B-143917, SEP. 26, 1960

B-143917: Sep 26, 1960

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ATTORNEY AT LAW: REFERENCE IS MADE TO YOUR LETTER OF JULY 11. KAUPPILA AS TO ITEM 13 WAS ACCEPTED ON APRIL 27. IT IS REPORTED THAT ON OR ABOUT MAY 16. THAT SUCH MACHINES WERE FOUND TO BE WITHOUT THEIR MOTORS AND OTHER PARTS. KAUPPILA STATED THAT THE INVITATION FOR BIDS DID NOT INDICATE THAT THE MACHINES WERE SALVAGE. IT IS FURTHER REPORTED THAT MR. KAUPPILA WAS INFORMED NO ADJUSTMENT COULD BE MADE IN VIEW OF THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT. THAT AT THE TIME THE MACHINES WERE PICKED UP MR. KAUPPILA WAS IN FLORIDA AND OTHER MEMBERS OF THE POST. THAT IT WAS NOT UNTIL THE MACHINES WERE PAID FOR AND THE INVOICE HANDED THEM WAS THERE ANY INDICATION THAT THE MACHINES WERE SALVAGE.

B-143917, SEP. 26, 1960

TO MR. RICHARD J. SARAPAS, ATTORNEY AT LAW:

REFERENCE IS MADE TO YOUR LETTER OF JULY 11, 1960, REQUESTING ON BEHALF OF MR. KAUKO KAUPPILA AND THE VETERANS OF FOREIGN WARS POST NO. 9775, HOLDEN, MASSACHUSETTS, FAVORABLE CONSIDERATION OF THEIR CLAIM FOR $150, REPRESENTING THE AMOUNT PAID FOR SURPLUS PROPERTY PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. OI (S) 19-128-60-512.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. 19-128-S-60-33, ISSUED BY HEADQUARTERS, BOSTON ARMY BASE, BOSTON, MASSACHUSETTS, MR. KAUKO KAUPPILA SUBMITTED A BID OFFERING TO PURCHASE THE TWO ICE MAKING MACHINES COVERED BY ITEM 33 AT A PRICE OF $75 EACH. THE BID OF MR. KAUPPILA AS TO ITEM 13 WAS ACCEPTED ON APRIL 27, 1960.

IT IS REPORTED THAT ON OR ABOUT MAY 16, 1960, MR. KAUPPILA TELEPHONED THE PROPERTY DISPOSAL OFFICER AND ALLEGED THAT HIS AGENT HAD PICKED UP THE ICE MAKING MACHINES COVERED BY ITEM 33, BUT THAT SUCH MACHINES WERE FOUND TO BE WITHOUT THEIR MOTORS AND OTHER PARTS; THAT MR. KAUPPILA STATED THAT THE INVITATION FOR BIDS DID NOT INDICATE THAT THE MACHINES WERE SALVAGE; AND THAT MR. KAUPPILA STATED FURTHER THAT HE HAD NOT INSPECTED THE MACHINES PRIOR TO SUBMITTING A BID. IT IS FURTHER REPORTED THAT MR. KAUPPILA WAS INFORMED NO ADJUSTMENT COULD BE MADE IN VIEW OF THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, PARTICULARLY PARAGRAPHS 1 AND 2, WHICH INCLUDED THE STANDARD DISCLAIMER CLAUSE, THE BEST AVAILABLE DESCRIPTION CLAUSE, AND THE CAUTION TO INSPECT CLAUSE.

YOU STATE THAT MR. KAUPPILA PURCHASED THE MACHINES FOR THE VETERANS OF FOREIGN WARS POST NO. 9775; THAT AT THE TIME THE MACHINES WERE PICKED UP MR. KAUPPILA WAS IN FLORIDA AND OTHER MEMBERS OF THE POST, UNFAMILIAR WITH THE PROCEDURE, PICKED THEM UP; AND THAT IT WAS NOT UNTIL THE MACHINES WERE PAID FOR AND THE INVOICE HANDED THEM WAS THERE ANY INDICATION THAT THE MACHINES WERE SALVAGE; THAT THE INVOICE LISTED THE MACHINES AS SALVAGE; AND THAT THE MACHINES WERE ACTUALLY STRIPPED, LEAVING ONLY THE SHELLS. YOU STATE THAT THE POST HAS NO USE FOR THE MACHINES AS THEY ARE AND THAT IT CANNOT AFFORD TO PURCHASE THE EQUIPMENT NECESSARY TO PUT THEM IN WORKING ORDER.

THE BID OF MR. KAUPPILA AND THE SALE WERE SUBJECT TO THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2, WHICH PROVIDE:

"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. IF 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 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, SUCH AS CONTAINED IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, 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 THE 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 CT.CL. 424; AND LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 CT.CL. 70, THE COURT OF CLAIMS HELD THAT THE TERMS OF THE SALES CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.

IT APPEARS FROM THE RECORD THAT MR. KAUPPILA DID NOT INSPECT THE ICE MAKING MACHINES PRIOR TO THE SUBMISSION OF HIS BID. THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS, WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUND THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE RENDERED NUMEROUS DECISIONS IN WHICH THESE PRINCIPLES ARE ASSERTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 CT.CL. 373; TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; S. BRODY V. UNITED STATES, 64 CT.CL. 538; S. SNYDER CORP. V. UNITED STATES, 68 CT.CL. 667; SILBERSTEIN AND SON V. UNITED STATES, 69 CT.CL. 412; SACHS MERCANTILE CO. V. UNITED STATES, 78 CT.CL. 601; MOTTRAM V. UNITED STATES, 271 U.S. 15; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67. SEE, ALSO, 29 COMP. GEN. 310 AND 32 ID. 181.

ALTHOUGH IT IS ADMITTED THAT THE RESULTS IN THIS TYPE OF CASE SOMETIMES MAY SEEM HARSH, IT DOES NOT APPEAR THAT ANY REASONABLE INTERPRETATION OF THE PUBLISHED CONDITIONS OF SALE WOULD WARRANT THE CONCLUSION THAT THE GOVERNMENT OWED ANY HIGHER DEGREE OF CARE OR DUTY TO BIDDERS OTHER THAN TO DELIVER THE EXACT PROPERTY WHICH WAS AVAILABLE FOR INSPECTION. SEE PAXTON -MITCHELL CO. V. UNITED STATES, (CT.CL. APRIL 8, 1959), 172 F.SUPP. 463.

THE SELLING OFFICE IN THIS CASE USED THE AVAILABLE RECORD INFORMATION IN DESCRIBING THE PROPERTY OFFERED FOR SALE AND SINCE THERE IS NO SHOWING OF BAD FAITH ON THE PART OF THE CONTRACTING OFFICER IN LISTING THE PROPERTY, THERE IS NO LEGAL BASIS FOR REFUND OF ANY PART OF THE PURCHASE PRICE OF ITEM NO. 33.