B-127346, MAY 14, 1956

B-127346: May 14, 1956

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TO SURPLUS AUTOMOTIVE EQUIPMENT CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $465. YOUR BID WAS ACCEPTED AS TO THESE ITEMS ON FEBRUARY 17. YOU ALLEGE THAT WHEN YOU INSPECTED THE AUTOMOTIVE PARTS THAT WERE OFFERED FOR SALE YOU WERE ASSURED THAT DELIVERY WOULD BE MADE IN THE CASES THAT THEY WERE IN AT THAT TIME AND. DISPATCHED A TRUCK TO PICK UP THE AUTOMOTIVE PARTS MOST OF THEM WERE EMPTIED OUT OF THE CASES ONTO THE TRUCK. AT WHICH TIME IT WAS LEARNED THAT THE REQUEST FOR REVIEW IS BASED PRIMARILY ON THE "AS IS" PROVISION AS CONTAINED IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT. BLUME'S CONTENTION IS THAT SINCE THE AUTOMOTIVE PARTS WERE OFFERED FOR SALE "AS IS" AND SINCE THEY WERE IN CASES WHEN INSPECTED BY HIM THE GOVERNMENT OWED THE OBLIGATION TO MAKE DELIVERY IN THAT MANNER.

B-127346, MAY 14, 1956

TO SURPLUS AUTOMOTIVE EQUIPMENT CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF MARCH 2, 1956, RELATIVE TO OUR SETTLEMENT DATED JANUARY 23, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $465, UNDER CONTRACT NO. N171S-7139A, DATED FEBRUARY 17, 1955.

IN RESPONSE TO SITE SALES LETTER NO. SSL-2-55, ISSUED ON JANUARY 21, 1955, BY THE NAVAL GUN FACTORY, WASHINGTON, D.C., YOU SUBMITTED A BID DATED FEBRUARY 9, 1955, OFFERING TO PURCHASE, AMONG OTHERS, 19 ITEMS OF MISCELLANEOUS AUTOMOTIVE PARTS FOR $1,239.01. YOUR BID WAS ACCEPTED AS TO THESE ITEMS ON FEBRUARY 17, 1955, CONSUMMATING CONTRACT NO. N171S-7139A. YOU ALLEGE THAT WHEN YOU INSPECTED THE AUTOMOTIVE PARTS THAT WERE OFFERED FOR SALE YOU WERE ASSURED THAT DELIVERY WOULD BE MADE IN THE CASES THAT THEY WERE IN AT THAT TIME AND, UPON THAT BASIS, YOU SUBMITTED A BID IN A HIGHER AMOUNT THAN YOU ORDINARILY WOULD. YOU ALLEGE FURTHER HOWEVER THAT WHEN THE TRUCKING COMPANY, HIRED BY YOU, DISPATCHED A TRUCK TO PICK UP THE AUTOMOTIVE PARTS MOST OF THEM WERE EMPTIED OUT OF THE CASES ONTO THE TRUCK. YOU NOW CLAIM $465, ALLEGEDLY REPRESENTING ONE-HALF OF THE COST TO YOU OF SORTING THE AUTOMOTIVE PARTS.

YOUR MR. IRVING BLUME CONFERRED WITH REPRESENTATIVES OF OUR OFFICE ON APRIL 4, 1956, AT WHICH TIME IT WAS LEARNED THAT THE REQUEST FOR REVIEW IS BASED PRIMARILY ON THE "AS IS" PROVISION AS CONTAINED IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT. MR. BLUME'S CONTENTION IS THAT SINCE THE AUTOMOTIVE PARTS WERE OFFERED FOR SALE "AS IS" AND SINCE THEY WERE IN CASES WHEN INSPECTED BY HIM THE GOVERNMENT OWED THE OBLIGATION TO MAKE DELIVERY IN THAT MANNER. MR. BLUME ALSO STATED THAT HE WAS VERBALLY ASSURED BY EMPLOYEES OF THE DEPARTMENT OF THE NAVY THAT THE AUTOMOTIVE PARTS WOULD BE DELIVERED IN THE CASES.

THERE IS NOTHING IN SITE SALES LETTER NO. SSL-2-55, EITHER EXPRESS OR IMPLIED, WHICH MAY BE INTERPRETED AS OFFERING, EITHER FOR SALE OR TO FACILITATE DELIVERY, THE CASES IN WHICH THE AUTOMOTIVE PARTS WERE DISPLAYED. MOREOVER, THE "AS IS" PROVISION OF ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS, RELIED UPON BY MR. BLUME, MAY NOT BE HELD TO BE A GUARANTY OF ANY KIND WITH RESPECT TO ANY PART OF THE SALE TRANSACTION. RATHER, THE VERY LANGUAGE OF THE ARTICLE ITSELF CONSTITUTES A DISCLAIMER OF WARRANTY AND IT CONSISTENTLY HAS BEEN HELD BY OUR OFFICE AND THE COURTS THAT WHERE AN EXPRESS DISCLAIMER OF WARRANTY EXISTS NO WARRANTY OF ANY KIND MAY BE IMPLIED. MOREOVER, EVEN IF THE "AS IS" PROVISION OF THE CONTRACT COULD BE CONSTRUED AS A WARRANTY IT APPEARS CLEAR THAT THE LANGUAGE THEREOF IS FULLY INTENDED TO, AND DOES, APPLY SOLELY TO THE QUANTITY, KIND, CONDITION, ETC., OF THE PROPERTY ITSELF OFFERED FOR SALE RATHER THAN TO SUCH INTANGIBLE THINGS OR CONDITIONS AS MIGHT PERTAIN TO PACKING, HANDLING, ETC., WHICH GENERALLY ARE ONLY INDIRECTLY ASSOCIATED WITH THE SALE ITSELF. IN VIEW OF THE FOREGOING NO PARTICULAR MERIT MAY BE AFFORDED THE ALLEGATION OF MR. BLUME--- NOT SUBSTANTIATED IN THE RECORD--- THAT CERTAIN EMPLOYEES OF THE DEPARTMENT OF THE NAVY VERBALLY ASSURED HIM THAT THE AUTOMOTIVE PARTS WOULD BE DELIVERED IN THE CASES IN WHICH THEY WERE DISPLAYED.

OF EQUAL SIGNIFICANCE IN THIS MATTER ARE THE CONDITIONS UNDER WHICH DELIVERY IS REPORTED TO ACTUALLY HAVE BEEN MADE TO YOU. IN THIS CONNECTION, THE DEPARTMENT OF THE NAVY ADVISES THAT WHEN THE TRUCKING COMPANY CALLED TO PICK UP THE AUTOMOTIVE PARTS THE DRIVER OF THE TRUCK, WHEN ASKED, STATED, IN THE PRESENCE OF TWO GOVERNMENT EMPLOYEES, THAT HE HAD TWO OTHER PICKUPS TO MAKE IN THE AREA AND THAT HE DID NOT CARE HOW THE AUTOMOTIVE PARTS WERE LOADED JUST SO HE HAD ROOM ENOUGH TO GET IT ALL ON THE TRUCK. IN FACT, IT IS REPORTED THAT THE LOADING STOREKEEPER HAD PREVIOUSLY ASKED THE DRIVER IF IT WAS ALL RIGHT TO DUMP THE MATERIAL IN THE TRUCK AND HIS REPLY WAS THE SAME AS THAT GIVEN IN THE PRESENCE OF OTHER GOVERNMENT EMPLOYEES MENTIONED ABOVE. SINCE THE TRUCKING COMPANY WAS HIRED BY YOU IT MUST BE ACCEPTED AS YOUR BONA FIDE AUTHORIZED AGENT AND SINCE THE DRIVER PERMITTED LOADING OF THE TRUCK BY EMPTYING THE CASES IT REASONABLY MAY BE CONCLUDED THAT HE AGREED TO, AND DID ACCEPT, DELIVERY IN THAT MANNER. THE VERY FACT THAT THE LAST SEVERAL CASES WERE LOADED ON THE TRUCK UNEMPTIED, AFTER A CALL HAD BEEN RECEIVED FROM YOU, INDICATES CLEARLY THAT ALL LOTS WOULD HAVE BEEN LOADED IN THAT MANNER HAD THE DRIVER SO REQUESTED OR HAD HE REFUSED TO ACCEPT THE LOADING AS PERFORMED. THERE IS NOTED ALSO THE FACT THAT PRECAUTIONS WERE NOT TAKEN BY YOU TO ASSURE DELIVERY OF THE AUTOMOTIVE PARTS IN THE CASES EITHER BY A STATEMENT TO THAT EFFECT ON YOUR BID OR BY INCLUDING SUCH INSTRUCTIONS IN YOUR LETTER OF FEBRUARY 21, 1955, WHICH WAS IN REPLY TO THE CONTRACTING OFFICER'S LETTER OF FEBRUARY 17, 1955, REQUESTING SHIPPING INSTRUCTIONS.

UNDER THE CIRCUMSTANCES THERE APPEARS TO BE NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER AND, THEREFORE, THE SETTLEMENT OF JANUARY 23, 1956, IS SUSTAINED.