B-127851, JUN. 14, 1956

B-127851, JUN. 14, 1956

TO MR. MILTON J. ZELLERMAYER:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 20, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED APRIL 4, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $80.96 DEPOSITED IN CONNECTION WITH CONTRACT NO. 33-167-54-555S, DATED JUNE 3, 1954.

IN RESPONSE TO INVITATION 33-167-S-54-16, ISSUED BY THE SALVAGE BRANCH, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, YOU SUBMITTED A BID OFFERING TO PURCHASE SEVERAL OF THE ITEMS OFFERED FOR SALE. YOUR BID, ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $80.96, WAS ACCEPTED AS TO ITEMS 21D, 21G AND 24F. BY LETTER OF JUNE 3, 1954, YOU WERE ADVISED OF THE AWARD AND REQUESTED TO REMIT THE BALANCE OF THE PURCHASE PRICE AND TO ARRANGE FOR THE REMOVAL OF THE PROPERTY. ON JUNE 7, 1954, YOU ADVISED THE CONTRACTING OFFICER BY TELEPHONE THAT YOUR BID ON ITEM NO. 24F WAS IN ERROR AND REQUESTED THAT IT BE WITHDRAWN. BY LETTER OF JULY 9, 1954, THE CONTRACTING OFFICER ADVISED YOU THAT YOUR BID ON ITEM NO. 24F COULD NOT BE WITHDRAWN; THAT A VALID CONTRACT EXISTED; AND THAT THE BALANCE DUE ON THE ITEMS SHOULD BE PROMPTLY REMITTED. SINCE YOU FAILED TO REMOVE THE PROPERTY WITHIN THE REQUIRED TIME, IT WAS RESOLD, WHICH SALE RESULTED IN A LOSS TO THE GOVERNMENT OF $13.19.

YOU ALLEGE THAT DUE TO A MISREPRESENTATION OF ITEM 24F YOU SUBMITTED A BID ON THIS ITEM. APPARENTLY YOU FEEL THAT OUR OFFICE DOES NOT HAVE THE FULL INFORMATION WITH REGARD TO YOUR CLAIM.

THE FILE, FORWARDED HERE BY THE DEPARTMENT OF THE ARMY IN CONNECTION WITH YOUR CLAIM AND WHICH APPEARS TO BE COMPLETE, CONTAINS A COPY OF YOUR LETTER OF JULY 12, 1954, TO THE CONTRACTING OFFICER, COLUMBUS GENERAL DEPOT, AND THE DEPARTMENT'S REPLY OF JULY 23, 1954. IN THE SECOND PARAGRAPH OF THAT LETTER YOU IN EFFECT ADMIT THAT THERE WAS SOME DOUBT IN YOUR MIND ABOUT THE CORRECTNESS OF THE DESCRIPTION OF ITEM NO. 24F BEFORE YOU SUBMITTED YOUR BID. THE ERROR IN DESCRIPTION APPEARS TO BE IN THE FACT THAT THE ACQUISITION COST OF ITEM NO. 24F WAS SHOWN ON THE INVITATION AS $18,566.85, WHEREAS IT SHOULD HAVE BEEN STATED AS $25. THE CONTRACTING OFFICER HAS STATED THAT THE REMAINING PORTION OF THE DESCRIPTION OF THE ITEM WAS CORRECT.

THE GENERAL SALE TERMS AND CONDITIONS PROVIDED THAT THE MATERIAL WAS OFFERED "AS IS" AND "WHERE IS," WITHOUT RECOURSE AGAINST THE GOVERNMENT; AND THAT--- QUOTING FROM PARAGRAPH 2---

"* * * 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.'

IT IS DIFFICULT TO PERCEIVE HOW CLEARER OR MORE EXPLICIT LANGUAGE COULD HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF THE LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE HELD REPEATEDLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THOSE CASES, AND NUMEROUS OTHER CASES, CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT, ANY WARRANTIES WHATEVER. IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. FURTHERMORE, THERE IS NO SHOWING OF BAD FAITH IN STATING THE ACQUISITION COST AND DESCRIPTION OF ITEM NO. 24F WAS BASED ON THAT CONTAINED IN THE PROPERTY TURN-IN SLIP OF THE DISPOSING ACTIVITY, AND THAT HE HAD NO KNOWLEDGE OF THE DISCREPANCY IN THE DESCRIPTION OF THE ITEM PRIOR TO AWARD.

ALSO, IT APPEARS THAT YOU FAILED TO TAKE ADVANTAGE OF YOUR RIGHT TO MAKE AN INSPECTION OF THE PROPERTY PRIOR TO THE SUBMISSION OF YOUR BID, HAVING BOUGHT THE PROPERTY WITHOUT INSPECTING IT. MORE THAN THAT, THE INVITATION EXPRESSLY PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. SINCE YOU FAILED TO TAKE ADVANTAGE OF THE OPPORTUNITY OFFERED YOU TO INSPECT BUT PURCHASED THE WIRE WITHOUT DOING SO, YOU BOUGHT AT YOUR OWN RISK AND ARE NOT NOW ENTITLED TO THE RELIEF SOUGHT. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; BRODY V. UNITED STATES, 64 C.CLS. 538; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801.

ACCORDINGLY, THE SETTLEMENT OF APRIL 4, 1956, IS SUSTAINED.

YOU ARE REQUESTED TO PROMPTLY FORWARD HERE A CHECK OR MONEY ORDER PAYABLE TO THE U.S. GENERAL ACCOUNTING OFFICE IN THE AMOUNT OF $13.19, AS PAYMENT FOR THE LOSS SUFFERED BY THE GOVERNMENT DUE TO YOUR FAILURE TO PERFORM THE CONTRACT.