B-143727, SEP. 7, 1960

B-143727: Sep 7, 1960

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED JULY 22. ONE TENT FLY WAS MISSING AND REQUEST AN ADJUSTMENT FOR THE VALUE OF THE FLY. - 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. " AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * *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.

B-143727, SEP. 7, 1960

TO E. R. BLAND CO., INC.:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 22, 1960, RELATIVE TO YOUR CLAIM FOR REFUND OF $14, REPRESENTING AN ADJUSTED PRICE ON A TENT PURCHASED FROM THE DEPARTMENT OF THE NAVY, CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, UNDER CONTRACT NO. N62583S-14782.

THE RECORD SHOWS THAT IN RESPONSE TO THE INVITATION FOR BIDS YOU AGREED TO PURCHASE 4 UNITS OF ITEM NO. 29, DESCRIBED AS OLIVE DRAB TENTS, WITH ENTRANCE FLAP, FLY, ETC. YOU ALLEGE THAT UPON RECEIPT OF THE TENTS, ONE TENT FLY WAS MISSING AND REQUEST AN ADJUSTMENT FOR THE VALUE OF THE FLY.

PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDE 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. * * *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 IS CLEAR THAT MORE EXPLICIT LANGUAGE COULD NOT HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF THE MATERIALS OFFERED AT THEIR OWN RISK. THE COURTS HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THESE CASES CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. IN DISPOSING OF SURPLUS MATERIALS, THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OR THE QUANTITY OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE CONDITION AND THE QUANTITY OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. SEE 36 COMP. GEN. 612.

NO LEGAL RESPONSIBILITY WOULD ATTACH TO THE GOVERNMENT AS A RESULT OF THE SALE IN QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH ON THE PART OF THE DISPOSAL OFFICER OR HIS AGENTS. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE TRANSACTION.

THE RECORD INDICATES THAT YOU DID NOT INSPECT THE MATERIAL. IN NUMEROUS CASES COURTS HAVE CONSIDERED PROVISIONS FOR INSPECTION, SUCH AS ARE INVOLVED IN THE INSTANT CASE, AND, IT HAS BEEN HELD GENERALLY THAT FAILURE TO INSPECT IS SUFFICIENT TO DENY A CLAIM BY A PURCHASER ON THE GROUND THAT THE MATERIAL DELIVERED DID NOT CONFORM TO THE ADVERTISED DESCRIPTION. THE RECENT CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, THERE WAS INVOLVED THE SALE OF A QUANTITY OF "STEEL, SCRAP, CAST STEEL," THE MATERIAL BEING SO REPRESENTED IN THE BID INVITATION. SUBSEQUENTLY DEVELOPED THAT APPROXIMATELY FIFTY PERCENT OF THE MATERIAL WAS MALLEABLE IRON, AND THE PLAINTIFF SUED FOR THE DIFFERENCE BETWEEN WHAT IT PAID FOR THE MALLEABLE IRON AND ITS MARKET PRICE. THE COURT FOUND THAT MALLEABLE IRON DIFFERS FROM STEEL ONLY IN CARBON CONTENT; THAT STEEL HAS A CARBON CONTENT OF NOT IN EXCESS OF 1.7 PERCENT, AND THAT WHEN THE CARBON CONTENT EXCEEDS 1.7 PERCENT, THE MATERIAL IS CALLED MALLEABLE IRON. THERE WAS NO INSPECTION OF THE MATERIAL BY THE PLAINTIFF.

AT THE TRIAL OF THE CASE IT WAS AGREED BY COUNSEL THAT STEEL AND MALLEABLE IRON ARE NOT DISTINGUISHABLE BY THE NAKED EYE, AND THAT THEY CAN BE DIFFERENTIATED ONLY BY MICROSCOPIC EXAMINATION OR BY CHEMICAL ANALYSIS. IT WILL BE SEEN FROM THE COURT'S FINDINGS THAT VISUAL INSPECTION WOULD HAVE BEEN INEFFECTUAL TO DETERMINE WHETHER THE MATERIAL WAS, IN FACT, AS DESCRIBED IN THE BID INVITATION. NEVERTHELESS, IT WAS HELD THAT A BIDDER FAILS TO INSPECT BY WHATEVER METHOD MAY BE NECESSARY AT HIS PERIL, AND THE PLAINTIFF'S PETITION WAS DISMISSED.