B-131540, APR. 30, 1957

B-131540: Apr 30, 1957

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MERRICK: REFERENCE IS MADE TO YOUR LETTER OF APRIL 5. THE DEPUTY PROPERTY DISPOSAL OFFICER REPORTED AS FOLLOWS: "CLAIMANT WAS AWARDED ITEM IN QUESTION AS THE HIGH BIDDER FOR ITEM 74. THE BID AND AWARD TO CLAIMANT WAS FOR $15.02. OTHER BIDS FOR THIS ITEM WERE BIDDER NO. 2 BID $12.50. CLAIMANTS BID WAS A BLIND BID MADE WITHOUT INSPECTION OF PROPERTY. OTHER BIDDERS FOR THIS ITEM DID INSPECT THE PROPERTY AND DID NOT CONSIDER IT WORTHLESS AS IS EVIDENT BY THE BIDS SUBMITTED.'. THERE IS NO INDICATION OF BAD FAITH ON THE PART OF THE GOVERNMENT AND THE DEPUTY PROPERTY DISPOSAL OFFICER'S QUOTED CONCLUSION APPEARS REASONABLE. ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES THAT "ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS" AND WITHOUT RECOURSE AGAINST THE GOVERNMENT.'.

B-131540, APR. 30, 1957

TO MR. M. R. MERRICK:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 5, 1957, ACKNOWLEDGING RECEIPT OF SETTLEMENT CERTIFICATE DATED APRIL 1, AND PROTESTING THE DISALLOWANCE OF YOUR CLAIM FOR $18.11, REPRESENTING A REFUND OF $15.02, AND FREIGHT CHARGES OF $3.09 FROM TOLEDO, OHIO, TO ERIE, PENNSYLVANIA, ON A PNEUMATIC HAMMER PURCHASED BY YOU FROM THE PROPERTY DISPOSAL BRANCH, ROSSFORD ORDNANCE DEPOT, UNDER ITEM 74 OF INVITATION NO. 33-079-S-56-25, DATED MAY 2, 1956. YOUR LETTER REQUESTS INFORMATION AS TO WHAT PRICES OTHER BIDDERS OFFERED FOR ITEM 74, FOR YOUR USE IN OBTAINING A REVIEW OF THE MATTER.

IN A "STATEMENT OF FACTS" REGARDING YOUR CLAIM, THE DEPUTY PROPERTY DISPOSAL OFFICER REPORTED AS FOLLOWS:

"CLAIMANT WAS AWARDED ITEM IN QUESTION AS THE HIGH BIDDER FOR ITEM 74, INVITATION 33-079-S-56-25; THE BID AND AWARD TO CLAIMANT WAS FOR $15.02. OTHER BIDS FOR THIS ITEM WERE BIDDER NO. 2 BID $12.50, BIDDER NO. 13 BID $11.00, BIDDER NO. 49, BID $2.00, BIDDER NO. 45 BID $2.00, BIDDER NO. 66 BID $10.00. CLAIMANTS BID WAS A BLIND BID MADE WITHOUT INSPECTION OF PROPERTY. OTHER BIDDERS FOR THIS ITEM DID INSPECT THE PROPERTY AND DID NOT CONSIDER IT WORTHLESS AS IS EVIDENT BY THE BIDS SUBMITTED.'

IN VIEW OF THE OFFERS MADE BY OTHER BIDDERS AFTER INSPECTION OF THE HAMMER, THERE IS NO INDICATION OF BAD FAITH ON THE PART OF THE GOVERNMENT AND THE DEPUTY PROPERTY DISPOSAL OFFICER'S QUOTED CONCLUSION APPEARS REASONABLE.

YOUR LETTER CONTENDS, IN EFFECT, THAT YOU BID ON "AN AIR HAMMER * * * LISTED AS BRAND NEW.' NOTHING IN THE INVITATION, EITHER EXPRESS OR IMPLIED, REPRESENTS THE SURPLUS ITEMS OFFERED FOR SALE AS NEW. ON THE CONTRARY, ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES THAT "ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS" AND WITHOUT RECOURSE AGAINST THE GOVERNMENT.' ALL BIDDERS WERE URGED TO INSPECT THE PROPERTY BEFORE SUBMITTING BIDS. THESE PROVISIONS APPEAR TO CLEARLY CONTRADICT ANY ASSUMPTION THAT THE ARTICLES WERE OFFERED AS "BRAND NEW.' MOREOVER, THE FACT THAT YOU DECLINED TO MAKE THE TRIP NECESSARY FOR YOU TO INSPECT THE ARTICLE BEFORE MAKING A BID THEREON DOES NOT ALTER THE GOVERNMENT'S EXPRESS DISCLAIMER OF WARRANTY. AS STATED IN THE SETTLEMENT CERTIFICATE, IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO POTENTIAL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT ALL RISK AS TO THE CHARACTER OR CONDITION OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN.

IN THE CIRCUMSTANCES, THE DISALLOWANCE OF YOUR CLAIM MUST BE AND IS HEREBY AFFIRMED.