B-127032, MAR. 23, 1956

B-127032: Mar 23, 1956

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SURPLUS COMPANY: REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 23 AND MARCH 1. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1. YOUR BID WAS ACCEPTED ON MAY 24. SHIPMENT OF THE TRANSFORMERS TO YOU ALLEGEDLY REVEALED THAT ONLY 73 TRANSFORMERS WERE 3KVA. YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED PRIMARILY ON THE CONTENTION THAT YOUR BID WAS SUBMITTED ON A UNIT PRICE. THAT YOUR BID WAS SUBMITTED AND ACCEPTED ON A UNIT PRICE BASIS. THE FACT THAT YOU MAY HAVE. 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. OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE.

B-127032, MAR. 23, 1956

TO A. AND B. SURPLUS COMPANY:

REFERENCE IS MADE TO YOUR LETTERS OF JANUARY 23 AND MARCH 1, 1956, REQUESTING REVIEW OF SETTLEMENT DATED DECEMBER 29, 1955, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $1,129.82, UNDER CONTRACT NO. N189S 12254A(S) DATED MAY 24, 1955.

IN RESPONSE TO INVITATION NO. B-213-55, ISSUED BY THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM NO. 21067 COVERING 266 3KVA LINE TRANSFORMERS AT $8.781 EACH, OR, FOR A TOTAL PRICE OF $2,335.75. YOUR BID WAS ACCEPTED ON MAY 24, 1955, CONSUMMATING CONTRACT NO. N189S-12254A (S). SHIPMENT OF THE TRANSFORMERS TO YOU ALLEGEDLY REVEALED THAT ONLY 73 TRANSFORMERS WERE 3KVA, THE REMAINING 193 BEING 1KVA. AS A RESULT OF THIS YOU REQUEST EITHER A REFUND OF $1,129.82, REPRESENTING THE ALLEGED DIFFERENCE IN VALUE BETWEEN THE TRANSFORMERS ADVERTISED AND PAID FOR BY YOU AND THOSE ACTUALLY DELIVERED, OR THAT YOU BE PERMITTED TO RETURN THE TRANSFORMERS FOR FULL CREDIT PLUS TRUCKING CHARGES.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED PRIMARILY ON THE CONTENTION THAT YOUR BID WAS SUBMITTED ON A UNIT PRICE, RATHER THAN A LOT BASIS AND THAT YOU PURCHASED AND PAID FOR 266 3KVA TRANSFORMERS BUT RECEIVED ONLY 73 OF THIS SIZE.

NOTWITHSTANDING REFERENCE IN VARIOUS ARTICLES OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT TO "LOTS," LET IT BE CONCEDED, FOR THE PURPOSE OF A FURTHER DISCUSSION OF THE MATTER, THAT YOUR BID WAS SUBMITTED AND ACCEPTED ON A UNIT PRICE BASIS. IN THIS CONNECTION, YOU ADVISE NEVERTHELESS THAT YOU RECEIVED 73 3KVA TRANSFORMERS AND 193 1KVA TRANSFORMERS, OR A TOTAL OF 266. THE FACT THAT YOU MAY HAVE, HOWEVER, RECEIVED ONLY 73 3KVA TRANSFORMERS WHEN THE INVITATION CALLED FOR THE ENTIRE QUANTITY OF 266 TO BE THIS SIZE MAY NOT BE ACCEPTED AS MAKING ANY DIFFERENCE FROM A LEGAL STANDPOINT SINCE ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS SPECIFICALLY PROVIDED, IN PERTINENT PART, THAT:

"* * * 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; * * *"

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, SUCH LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND WHILE ORDINARILY THERE IS AN IMPLIED WARRANTY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, BUT WHERE THERE EXISTS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THE INSTANT CASE--- NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. NEDGER COMPANY V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424. IT IS PARTICULARLY SIGNIFICANT TO NOTE FURTHER THAT THE DISCLAIMER OF WARRANTY SPECIFICALLY REFERS TO, AMONG OTHER THINGS, THE "SIZE" OF THE MATERIAL INVOLVED. ALSO THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION.

THE RECORD DOES SHOW, HOWEVER, THAT NOTWITHSTANDING THE ALLEGED SHORTAGE IN THE SPECIFIC SIZE OF THE TRANSFORMERS DELIVERED NOT ONLY DID YOU RECEIVE TRANSFORMERS BUT YOU RECEIVED A TOTAL OF 266, WHICH WAS THE EXACT NUMBER OF TRANSFORMERS ADVERTISED UNDER INVITATION NO. B 213-55. HENCE, THERE WAS NO SHORTAGE IN THE OVER-ALL DELIVERY OF TRANSFORMERS TO YOU BUT MERELY IN THE EXACT SIZE THEREOF. IN VIEW OF THIS, AND SINCE THERE WAS EXPRESSLY DISCLAIMED ALL WARRANTIES PERTAINING TO SIZE, THERE APPEARS TO BE NO BASIS FOR THE APPLICATION OF ARTICLE 20 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT WHICH UNDOUBTEDLY IS THE ARTICLE RELIED UPON BY YOU FOR RELIEF IN THIS MATTER. ARTICLE 20 PROVIDES FOR ADJUSTMENT FOR VARIATION IN QUANTITY ONLY WHEN THE PROPERTY IS SOLD ON A UNIT PRICE BASIS AND THE TOTAL QUANTITY, WITHOUT EXCEPTION AS TO KIND, QUALITY, SIZE, ETC., EXCEEDS, EITHER BY AN OVER SHIPMENT OR UNDER SHIPMENT, THE STIPULATED PERCENTAGE VARIATION. THIS ARTICLE MAY NOT BE APPLIED TO THE EXCLUSION OF THE PROVISIONS OF AN EXPRESS DISCLAIMER OF WARRANTY, WHICH MUST BE JUST AS RIGIDLY ENFORCED IN CONNECTION WITH A BID SUBMITTED ON A UNIT PRICE BASIS AS UNDER ANY OTHER CONDITIONS ATTENDING SUCH CONTRACTS FOR SALE.

ACCORDINGLY, THE SETTLEMENT OF DECEMBER 29, 1955, IS SUSTAINED.

WITH RESPECT TO YOUR INQUIRY AS TO WHAT FURTHER RECOURSE IS AVAILABLE TO YOU WITHOUT COURT ACTION, THIS IS TO ADVISE THAT FINAL ACTION OF THE GENERAL ACCOUNTING OFFICE IS CONCLUSIVE ON THE EXECUTIVE BRANCH OF THE GOVERNMENT AND THE LAW MAKES NO PROVISION FOR AN APPEAL THEREFROM. SEE SECTION 304, ACT OF JUNE 10, 1921, 42 STAT. 24.