B-139893, JUL. 9, 1959

B-139893, JUL. 9, 1959

TO THE JAN PACKAGING INC.:

REFERENCE IS MADE TO A LETTER DATED MAY 29, 1959, FROM SAMUEL VOLTAGGIO, COUNSELLOR AT LAW, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE CERTIFICATE OF SETTLEMENT DATED MAY 5, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE PURCHASE PRICE, PLUS FREIGHT CHARGES, ALLEGED TO BE DUE YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED BY YOU FROM THE GOVERNMENT UNDER SALES CONTRACT NO. N164-8244 WITH THE DEPARTMENT OF THE NAVY.

THE CONTENTIONS URGED BY YOU IN THE MATTER HAVE RECEIVED CAREFUL CONSIDERATION AND, FOR THE REASONS SET FORTH IN THE CERTIFICATE OF SETTLEMENT, IT WAS HELD THAT THERE WAS NO LEGAL AUTHORITY FOR THE ALLOWANCE OF YOUR CLAIM. YOU HAVE NOT SUBMITTED ANY INFORMATION OR DATA IN ADDITION TO THAT PREVIOUSLY FURNISHED AND CONSIDERED BY OUR OFFICE, AND UPON A RE-EXAMINATION OF THE RECORD NOTHING IS DISCLOSED WHICH COULD BE ACCEPTED AS REQUIRING A CONCLUSION DIFFERENT FROM THAT PREVIOUSLY REACHED IN THE MATTER.

REGARDING YOUR ALLEGATION THAT THE GOVERNMENT MISREPRESENTED THE MATERIAL SOLD AND DELIVERED TO YOU UNDER THE CONTRACT BECAUSE THE MATERIAL DID NOT MEET THE SPECIFICATIONS SET FORTH UNDER ITEM NO. 62 OF THE BID INVITATION, THE RECORD SHOWS THAT THE DESCRIPTION IN THE INVITATION FOR THE BARRIER MATERIAL UNDER THAT ITEM MADE NO MENTION OF THE FACT THAT THE MATERIAL CONFORMED TO ANY SPECIFICATION, AND IT IS ADMINISTRATIVELY REPORTED THAT THE MATERIAL DELIVERED TO YOU DOES CONFORM TO THE INVITATION DESCRIPTION. CONSEQUENTLY, THERE IS NO BASIS FOR YOUR ALLEGATION OF MISREPRESENTATION BY THE GOVERNMENT OF THE MATERIAL IN QUESTION.

MOREOVER, THE RECORD SHOWS THAT YOU DID NOT MAKE ANY INSPECTION OF THE MATERIAL IN ITEM NO. 62 PRIOR TO SUBMITTING YOUR BID THEREON, AS ALL PROSPECTIVE BIDDERS WERE CAUTIONED TO DO. ACCORDINGLY, THE FACTS IN THE INSTANT CASE FALL SQUARELY WITHIN THE PRINCIPLE OF LAW ANNOUNCED BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 141, WHEREIN THE COURT REJECTED THE PLAINTIFF'S CLAIM AND STATED, AT PAGE 156, THAT:

"THE PLAINTIFF DID NOT TAKE ADVANTAGE OF ITS RIGHT TO INSPECT BUT BOUGHT THE LOT WITHOUT INSPECTING IT.

"UNDER THE TERMS OF THE CATALOGUE IT IS DIFFICULT TO PERCEIVE HOW THE GOVERNMENT COULD HAVE GIVEN PURCHASERS MORE SPECIFIC WARNING THAN IT DID, THAT THEY BOUGHT AT THEIR RISK WHAT MATERIAL IT HAD AND WAS OFFERING FOR SALE; THAT IF A PURCHASER WISHED TO PROTECT HIMSELF HE COULD DO SO BY INSPECTION, FULL OPPORTUNITIES FOR WHICH WERE OFFERED, AND THAT IF HE FAILED TO INSPECT AND RECEIVED SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING HE COULD HAVE NO REDRESS AND COULD NOT CLAIM ALLOWANCES BY REASON THEREOF. MORE THAN THAT, HE WAS DISTINCTLY TOLD THAT FAILURE TO INSPECT WOULD NOT BE CONSIDERED AS A GROUND FOR ADJUSTMENT. IF PLAINTIFF NEGLECTED TO EMBRACE THE OPPORTUNITY OFFERED IT TO INSPECT AND PURCHASED THE PROPERTY WITHOUT DOING SO, WITH NOTICE THAT IT BOUGHT AT ITS OWN RISK, IT CREATED BY ITS OWN NEGLIGENCE THE SITUATION FROM WHICH IT NOW SEEKS RELIEF.'

SEE, ALSO, PAXTON-MITCHELL COMPANY V. UNITED STATES, C.CLS. NO. 109 58, APRIL 8, 1959.

IN VIEW OF THE FOREGOING THE SETTLEMENT DISALLOWING YOUR CLAIM WAS PROPER, AND IS SUSTAINED.