B-140235, AUG. 5, 1959

B-140235: Aug 5, 1959

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 25. BY INVITATION NO. 28-013-S-58-93 BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS SCRAP MATERIALS. WHICH WAS THE HIGHEST OF SIX BIDS COVERING A RANGE FROM $4. WAS ACCEPTED AND. DELIVERY OF THE MATERIAL WAS EFFECTED. " THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS: "2. - 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.

B-140235, AUG. 5, 1959

TO LARIS BROTHERS AND COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 25, 1959, REQUESTING RECONSIDERATION OF SETTLEMENT DATED APRIL 29, 1959, WHICH DISALLOWED YOUR CLAIM FOR $6,262.20 AS A REFUND OF A PORTION OF THE PRICE WHICH YOU PAID THE DEPARTMENT OF THE ARMY FOR SURPLUS MATERIAL PURSUANT TO CONTRACT NO. DA/A/28-013-AI-42, DATED JULY 22, 1958.

BY INVITATION NO. 28-013-S-58-93 BIDS WERE REQUESTED FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS SCRAP MATERIALS. IN RESPONSE, YOU SUBMITTED A BID OF $80,350.92 FOR ITEM NO. 7, DESCRIBED IN THE INVITATION AS ONE LOT OF SPRINGS, VOLUTE G102, CONSISTING OF APPROXIMATELY 144,889 EACH, USED, APPROXIMATE WEIGHT 5,650,671 POUNDS. YOUR BID, WHICH WAS THE HIGHEST OF SIX BIDS COVERING A RANGE FROM $4,347.84 TO THE NEXT HIGHEST BID OF $72,037, WAS ACCEPTED AND, UPON THE PAYMENT OF $80,350.92, THE FULL CONTRACT CONSIDERATION, DELIVERY OF THE MATERIAL WAS EFFECTED.

THE INVITATION CONTAINED THE "GENERAL SALE TERMS AND CONDITIONS," THE PERTINENT PROVISIONS OF WHICH ARE 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.'

"8. ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT.--- ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER WILL BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED FOR SUCH ITEM; BUT NO ADJUSTMENT FOR SUCH VARIATION WILL BE MADE WHERE AN AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS.'

SUBSEQUENT TO DELIVERY, YOU ADVISED THE DISPOSAL AGENCY THAT ONLY 133,597 PIECES WERE RECEIVED--- A SHORTAGE OF 11,292--- ON THE BASIS OF WHICH YOU SUBMITTED A CLAIM FOR $6,262.20, REPRESENTING THE VALUE OF 11,292 PIECES AT ?55457 EACH, WHICH FIGURE YOU APPARENTLY USED IN MAKING YOUR LOT BID OF $80,350.92. YOUR CLAIM WAS FORWARDED TO THIS OFFICE AND DISALLOWED BY THE SETTLEMENT OF APRIL 29, 1959, FOR THE REASONS SET FORTH HEREIN.

IN REQUESTING REVIEW OF THE SETTLEMENT YOU STATE THAT THE GOVERNMENT MADE A MISTAKE IN ITS ESTIMATE OF THE TOTAL NUMBER OF UNITS IN THE LOT; THAT THE SHORTAGE OF CLOSE TO 10 PERCENT WAS MORE THAN "APPROXIMATE," AS ADVERTISED; THAT THE MANNER IN WHICH THE PROPERTY WAS STORED MADE IT IMPOSSIBLE UPON INSPECTION TO PROPERLY ESTIMATE THE NUMBER OF SPRINGS; AND THAT YOUR BID WAS APPROXIMATELY $8,000 MORE THAN THAT OF THE NEXT HIGHEST BIDDER.

AT THE OUTSET, IT MAY BE STATED THAT THE CONCEPT OF MUTUAL MISTAKE HAS GENERALLY NO PROPER APPLICABILITY TO CONTRACTS OF SALE OF GOVERNMENT PROPERTY CONTAINING THE STANDARD DISCLAIMER OF WARRANTY CLAUSE SUCH AS USED IN THE PRESENT CASE. B-130285, FEBRUARY 26, 1957, 36 COMP. GEN. 612.

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 PRESENT SALE WAS BY LOT AND BIDDERS WERE SPECIFICALLY CAUTIONED IN PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS, QUOTED ABOVE, THAT NO ADJUSTMENT FOR A VARIATION IN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT TENDERED OR DELIVERED TO THE PURCHASER WOULD BE MADE WHERE AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS. THUS, UNDER THE CLEAR TERMS OF THE CONTRACT YOU AGREED TO ASSUME THE RISK AS TO THE QUANTITY AND 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 RECORD 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 QUANTITY AND WEIGHT OF THE SURPLUS MATERIAL DOES NOT ENTITLE YOU TO RELIEF. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525, 75 A.L.R. 1017; AND HOOVER V. UTAH NURSERY COMPANY, 7 F.2D 270.

WE TURN NOW TO THE QUESTION WHETHER THE DELIVERY OF 133,597 UNITS UNDER THE CONTRACT CAN BE CONSIDERED AS APPROXIMATELY 144,889. GENERALLY, WHERE A CONTRACT PROVIDES FOR THE FURNISHING OF A SPECIFIED QUANTITY OF SUPPLIES, MATERIALS, ETC., SUBJECT TO THE QUALIFYING WORDS SUCH AS "MORE OR LESS," "ABOUT," "APPROXIMATELY," AND THE LIKE, AND THERE IS NO SUPPLEMENTAL LANGUAGE THEREIN FROM WHICH IT MIGHT BE INFERRED THAT THE PARTIES DID NOT INTEND TO BE BOUND BY THE QUANTITY SPECIFIED, THE QUALIFYING WORDS WILL EXCUSE ONLY MINOR OR ACCIDENTAL VARIATIONS IN QUANTITY, SUCH AS MAY ARISE FROM SLIGHT AND UNIMPORTANT EXCESSES OR DEFICIENCIES IN NUMBER, MEASURE AND WEIGHT. 15 COMP. GEN. 386; 19 ID. 599. WHERE, HOWEVER, AS IN THE PRESENT CASE, THE QUALIFYING WORDS ARE SUBJECT TO FURTHER STIPULATIONS AND CONDITIONS, NEITHER THE DESIGNATED QUANTITY NOR SUCH QUANTITY WITH SLIGHT VARIATIONS WILL BE REGARDED AS CONTROLLING. BRAWLEY V. UNITED STATES, 96 U.S. 168; MORRIS AND CUMMINGS DREDGING CO. V. UNITED STATES, 78 C.CLS. 511, 517; 38 COMP. GEN. 119, 122.

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 APRIL 29, 1959, IS SUSTAINED.