B-140365, SEP. 25, 1959

B-140365: Sep 25, 1959

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VARIOUS DOMESTIC AND COMMERCIAL ITEMS WERE OFFERED FOR SALE. " THE PERTINENT PROVISIONS OF WHICH ARE AS FOLLOWS: "1. - BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING. "2. - ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD. THEN "WHERE IS" MEANS F.O.B. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION.

B-140365, SEP. 25, 1959

TO THE SECRETARY OF THE AIR FORCE:

BY LETTER OF JUNE 17, 1959, HEADQUARTERS, AIR FORCE ACCOUNTING AND FINANCE CENTER, DENVER, COLORADO, FORWARDED TO THE CLAIMS DIVISION OF THIS OFFICE A CLAIM OF JOHNSON AND CRAIG (FILE REFERENCE AADS-2) IN THE AMOUNT OF $360, REPRESENTING THE PURCHASE PRICE OF AN ELECTRIC POWER GENERATING UNIT.

BY SPOT BID SALE NO. 59-5X, ISSUED ON SEPTEMBER 26, 1958, BY THE REDISTRIBUTION AND MARKETING SALES OFFICE, MCCLELLAN AIR FORCE BASE, VARIOUS DOMESTIC AND COMMERCIAL ITEMS WERE OFFERED FOR SALE. IN RESPONSE, JOHNSON AND CRAIG SUBMITTED A QUOTATION WHICH INCLUDED A BID OF $360 ON ITEM NO. 39, DESCRIBED IN THE SALES OFFERING AS FOLLOWS:

CODE 61 (R)

"39. ELECTRIC POWER GENERATING UNIT, MODEL UD161, PORTABLE TYPE, MOUNTED ON SKID BASE, 15 KW, 60 CYCLE, 120/240 VOLT, AC, 78 AMP SINGLE PHASE, DIRECT DRIVEN BY MODEL UD-61, 6 CYLINDER LIQUID COOLED DIESEL ENGINE, MFG BY INTERNATIONAL HARVESTER; GENERATOR MFG BY DELCO PRODUCTS. USED, MINOR REPAIRS REQUIRED. TOTAL ACQ. COST: $4,160.00 TOTAL APPROX. GROSS WT: 2960 POUNDS"

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

"1. INSPECTION--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS 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.'

THE RECORD SHOWS THAT, UPON RECEIPT OF THE ITEM, THE CLAIMANT DISCOVERED THAT THE ENGINE, INSTEAD OF BEING A SIX-CYLINDER DIESEL AS ADVERTISED, WAS A FOUR-CYLINDER MODEL OF AN OLDER MODEL NUMBER. WITH THE CONSENT OF THE CONTRACTING OFFICER, THE CLAIMANT HAS RETURNED THE PROPERTY TO MCCLELLAN AIR FORCE BASE AND REQUESTED A REFUND OF THE AMOUNT IT PAID ON THE CONTRACT.

IN HIS STATEMENT OF THE FACTS WHICH GAVE RISE TO THE CLAIM THE CONTRACTING OFFICER STATES THAT THE SUBJECT ITEM WAS DISPLAYED IN AN OUTSIDE DISPLAY AREA FOR THE REQUIRED INSPECTION PERIOD; THAT, DUE TO INCLEMENT WEATHER THE GENERATOR WAS NOT REMOVED FROM THE BOX, BUT A BOARD WAS REMOVED FROM THE END FOR INSPECTION PURPOSES. APPARENTLY, THE CLAIMANT FAILED TO VISIT THE DISPLAY AREA FOR THE PURPOSE OF INSPECTING THE PROPERTY. THE CONTRACTING OFFICER, HOWEVER, HAS RECOMMENDED PAYMENT OF THE CLAIM BECAUSE OF THE MISDESCRIPTION OF ITEM NO. 39, WHICH RECOMMENDATION IS CONCURRED IN BY THE COMMANDER, HEADQUARTERS, AMC.

IN CONSIDERING CONTRACT STIPULATIONS SIMILAR TO THOSE CONTAINED IN PARAGRAPH 2 OF THE GENERAL SALES TERMS AND CONDITIONS, QUOTED ABOVE, THE COURTS HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY, PRECLUDING ANY CLAIM FOR NONCONFORMITY OF THE GOODS WITH THE DESCRIPTION. SEE W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; LIPSCHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151. AS TO THE EFFECT OF THE FAILURE TO INSPECT, SEE PAXTON-MITCHELL CO. V. UNITED STATES, C.CLS. NO. 109-58, APRIL 8, 1959.

IN THE PRESENT CASE, IT IS CLEAR THAT UNDER THE "AS IS" TERMS OF THE CONTRACT THE PARTIES AGREED THAT THE RISK AS TO THE TYPE OF ENGINE DESCRIBED IN THE INVITATION UNDER ITEM NO. 39 WAS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70. IT NECESSARILY FOLLOWS THAT THE ACTION OF THE DISPOSAL OFFICER IN AGREEING TO THE RETURN OF THE PROPERTY BY THE PURCHASER AND INVITING A CLAIM FOR REFUND OF THE PURCHASE PRICE WAS WITHOUT JUSTIFICATION. HOWEVER, IN VIEW OF THE POSITION IN WHICH THE GOVERNMENT NOW FINDS ITSELF, THAT IS, HAVING THE EQUIPMENT AS WELL AS THE AMOUNT PAID THEREFOR, THE CLAIMS DIVISION OF OUR OFFICE IS TODAY BEING INSTRUCTED TO CERTIFY FOR PAYMENT THE CLAIM FOR $360.

THIS MATTER IS BROUGHT TO YOUR ATTENTION WITH THE SUGGESTION THAT APPROPRIATE STEPS BE TAKEN TO PRECLUDE SIMILAR ACTION ON THE PART OF DISPOSAL OFFICERS IN CONNECTION WITH THE SALE OF SURPLUS ..END :