B-138066, SEP. 13, 1960

B-138066, SEP. 13, 1960

TO GINSBURG, LEVENTHAL, BROWN AND MORRISSON:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 17, 1960, WITH ENCLOSURE, REQUESTING, ON BEHALF OF THE BERMAN BROS. IRON AND METAL CO., INC., RECONSIDERATION OF OUR DECISION OF JUNE 1, 1959, WHICH SUSTAINED THE SETTLEMENT OF NOVEMBER 13, 1958, DISALLOWING YOUR CLIENT'S CLAIM FOR PARTIAL REFUND OF AN AMOUNT PAID TO THE DEPARTMENT OF THE AIR FORCE FOR SURPLUS MATERIAL PURCHASED UNDER SALES CONTRACT NO. (01-601) S-58-284, DATED FEBRUARY 24, 1958.

THE BRIEF SUBMITTED WITH YOUR LETTER AGAIN CALLS ATTENTION TO STATEMENTS BY MR. C. D. NORRIS, A COMPANY EMPLOYEE, ALLEGING THAT HE REQUESTED MR. SMITH OF BROOKLEY AIR FORCE BASE TO COUNT THE CYLINDERS DELIVERED TO THE COMPANY AND THAT MR. SMITH REFUSED TO DO SO. IN EFFECT, YOU CONTEND THAT SUCH REFUSAL IS EVIDENCE OF BAD FAITH ON THE PART OF THE GOVERNMENT.

AS INDICATED IN OUR LETTER OF JUNE 1, 1959, THE RECORDS OF THE AIR FORCE SHOW THAT ALL GOVERNMENT PERSONNEL CONCERNED WITH DELIVERY OF THESE ITEMS HAVE BEEN INTERVIEWED AND HAVE STATED THAT AT NO TIME DURING DELIVERY DID MR. C. D. NORRIS, OR ANY OTHER REPRESENTATIVE OF BERMAN ROS., REQUEST A PHYSICAL COUNT OF THE ITEMS. OUR OFFICE, HAVING NO FIRST-HAND KNOWLEDGE OF THE FACTS, MUST NECESSARILY RELY ON THE REPORT OF THE ADMINISTRATIVE OFFICE WITH RESPECT TO THE FACTUAL SITUATIONS ARISING UNDER THE CONTRACT. IN THE EVENT OF CONFLICT IN THE EVIDENCE, OR IN THE ABSENCE OF EVIDENCE SUFFICIENT TO OVERCOME THE PRESUMPTION OF THE CORRECTNESS THEREOF, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACTS AS REPORTED BY THE ADMINISTRATIVE OFFICERS.

NEITHER ARE WE PERSUADED BY YOUR CONTENTION THAT THE CIRCUMSTANCES INDICATE AN UNDERSTANDING BETWEEN THE GOVERNMENT AND YOUR CLIENT THAT THE NUMBER OF CYLINDERS TO BE DELIVERED UNDER EACH LOT SHOULD CORRESPOND WITH THE NUMBERS SET OUT IN THE INVITATION. IN THIS CONNECTION SEE PARAGRAPH J OF THE ADDITIONAL PROVISIONS OF SALE WHICH STATES THAT THE UNIT COUNTS SHOWN ON THE PROPERTY OFFERED FOR SALE WERE FURNISHED FOR INFORMATION PURPOSES ONLY. THE GOVERNMENT MADE NO GUARANTY WHATEVER AS TO THE ACCURACY OF THESE COUNTS, AND SPECIFICALLY WARNED BIDDERS THAT NO CLAIMS WOULD BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT WHERE THE QUANTITY OF PROPERTY DELIVERED FAILED TO CORRESPOND WITH THE UNIT COUNTS. IT IS DIFFICULT TO PERCEIVE HOW CLEARER OR MORE EXPLICIT LANGUAGE COULD HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF THE LISTED ITEMS AT THEIR OWN RISK. UNDER THE PROVISIONS OF THE INVITATION THE BUYERS HAD NO RIGHT TO EXPECT, HAD NOTICE NOT TO EXPECT, AND CONTRACTED NOT TO EXPECT, ANY WARRANTIES WHATEVER. IS THEREFORE APPARENT THAT, INSOFAR AS THE GOVERNMENT WAS CONCERNED, THE INVITATION CONTEMPLATED SALE OF WHATEVER NUMBER OF CYLINDERS WAS IN EACH LOT, REGARDLESS OF WHETHER SUCH NUMBER, UPON DELIVERY, WAS FOUND TO BE LARGER OR SMALLER THAN INDICATED IN THE INVITATION. NEITHER THIS INTENTION NOR THE GOVERNMENT'S LIABILITY WAS SUBJECT TO CHANGE BY ORAL EXPRESSIONS OF OPINION BY GOVERNMENT EMPLOYEES CONCERNING THE NUMBER OF CYLINDERS BELIEVED TO BE CONTAINED IN EACH LOT.

THE LAW WITH RESPECT TO OPERATION OF DISCLAIMERS OF WARRANTY OF THE TYPE INCLUDED IN THE INSTANT INVITATION APPEARS TO BE ADEQUATELY AND CORRECTLY SET OUT IN THE CASES CITED IN OUR DECISION OF JUNE 1, 1959. WE FIND NOTHING IN THE CASE OF GOODE V. RILEY, 28 N.E. 228, OR IN THE VARIOUS DECISIONS OF THIS OFFICE CITED IN YOUR BRIEF, WHICH WOULD INDICATE THAT OUR PREVIOUS RELIANCE UPON SUCH CASES WAS IN ERROR. NOR DOES YOUR BRIEF APPEAR TO PRESENT ANY NEW FACTUAL EVIDENCE WHICH WAS NOT CONSIDERED IN ARRIVING AT OUR PRIOR DECISION.

AS YOU HAVE POINTED OUT, THE SMALL AMOUNT OF THIS CLAIM MAY OPERATE, FROM A PRACTICAL STANDPOINT, TO PRECLUDE RECOURSE TO THE COURTS. HOWEVER, THIS OFFICE HAS NO JURISDICTION TO ALLOW CLAIMS OF THIS NATURE IN THE ABSENCE OF A CLEAR SHOWING THAT THE GOVERNMENT IS LEGALLY LIABLE FOR PAYMENT OF THE CLAIM. IN THIS CASE, IT IS OUR OPINION THAT NO SUCH LIABILITY EXISTS.