B-134322, DEC. 5, 1957

B-134322: Dec 5, 1957

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22. YOU REQUEST TO BE ADVISED TO WHOM THIS MATTER MAY BE APPEALED IN THE EVENT APPROPRIATE ADJUSTMENT IS NOT EFFECTED. IT IS NOTED FROM THE RECORD THAT YOUR OFFER WAS SUBMITTED WITHOUT PRIOR INSPECTION OF THE ARTICLES. THE FACTS IN THIS CASE ARE SOMEWHAT SIMILAR TO THOSE CONSIDERED MANY TIMES BY THE COURTS WHERE IT HAS BEEN POINTED OUT IN THE DECISIONS THAT FREQUENTLY THE DESCRIPTION OF SURPLUS GOODS TO BE SOLD BY GOVERNMENT AGENCIES FOR REASONS OF NECESSITY IS TAKEN FROM INVENTORY RECORDS. THE GOVERNMENT ON OCCASION IS UNAWARE OF THE QUALITY OR CONDITION OF THE SURPLUS COMMODITIES IT SELLS. PROSPECTIVE BIDDERS WERE APPRISED OF THE FACT THAT THE PROPERTY IS TO BE SOLD WITHOUT ANY WARRANTY WHATEVER AS TO THE DESCRIPTION THEREOF IN THE INVITATION.

B-134322, DEC. 5, 1957

TO HUB APPAREL, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 22, 1957, AND ENCLOSURE, PROTESTING THE ACTION TAKEN BY THE CLAIMS DIVISION OF OUR OFFICE IN DISALLOWING YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE PAID FOR A QUANTITY OF JACKETS SOLD BY LORING AIR FORCE BASE, LIMESTONE, MAINE, UNDER SALES CONTRACT NO. AF 17/600-S-41). ALSO, YOU REQUEST TO BE ADVISED TO WHOM THIS MATTER MAY BE APPEALED IN THE EVENT APPROPRIATE ADJUSTMENT IS NOT EFFECTED.

WITH RESPECT TO YOUR CONTENTION THAT THE JACKETS DID NOT CONFORM TO THE DESCRIPTION THEREOF SET FORTH UNDER ITEM NO. 86 OF THE INVITATION, IT IS NOTED FROM THE RECORD THAT YOUR OFFER WAS SUBMITTED WITHOUT PRIOR INSPECTION OF THE ARTICLES, WHEREAS NONE OF THE OTHER BIDDERS ALLEGED MISDESCRIPTION AFTER THEY HAD INSPECTED THE GOODS. THE FACTS IN THIS CASE ARE SOMEWHAT SIMILAR TO THOSE CONSIDERED MANY TIMES BY THE COURTS WHERE IT HAS BEEN POINTED OUT IN THE DECISIONS THAT FREQUENTLY THE DESCRIPTION OF SURPLUS GOODS TO BE SOLD BY GOVERNMENT AGENCIES FOR REASONS OF NECESSITY IS TAKEN FROM INVENTORY RECORDS. AND, NOT BEING ENGAGED IN NORMAL TRADE OR BUSINESS IN THE DISPOSITION OF SUCH MATERIALS OR SUPPLIES, THE GOVERNMENT ON OCCASION IS UNAWARE OF THE QUALITY OR CONDITION OF THE SURPLUS COMMODITIES IT SELLS. FOR THAT REASON, AS IN THIS CASE, PROSPECTIVE BIDDERS WERE APPRISED OF THE FACT THAT THE PROPERTY IS TO BE SOLD WITHOUT ANY WARRANTY WHATEVER AS TO THE DESCRIPTION THEREOF IN THE INVITATION, AND ANY RISK IN THAT REGARD MUST, UNDER THE TERMS OF THE AGREEMENT BETWEEN THE PARTIES, BE ASSUMED BY THE PURCHASER. SEE, SILBERSTEIN AND SON, INC. V. UNITED STATES, 69 C.CLS. 412; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; SNYDER CORP. V. UNITED STATES, 68 C.CLS. 667; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676.

THE RECORD FURTHER DISCLOSES THAT YOUR BID WAS ACCEPTED BY THE CONTRACTING OFFICER IN GOOD FAITH WITHOUT KNOWLEDGE THAT YOU HAD FAILED TO AVAIL YOURSELF OF THE OPPORTUNITY OF INSPECTING THE JACKETS PRIOR TO THE PREPARATION OF YOUR BID. MOREOVER, SINCE YOUR OFFER WAS NOT MATERIALLY OUT OF LINE WITH OTHER BIDS RECEIVED THERE IS NO JUSTIFICATION FOR CONCLUDING THAT THE EXECUTED CONTRACT WAS UNCONSCIONABLE. ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHT AND LIABILITIES OF THE PARTIES. UNITED STATES V. PURCELL ENVELOPE CO. 249 U.S. 313; AMERICAN SMELTING AND REFINING CO. V. UNITED STATES, 259 U.S. 75.

ACCORDINGLY, UNDER THE FACTS OF RECORD AND APPLICABLE LAW THERE IS NO LEGAL BASIS UPON WHICH WE MAY AUTHORIZE RESCISSION OF THE CONTRACT, OR DIRECT THE REFUND OF ANY PART OF THE PURCHASE PRICE PAID FOR THE JACKETS.

WITH RESPECT TO YOUR REQUEST FOR INFORMATION AS TO WHOM THIS SETTLEMENT AND DECISION MAY BE APPEALED, YOU ARE ADVISED THAT THE HOLDING IN THIS AND SIMILAR CASES PROPERLY FOR CONSIDERATION BY THE GENERAL ACCOUNTING OFFICE UNDER EXISTING LAW ARE BINDING UPON ALL OF THE EXECUTIVE DEPARTMENTS AND AGENCIES OF THE GOVERNMENT (31 U.S.C. 71 ET SEQ.), AND ARE SUBJECT TO REVIEW ONLY BY THE UNITED STATES COURT OF CLAIMS AND THE FEDERAL DISTRICT COURTS. 28 U.S.C. 1346 AND 1491.