B-142508, APR. 28, 1960

B-142508: Apr 28, 1960

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MCKNIGHT: REFERENCE IS MADE TO YOUR LETTER OF MARCH 18. IN PICKING UP THE RANGES YOU COMPLAINED THAN AN EXCESSIVE QUANTITY OF PARTS WERE MISSING AND THAT THE RANGES WERE NOT IN "FAIR CONDITION.'. THE LAST 28 RANGES WERE INSPECTED AND VERY FEW PARTS WERE FOUND MISSING AND THE RANGES APPEARED TO BE IN "GOOD CONDITION.'. IS STATED THAT SINCE THE INVITATION MADE NO MENTION OF "MISSING PARTS. " IT WAS ASSUMED THAT THE RANGES WERE IN "GOOD ORDER.'. IT IS ALLEGED. THAT THE DESCRIPTION IN THE SALES INVITATION THAT THE RANGES WERE IN "FAIR CONDITION" AMOUNTED TO A MISREPRESENTATION. WHILE IT IS NOT MATERIAL TO THE DISPOSITION OF THE CLAIM. IT IS INTERESTING TO NOTE THAT IF ANY OF THE RANGES THAT WERE MISSING A BROILER WERE ALSO MISSING EITHER A DRAWER OR AN AERATION PLATE.

B-142508, APR. 28, 1960

TO PAUL W. MCKNIGHT:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 18, 1960, REQUESTING REVIEW OF CLAIMS DIVISION SETTLEMENT DATED JANUARY 20, 1960, WHICH DISALLOWED YOUR CLAIM FOR $577 REPRESENTING THE REPLACEMENT VALUE OF PARTS ALLEGED TO BE MISSING FROM GAS RANGES PURCHASED UNDER SALES CONTRACT NO. N244S-55935, DATED JUNE 12, 1959, FROM THE UNITED STATES NAVAL SUPPLY DEPOT, SAN DIEGO, CALIFORNIA.

UNDER THE TERMS OF THE CONTRACT YOU AGREED TO PURCHASE 140 GAS RANGES DESCRIBED AS "USED, FAIR CONDITION" FOR A TOTAL PRICE OF $790.04, OR $5.64314 EACH. IN PICKING UP THE RANGES YOU COMPLAINED THAN AN EXCESSIVE QUANTITY OF PARTS WERE MISSING AND THAT THE RANGES WERE NOT IN "FAIR CONDITION.' THE RECORD SHOWS THAT DUE TO YOUR COMPLAINT, THE LAST 28 RANGES WERE INSPECTED AND VERY FEW PARTS WERE FOUND MISSING AND THE RANGES APPEARED TO BE IN "GOOD CONDITION.' BY LETTERS DATED JULY 18 AND AUGUST 12, 1959, YOU FILED A CLAIM FOR $577 REPRESENTING THE VALUE OF MISSING PARTS REQUIRED TO BRING THE RANGES UP TO THE STANDARD STATED IN THE INVITATION OR IN EXCESS OF THE PARTS WHICH REASONABLY MIGHT BE EXPECTED TO BE MISSING IN THE LIGHT OF YOUR PAST EXPERIENCE IN SIMILAR PURCHASES. IS STATED THAT SINCE THE INVITATION MADE NO MENTION OF "MISSING PARTS," IT WAS ASSUMED THAT THE RANGES WERE IN "GOOD ORDER.' IT IS ALLEGED, THEREFORE, THAT THE DESCRIPTION IN THE SALES INVITATION THAT THE RANGES WERE IN "FAIR CONDITION" AMOUNTED TO A MISREPRESENTATION.

WHILE IT IS NOT MATERIAL TO THE DISPOSITION OF THE CLAIM, IT IS INTERESTING TO NOTE THAT IF ANY OF THE RANGES THAT WERE MISSING A BROILER WERE ALSO MISSING EITHER A DRAWER OR AN AERATION PLATE, THE AMOUNT CLAIMED FOR MISSING PARTS WOULD BE IN EXCESS OF THE AMOUNT PAID FOR THE COMPLETE RANGE. IT ALSO APPEARS POSSIBLE FROM THE AMOUNTS CLAIMED FOR VARIOUS PARTS THAT IF SEVERAL PARTS WERE MISSING FROM A PARTICULAR RANGE YOUR CLAIM WOULD AMOUNT TO THREE OR FOUR TIMES THE AMOUNT PAID FOR THE RANGE.

THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE DESCRIPTION OF THE RANGES AS SET FORTH IN THE INVITATION WAS BASED UPON THE BEST INFORMATION AVAILABLE. THE DESCRIPTION OF THE PROPERTY AS ,USED, FAIR CONDITION" CERTAINLY DOES NOT WARRANT AN ASSUMPTION BY A BIDDER THAT THE PROPERTY IS IN "GOOD ORDER" AND A BIDDER MAY NOT DEMAND THAT THE PROPERTY BE AVERAGE OR NORMAL COMPARED TO OTHER LOTS PREVIOUSLY PURCHASED WITH RESPECT TO SHORTAGES AND BREAKAGE. THIS SEEMS TO BE RECOGNIZED BY YOU AS IT IS STATED IN YOUR LETTER OF JULY 18, 1959, IN CONNECTION WITH THE AWARD YOU RECEIVED FOR A QUANTITY OF GAS RANGES UNDER INVITATION B-67-58-244 THAT "THIS WAS A VERY ROUGH LOOKING LOT AS THE AWARD PRICE INDICATES, BUT VERY SURPRISINGLY, THE SHORTAGES WERE SMALL.' THE FACT THAT THE GAS RANGES HERE INVOLVED MAY NOT HAVE MEASURED UP TO YOUR EXPECTATIONS WOULD NOT WARRANT A CONCLUSION THAT THE DESCRIPTION AMOUNTED TO A MISREPRESENTATION. UNDER THE CONDITIONS OF THE SALE THE GOVERNMENT WAS ONLY OBLIGATED TO ACT IN GOOD FAITH, AND THIS IT DID.

THE GENERAL SALE TERMS AND CONDITIONS MADE A PART OF THE AGREEMENT PROVIDED THAT THE MATERIALS LISTED WERE OFFERED WITH THE FOLLOWING RESERVATIONS--- QUOTING FROM PARAGRAPH 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, 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.'

IT HAS BEEN HELD BY THE COURTS THAT THE ABOVE LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY; THAT THERE IS ESPECIALLY FOR APPLICATION THE PRINCIPLE THAT THE PURCHASER BUYS ENTIRELY AT HIS RISK; AND THAT RECOVERY CANNOT BE HAD AGAINST THE VENDOR ON THE GROUND THAT THE PURCHASER WAS MISTAKEN AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE. SEE LUMBRAZO V. WOODRUFF, 175 N.W. 525; W.B. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424; AND LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT OF CLAIMS HELD THAT THE TERMS OF THE SALES CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS"AS IS, WHERE IS" PROVISION, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.

ACCORDINGLY, THE SETTLEMENT OF JANUARY 20, 1960, DENYING YOUR CLAIM, IS SUSTAINED.