B-127306, APR. 6, 1956

B-127306, APR. 6, 1956

TO MR. MORRIS SHAPIRO:

REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 28, 1956, IN EFFECT REQUESTING REVIEW OF OUR SETTLEMENT DATED FEBRUARY 9, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE SUM OF $1,423.87 RETAINED BY THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, AS LIQUIDATED DAMAGES BY REASON OF YOUR FAILURE TO REMOVE THE VALVES PURCHASED BY YOU AND LISTED AS ITEM 18 UNDER CONTRACT NO. N228S 6003,DATED AUGUST 6, 1954.

THE RETENTION OF THE MONEY WAS EFFECTED IN ACCORDANCE WITH ARTICLE 18 OF GENERAL SALE TERMS AND CONDITIONS WHICH FIXED THE LIQUIDATED DAMAGES IN SUCH A CASE AT 25 PERCENT OF THE PURCHASE PRICE PLUS ANY ACCRUED CHARGES. THE PURCHASE PRICE OF THE 99 VALVES LISTED UNDER ITEM 18 WAS $5,695.47.

IN YOUR REQUEST FOR REVIEW YOU REPEAT YOUR CONTENTION THAT THE VALVES YOU INSPECTED AS ITEM 18 WEIGHED 343 POUNDS EACH BUT THAT THE VALVES AVAILABLE FOR DELIVERY WEIGHED ONLY 110 POUNDS EACH AND THAT YOU WERE MISLED INTO BELIEVING THE VALVES WEIGHED 343 POUNDS EACH BY WEIGHING A VALVE WHICH WAS SAID TO BE A SAMPLE OF THE VALVES IN ITEM 18. ALSO, YOU NOW CONTEND FOR THE FIRST TIME THAT THE CARD MARKING LOT 18 HAD BEEN MOVED TO A DIFFERENT LOT AND THAT THIS CONSTITUTED A MISREPRESENTATION.

THE INVITATION TO BID LISTS THE APPROXIMATE GROSS WEIGHT OF THE 99 VALVES AT 17,170 POUNDS, OR APPROXIMATELY 173 POUNDS PER VALVE. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS AND MADE PART OF THE CONTRACT PROVIDES 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 THAT NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON THE FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED SINCE THIS IS NOT A SALE BY SAMPLE.

THE CONTRACTING OFFICER IN HIS FINDINGS OF FACT STATES THAT HIS REPRESENTATIVES AT THE HOLDING ACTIVITY HAVE ADVISED THAT ALL OF THE LOTS ON THE SUBJECT INVITATION WERE DISTINCTLY SEPARATED AND PLAINLY MARKED AND THAT NO WEIGHING WAS DONE.

WITH REGARD TO THE DISCLAIMER OF WARRANTY AS TO THE PROPERTY OFFERED FOR SALE, THIS POINT HAS BEEN CONSIDERED MANY TIMES BY THE COURTS, AS WELL AS BY OUR OFFICE, AND IT INVARIABLY HAS BEEN HELD THAT AN EXPRESS DISCLAIMER OF WARRANTY--- AS HERE--- VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; UNITED STATES V. KELLY, 112 F.SUPP. 831. TO ILLUSTRATE, IN LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, AN AGENT FOR THE GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK LOCATED AT SEVERAL FORTS, SETTING FORTH THE WEIGHTS AND KINDS OF EACH. ALTHOUGH THE QUANTITIES TURNED OUT TO BE MUCH LESS THAN THOSE SHOWN IN THE ADVERTISEMENT, THE PLAINTIFFS IN THE CASE WERE HELD NOT TO HAVE ANY CAUSE OF ACTION, SINCE, AS STATED BY THE SUPREME COURT, THE MENTIONING OF THE QUANTITIES "CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.'

WITH REGARD TO YOUR CONTENTION THAT THE IDENTIFICATION CARD MARKING THE LOT AS ITEM 18 WAS MOVED, YOU HAVE FURNISHED NO ACCEPTABLE EVIDENCE THAT SUCH WAS THE CASE. FURTHERMORE, ASIDE FROM THE LOTS OF VALVES THAT YOU PURCHASED, THERE WAS ONLY ONE LOT, NAMELY LOT 15 COMPRISING 81 VALVES, THAT EVEN APPROXIMATED THE NUMBER OF VALVES THAT WERE ADVERTISED AS ITEM 18. FOR EXAMPLE, LOTS 12, 13, 16 AND 19 WERE ADVERTISED AS COMPRISING 37, 6, 13 AND 15 VALVES, RESPECTIVELY, AND A CURSORY EXAMINATION OF ANY OF THOSE LOTS SHOULD HAVE INDICATED THAT THE NUMBER OF VALVES OF ANY OF THOSE LOTS SHOULD HAVE INDICATED THAT THE NUMBER OF VALVES OFFERED UPON CALL FOR REMOVAL OF THE PROPERTY PURCHASED WAS DECIDEDLY LESS THAN REPRESENTED AS BEING IN LOT 18. INSOFAR AS THE RECORD SHOWS, THIS ALLEGED SHIFTING OF IDENTIFICATION CARDS WAS NOT BROUGHT TO THE ATTENTION OF THE ADMINISTRATIVE OFFICIALS SO THAT A CHECK COULD BE MADE.

ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 9, 1956, WAS CORRECT, AND UPON REVIEW IT IS SUSTAINED.