B-136184, JUN. 2, 1958

B-136184, JUN. 2, 1958

TO GANS SURPLUS TIRE CO.:

REFERENCE IS MADE TO YOUR LETTER OF MAY 7, 1958, WITH ENCLOSURES, REQUESTING REVIEW OF SETTLEMENT DATED MAY 5, 1958, WHICH DISALLOWED YOUR CLAIM FOR $160 ALLEGED TO BE DUE BY REASON OF A MISDESCRIPTION OF THE PROPERTY PURCHASED BY YOU FROM THE NAVAL SUPPLY CENTER, UNITED STATES NAVAL BASE, NORFOLK, VIRGINIA, UNDER INVITATION NO. B-83-58 189, OPENED DECEMBER 5, 1957.

YOU CONTEND THAT THE DISPOSAL SECTION AT NORFOLK, VIRGINIA, DID NOT FURNISH OUR OFFICE THE TRUE STATEMENT OF YOUR LETTERS YOU FORWARDED TO THE NAVAL SUPPLY CENTER; THAT THE COMMANDER IN CHARGE OF THE CENTER DISCOVERED THAT SOME OF THE ITEMS ON WHICH YOU HAD BID AND WHICH WERE ADVERTISED AS TIRES IN UNUSED-GOOD CONDITION WERE USED TIRES AND RECAPS; THAT THIS WAS HIS REASON FOR TELEPHONING YOU SINCE ONE OF THE ITEMS AWARDED YOU, AND NOT HERE INVOLVED, CONSISTED OF USED AND RECAP TIRES; AND THAT HE ASKED YOU WHETHER YOU WOULD BE WILLING TO ACCEPT THEM AT THE BID PRICE OR TO REJECT THE AWARD. ALSO, YOU STATE THAT YOU INQUIRED ABOUT THE ITEMS HERE INVOLVED, NAMELY, NOS. 6463 AND 6465, AS TO WHETHER THE TIRES WERE UNUSED- GOOD AS ADVERTISED; AND THAT HE INFORMED YOU THEY WERE IN THE CONDITION AS ADVERTISED.

THE RECORD SHOWS THAT SEVERAL DAYS PRIOR TO THE OPENING OF BIDS INFORMATION WAS BROUGHT TO THE ATTENTION OF THE DISPOSAL OFFICER REGARDING ERRORS IN DESCRIPTIONS ON SIX ITEMS LISTED IN THE SALE INVITATION IN THAT SOME PORTIONS OF THE TOTAL QUANTITY OF TIRES OF EACH ITEM WERE NOT IN THE CONDITION AS ADVERTISED, BUT WERE ACTUALLY RETREADS. AS TO THESE ITEMS, NOT HERE INVOLVED, THE DISPOSAL OFFICER PERMITTED WITHDRAWAL OF BIDS WHERE INSPECTION HAD NOT BEEN MADE.

THE PROPERTY DISPOSAL OFFICER, IN HIS LETTER OF JANUARY 21, 1958, ADVISED YOU THAT SO FAR AS WAS KNOWN THE TIRES OFFERED UNDER ITEMS NOS. 6463 AND 6465 WERE UNUSED AS ADVERTISED. ALSO, HE REMINDED YOU THAT YOU WERE FULLY AWARE OF THE DISCLAIMER OR WARRANTY CONTAINED IN THE TERMS OF SALE AND THAT THE GOVERNMENT DID NOT "INTENTIONALLY MISREPRESENT MATERIAL" AS WAS EVIDENCED BY THE FACT THAT IN THOSE CASES WHERE IT WAS DISCOVERED PRIOR TO THE OPENING OF BIDS THAT THE DESCRIPTION WAS ERRONEOUS BIDDERS WERE ALLOWED TO WITHDRAW THEIR BIDS IF THEY WERE NOT AWARE OF THE TRUE CONDITION OF THE TIRES. YOUR SPECIFIC ATTENTION WAS INVITED TO THE FACT THAT BIDDERS WERE CAUTIONED TO INSPECT THE MATERIAL OFFERED FOR SALE AND THAT BIDS SUBMITTED WITHOUT INSPECTION WERE AT THE PURCHASER'S OWN RISK. THIS FACT WAS NOT ONLY CONTAINED IN THE TERMS OF THE SALES CONTRACT BUT WAS REPEATED IN VERY BOLD TYPE ACROSS THE TOP OF PAGE ONE OF THE INVITATION TO BID. IN THIS REGARD, YOUR ATTENTION IS INVITED TO PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT WHICH PROVIDES, IN PERTINENT PART, THAT THE MATERIAL IS OFFERED FOR SALE "AS IS" AND "WHERE IS" WITHOUT RECOURSE AGAINST THE GOVERNMENT, AND THAT THE DESCRIPTION IS BASED UPON THE BEST AVAILABLE INFORMATION, BUT THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO KIND, CHARACTER OR QUALITY THEREOF, OR ITS FITNESS FOR ANY USE, AND THAT NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.

IN CONSTRUING THAT CONTRACT STIPULATION IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND BY OUR OFFICE THAT SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND NO WARRANTY MAY BE IMPLIED. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; AND AMERICAN SANITARY RAG CO. V. UNITED STATES, C.CLS. NO. 161-57, DECIDED MAY 7, 1958. THOSE CASES, ALSO INVOLVING A VARIANCE IN THE CONDITION OF THE PROPERTY WITH THAT OF THE DESCRIPTION IN THE INVITATION, CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT, ANY WARRANTIES WHATSOEVER.

IN VIEW OF THE FOREGOING THERE IS NO LEGAL BASIS UPON WHICH ANY PART OF THE PURCHASE PRICE MAY BE REFUNDED, AND THEREFORE THE SETTLEMENT OF MAY 5, 1958, MUST BE SUSTAINED.

RETURNED HEREWITH, AS REQUESTED, ARE THE ENCLOSURES ACCOMPANYING YOUR LETTER.