B-140996, NOV. 9, 1959

B-140996: Nov 9, 1959

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED OCTOBER 12. BIDS WERE REQUESTED. THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "EXPRESSED OR IMPLIED" AS TO QUANTITY. AWARDS WERE MADE TO WILENSKY COMPANY AND A AND H COMPANY ON THOSE PORTIONS OF ITEM NO. 16 COVERED BY THEIR BIDS. STATING: "WE ASSUMED THAT THEY WERE "U" JOINTS AND DRIVE SHAFTS. THEY WERE FOUND TO BE BARE.'. THE "6" WAS NOT LEGIBLE. IN AS MUCH AS THE ITEM WAS ADVERTISED AS A SHAFT. WI 814096 IS A SHAFT ASSEMBLY.

B-140996, NOV. 9, 1959

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 12, 1959, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), WITH ITS ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO THE REQUESTS OF WILENSKY AUTO PARTS COMPANY AND A AND H TRUCK PARTS COMPANY FOR PARTIAL CANCELLATION OF AWARDS MADE TO THEM UNDER SPOT BID SALE 15-040-S-59-16 CONDUCTED BY BLUE GRASS ORDNANCE DEPOT, RICHMOND, KENTUCKY.

BY THE INVITATION, BIDS WERE REQUESTED--- TO BE OPENED MARCH 25, 1959--- FOR THE SALE OF 85 ITEMS OF SURPLUS PROPERTY. ITEM NO. 16 COVERED 1,610 ARTICLES DESCRIBED IN THE INVITATION AS FOLLOWS:

"WI 614096, SHAFT, PROPELLER, TRANSFER TO FRONT ASSEMBLY 0067-18 00150. UNUSED. UNIT ACQN COST $13.70. UNIT WEIGHT - 40 LBS. MINIMUM PURCHASE - 50 EACH.'

THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "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. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS URGED BIDDERS TO INSPECT THE PROPERTY BEFORE BIDDING THEREON AND CAUTIONED THEM THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM AGAINST THE GOVERNMENT. IT APPEARS THAT NEITHER WILENSKY AUTO PARTS COMPANY NOR A AND H TRUCK PARTS COMPANY INSPECTED THE PROPERTY BEFORE BIDDING.

WILENSKY COMPANY SUBMITTED A BID BY MAIL ON ITEM NO. 16 IN THE AMOUNT OF $1.57 EACH FOR 300 UNITS AND $1.27 EACH FOR 200 UNITS. A AND H COMPANY SUBMITTED A BID BY MAIL IN THE AMOUNTS OF $1.38 EACH FOR 110 UNITS, $1.11 EACH FOR 500 UNITS, AND $0.88 EACH FOR 400 UNITS. OTHER BIDS ON ITEM NO. 16 RANGED FROM $0.20 TO $1.10 PER UNIT. ON MARCH 30, 1959, AWARDS WERE MADE TO WILENSKY COMPANY AND A AND H COMPANY ON THOSE PORTIONS OF ITEM NO. 16 COVERED BY THEIR BIDS.

BOTH WILENSKY COMPANY AND A AND H COMPANY STATED BY TELEPHONE ON MARCH 30, 1959, THAT THEY HAD REGARDED ITEM NO. 16 AS COVERING DRIVE SHAFT ASSEMBLIES BUT THAT IT ACTUALLY COVERED BARE SHAFTS. IN ITS LETTER DATED APRIL 2, 1959, WILENSKY COMPANY ENCLOSED A CHECK IN PAYMENT FOR OTHER ITEMS PURCHASED AT THE SALE BUT ALLEGED ERROR IN ITS BID ON ITEM NO. 16, STATING:

"WE ASSUMED THAT THEY WERE "U" JOINTS AND DRIVE SHAFTS; HOWEVER, THEY WERE FOUND TO BE BARE.'

IN A LETTER DATED MARY 18, 1959, A AND H COMPANY STATED:

"ON THE INVITATION, THE "6" WAS NOT LEGIBLE; CONSEQUENTLY, WE TOOK IT FOR GRANTED, IN AS MUCH AS THE ITEM WAS ADVERTISED AS A SHAFT; COMPLETE WITH JOINTS AS SHOWN ON ORDNANCE CATALOG 7-89-SNL-G67. WI 814096 IS A SHAFT ASSEMBLY. WI-614096 IS ADVERTISED AS A TUBE AND YOUR CATALOG S59-16-CALLS FOR A SHAFT AND WE CONSIDER A SHAFT AS COMPLETE WITH JOINTS, AS I SAID BEFORE.'

IN THE REPORT OF THE QUARTERMASTER GENERAL IT IS STATED:

"THE DESCRIPTION OF THE ITEM ON THE INVITATION WAS INCORRECT, SINCE IT CONTAINED THE WORD ,ASSEMBLY," APPARENTLY DUE TO A CLERICAL ERROR ON THE PART OF THE GOVERNMENT.'

IN COMMENT NO. 2 DATED MAY 6, 1959, THE PROPERTY DISPOSAL REVIEW BOARD STATED:

"THE ITEM WAS INCORRECTLY ADVERTISED IN INCLOSURE 2 AS: WI-614096, SHAFT, PROPELLER, TRANSFER TO FRONT ASSEMBLY, G067-1800150. IT SHOULD HAVE READ: WI-614096, SHAFT, PROPELLER, TRANSFER TO FRONT AXLE, G067 1800150.'

IN VIEW OF THE FACTS OF THIS MATTER AS REPORTED AND SHOWN BY THE FILE, IT MAY BE HELD THAT THE ERRONEOUS DESCRIPTION DID NOT FURNISH "THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION. FURTHERMORE, THE FAILURE OF THE BIDDERS TO INSPECT THE PROPERTY IS NOT NECESSARILY FATAL TO THEIR REQUESTS FOR RELIEF. THEY WERE WARRANTED IN RELYING ON THE STATEMENT IN THE INVITATION THAT THE INFORMATION FURNISHED WAS THE BEST AVAILABLE. THEREFORE, IT IS CONCLUDED THAT THE AWARDS MADE TO WILENSKY AUTO PARTS COMPANY AND A AND H TRUCK PARTS COMPANY AS TO ITEM NO. 16 OF THE INVITATION PROPERLY MAY BE CANCELED. SEE OUR DECISION TO YOU, B- 128774, AUGUST 28, 1956 (NORMANDY ELECTRIC WIRE COMPANY), B-129817, JANUARY 7, 1957 (CAMPBELL AND COOPER), B 135542, APRIL 28, 1958 (TULSA ARMY AND NAVY STORE), B-137966, FEBRUARY 10, 1959 (VOLUME SALES COMPANY).

THE PAPERS TRANSMITTED WITH THE LETTER OF OCTOBER 12, 1959, ARE RETURNED HEREWITH.