B-135206, FEB. 28, 1958

B-135206, FEB. 28, 1958

TO BRUNSWICK AUTO SUPPLY CO.:

REFERENCE IS MADE TO LETTERS DATED NOVEMBER 20, 1957, AND JANUARY 16, 1958, FROM MR. EDWARD S. GERBER, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 4, 1957, WHICH DISALLOWED YOUR CLAIM FOR $440.40 ALLEGED TO BE DUE BY REASON OF LOSS SUSTAINED IN CONNECTION WITH THE PURCHASE OF MATERIAL FROM THE DEPARTMENT OF THE NAVY, UNDER CONTRACT NO. N228S-19925, DATED MAY 20, 1957.

UNDER THE CITED CONTRACT YOU WERE AWARDED ITEM 46 OF THE INVITATION, DESCRIBED AS ONE (1) LOT OF AUTO PARTS FOR THE PRICE OF $863.99. PAYMENT FOR THE ITEM WAS RECEIVED AND DELIVERY THEREOF WAS MADE TO YOU. IN A LETTER DATED JULY 3, 1957, TO THE ADMINISTRATIVE AGENCY, YOU STATED THAT THE SUPPLIES OFFERED FOR SALE WERE DIFFERENT FROM THE DESCRIPTION CONTAINED IN THE INVITATION, AND YOU ALSO CLAIMED A SHORTAGE OF VARIOUS INDIVIDUAL ITEMS WITHIN THE LOT. BY REASON THEREOF, YOU REQUESTED A REFUND OF $440.40.

IN THE GENERAL SALES TERMS AND CONDITIONS, ON PAGE 2 OF THE INVITATION, PROSPECTIVE BIDDERS WERE URGED TO INSPECT THE PROPERTY PRIOR TO SUBMISSION OF BIDS AND UNDER PARAGRAPH 2 IT WAS CLEARLY STATED THAT THE SALE WAS ON AN "AS IS" AND "WHERE IS" BASIS WITHOUT GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, AMONG OTHER THINGS, AS TO QUANTITY, KIND, OR DESCRIPTION OF THE PROPERTY. ALSO, BIDDERS WERE WARNED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, AND THAT IN THE EVENT OF ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER, NO ADJUSTMENT FOR SUCH VARIATION WOULD BE MADE WHEN AN AWARD WAS MADE ON A "PRICE FOR THE LOT" BASIS.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT AN EXPRESS DISCLAIMER OF WARRANTY, SUCH AS IN THIS CASE, VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. SEE W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; UNITED STATES V. KELLY, 112 F.SUPP. 831; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67. THE LAST MENTIONED CASE INVOLVED AN ,AS IS" SALE OF CLOTH BY THE GOVERNMENT UNDER AN INVITATION WHICH GAVE THE WEIGHT PER YARD OF THE MATERIALS. IT TURNED OUT THAT THE MATERIALS DID NOT CONFORM TO THE SPECIFIED WEIGHT. IN DENYING THE PLAINTIFF RECOVERY, THE UNITED STATES SUPREME COURT HELD THAT THE GIVEN WEIGHT COULD NOT BE CONSIDERED AS A WARRANTY UNDER THE ADVERTISED TERMS OF THE SALE. ALSO, IN LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, AN AGENT OF THE GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK AT SEVERAL LOCATIONS, SETTING FORTH THE WEIGHTS AND KINDS OF EACH. ALTHOUGH THE QUANTITIES TURNED OUT TO BE MUCH LESS THAN THOSE SHOWN IN THE ADVERTISEMENT, THE PLAINTIFFS WERE HELD NOT TO HAVE ANY CAUSE OF ACTION, SINCE, AS STATED BY THE COURT, THE MENTIONING OF THE QUANTITIES "CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.'