B-140107, JUL. 27, 1959

B-140107: Jul 27, 1959

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TO M AND S EXPORT COMPANY: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15. AN AWARD WAS MADE TO YOU ON THIS ITEM BY THE AIR FORCE BASE ON JULY 16. PAYMENT IN FULL WAS MADE BY YOU ON JULY 28. YOUR CHECK WAS RECEIVED BY THE BASE IN PAYMENT FOR THE OVERRUN. THAT THE SOLE BASIS FOR THE REQUEST FOR REVIEW OF OUR SETTLEMENT IS THAT YOU HAD THE RIGHT TO. YOU TAKE THE POSITION THAT WHILE NOT INTENTIONAL THERE WAS BAD FAITH OR MISREPRESENTATION PRESENT IN YOUR CONTRACT. THE EVIDENCE OF RECORD DOES NOT SHOW THAT THE USED SWEATERS RECEIVED BY YOU WERE COMPRISED OF THE 200 OVERRUN. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE ADDITIONAL 200 SWEATERS WERE IN THE SAME CONDITION AS THOSE ORIGINALLY OFFERED FOR SALE.

B-140107, JUL. 27, 1959

TO M AND S EXPORT COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JUNE 15, 1959, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 11, 1959, WHICH DISALLOWED YOUR CLAIM- -- APPARENTLY FOR $262.20--- UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. AF/29-602/S-59-14.

IN RESPONSE TO INVITATION NO. 29-602-S-58-5, ISSUED ON JUNE 9, 1958, BY THE WALKER AIR FORCE BASE, NEW MEXICO, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM NO. 3, COVERING 800 UNUSED WOOLEN SWEATERS AT $1.311 EACH, OR FOR A TOTAL PRICE OF $1,048.40. AN AWARD WAS MADE TO YOU ON THIS ITEM BY THE AIR FORCE BASE ON JULY 16, 1958, RESULTING IN CONTRACT NO. AF/29- 602/S-59-14, AND PAYMENT IN FULL WAS MADE BY YOU ON JULY 28, 1958. BY A WIRE MESSAGE DATED JULY 31, 1958, THE BASE PROCUREMENT OFFICE ADVISED YOU OF THE AVAILABILITY OF A 25 PERCENT OVERRUN OF THE SWEATERS COVERED BY ITEM NO. 3 AND ON AUGUST 11, 1958, YOUR CHECK WAS RECEIVED BY THE BASE IN PAYMENT FOR THE OVERRUN. IN A LETTER DATED OCTOBER 23, 1958, YOU ADVISED THE BASE PROCUREMENT OFFICE THAT YOU DID NOT RECEIVE UNUSED SWEATERS BUT RATHER RECEIVED TORN SWEATERS, PARTS OF SWEATERS, USED UNDERWEAR AND JUST PLAIN GARBAGE. AS A RESULT, YOU CLAIM, IN YOUR LETTER OF NOVEMBER 10, 1958, SOME FORM OF COMPENSATION FOR THE ADDITIONAL 200 USED AND TORN SWEATERS DELIVERED TO YOU.

IT APPEARS FROM YOUR LETTER OF JUNE 15, 1959, THAT THE SOLE BASIS FOR THE REQUEST FOR REVIEW OF OUR SETTLEMENT IS THAT YOU HAD THE RIGHT TO, BUT DID NOT, RECEIVE 200 ADDITIONAL SWEATERS IN THE SAME UNUSED CONDITION AS THE ORIGINAL 800 SWEATERS SOLD TO YOU. YOU TAKE THE POSITION THAT WHILE NOT INTENTIONAL THERE WAS BAD FAITH OR MISREPRESENTATION PRESENT IN YOUR CONTRACT. IN THIS CONNECTION, THE EVIDENCE OF RECORD DOES NOT SHOW THAT THE USED SWEATERS RECEIVED BY YOU WERE COMPRISED OF THE 200 OVERRUN. THE DEPARTMENT OF THE AIR FORCE REPORTS THAT THE ADDITIONAL 200 SWEATERS WERE IN THE SAME CONDITION AS THOSE ORIGINALLY OFFERED FOR SALE. IN VIEW THEREOF, IT IS JUST AS REASONABLE TO ASSUME THAT THE USED SWEATERS WERE INCLUDED IN THE ORIGINAL OFFERING OF 800 SWEATERS AS TO ASSUME THAT THEY WERE COMPRISED ONLY OF THE OVERRUN OF 200.

ASIDE FROM THAT, THE FACTS CLEARLY SUPPORT THE CONCLUSION THAT THE SALE OF THE 25 PERCENT OVERRUN OF THE 200 SWEATERS TO YOU WAS SO CLOSELY ASSOCIATED IN ALL DETAILS WITH THE SALE OF THE ORIGINAL QUANTITY OF 800 SWEATERS WAS TO BE CONSIDERED AS ONE AND THE SAME TRANSACTION UNDER THE CONTRACT. IN FACT, UNDER PARAGRAPH 19 OF THE ADDITIONAL SALE TERMS AND CONDITIONS THE GOVERNMENT RESERVED THE RIGHT TO VARY THE QUANTITY UP TO 25 PERCENT IN EXCESS OF THAT STATED IN THE INVITATION FOR BIDS. IT IS OBVIOUS FROM YOUR CONTENTIONS IN THE MATTER THAT YOU CONCUR IN THIS DETERMINATION. THIS BEING THE CASE, THE ENTIRE QUANTITY OF 1,000 SWEATERS SOLD TO YOU WAS SUBJECT TO ALL OF THE TERMS AND CONDITIONS SET FORTH IN THE CONTRACT OF SALE INCLUDING, OF COURSE, THE USUAL DISCLAIMER OF WARRANTY PROVISION. IN THIS CONNECTION, IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION; BUT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THIS CASE--- NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD, AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE, IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424. WHILE IT IS ADMITTED, AS CONTENDED BY YOU, THAT INVITATION NO. 29-602-S-58 -5 EXPRESSLY DESCRIBED THE SWEATERS AS UNUSED, THE DISCLAIMER OF WARRANTY PROVISION ALSO EXPRESSLY STIPULATED, AMONG OTHERS, THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, ETC., EITHER OF THE DESCRIPTIONS USED IN THE INVITATION OR OF THE FITNESS OF THE PROPERTY BEING SOLD FOR ANY USE OR PURPOSE. UNDER SUCH CONDITIONS, THE DESCRIPTIONS OF PROPERTY APPEARING IN SALE INVITATIONS OF THIS KIND REPRESENT NOTHING MORE THAN A MERE EXPRESSION OF OPINION OF THE GOVERNMENT AS TO WHAT IT BELIEVES THE PROPERTY, OR THE CONDITION THEREOF, TO BE AND, IN THE ABSENCE OF BAD FAITH OR FRAUD -- NOT SHOWN TO HAVE BEEN PRESENT--- THE GOVERNMENT INCURS NO LEGAL OBLIGATION SHOULD IT LATER BE ESTABLISHED THAT AN HONEST ERROR IN JUDGMENT WAS MADE WITH RESPECT TO SOME DETAIL OF THE DESCRIPTION USED.

REGARDING YOUR STATEMENT THAT UNDERWEAR AND OTHER ITEMS WERE INCLUDED IN THE SHIPMENT OF THE SWEATERS TO YOU, THE CHIEF OF THE REDISTRIBUTION AND MARKETING SECTION OF THE DEPOT, WHO COUNTED AND PACKED THE SWEATERS IN ORDER TO EXPEDITE THE SHIPMENT, HAS STATED THAT THERE WERE NO PARTS OF SWEATERS OR UNDERWEAR INCLUDED IN THE SHIPMENT.