B-129730, NOV. 26, 1956

B-129730, NOV. 26, 1956

TO THE AMERICAN SANITARY RAG COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 17, 1956, REQUESTING REVIEW OF THE SETTLEMENT DATED MARCH 11, 1955, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF THE PRICE FOR SUN HELMETS PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N228S-5945, DATED AUGUST 3, 1954.

IN RESPONSE TO INVITATION NO. B-21-55, DATED JULY 13, 1954, ISSUED BY THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, DEPARTMENT OF THE NAVY, OAKLAND, CALIFORNIA, YOU SUBMITTED YOUR BID DATED JULY 23, 1954, OFFERING TO PURCHASE, AMONG OTHER ITEMS, ITEM NO. 33, CONSISTING OF 60,093 SUN HELMETS, DESCRIBED AS "APPARENTLY UNUSED, IN GOOD CONDITION" FOR THE PRICE OF $0.516 EACH, OR FOR A TOTAL PRICE OF $31,007.99. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $17,500, WAS ACCEPTED AND AWARD MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MERCHANDISE TO YOU, YOU CLAIMED A REFUND OF PART OF THE PURCHASE PRICE.

YOU REQUEST REVIEW OF THE SETTLEMENT ACTION PRIMARILY UPON THE BASIS THAT WHEN YOU RECEIVED THE HELMETS ONE-THIRD OF THEM WERE FOUND TO BE USED AND DAMAGED AND, THEREFORE, NOT AS ADVERTISED IN THE INVITATION. YOUR CLAIM IS FOR AN ALLOWANCE OF A REFUND OF $0.416 EACH ON ONE-THIRD OF THE ENTIRE LOT, 20,031, OR A TOTAL OF $8,332.90.

AS POINTED OUT IN THE SETTLEMENT OF MARCH 11, 1955, 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 IS" 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.'

SUCH LANGUAGE, WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES MADE BY THE GOVERNMENT, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY AS IN THIS CASE, NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

IN THE CIRCUMSTANCES, AND AS THE ADMINISTRATIVE AGENCY APPEARS TO HAVE ACTED IN ENTIRE GOOD FAITH IN THE MATTER SINCE IT HAS REPORTED THAT THE DESCRIPTION WAS PREDICATED UPON THE APPLICABLE INVOICES AND NUMEROUS RANDOM SAMPLES OF THE PROPERTY INSPECTED BY GOVERNMENT PERSONNEL PRIOR TO OFFERING THE MATERIAL FOR SALE, AND THAT THE GREAT MAJORITY OF THE MERCHANDISE WAS PACKED IN THE MANUFACTURER'S ORIGINAL CONTAINERS, THERE IS NO LEGAL BASIS FOR ALLOWANCE OF YOUR CLAIM. ACCORDINGLY, THE DISALLOWANCE OF MARCH 11, 1955, IS SUSTAINED.