B-130735, MAR. 18, 1957

B-130735: Mar 18, 1957

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COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19. YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED NOVEMBER 16. THE MATERIAL WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER. THE LOSS OF WHICH YOU NOW COMPLAIN WAS OCCASIONED BY YOUR FAILURE TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID. YOU WERE AFFORDED AN OPPORTUNITY TO INSPECT THIS MATERIAL ON WEEK DAYS FROM THE DATE OF THE INVITATION. 300 UNITS OF STEEL RIVETS AND THAT THE UNIT OF MEASURE WAS DESIGNATED "C. IT IS ALLEGED THAT ACTUALLY ONLY 3. 300 RIVETS WERE DELIVERED TO YOU. YOU FEEL THAT A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO THE AFORESAID REFUND. THAT: "ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS.

B-130735, MAR. 18, 1957

TO G. AND K. COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 19, 1957, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 16, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $94.05, REPRESENTING A PORTION OF THE AMOUNT YOU PAID TO THE GOVERNMENT FOR SURPLUS MATERIAL PURCHASED UNDER ITEM 14 OF SALES CONTRACT NO. 3PI-4619, DATED JUNE 1, 1956.

YOUR CLAIM WAS DISALLOWED IN THE SETTLEMENT DATED NOVEMBER 16, 1956, FOR THE REASON THAT, UNDER THE TERMS OF THE CONTRACT, THE MATERIAL WAS SOLD BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, EXPRESSED OR IMPLIED, AND THE LOSS OF WHICH YOU NOW COMPLAIN WAS OCCASIONED BY YOUR FAILURE TO INSPECT THE PROPERTY BEFORE SUBMITTING YOUR BID, WHICH FACT YOU ADMIT IN YOUR LETTER OF JULY 28, 1956. YOU WERE AFFORDED AN OPPORTUNITY TO INSPECT THIS MATERIAL ON WEEK DAYS FROM THE DATE OF THE INVITATION, APRIL 30, 1956, UNTIL MAY 31, 1956.

SPECIFICALLY YOU CONTEND THAT ITEM 14 OF THE INVITATION CALLS FOR 3,300 UNITS OF STEEL RIVETS AND THAT THE UNIT OF MEASURE WAS DESIGNATED "C," MEANING THAT EACH UNIT CONTAINED 100 RIVETS. IT IS ALLEGED THAT ACTUALLY ONLY 3,300 RIVETS WERE DELIVERED TO YOU, BEING ONE PERCENT OF THE QUANTITY LISTED. AS THE RESULT, YOU FEEL THAT A MISREPRESENTATION WAS MADE WHICH ENTITLES YOU TO THE AFORESAID REFUND.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS APPEARING ON THE REVERSE SIDE OF THE INVITATION PROVIDES, IN PERTINENT PART, THAT:

"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 THE 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.'

FURTHERMORE, PARAGRAPH 1 OF THE SAME CONDITIONS ADVISED THAT BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, STATING THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION. THIS IS THEORY ON WHICH YOU BASE YOUR CLAIM. HOWEVER, IT IS FUNDAMENTAL THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY 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 COMPANY V. UNITED STATES, 66 C.CLS. 424.

THERE IS NO QUESTION THAT THE ABOVE-QUOTED LANGUAGE OF PARAGRAPH 2 REPRESENTS AN EXPRESS DISCLAIMER OF WARRANTY. THE DESCRIPTION IS NO MORE THAN A REPRESENTATION OF OPINION AND UNDERSTANDING OF THE CONDITION OR QUALITY OF THE PROPERTY AND IS NOT FURTHER TO BE RELIED UPON BY PROSPECTIVE BUYERS. SEE JOHNSON V. WAISMAN BROS. 36 A 2D 634.

MOREOVER, IT APPEARS THAT NO INSPECTION OF THE MATERIAL WAS MADE BY YOU PRIOR TO THE SUBMISSION OF YOUR BID. THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER FOR INACCURACIES OR DEFICIENCIES WHICH AN INSPECTION WOULD HAVE READILY DISCLOSED. 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 ID. 538.

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.

FURTHERMORE, ITEM 14 WAS ONE OF 17 ITEMS OF PROPERTY LISTED FOR SALE AND WHILE UNIT PRICES COULD HAVE BEEN QUOTED UNDER EACH ITEM, YOU QUOTED A LOT PRICE OF $768.39 FOR THE 17 ITEMS AND THE AWARD TO YOU WAS MADE ON A LOT BASIS. PARAGRAPH 8 OF GENERAL SALE TERMS AND CONDITIONS PROVIDED THAT WHILE ANY VARIATION BETWEEN THE QUANTITY LISTED FOR ANY ITEM AND THE QUANTITY DELIVERED TO THE PURCHASER WOULD BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED FOR SUCH ITEM, SO ADJUSTMENT WOULD BE MADE FOR SUCH VARIATION WHERE THE AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS, AS WAS THE CASE HERE.