B-140225, AUG. 11, 1959

B-140225: Aug 11, 1959

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TO BEN SADOFF IRON AND METAL COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JUNE 30. B-89-59-228 BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS LOTS OF SCRAP MATERIALS. YOUR BID WAS ACCEPTED AS TO BOTH ITEMS. - ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND . WHERE IS. " AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED. THIS IS NOT A SALE BY SAMPLE.'. YOU ADVISED THE DISPOSAL AGENCY THAT THERE WAS A VARIATION BETWEEN THE WEIGHT OF THE BOXES DELIVERED AND THE WEIGHT SHOWN IN THE DESCRIPTION OF ITEM NO. 22 AND YOU CLAIMED AN ADJUSTMENT FOR AN OVERAGE IN DUNNAGE WEIGHT OF 480.

B-140225, AUG. 11, 1959

TO BEN SADOFF IRON AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 30, 1959, REQUESTING RECONSIDERATION OF SETTLEMENT DATED JUNE 19, 1959, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF AN UNSTATED AMOUNT AS OVERAGE IN WEIGHT DELIVERED ON ITEM 22A UNDER CONTRACT NO. N228S-36225, DATED OCTOBER 27, 1958.

BY INVITATION NO. B-89-59-228 BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS LOTS OF SCRAP MATERIALS. IN RESPONSE, YOU SUBMITTED A BID OF $4,957.80 ON ITEM NO. 14 AND $15,679.95 ON ITEM NO. 22A, THE ITEM UNDER DISPUTE, DESCRIBED IN THE INVITATION AS CONSISTING OF ALL MATERIAL LISTED AND DESCRIBED IN ITEMS 20 AND 22, INCLUSIVE, AMOUNTING TO 2,193 SHORT TONS. YOUR BID WAS ACCEPTED AS TO BOTH ITEMS. THE RECORD DISCLOSES THAT YOU RECEIVED 2,298.321 SHORT TONS UNDER ITEM NO. 22A FOR WHICH YOU PAID THE CONTRACT PRICE OF $7.15 PER TON.

THE INVITATION CONTAINED THE "GENERAL SALE TERMS AND CONDITIONS," THE PERTINENT PROVISIONS OF WHICH READ AS FOLLOWS:

2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

SUBSEQUENT TO DELIVERY, YOU ADVISED THE DISPOSAL AGENCY THAT THERE WAS A VARIATION BETWEEN THE WEIGHT OF THE BOXES DELIVERED AND THE WEIGHT SHOWN IN THE DESCRIPTION OF ITEM NO. 22 AND YOU CLAIMED AN ADJUSTMENT FOR AN OVERAGE IN DUNNAGE WEIGHT OF 480,000 POUNDS BASED ON THE AVERAGE WEIGHT OF BOXES REMOVED AND THE WEIGHT AS DESCRIBED IN THE INVITATION TO BID. YOUR CLAIM WAS DENIED ADMINISTRATIVELY AND SUBSEQUENTLY FORWARDED TO THE CLAIMS DIVISION OF OUR OFFICE WHERE IT WAS DISALLOWED BY THE SETTLEMENT OF JUNE 19, 1959, FOR THE REASONS SET FORTH THEREIN.

IN REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT THE METHOD IN WHICH THE MATERIAL WAS STORED PREVENTED A THOROUGH INSPECTION PRIOR TO BIDDING; THAT YOU WERE ADVISED THAT THE ACTUAL GROSS WEIGHT OF THE BOXES DESCRIBED IN ITEM NO. 22 WAS 52 POUNDS EACH; AND THAT YOUR BID WAS SUBMITTED ACCORDINGLY. IN THIS CONNECTION, YOU CONTEND THAT YOU SHOULD NOT BE PENALIZED IF THE STOCK RECORDS DID NOT SHOW WHAT ACTUALLY WAS IN THE WAREHOUSES.

IN DISPOSING OF SURPLUS MATERIALS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS IGNORANT OF THE CONDITION, QUANTITY, WEIGHT, ETC., OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE "AS IS" TERMS OF THE CONTRACT, QUOTED ABOVE. FURTHERMORE, THE DESCRIPTION OF THE MATERIAL OFFERED FOR SALE IN THE PRESENT CASE WAS BASED ON THE "BEST INFORMATION AVAILABLE" AND INCLUDED THE STATEMENT THAT THE WEIGHT SHOWN WAS GROSS WEIGHT AND NO DEDUCTION WOULD BE MADE FOR THE WEIGHT OF CONTAINERS. THUS, UNDER THE CLEAR TERMS OF THE CONTRACT YOU AGREED TO ASSUME THE RISK AS TO THE WEIGHT OF THE MATERIAL SOLD AS ONE OF THE ELEMENTS OF THE BARGAIN. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT HELD THAT THE TERMS OF THE SALE CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS," PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.

THERE IS NO INDICATION IN THE PRESENT CASE THAT THE INVITATION WAS NOT PREPARED IN GOOD FAITH OR THAT THERE WAS BETTER INFORMATION AVAILABLE TO THE GOVERNMENT. THE MERE FACT THAT THE DISPOSAL OFFICER MAY HAVE HAD AN ERRONEOUS UNDERSTANDING AS TO THE WEIGHT OF THE SURPLUS MATERIAL DOES NOT ENTITLE YOU TO RELIEF. SEE HOOVER V. UTAH NURSERY COMPANY, 7 F.2D 270.

ON THE BASIS OF THE FACTS AND EVIDENCE PRESENTLY OF RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE PURCHASE PRICE, OR FOR AUTHORIZING ANY ADJUSTMENT WHATEVER IN THE PRICE FIXED IN THE CONTRACT FOR THE MATERIAL INVOLVED. ACCORDINGLY, THE SETTLEMENT OF JUNE 19, 1959, IS SUSTAINED.