B-127874, MAY 24, 1956

B-127874: May 24, 1956

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO GORDON AND POPE SUPPLY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 21. THE BID WAS ACCEPTED MAY 23. 116 MIRRORS WERE DELIVERED AND AN ADJUSTMENT WAS MADE BECAUSE OF THE SHORTAGE. YOU CONTEND THAT THE SUPPLIES OFFERED FOR SALE WERE DIFFERENT FROM THE DESCRIPTION CONTAINED IN THE INVITATION IN THAT THE INVITATION STATED IN THE OFFERING "MIRRORS WITH HANDLES. WHEN THE SUPPLIES WERE DELIVERED THERE WERE NO HANDLES. YOU ALLEGED THAT WHEN INSPECTION WAS MADE A GOVERNMENT REPRESENTATIVE STATED THERE WOULD BE HANDLES FOR EACH MIRROR AND THAT THE MIRRORS ARE WORTHLESS WITHOUT THE HANDLES. THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE DESCRIPTION SET FORTH IN THE INVITATION WAS OBTAINED FROM SUPPORTING APPLICABLE DOCUMENTS.

B-127874, MAY 24, 1956

TO GORDON AND POPE SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 21, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED APRIL 17, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT OF $422.32, ALLEGED TO BE DUE BY REASON OF A SHORTAGE OF HANDLES ON YOUR PURCHASE OF ITEM 46 APA FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N288S-9997.

IN RESPONSE TO INVITATION NO. B-307-55, DATED APRIL 22, 1955, ISSUED BY THE DISPOSAL DIVISION, NAVAL SUPPLY CENTER, OAKLAND CALIFORNIA, YOU SUBMITTED A BID DATED MAY 13, 1955, OFFERING TO PURCHASE ITEM NO. 46 APA COMPRISING 21,116 MIRRORS, INSPECTION, MAGNIFYING, DIMENSION DATA: 3/4 INCHES DIAMETER 12 INCHES HANDLE, AT THE UNIT PRICE OF $0.032 OR FOR THE TOTAL PRICE OF $675.71. THE BID WAS ACCEPTED MAY 23, 1955, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN YOU AND THE GOVERNMENT. THE RECORD SHOWS THAT ONLY 17,116 MIRRORS WERE DELIVERED AND AN ADJUSTMENT WAS MADE BECAUSE OF THE SHORTAGE.

YOU CONTEND THAT THE SUPPLIES OFFERED FOR SALE WERE DIFFERENT FROM THE DESCRIPTION CONTAINED IN THE INVITATION IN THAT THE INVITATION STATED IN THE OFFERING "MIRRORS WITH HANDLES," WHEREAS, WHEN THE SUPPLIES WERE DELIVERED THERE WERE NO HANDLES. IN YOUR LETTER OF JULY 20, 1955, YOU ALLEGED THAT WHEN INSPECTION WAS MADE A GOVERNMENT REPRESENTATIVE STATED THERE WOULD BE HANDLES FOR EACH MIRROR AND THAT THE MIRRORS ARE WORTHLESS WITHOUT THE HANDLES. THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE DESCRIPTION SET FORTH IN THE INVITATION WAS OBTAINED FROM SUPPORTING APPLICABLE DOCUMENTS, AND THAT YOU RECEIVED ALL OF THE MATERIAL AVAILABLE FOR INSPECTION AS ITEM NO. 46 APA. ALSO, IT IS NOTED THAT THE ACQUISITION COST OF THE MATERIAL IS $12,669.60 AND THAT YOU PAID ONLY $547.71 THEREFOR.

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

"2. CONDITION OF PROPERTY.--- 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.'

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION; HOWEVER, THIS RULE IS NOT FOR APPLICATION IN THIS CASE SINCE THE ABOVE- QUOTED LANGUAGE OF PARAGRAPH TWO OF THE CONDITIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION. THE VERY PURPOSE OF A DISCLAIMER OF WARRANTY AS TO QUANTITY, KIND, ET CETERA, IS TO ABSOLVE AND HOLD HARMLESS THE GOVERNMENT FROM LIABILITY BECAUSE OF MISTAKES THAT MAY BE MADE IN THE ADVERTISEMENT OF MATERIALS OFFERED FOR SALE.

WITH REGARD TO YOUR CONTENTION THAT AT THE TIME THE INSPECTION WAS MADE A GOVERNMENT REPRESENTATIVE STATED THERE WOULD BE HANDLES FOR EACH MIRROR, YOUR ATTENTION IS INVITED TO PARAGRAPH 12 OF THE CONDITIONS WHICH PROVIDES THAT ANY ORAL STATEMENT BY ANY REPRESENTATIVE OF THE GOVERNMENT IS AN EXPRESSION OF OPINION ONLY AND CONFERS NO RIGHT UPON THE PURCHASER.

THE MATTER OF GRANTING RELIEF TO PURCHASERS OF SURPLUS PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF CONSIDERATION IN NUMEROUS DECISIONS OF OUR OFFICE AND OF THE COURTS AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE 4 COMP. GEN. 286; 16 ID. 749; 18 ID. 594; 28 ID. 306; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; S. BRODY V. UNITED STATES, 64 C.CLS. 538; W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31.

WE REALIZE THAT THE RESULTS IN THESE CASES MAY SOMETIMES SEEM HARSH, BUT THE GOVERNMENT HAS USED THE PLAINEST AND CLEAREST LANGUAGE POSSIBLE TO ADVISE PROSPECTIVE BIDDERS THAT IN THESE SURPLUS SALES THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY.