B-128135, JUL. 2, 1956

B-128135: Jul 2, 1956

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TO TEXTILE FASTENER AND SUPPLY CO.: REFERENCE IS MADE TO YOUR LETTER OF MAY 19. THAT ITEM WAS DESCRIBED AS ONE LOT OF . THE ENTIRE LOT COVERED BY ITEM NO. 162 WAS DELIVERED TO THE MICHIGAN MOTOR FREIGHT COMPANY AS AUTHORIZED BY YOU. YOU ALLEGED THAT THREE OF THE DRUMS WERE ONLY HALF FULL. YOU REQUESTED A REFUND OF $30 DUE TO THE ALLEGED SHORTAGE IN THE QUANTITY RECEIVED WHICH AMOUNT WAS LATER REDUCED TO $20. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF MAY 14. NAMELY (A) THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT THOROUGHLY SINCE AN INSPECTION OF THAT TYPE COULD ONLY BE DONE BY REMOVING ALL OF THE STACKED DRUMS FROM THE PALLETS. WHICH IN EFFECT AMOUNTED TO DENYING YOU THE CHANCE TO INSPECT THIS SPECIFIC LOT AND (B) THAT THERE WAS AN IMPLIED REPRESENTATION AS TO THE QUANTITY OF THE MATERIALS.

B-128135, JUL. 2, 1956

TO TEXTILE FASTENER AND SUPPLY CO.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 19, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 14, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $20 BECAUSE OF A SHORTAGE UNDER CONTRACT NO. O.I. 33-167-55 895S COVERING THE PURCHASE OF THINNER FROM THE DEPARTMENT OF THE ARMY.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. 33-167-S-55-16 DATED APRIL 26, 1955, ISSUED BY THE SALVAGE BRANCH, COLUMBUS GENERAL DEPOT, COLUMBUS 15, OHIO, YOU SUBMITTED A BID DATED MAY 18, 1955, ACCOMPANIED BY A BID DEPOSIT OF $500, IN WHICH YOU OFFERED TO PURCHASE A NUMBER OF ITEMS, INCLUDING A QUOTATION OF $213.36 ON ITEM NO. 162. THAT ITEM WAS DESCRIBED AS ONE LOT OF ,THINNER, ENAMEL, NAPTHA, LOW BOILING, INFLAMMABLE. (2667 GAL.) 49 PKGS. SWT 22,722 LB. ACQ. COST ?40 GAL.' IN ADDITION TO QUOTING A LOT PRICE OF $213.36 ON ITEM 162, YOU INSERTED A UNIT PRICE OF $0.08. THE ENTIRE LOT COVERED BY ITEM NO. 162 WAS DELIVERED TO THE MICHIGAN MOTOR FREIGHT COMPANY AS AUTHORIZED BY YOU. THEREAFTER ON JULY 8, 1955, YOU ALLEGED THAT THREE OF THE DRUMS WERE ONLY HALF FULL. YOU REQUESTED A REFUND OF $30 DUE TO THE ALLEGED SHORTAGE IN THE QUANTITY RECEIVED WHICH AMOUNT WAS LATER REDUCED TO $20. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT OF MAY 14, 1956.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEARS TO BE BASED UPON TWO CONTENTIONS, NAMELY (A) THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT THOROUGHLY SINCE AN INSPECTION OF THAT TYPE COULD ONLY BE DONE BY REMOVING ALL OF THE STACKED DRUMS FROM THE PALLETS, WHICH IN EFFECT AMOUNTED TO DENYING YOU THE CHANCE TO INSPECT THIS SPECIFIC LOT AND (B) THAT THERE WAS AN IMPLIED REPRESENTATION AS TO THE QUANTITY OF THE MATERIALS.

ALTHOUGH IT IS CLEAR THAT YOU MADE A PARTIAL INSPECTION OF THE MATERIALS BEFORE YOU SUBMITTED YOUR BID, YOU INSIST THAT IT WAS IMPOSSIBLE FOR YOU TO EXAMINE THE ENTIRE LOT OR TO ASCERTAIN THAT THERE WERE EMPTY CONTAINERS AND SOME PARTIALLY OR HALF FULL DRUMS FOR THE REASON THAT ALL THE DRUMS WERE STACKED ON PALLETS. CONCEDING THAT SUCH WAS THE CASE, YOU SHOULD HAVE ADJUSTED YOUR BID ACCORDINGLY. ITEM NO. 162 WAS OFFERED FROM SALE ON A LOT BASIS AND NOT ON A UNIT BASIS SINCE THE INVITATION PROVIDED ONLY FOR LOT BIDS. CONSEQUENTLY, THE UNIT PRICE OF $0.08 QUOTED BY YOU WAS PROPERLY DISREGARDED AND ITEM NO. 162 WAS AWARDED TO YOU ON A LOT BASIS AS INDICATED IN THE NOTICE OF AWARD OF JUNE 3, 1955, ADDRESSED TO YOU.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES AS FOLLOWS:

"CONDITION OR PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE " AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. 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.'

PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS INVITED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. PARAGRAPH 8 OF THESE SAME TERMS AND CONDITIONS SPECIFICALLY WARNED ALL BIDDERS THAT NO ADJUSTMENT FOR VARIATION IN QUANTITY LISTED FOR ANY ITEM AND THE QUANTITY DELIVERED TO THE PURCHASER WOULD BE MADE WHEN AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS.

UNDER THE ABOVE PROVISIONS IT HAS BEEN HELD THAT A BIDDER WHO SUBMITS A BID WITHOUT FULL INSPECTION ASSUMES ANY RISK WHICH MIGHT EXIST BY REASON OF THE VARIANCE BETWEEN THE DESCRIPTION AND THE PROPERTY ACTUALLY SOLD. WHEN YOU SUBMITTED YOUR BID YOU ASSUMED SUCH A RISK. SINCE YOUR BID WAS SUBMITTED WITHOUT QUALIFICATION AS TO THIS ITEM AND SINCE THE ACCEPTANCE THEREOF RESULTED IN A VALID AND BINDING CONTRACT UNDER WHICH THE GOVERNMENT ACQUIRED THE VESTED RIGHT TO DEMAND PERFORMANCE STRICTLY IN ACCORDANCE THEREWITH, THERE EXISTS NO AUTHORITY IN ANY OFFICER OR AGENT OF THE UNITED STATES GRATUITOUSLY TO WAIVE OR SURRENDER SUCH RIGHT. SEE BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED 292 U.S. 645; UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389.

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