B-133757, OCT. 25, 1957

B-133757: Oct 25, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $41.77. IT APPEARS THAT AFTER THE BID WAS ACCEPTED AND THE FILM DELIVERED TO YOU IT WAS DISCOVERED THAT AN ERROR HAD BEEN MADE IN THE DESCRIPTION OF LOT NO. 235. IN THAT THE PHOTOGRAPHIC SUPPLIES OFFERED FOR SALE UNDER THE LOT WERE DESCRIBED IN UNITS OF INCHES RATHER THAN MILLIMETERS. BY REASON OF THE ERROR YOU ALLEGE THAT YOU DID NOT RECEIVE WHAT YOU BOUGHT AND ARE MAKING CLAIM FOR A REFUND OF $41.77. THAT SINCE THE MATERIAL WHICH YOU RECEIVED IS WORTHLESS YOU DO NOT BELIEVE THAT THE . GOVERNMENT WILL DISALLOW OUR CLAIM.'. THE DEPARTMENT OF THE ARMY ADMITS THAT AN ERROR IN THE UNIT OF MEASUREMENT WAS MADE IN THE DESCRIPTIVE MATTER OF LOT NO. 235 OF SPOT BID INVITATION NO. 38-042-S-57-5.

B-133757, OCT. 25, 1957

TO ABINGTON BLUE PRINT COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF AUGUST 30, 1957, REGARDING OUR SETTLEMENT OF AUGUST 26, 1957, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $41.77, PLUS POSTAL CHARGES, UNDER DEPARTMENT OF THE ARMY SPOT BID INVITATION NO. 38-042-S-57-5, DATED FEBRUARY 11, 1957.

UNDER THE INVITATION YOU OFFERED TO PURCHASE LOT NO. 235 COVERING A CERTAIN NUMBER OF ROLLS OF UNUSED PHOTOGRAPHIC FILM OF VARIOUS SIZES FOR A TOTAL PRICE FOR THE LOT OF $41.77. IT APPEARS THAT AFTER THE BID WAS ACCEPTED AND THE FILM DELIVERED TO YOU IT WAS DISCOVERED THAT AN ERROR HAD BEEN MADE IN THE DESCRIPTION OF LOT NO. 235, IN THAT THE PHOTOGRAPHIC SUPPLIES OFFERED FOR SALE UNDER THE LOT WERE DESCRIBED IN UNITS OF INCHES RATHER THAN MILLIMETERS. BY REASON OF THE ERROR YOU ALLEGE THAT YOU DID NOT RECEIVE WHAT YOU BOUGHT AND ARE MAKING CLAIM FOR A REFUND OF $41.77, THE PURCHASE PRICE OF LOT NO. 235, PLUS A POSTAL CHARGE OF $4.12.

IN YOUR LETTER OF AUGUST 30, 1957, WHEREIN YOU STATE THAT YOU WISH TO PROTEST THE FINDINGS IN OUR SETTLEMENT OF AUGUST 26, 1957, IT APPEARS THAT YOU MERELY STATE, AS THE BASIS FOR YOUR PROTEST, THAT YOU PLACED THE BID IN GOOD FAITH AND BECAUSE OF THE DISTANCE INVOLVED AND THE INTEGRITY OF THE UNITED STATES GOVERNMENT YOU ACCEPTED THE DESCRIPTION OF LOT NO. 235 AS TRUE, BUT THAT SINCE THE MATERIAL WHICH YOU RECEIVED IS WORTHLESS YOU DO NOT BELIEVE THAT THE ,GOVERNMENT WILL DISALLOW OUR CLAIM.'

THE DEPARTMENT OF THE ARMY ADMITS THAT AN ERROR IN THE UNIT OF MEASUREMENT WAS MADE IN THE DESCRIPTIVE MATTER OF LOT NO. 235 OF SPOT BID INVITATION NO. 38-042-S-57-5. SUCH AN ADMISSION, HOWEVER, WITHOUT MORE, MAY NOT BE ACCEPTED AS RENDERING INAPPLICABLE ALL OF THE OTHER EXPRESS TERMS AND CONDITIONS OF THE SALE TO WHICH YOU AGREED. IN THIS REGARD, YOU ADMIT YOUR FAILURE TO MAKE AN INSPECTION OF THE PHOTOGRAPHIC FILM BUT STILL PURSUE YOUR CLAIM EVEN THOUGH ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION EXPRESSLY PROVIDES, AMONG OTHERS, THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. ADDITION TO THIS THERE ALSO WAS INCORPORATED AS ARTICLE 2 OF SUCH SALE TERMS AND CONDITIONS THE "AS IS," "WHERE IS" PROVISION WHICH EXPRESSLY STIPULATES THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE VARIOUS DESCRIPTIVE ASPECTS OF THE MATERIALS OFFERED FOR SALE AND THAT 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. THUS, SPOT BID INVITATION NO. 38-042-S-57-5 CONTAINED THE USUAL DISCLAIMER OF WARRANTY PROVISIONS WHICH ARE INTENDED TO, AND DO, FULLY PROTECT THE GOVERNMENT IN SUCH CASES WHERE, AS HERE, AN HONEST ERROR HAS BEEN MADE AS TO SOME DETAIL OF THE DESCRIPTIVE MATTER. THAT SUCH AN INTERPRETATION IS PLACED UPON THESE PROVISIONS APPEARS TO BE FULLY SUBSTANTIATED IN THE CASES, AMONG OTHERS, OF 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 AND COMPANY V. UNITED STATES, 66 C.CLS. 424. IN THOSE CASES IT CONSISTENTLY HAS BEEN HELD THAT IN THE ABSENCE OF BAD FAITH, OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE, SUCH LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY BY THE SELLER. YOU DO NOT ALLEGE, NOR IS THERE ANYTHING IN THE RECORD TO SHOW OR EVEN REMOTELY INDICATE, THAT BAD FAITH MAY BE IMPUTED TO THE DEPARTMENT OF THE ARMY IN CONNECTION WITH THE ERRONEOUS DESCRIPTION OF LOT NO. 235. MOREOVER, NOTWITHSTANDING THAT SMALLER UNITS OF THE PHOTOGRAPHIC FILM WERE DELIVERED THAN WAS ADVERTISED FOR SALE, THE FACT REMAINS THAT YOU DID RECEIVE PHOTOGRAPHIC FILM WHICH WAS THE SPECIFIC MATERIAL OFFERED FOR SALE.

IN A CASE OF THIS KIND THE RIGHTS AND LIABILITIES OF THE PARTIES BECOME FIXED UPON THE ACCEPTANCE OF THE BID AND NEITHER OUR OFFICE NOR ANY OFFICER OF THE GOVERNMENT INCLUDING, OF COURSE, ALL ADMINISTRATIVE DISPOSAL OFFICERS DIRECTLY CONNECTED WITH SUCH SALES IS AUTHORIZED TO WAIVE OR RELINQUISH THE RIGHTS WHICH VEST IN THE GOVERNMENT UNDER SUCH TRANSACTIONS.