B-139274, DEC. 8, 1959

B-139274: Dec 8, 1959

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TO THE WHOLESALE AIRCRAFT PARTS CO.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 2. IT IS CONTENDED. WHICH WAS THE SUBJECT MATTER OF THE ABOVE-CITED CONTRACT. WAS DESCRIBED THEREIN AS "PUMP ASSY. THE CONTRACT WAS AWARDED ON JULY 11. YOU NOTIFIED THE CONTRACTING OFFICER THAT UPON A MORE THOROUGH EXAMINATION THE PUMPS WERE FOUND TO BE IN USED CONDITION. THE PUMP ASSEMBLIES HAVE BEEN BENCH CHECKED. OUR RECORDS INDICATE THE PUMPS HAVE NEVER BEEN USED ON AIRCRAFT EVIOUSLY.'. YOU AGAIN ADDRESSED A LETTER TO THE CONTRACTING OFFICER WHEREIN YOU STATED THAT THE PUMPS WERE IDENTIFIED IN THE INVITATION AS PF 17-3911-25EG. WHEREAS THE ASSEMBLIES RECEIVED ACTUALLY WERE P/N PF14-3911-25EG. WE WOULD HAVE SEEN THAT A PERSONAL INSPECTION WAS MADE.

B-139274, DEC. 8, 1959

TO THE WHOLESALE AIRCRAFT PARTS CO.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 2, 1959, AND OURS OF SEPTEMBER 29, 1959, RELATIVE TO YOUR PROTEST AGAINST THE ACTION TAKEN BY THE CLAIMS DIVISION OF OUR OFFICE IN SETTLEMENT DATED MAY 20, 1959, WHICH DISALLOWED YOUR CLAIM FOR $953.87, REPRESENTING THE PURCHASE PRICE PAID FOR A QUANTITY OF PUMP ASSEMBLIES UNDER SALES CONTRACT NO. (09-603/S-59-147, ISSUED BY ROBINS AIR FORCE BASE. IT IS CONTENDED, IN SUBSTANCE, THAT BECAUSE OF THE GROSS MISDESCRIPTION OF THE ARTICLES IN THE INVITATION THE CONTRACT SHOULD BE CANCELLED AND THE PURCHASE PRICE REFUNDED.

ITEM NO. 108 OF INVITATION FOR BIDS NO. 09-603-S-58-62, WHICH WAS THE SUBJECT MATTER OF THE ABOVE-CITED CONTRACT, WAS DESCRIBED THEREIN AS "PUMP ASSY., HYDRAULIC, ENGINE DRIVEN, PN PP17-3911-2520, MFG. BY VICKERS, INC., APPLICABLE TO C74 AIRCRAFT. UNUSED, GOOD CONDITION.' THE CONTRACT WAS AWARDED ON JULY 11, 1958, AND, THEREAFTER, BY LETTER OF JULY 23, 1958, YOU NOTIFIED THE CONTRACTING OFFICER THAT UPON A MORE THOROUGH EXAMINATION THE PUMPS WERE FOUND TO BE IN USED CONDITION. BY LETTER OF AUGUST 5, 1958, THE CONTRACTING OFFICER INFORMED YOU THAT "ACCORDING TO INFORMATION FURNISHED ON IDENTIFICATION TAGS, THE PUMP ASSEMBLIES HAVE BEEN BENCH CHECKED, ALL RUBBER GASKETS REPLACED, AND INTERNAL PRESERVATION ACCOMPLISHED. EVEN THOUGH ONE MIGHT CONSTRUE THE PUMPS TO BE USED, OUR RECORDS INDICATE THE PUMPS HAVE NEVER BEEN USED ON AIRCRAFT EVIOUSLY.'

UNDER DATE OF SEPTEMBER 16, 1959, YOU AGAIN ADDRESSED A LETTER TO THE CONTRACTING OFFICER WHEREIN YOU STATED THAT THE PUMPS WERE IDENTIFIED IN THE INVITATION AS PF 17-3911-25EG, WHEREAS THE ASSEMBLIES RECEIVED ACTUALLY WERE P/N PF14-3911-25EG. BECAUSE OF THE MISDESCRIPTION YOU CONTENDED THAT AUTHORITY SHOULD BE GRANTED FOR THE RETURN OF THE PUMPS AND REFUND MADE OF THE PURCHASE PRICE. IN YOUR APPEAL LETTER OF JUNE 2, 1959, YOU STATE THAT IF WE HAD REFERRED TO YOUR LETTER OF JULY 23, 1958, WE WOULD HAVE SEEN THAT A PERSONAL INSPECTION WAS MADE. ALSO, YOU STATE THAT IN A PREVIOUS CASE INVOLVING SOMEWHAT SIMILAR CIRCUMSTANCES YOU WERE PERMITTED TO RETURN THE ARTICLES AND REFUND WAS MADE BY THE CLAIMS DIVISION OF OUR OFFICE.

IN YOUR LETTER OF SEPTEMBER 16, 1958, TO THE CONTRACTING OFFICER, YOU STATED THAT "THE YELLOW TAGS ON 12 OF THE CANS STATE PF17-3911 25EG, HOWEVER, UPON OPENING THEM IT WAS FOUND THAT THE PUMPS WERE ACTUALLY PF14'S AND THE YELLOW TAGS INSIDE THE CANS WHICH ARE ATTACHED TO THE PUMPS READ PF14'S ALSO. THE OTHER 5 CANS ARE MARKED PF14'S BOTH ON THE OUTSIDE AND INSIDE TAGS.' CERTAINLY, AN INSPECTION OF THE LOT BEFORE PREPARING YOUR BID WOULD HAVE READILY DISCLOSED THE FACT, AS YOU HAVE STATED, THAT FIVE OF THE CANS WERE MARKED "PF14-S" ON THE OUTSIDE, AND, IN OUR OPINION, WOULD HAVE AFFORDED REASONABLE GROUNDS FOR QUESTIONING WHETHER THE PUMPS WERE AS ADVERTISED. IN VIEW THEREOF, AND HAVING REGARD FOR THE STATEMENT CONTAINED IN YOUR LETTER OF JULY 23, 1958,--- WHICH REFERS PRIMARILY TO AN INSPECTION MADE AFTER RECEIPT BY YOU OF NOTICE OF ACCEPTANCE OF YOUR BID-- - THE CONCLUSION IS REQUIRED THAT A REASONABLE INSPECTION OF THE EQUIPMENT WAS NOT UNDERTAKEN BY YOU OR BY YOUR LOCAL AGENT BEFORE BIDDING DESPITE THE ALLEGATION IN YOUR LETTER OF JUNE 2, 1959.

IN THE RECENT CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, C.CLS. NO. 109-58, DECIDED APRIL 8, 1959, WHICH INVOLVED SOMEWHAT SIMILAR CIRCUMSTANCES, THE COURT STATED IN PERTINENT PART AS FOLLOWS:

"A BIDDER FAILS TO INSPECT AT HIS PERIL. HAD PLAINTIFF MADE AN INSPECTION BEFORE MAKING ITS BID, AS IT DID AFTERWARDS, IT COULD HAVE DISCOVERED THAT MUCH OF THE MATERIAL WAS MALLEABLE IRON. VISUAL INSPECTION WAS INEFFECTUAL, BUT MICROSCOPIC INSPECTION WAS EFFECTUAL, AS WAS ALSO CHEMICAL ANALYSIS. PLAINTIFF WAS REQUIRED TO MAKE THE SORT OF INSPECTION THAT WAS EFFECTUAL. IT MADE NONE, NOT EVEN A VISUAL INSPECTION. ITS FAILURE TO DO SO LEAVES NO ROOM TO COMPLAIN.'

THE COURTS HAVE POINTED OUT IN SUCH CASES THAT IN DISPOSING OF SURPLUS GOODS THE GOVERNMENT, ON OCCASION, IS UNAWARE OF THE QUALITY OR CONDITION OF THE COMMODITIES IT SELLS. THE IMPLIED WARRANTY WHICH GENERALLY IS IMPOSED BY LAW IN CONNECTION WITH SUCH TRANSACTIONS IS NOT FOR APPLICATION IN THESE CASES, SINCE, IN THE DISPOSITION OF EXCESS OR OBSOLETE MATERIALS AND SUPPLIES, THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE OR BUSINESS. IT IS FOR THAT REASON THAT PROSPECTIVE BIDDERS ARE 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 SONS, INC., V. UNITED STATES, 69 C.CLS. 412; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 99; SAYDER 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 TERMS OF YOUR CONTRACT CONTAINED THAT PROVISION, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER ACTED OTHER THAN IN GOOD FAITH.

WITH RESPECT TO THE CASE TO WHICH YOU REFER AS A PRECEDENT FOR ALLOWANCE OF THE INSTANT CLAIM, THE RECORD SHOWS THAT UNDER CONTRACT NO. (01-601/S- 58-407, YOU PURCHASED A QUANTITY OF GENERATORS FROM BROOKLEY AIR FORCE BASE. BY LETTER OF JUNE 18, 1958, YOU NOTIFIED THE CONTRACTING OFFICER THAT THE LOT OF GENERATORS IDENTIFIED AS ITEM NO. 8 IN THE INVITATION WERE PERSONALLY INSPECTED BY YOUR MR. ROBERT MILLER AND FOUND TO BE NEW AND UNUSED, WHEREAS THE GENERATORS ACTUALLY DELIVERED WERE ACKNOWLEDGED TO HAVE BEEN "USED, BURNED, RUSTED, AND BROKEN.' OBVIOUSLY, THAT TRANSACTION DID NOT INVOLVE A MISDESCRIPTION OF THE GOODS, BUT RATHER WAS A CLEAR CASE OF MISDELIVERY RESULTING FROM THE CONFUSING OF TWO LOTS OF GENERATORS. FURTHERMORE, WITHOUT REGARD TO THE RELATIVE MERITS OF THAT CASE, THE MATTER WAS NOT REFERRED TO OUR OFFICE UNTIL AFTER ACCEPTANCE OF THE RETURNED EQUIPMENT BY THE DISPOSAL OFFICERS AND POSSIBLE DISPOSITION THEREOF TO OTHER PURCHASERS. IN VIEW OF THOSE FACTS AND CIRCUMSTANCES, AND IN CONSIDERATION OF THE SMALL AMOUNT INVOLVED, IT WAS FOUND TO BE IN THE BEST INTERESTS OF THE UNITED STATES TO TREAT THE CONTRACT AS HAVING BEEN RESCINDED, NOTWITHSTANDING THE DOUBT AS TO THE CONTRACTING OFFICER'S AUTHORITY FOR THE ACTION TAKEN. IN ANY EVENT, SINCE THE MATERIAL FACTS RELATIVE TO THE TWO CASES CLEARLY ARE DISSIMILAR, THERE IS NO JUSTIFICATION FOR CONSIDERING THE PRIOR ALLOWANCE AS A CONTROLLING PRECEDENT FOR THE INSTANT CLAIM.

IN VIEW OF THE FACTS OF RECORD AND THE APPLICABLE LAW, THERE IS NO LEGAL BASIS UPON WHICH WE MAY AUTHORIZE REFUND OF ANY PART OF THE AMOUNT HEREIN CLAIMED.