B-131486, MAY 10, 1957

B-131486: May 10, 1957

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TO COLUMBUS ENGINEERING AND MANUFACTURING COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21. YOU ALLEGE THAT WHEN THE MACHINE WAS DELIVERED TO YOUR PLANT YOU FOUND THAT THE BASE HOUSING HAD BEEN CRACKED. YOU STATE THAT AT THE TIME YOU VISITED THE KINGS MILLS ORDNANCE PLANT IT WAS IMPOSSIBLE FOR YOU TO INSPECT SOME OF THE EQUIPMENT IN THE AREA THE MACHINERY WAS STORED AND THAT DUE TO BAD LIGHTING AND CRAMPED QUARTERS IT WAS IMPOSSIBLE TO MAKE A COMPLETE AND THOROUGH INSPECTION OF EVERY MACHINE. YOU WERE AWARE OF THE FACT THAT USED PROPERTY WAS BEING OFFERED FOR SALE AND EVEN THOUGH YOU FELT THAT A MORE DETAILED INSPECTION OF THE MACHINE WAS NECESSARY FOR THE PROTECTION OF YOUR INTEREST.

B-131486, MAY 10, 1957

TO COLUMBUS ENGINEERING AND MANUFACTURING COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MARCH 21, 1957, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 15, 1956, WHICH DISALLOWED YOUR CLAIM FOR $775, ALLEGED TO BE DUE AS A PARTIAL REFUND OF THE AMOUNT PAID FOR A PROFILING AND MILLING MACHINE PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. 33-008-56-211/S), DATED JUNE 6, 1956.

YOU ALLEGE THAT WHEN THE MACHINE WAS DELIVERED TO YOUR PLANT YOU FOUND THAT THE BASE HOUSING HAD BEEN CRACKED, THEN WELDED, AND AGAIN CRACKED WHERE WELDED. YOU STATE THAT AT THE TIME YOU VISITED THE KINGS MILLS ORDNANCE PLANT IT WAS IMPOSSIBLE FOR YOU TO INSPECT SOME OF THE EQUIPMENT IN THE AREA THE MACHINERY WAS STORED AND THAT DUE TO BAD LIGHTING AND CRAMPED QUARTERS IT WAS IMPOSSIBLE TO MAKE A COMPLETE AND THOROUGH INSPECTION OF EVERY MACHINE.

THE GOVERNMENT MAY NOT BE CHARGED WITH ANY LEGAL RESPONSIBILITY DUE TO YOUR FAILURE TO MAKE A COMPLETE INSPECTION OF THE MACHINE IN THE ABSENCE OF A SHOWING OF BAD FAITH ON THE PART OF THE DISPOSAL OFFICER OR HIS AGENTS. YOU WERE AWARE OF THE FACT THAT USED PROPERTY WAS BEING OFFERED FOR SALE AND EVEN THOUGH YOU FELT THAT A MORE DETAILED INSPECTION OF THE MACHINE WAS NECESSARY FOR THE PROTECTION OF YOUR INTEREST, YOU WERE ASSUMING THE RISKS IMPOSED BY THE CONTRACT TERMS WHEN YOU SUBMITTED YOUR BID. THERE IS NOTHING IN THE RECORD TO ESTABLISH THAT THE CONTRACTING OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE TRANSACTIONS. IN FACT IT IS REPORTED THAT THE DESCRIPTION OF THE MACHINE IS IN COMPLETE ACCORDANCE WITH THE RECORDS OF THE PROPERTY DISPOSAL OFFICER.

THE GENERAL SALE TERMS AND CONDITIONS PROVIDED THAT THE MATERIAL WAS OFFERED "AS IS" AND "WHERE IS," WITHOUT RECOURSE AGAINST THE GOVERNMENT, AND THAT--- QUOTING FROM PARAGRAPH 2---

"* * * 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.'

IT IS DIFFICULT TO PERCEIVE HOW CLEARER OR MORE EXPLICIT LANGUAGE COULD HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF THE LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE HELD REPEATEDLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. LUMBRAZE. V. WOODRUFF, 175 N.E. 525; W.E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THOSE CASES, AND NUMEROUS OTHER CASES, CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVING 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. THERE IS NOTHING IN THE RECORD IN THIS CASE TO ..END :