS FOR RELIEVING THE CONTRACTOR FROM THE CONSEQUENCES OF ITS BID.

THE PAPERS TRANSMITTED WITH THE LETTER OF FEBRUARY 14, 1956, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S FINDINGS OF FACT, ARE RETURNED HEREWITH.