B-143864, OCT. 6, 1960

B-143864: Oct 6, 1960

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DELANEY: REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 18. WHICH WAS ISSUED BY THE PROPERTY DISPOSAL DIVISION. YOUR BID WAS ACCEPTED BY THE PROPERTY DISPOSAL DIVISION. FULL PAYMENT WAS MADE FOR THE ITEM. DELIVERY WAS MADE TO YOU ON OR ABOUT NOVEMBER 30. YOU ADVISED THE PROPERTY DISPOSAL OFFICER THAT A USED TRAINER WAS DELIVERED TO YOU INSTEAD OF THE UNUSED TRAINER DESCRIBED IN ITEM NO. 156. YOU CONTEND THAT THE TRAINER WAS NOT BASED ON THE BEST AVAILABLE INFORMATION. YOU STATE THAT AN INSPECTION OF THE PROPERTY WAS OF NO HELP IN DETERMINING ITS CONDITION SINCE IT WAS CRATED AND STORED IN AN OPEN AREA. THE PRINCIPAL QUESTION IN CASES OF THIS KIND IS WHETHER THE GOVERNMENT DID OR DID NOT WARRANT THE PROPERTY SOLD.

B-143864, OCT. 6, 1960

TO MR. J. T. DELANEY:

REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 18, 1960, IN REGARD TO OUR RECENT SETTLEMENT DISALLOWING YOUR CLAIM UNDER DEPARTMENT OF THE ARMY SPOT BID SALE INVITATION NO. 09-038-S-60-S.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED BY THE PROPERTY DISPOSAL DIVISION, FORT BENNING, GEORGIA, YOU SUBMITTED A SPOT BID DATED NOVEMBER 10, 1959, OFFERING TO PURCHASE ITEM NO. 156, COVERING ONE LINK AIRCRAFT TRAINER, ETC., FOR $350. YOUR BID WAS ACCEPTED BY THE PROPERTY DISPOSAL DIVISION, FULL PAYMENT WAS MADE FOR THE ITEM, AND DELIVERY WAS MADE TO YOU ON OR ABOUT NOVEMBER 30, 1959. BY LETTER DATED DECEMBER 3, 1959, YOU ADVISED THE PROPERTY DISPOSAL OFFICER THAT A USED TRAINER WAS DELIVERED TO YOU INSTEAD OF THE UNUSED TRAINER DESCRIBED IN ITEM NO. 156. AS A RESULT, YOU REQUESTED THAT THE TRAINER EITHER BE REPLACED OR REPAIRED, OR THAT A COMPLETE REFUND OF THE PURCHASE PRICE, TOGETHER WITH CERTAIN OTHER ADDITIONAL COSTS, BE REMITTED TO YOU.

YOU CONTEND THAT THE TRAINER WAS NOT BASED ON THE BEST AVAILABLE INFORMATION, AS STATED IN THE SALES INVITATION AND, THEREFORE, A GROSS MISREPRESENTATION OF THE PROPERTY RESULTED AT THE TIME OF SALE. ALSO, YOU STATE THAT AN INSPECTION OF THE PROPERTY WAS OF NO HELP IN DETERMINING ITS CONDITION SINCE IT WAS CRATED AND STORED IN AN OPEN AREA.

THE PRINCIPAL QUESTION IN CASES OF THIS KIND IS WHETHER THE GOVERNMENT DID OR DID NOT WARRANT THE PROPERTY SOLD. IN THIS REGARD, YOUR ATTENTION AGAIN IS DIRECTED TO ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION WHEREIN IT IS PROVIDED, IN PERTINENT PART, AS FOLLOWS:

"* * * 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, * * *.'

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH AN EXPRESS DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. SEE LUMBRAZO V. WOODRUFF, 175 WN.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CL. 424. BAD FAITH MAY NOT BE ATTRIBUTABLE TO THE GOVERNMENT DISPOSAL OFFICER UPON THE RECORD BEFORE US AND, THEREFORE, ANY DEVIATIONS FROM THE DESCRIPTION OF THE ITEM--- REFERRED TO BY YOU AS GROSS MISREPRESENTATIONS--- MUST BE CONCLUDED TO HAVE RESULTED FROM NOTHING MORE THAN AN HONEST ERROR WHICH IS COVERED BY THE DISCLAIMER OF WARRANTY CLAUSE SET FORTH ABOVE. IN FACT, IT APPEARS THAT THE DESCRIPTION WAS BASED ON THE BEST INFORMATION AVAILABLE TO THE SELLING ACTIVITY SINCE THE DISPOSAL OFFICER REPORTS THAT THE DESCRIPTION WAS BASED ON THE "TURN-IN" DOCUMENT WHICH STATED THAT THE ITEM WAS UNUSED.

REGARDING YOUR INABILITY TO MAKE A PROPER INSPECTION, BIDDERS' RESPONSIBILITIES IN THIS CONNECTION APPEAR TO BE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHEREIN IT WAS HELD THAT, NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL.