B-142889, MAY 27, 1960

B-142889: May 27, 1960

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YOUR REQUEST FOR REVIEW OF THE SETTLEMENT IS PREDICATED UPON THE THEORY THAT YOU WERE ENTITLED TO RELY UPON THE SALES INVITATION DESCRIPTION OF THE SCRAP AS "PREPARED IRON AND STEEL.'. PARAGRAPH 2 WAS INCLUDED IN THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION. - ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS. 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. 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 INCLUSION OF THIS PARAGRAPH IN THE INVITATION TO BID NEGATIVED THE USUAL WARRANTIES AND REPRESENTATIONS WHICH GENERALLY ARE IMPOSED BY LAW ON NORMAL TRADE OR BUSINESS SALES CONTRACTS.

B-142889, MAY 27, 1960

TO MR. C. T. COLEMAN, VICE PRESIDENT:

IN LETTER OF MAY 4, 1960, YOU REQUEST RECONSIDERATION OF SETTLEMENT DATED APRIL 29, 1960, WHICH DISALLOWED YOUR CLAIM FOR $125.51, REPRESENTING COSTS INCURRED AS A RESULT OF YOUR CONSIGNEE'S REJECTION OF A SHIPMENT OF MISCELLANEOUS HEAVY PREPARED IRON AND STEEL SCRAP DELIVERED UNDER CONTRACT DA/S/09-038-AIII-1538 BECAUSE OF RUBBER AND COPPER CONTAMINATION.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT IS PREDICATED UPON THE THEORY THAT YOU WERE ENTITLED TO RELY UPON THE SALES INVITATION DESCRIPTION OF THE SCRAP AS "PREPARED IRON AND STEEL.' HOWEVER, SO THAT BIDDERS WOULD NOT RELY UPON THE DESCRIPTION OF THE PROPERTY ADVERTISED FOR SALE, AND IN ORDER TO AVOID ANY POSSIBLE LIABILITY IN THE EVENT THE MATERIAL DID NOT CONFORM TO THE DESCRIPTION, PARAGRAPH 2 WAS INCLUDED IN THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION, AS FOLLOWS:

"CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. 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, EXPRESSED OR IMPLIED, AS TO THE 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 INCLUSION OF THIS PARAGRAPH IN THE INVITATION TO BID NEGATIVED THE USUAL WARRANTIES AND REPRESENTATIONS WHICH GENERALLY ARE IMPOSED BY LAW ON NORMAL TRADE OR BUSINESS SALES CONTRACTS. FURTHERMORE, THE COURTS HAVE HELD THAT PARAGRAPH 2 CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND THAT, WHILE ORDINARILY THERE IS AN IMPLIED WARRANTY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THAT THE PROPERTY WILL CORRESPOND TO THE DESCRIPTION, WHERE THERE EXISTS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION--- AS IN THE INSTANT CASE--- NO SUCH WARRANTY MAY BE IMPLIED FROM THE ADVERTISED DESCRIPTION OF THE PROPERTY SOLD. SEE STANDARD MAGNESIUM CORP. V. UNITED STATES, 241 F.2D 677; PAXTON-MITCHELL COMPANY V. UNITED STATES, C.CLS.NO. 109-58, DECIDED APRIL 8, 1959; SNYDER V. UNITED STATES, 68 C.CLS. 667; AND SAMUEL V. UNITED STATES, 61 C.CLS. 373. ..END