B-141936, FEB. 19, 1960

B-141936: Feb 19, 1960

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 4. HEAD ADJUSTMENT 7 IN. * * * THIS IS A GENERAL PURPOSE MACHINE * * * UNIT COST $4. 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. IN THE REPORT OF THE QUARTERMASTER GENERAL IT IS STATED THAT THE NEXT HIGH BID WAS $451.51. IT IS TO BE OBSERVED THAT THE ABSTRACT OF BIDS TRANSMITTED WITH THE LETTER OF FEBRUARY 4. AWARD WAS MADE TO MOON MACHINERY COMPANY ON SEPTEMBER 28. THAT THE MACHINE WOULD BE USELESS TO IT SINCE IT WAS NOT A GENERAL PURPOSE MACHINE AS STATED IN THE INVITATION AND THE TABLE AND OTHER IMPORTANT PARTS WERE MISSING.

B-141936, FEB. 19, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 4, 1960, FROM THE QUARTERMASTER GENERAL, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF MOON MACHINERY COMPANY, 913 SOUTH 19TH STREET, NEWARK 8, NEW JERSEY, FOR RESCISSION OF CONTRACT NO. 30-144-60-839 (S), DATED SEPTEMBER 28, 1959, COVERING THE PURCHASE OF A SURPLUS MACHINE.

BY INVITATION NO. 30-144-S-60-4, ISSUED AUGUST 19, 1959, THE PROPERTY DISPOSAL BRANCH, WATERVLIET ARSENAL, WATERVLIET, NEW YORK, REQUESTED BIDS- -- TO BE OPENED SEPTEMBER 23, 1959--- FOR THE SALE OF 37 ITEMS OF SURPLUS PROPERTY, ITEM NO. 21 BEING DESCRIBED IN PART AS FOLLOWS:

"SHAPER, HORIZONTAL, WV-3747, PLAIN HYDRAULIC, MFGR. ROCKFORD MACHINE TOOL MFGR. SER. NO. 58HD52, INPUT POWER 44, YR MFD. 1942, 24 IN. HEAVY DUTY, STROKE 24 IN., TABLE TRAVEL CROSS 30 IN., TABLE TRAVEL VERTICAL 12 1/2 IN., HEAD ADJUSTMENT 7 IN. * * * THIS IS A GENERAL PURPOSE MACHINE * * * UNIT COST $4,308.00"

NOTE 1 ON PAGE 8 OF THE INVITATION STATED "MACHINE TOOLS MAY BE INCOMPLETE.'

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. THE MOON MANUFACTURING COMPANY CONCEDES THAT IT DID NOT INSPECT THE PROPERTY BEFORE BIDDING.

IN RESPONSE TO THE INVITATION, MOON MACHINERY COMPANY SUBMITTED A BID ON ITEM NO. 21 IN THE AMOUNT OF $1,300. IN THE REPORT OF THE QUARTERMASTER GENERAL IT IS STATED THAT THE NEXT HIGH BID WAS $451.51. IN THIS CONNECTION, IT IS TO BE OBSERVED THAT THE ABSTRACT OF BIDS TRANSMITTED WITH THE LETTER OF FEBRUARY 4, 1960, DOES NOT RELATE TO THE INSTANT MATTER.

ON SEPTEMBER 25, 1959--- TWO DAYS AFTER THE BID OPENING--- THE BIDDER STATED TO THE CONTRACTING OFFICER BY TELEPHONE THAT IT HAD JUST LEARNED THAT THE SHAPER DID NOT INCLUDE A TABLE AND INQUIRED WHAT COULD BE DONE ABOUT THE BID. BY A LETTER OF THE SAME DATE--- RECEIVED AT THE PROPERTY DISPOSAL BRANCH ON SEPTEMBER 29--- THE BIDDER REQUESTED TO WITHDRAW ITS BID, ALLEGING ERROR. AWARD WAS MADE TO MOON MACHINERY COMPANY ON SEPTEMBER 28, 1959 (CONTRACT NO. 30-144-60-839 (S) ). ALSO ON SEPTEMBER 28, BUT AFTER THE NOTICE OF AWARD HAD BEEN MAILED, THE BIDDER MADE A TELEPHONIC REQUEST TO WITHDRAW THE BID. IN LETTERS DATED SEPTEMBER 28 AND OCTOBER 12, 1959, THE BIDDER STATED, IN SUBSTANCE, THAT THE MACHINE WOULD BE USELESS TO IT SINCE IT WAS NOT A GENERAL PURPOSE MACHINE AS STATED IN THE INVITATION AND THE TABLE AND OTHER IMPORTANT PARTS WERE MISSING. WAS STATED FURTHER IN THE LETTER OF OCTOBER 12 THAT THE MANUFACTURER, ON BEING CONTACTED, STATED THAT THE MACHINE WAS A SPECIAL ONE AND THAT THE MANUFACTURER COULD NOT FURNISH PARTS NECESSARY TO USE THE MACHINE AS A STANDARD SHAPER. THE BIDDER HAS NOT ACCEPTED OR PAID FOR THE MACHINE.

THE ORDNANCE CORPS, WATERVLIET ARSENAL, IN 2ND INDORSEMENT OF DECEMBER 1, 1959, TO THE CHIEF OF ORDNANCE, STATED THAT WHEN THE MACHINE WAS TURNED IN TO THE PROPERTY DISPOSAL OFFICER IT WAS ACCOMPANIED BY PAPERS DESCRIBING IT AS "STANDARD" BUT ALSO STATING THAT IT WAS RECEIVED WITHOUT RAIL, TABLE, SUPPORT AND TOOL HEAD, WHICH INFORMATION AS TO THE MISSING PARTS WAS OMITTED FROM THE INVITATION FOR BIDS THROUGH INADVERTENCE. SIMILAR STATEMENTS ARE INCLUDED IN THE CONTRACTING OFFICER'S STATEMENT. THE CONTRACTING OFFICER STATES FURTHER THAT THE INVITATION DID NOT STATE WHICH PARTS OF THE MACHINE WERE MISSING, IF ANY, AND THAT THE CHIEF OF THE MAINTENANCE SECTION AT WATERVLIET ARSENAL HAS INDICATED THAT A DESCRIPTION OF THE SHAPER AS A GENERAL PURPOSE MACHINE WAS "SOMEWHAT MISLEADING.'

IN VIEW OF THE FOREGOING, IT MAY BE HELD THAT THE ERRONEOUS AND SUBSTANTIALLY INCOMPLETE DESCRIPTION OF THE SHAPER DID NOT FURNISH "THE BEST AVAILABLE INFORMATION" AS STATED IN THE INVITATION. FURTHERMORE, THE FAILURE OF THE BIDDER TO INSPECT THE PROPERTY IS NOT NECESSARILY FATAL TO ITS CLAIM. MOON MACHINERY COMPANY STATES IN ITS LETTER OF OCTOBER 12 THAT IT WAS "NOT GENERALLY CONCERNED WITH THE CONDITION OF THE MACHINE BECAUSE WE WOULD BE ABLE TO MAKE ORDINARY AND REASONABLE REPAIRS.' HOWEVER, IT WAS PROPERLY CONCERNED WITH THE KIND OF MACHINE, ITS FUNCTION, AND THE PRESENCE OR ABSENCE OF ESSENTIAL PARTS. THE INFORMATION SET OUT IN THE INVITATION AS TO THESE MATTERS WAS MISLEADING AND WAS NOT THE BEST INFORMATION AVAILABLE TO THE GOVERNMENT. CONSIDERING THESE FACTS, IT IS CONCLUDED THAT THE AWARD TO MOON MACHINERY COMPANY SHOULD BE CANCELED WITHOUT LIABILITY ON THE PART OF THE COMPANY.

THE PAPERS TRANSMITTED WITH THE LETTER OF FEBRUARY 4, 1960, ARE RETURNED HEREWITH.