B-131483, JUN. 11, 1957

B-131483, JUN. 11, 1957

TO THE HALE LUMBER COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 15, 1957, REQUESTING REVIEW OF SETTLEMENT DATED MARCH 8, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $75, PAID FOR TWO TYPEWRITERS PURCHASED FROM THE DEPARTMENT OF THE NAVY, UNDER SALES CONTRACT NO. N62583S-12331 DATED AUGUST 16, 1956.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. B-10-57, ISSUED BY THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HEUNEME, CALIFORNIA, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM 45 COVERING ONE BURROUGHS TYPEWRITER WITH AN ELECTRICALLY OPERATED 18-INCH CARRIAGE FOR THE SUM OF $50, AND TO PURCHASE ITEM 55 COVERING ONE BURROUGHS TYPEWRITER WITH AN ELECTRICALLY OPERATED 22-INCH CARRIAGE FOR THE SUM OF $25. THE ACQUISITION COST OF EACH OF THE TYPEWRITERS WAS INDICATED IN THE INVITATION AS BEING $350 AND THE CONDITION OF EACH OF THE TYPEWRITERS WAS DESCRIBED AS "USED-GOOD.' YOUR BID, ACCOMPANIED BY A BID DEPOSIT OF $31, WAS ACCEPTED AS TO BOTH ITEMS ON AUGUST 16, 1956. THE RECORD INDICATES THAT BY LETTER DATED AUGUST 21, 1956, YOU REMITTED THE BALANCE OF THE PURCHASE PRICE OF THE TYPEWRITERS AND THAT THE TYPEWRITERS WERE DELIVERED TO YOU.

BY LETTER DATED OCTOBER 17, 1956, YOU SUBMITTED TO THE DISPOSAL OFFICER COPIES OF ESTIMATES RECEIVED FROM THE BURROUGHS CORPORATION, WHICH INDICATE THAT IT WOULD COST YOU $184.93 AND $80.60 TO PLACE THE TYPEWRITERS COVERED BY ITEMS 45 AND 55, RESPECTIVELY, IN AN EFFICIENT OPERATING CONDITION. IN YOUR LETTER YOU INVITED THE ATTENTION OF THE DISPOSAL OFFICER TO THE FACT THAT THE TYPEWRITERS WERE DESCRIBED IN THE INVITATION AS BEING IN GOOD CONDITION AND YOU REQUESTED ADVICE AS TO WHETHER YOU COULD HAVE THE TYPEWRITERS REPAIRED AND BILL THE GOVERNMENT, OR WHETHER YOU COULD RETURN THE TYPEWRITERS AND BE REFUNDED THE PURCHASE PRICE THEREOF. IN HIS LETTER DATED OCTOBER 24, 1956, THE DISPOSAL OFFICER ADVISED YOU THAT THE CONDITION CODE, AS STATED IN THE INVITATION TO BID, WAS BASED ON VISUAL INSPECTION ONLY, AND THAT THE TYPEWRITERS WERE NEITHER TESTED, OPERATED, NOR DISMANTLED FOR INSIDE DEFECTS PRIOR TO THE SALE AND HE INVITED YOUR ATTENTION TO THE INSPECTION CLAUSE AND TO THE DISCLAIMER OF WARRANTY CLAUSE AS TO THE DESCRIPTION CONTAINED IN THE INVITATION. AFTER A FURTHER EXCHANGE OF CORRESPONDENCE BETWEEN YOU AND THE CONTRACTING AGENCY, YOU FILED A CLAIM FOR REFUND OF THE PURCHASE PRICE OF $75, WHICH WAS DISALLOWED BY THE SETTLEMENT OF MARCH 8, 1957.

YOUR BASIC CONTENTIONS IN SUPPORT OF YOUR REQUEST FOR REVIEW OF THE SETTLEMENT APPEAR TO BE THAT SINCE THE DEPARTMENT OF THE NAVY DESCRIBED THE TYPEWRITERS AS BEING IN GOOD CONDITION, THE DEPARTMENT IMPLIED THAT THE TYPEWRITERS WOULD BE IN AN OPERABLE CONDITION WHICH, YOU STATE, WAS NOT THE CASE; AND THAT, NOTWITHSTANDING THE FACT THAT THE INVITATION CONTAINED A DISCLAIMER OF WARRANTY AS TO THE DESCRIPTION OF THE MACHINE, THE DESCRIPTION WAS BINDING UPON THE GOVERNMENT, SINCE IT FOLLOWED THE DISCLAIMER OF WARRANTY.

YOUR BID AND THE SALE WERE SUBJECT TO THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2 OF WHICH PROVIDE:

"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACE AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. 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 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 ALLOWANCES 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.'

THE FACT THAT THE DESCRIPTION OF THE TYPEWRITERS PURCHASED BY YOU APPEARED ON PAGES FOLLOWING THE PAGE ON WHICH THE ABOVE QUOTED PARAGRAPHS WERE PRINTED IS IMMATERIAL, SINCE ON THE FACE OF YOUR BID, WHICH WAS SIGNED BY YOUR MR. T. E. HALE, YOU AGREED TO BE BOUND BY THE GENERAL SALE TERMS AND CONDITIONS.

THE COURTS, MANY TIMES, HAVE CONSIDERED SUCH CONTRACT STIPULATIONS INCASES INVOLVING THE SALE OF GOVERNMENT-OWNED SURPLUS GOODS, AND HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY, PRECLUDING ANY CLAIM FOR NONCONFORMITY OF THE GOODS WITH THE DESCRIPTIONS. SEE W. E. HEDGER CO. V. UNITED STATES, 52 FED.2D 31, CERTIORARI DENIED, 284 U.S. 676; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; TRIAD CORP. V. UNITED STATES, 63 C.CLS. 151; SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412. THESE CASES AND OTHERS CONCLUDE THAT UNDER SUCH PROVISIONS BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT, ANY WARRANTIES WHATEVER. IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE 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 MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN.

IT APPEARS FROM THE RECORD THAT YOU DID NOT INSPECT THE TYPEWRITERS 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 ON THE GROUNDS THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE RENDERED NUMEROUS DECISIONS IN WHICH THESE PRINCIPLES ARE ASSERTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; S. BRODY V. UNITED STATES, 64 C.CLS. 538; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.CLS. 801; MOTTRAM V. UNITED STATES, 271 U.S. 15; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67. SEE, ALSO, 29 COMP. GEN. 310; AND 32 ID. 181.