B-129621, NOV. 14, 1956

B-129621, NOV. 14, 1956

TO THE SECRETARY OF THE AIR FORCE:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 24, 1956, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, TRANSMITTING CERTAIN PAPERS RELATIVE TO THE AWARD OF THE ITEM NO. 63 OF INVITATION NO. AF 04-606-S 56-12, TO THE CENTRAL TIRE AND SALVAGE COMPANY, LOS ANGELES, CALIFORNIA, AND REQUESTING A DECISION ON THE MATTER OF THE LATTER'S LIABILITY, IF ANY, UNDER THE RESULTING SALES CONTRACT NO. S.O. (04-606) S-56-220, DATED OCTOBER 28, 1955.

IT APPEARS THAT BY INVITATION NO. AF 04-606-S-56-12, ISSUED SEPTEMBER 25, 1955, THE MCCLELLAN AIR FORCE BASE, MCCLELLAN, CALIFORNIA, ADVERTISED FOR SALE SEVERAL LOTS OF SCRAP MATERIALS, INCLUDING ITEM NO. 63, DESCRIBED AS FOLLOWS:

"CODE 13 AIRCRAFT RADIATOR ASSY, ENGINE AFTER COOLER, MODEL P51H, RADIATOR TEST PRESSURE 60 LBS./SQ.IN., 532 SQ.FT. OF SURFACE, WEIGHT OF LIQUID 32.5 LBS MFGR. HARRISON CO. WT. 50,180 NO. USED, REPAIRS REQUIRED.'

THE TOTAL QUANTITY OF P51H RADIATORS LISTED FOR SALE WAS 163. ITEM NO. 63 WAS AWARDED THE CENTRAL TIRE AND SALVAGE COMPANY BY VIRTUE OF ITS HIGH BID PRICE OF $51.77 EACH ON THE RADIATORS, MAKING ITS TOTAL BID PRICE $8,438.51 ON THE QUANTITY LISTED. THE CONTRACTOR'S PROPOSAL WAS ACCOMPANIED BY A BID DEPOSIT OF $1,500, AS REQUIRED BY THE TERMS OF THE INVITATION.

THE CONTRACTOR HAS REQUESTED THAT IT BE RELIEVED OF ALL LIABILITY UNDER THE SAID CONTRACT, AND THAT ITS BID DEPOSIT OF $1,500 BE REFUNDED, UPON THE GROUND THAT THE RADIATORS TENDERED FOR DELIVERY AT THE MCCLELLAN AIR FORCE BASE WERE OF A SMALLER SIZE AND LESSER WEIGHT THAN THOSE OFFERED FOR SALE AND INSPECTED BY HIM. IN THIS CONNECTION, THE RECORD SHOWS THAT THE ENTIRE LOT OF 163 RADIATORS WEIGHED ONLY 35,470 POUNDS, IN LIEU OF 50,180 POUNDS, AS ADVERTISED, OR A DEFICIENCY OF 14,710 POUNDS.

BASICALLY, IT IS THE CONTRACTOR'S CONTENTION THAT HE INSPECTED THESE RADIATORS PRIOR TO SUBMITTING HIS PROPOSAL THEREON, BUT THAT SOME TIME BETWEEN THE DATE OF INSPECTION AND THE TIME HE CALLED TO PICK UP THE ITEMS AT THE DESIGNATED PLACE OF STORAGE, THE LOT HAD BEEN TAMPERED WITH, AS A RESULT OF WHICH A SUBSTANTIAL NUMBER OF THE RADIATORS WERE REMOVED AND REPLACED BY OTHERS OF A LESSER WEIGHT. THE CONTRACTOR HAS FURNISHED WRITTEN STATEMENTS OF OTHER PARTIES WHO ALLEGEDLY INSPECTED THE PROPERTY PRIOR TO ITS SALE, WHICH TEND TO CONFIRM THE CONTRACTOR'S CONTENTION THAT THE LOT HAD BEEN TAMPERED WITH.

HOWEVER, IT IS THE DEPARTMENT'S POSITION THAT, ALTHOUGH THE LOT OF RADIATORS HERE INVOLVED MIGHT HAVE BEEN RESTACKED, THE RADIATORS TENDERED FOR DELIVERY TO THE CONTRACTOR WERE THE SAME LOT WHICH ORIGINALLY HAD BEEN OFFERED FOR INSPECTION AND SALE. ALSO, IT IS REPORTED THAT THE FEDERAL BUREAU OF INVESTIGATION INVESTIGATED THE MATTER AND ADVISED THAT NO EVIDENCE OF THEFT OR CRIMINAL VIOLATION WAS UNCOVERED.

IN ANY EVENT, THE QUESTION OF WHETHER THIS PARTICULAR LOT OF RADIATORS HAD BEEN TAMPERED WITH IS STRICTLY A MATTER OF PROOF CONCERNING WHICH IT MUST BE CONCEDED THE PRESENT RECORD IS NOT ENTIRELY CLEAR.

IF THE RADIATORS OFFERED FOR DELIVERY WERE THE SAME LOT INSPECTED AS ADMINISTRATIVELY REPORTED, THERE IS FOR CONSIDERATION THE FACT THAT ON AN "AS IS," "WHERE IS" BASIS, AND WITHOUT RECOURSE AGAINST THE UNITED STATES. NOT ONLY DID THE INVITATION APPRISE THE BIDDERS THAT THE DESCRIPTION OF THE PROPERTY WAS BASED MERELY UPON THE BEST "AVAILABLE" INFORMATION, BUT THE BIDDERS WERE EXPRESSLY ADVISED THAT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO ITS QUALITY, KIND, CHARACTER, QUANTITY,"WEIGHT," OR DESCRIPTION. THE COURTS HAVE HELD, IN THOSE CASES WHEREIN IT WAS SHOWN THE GOVERNMENT HAD EXERCISED GOOD FAITH IN DESCRIBING THE PROPERTY, THAT THE DISCLAIMER CLAUSE, AS INCORPORATED INTO THESE SALES CONTRACTS, EXTENDS TO AND INCLUDES THE "WEIGHT," AS WELL AS THE DESCRIPTION OF THE ARTICLES SOLD. SEE MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67, 69-70; LIPSHITZ AND COHEN V. UNITED STATES, 269 ID. 90, 92.

HOWEVER, SHOULD IT BE PROVED TO BE A FACT THAT THE STOCKPILE OF RADIATORS WHICH WAS ADVERTISED FOR INSPECTION AND SALE WAS CHANGED AND CERTAIN RADIATORS REMOVED AND OTHERS SUBSTITUTED THEREFOR AFTER INSPECTION, OBVIOUSLY SUCH CIRCUMSTANCE WOULD AFFORD A PROPER BASIS EITHER FOR RESCISSION OR REVISION OF THE INSTANT CONTRACT.

OTHERWISE, YOUR DECISION OF OCTOBER 9, 1956, TO THE CONTRACTOR, APPEARS TO CONTAIN A CORRECT STATEMENT OF THE LAW APPLICABLE TO THE STATED FACTS.