B-128771, AUG. 23, 1956

B-128771: Aug 23, 1956

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TO BEAN AND SON SCRAP IRON AND METAL CO.: REFERENCE IS MADE TO A LETTER DATED JULY 13. ACCOMPANIED BY A BID DEPOSIT OF $500 WAS ACCEPTED AND AWARD WAS MADE TO YOU. THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 20. YOU CONTEND THAT THE WEIGHT OF THE TABLE TOP SOLD UNDER ITEM NO. 29 WAS ONLY 2. - 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. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. 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.

B-128771, AUG. 23, 1956

TO BEAN AND SON SCRAP IRON AND METAL CO.:

REFERENCE IS MADE TO A LETTER DATED JULY 13, 1956, FROM ANBENDER AND ANBENDER, REQUESTING ON YOUR BEHALF, REVIEW OF OUR SETTLEMENT DATED JUNE 20, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $1,390.08, REPRESENTING A PART OF THE PURCHASE PRICE PAID FOR ITEM NO. 29, A SURPLUS MONEL METAL PLOTTING TABLE, PURCHASED FROM THE SUPPLY DEPARTMENT, UNITED STATES NAVAL GUN FACTORY, WASHINGTON, D.C., UNDER CONTRACT NO. N171S- 9457.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. B-56-56, DATED NOVEMBER 1, 1955, ISSUED BY THE UNITED STATES NAVAL GUN FACTORY, WASHINGTON, D.C., YOU SUBMITTED AN UNDATED BID OFFERING TO PURCHASE ITEM NO. 29 COVERING ONE (1) MONEL METAL TABLE, SIZE 16 FEET BY 6 1/2 FEET BY 1 INCH AND DESCRIBED AS WEIGHING ABOUT 4,750 POUNDS, LOCATED AT THE NAVAL PROVING GROUND, DAHLGREN, VIRGINIA, FOR THE PRICE OF $2,579.85. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $500 WAS ACCEPTED AND AWARD WAS MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE ITEM TO YOU, YOU FILED A CLAIM FOR A REFUND OF A PART OF THE PURCHASE PRICE REPRESENTING A SHORTAGE IN THE POUNDAGE RECEIVED. AS STATED ABOVE, THAT CLAIM WAS DISALLOWED BY OUR SETTLEMENT OF JUNE 20, 1956.

YOU CONTEND THAT THE WEIGHT OF THE TABLE TOP SOLD UNDER ITEM NO. 29 WAS ONLY 2,190 POUNDS INSTEAD OF WEIGHING 4,750 POUNDS AND THAT YOUR BID IN THE AMOUNT OF $2,579.85 FOR 4,750 POUNDS WOULD INDICATE A VALUE OF $0.543 PER POUND. THE VALUE OF THE SHORTAGE, 2,560 POUNDS, WOULD THEREFORE BE $1,390.08.

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

"CONDITION OF 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. IT IS NOT CLEAR FROM THE RECORD WHETHER YOU MADE ANY INSPECTION OF THE PROPERTY BEFORE YOU SUBMITTED YOUR BID AND IN THE ABSENCE OF PROOF THAT AN INSPECTION WAS MADE BY YOU IT IS ASSUMED THAT YOU FAILED TO DO SO.

WITH RESPECT TO YOUR CONTENTIONS, YOUR ATTENTION IS INVITED TO THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, WHEREIN AN AGENT FOR THE GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK LOCATED AT SEVERAL FORTS, SETTING FORTH THE WEIGHTS AND KINDS OF EACH ITEM. ALTHOUGH THE QUANTITIES TURNED OUT TO BE APPROXIMATELY ONE-HALF OF THOSE SHOWN IN THE ADVERTISEMENT, THE PLAINTIFFS 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 AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.'

THE EVIDENCE OF RECORD DOES NOT ESTABLISH NOR DO YOU ALLEGE THAT THERE WAS ANY BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS IN MAKING THE ESTIMATE OF THE QUANTITY OF MATERIALS TO BE SOLD. ON THE CONTRARY, THE INVITATION STATED THAT THE DESCRIPTION WAS BASED UPON THE BEST AVAILABLE INFORMATION. SEE ALSO LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424. THOSE CASES, AND OTHERS TOO NUMEROUS TO MENTION, INVOLVING A VARIANCE IN THE CONDITION OF THE PROPERTY WITH THAT OF THE DESCRIPTION IN THE INVITATION, 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 MATERIAL THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS UNAWARE OF THE QUALITY OR 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 MATERIALS SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN.

THE MATTER OF GRANTING RELIEF TO PURCHASERS OF SURPLUS PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF OUR OFFICE AND OF THE COURTS, AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE SACHS MERCANTILE CO., INC. V. UNITED STATES 78 C.CLS. 801; S. BRODY V. UNITED STATES, 64 C.CLS. 538; AND LIPSHITZ AND COHEN V. UNITED STATES, SUPRA. WHILE THOSE DECISIONS MAY APPEAR TO BE HARSH, THE GOVERNMENT HAS USED THE PLAINEST LANGUAGE POSSIBLE TO ADVISE PROSPECTIVE BIDDERS THAT IN SURPLUS SALES CONTRACTS SUCH AS HERE INVOLVED THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY.