B-143938, OCT. 10, 1960

B-143938: Oct 10, 1960

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INCORPORATED: REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. YOUR BID OF $5.123 EACH WAS ACCEPTED. TO OUR OFFICE APPEALING THE DECISION OF THE CONTRACTING OFFICER YOU STATED THAT AS FAR AS THE SHORTAGE AND COUNT WAS CONCERNED "WE WILL JUST HAVE TO FORGET ABOUT THAT. YOU STATED THAT THE CONDITION OF SALE "AS IS" AND "WHERE IS" HAS NOTHING TO DO WITH THE QUANTITY INVOLVED. YOU STATED THAT YOU PURCHASED A CERTAIN NUMBER OF UNITS OF RUCKSACKS AND WERE NOT DISCUSSING THE CONDITION OF THE MERCHANDISE. IT IS TRUE. PARAGRAPH 22 (L) OF THE PROVISIONS OF SALE PROVIDES THAT THE SUCCESSFUL BIDDER IS RESPONSIBLE FOR VERIFYING PROPERTY COUNT AT THE TIME MATERIAL IS CHECKED OUT BY GOVERNMENT PERSONNEL.

B-143938, OCT. 10, 1960

TO A. GOLDMAN AND SONS, INCORPORATED:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1960, REQUESTING REVIEW OF OUR SETTLEMENT DATED AUGUST 23, 1960, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR AN ADJUSTMENT UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. AF 33/602/S-319, DATED MAY 6, 1960.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. IFB 33-602-S-60-15, ISSUED BY THE REDISTRIBUTION AND MARKETING DIVISION, SHELBY AIR FORCE DEPOT, SHELBY, OHIO, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM NO. 21, COVERING 5,186 RUCKSACKS. YOUR BID OF $5.123 EACH WAS ACCEPTED. SUBSEQUENT TO REMOVAL OF THE PROPERTY YOU ALLEGED A SHORTAGE OF 80 RUCKSACKS AND ALSO ALLEGED THAT YOU HAD RECEIVED A NUMBER OF MUSETTE BAGS INSTEAD OF RUCKSACKS.

IN YOUR LETTER OF JUNE 15, 1960, TO OUR OFFICE APPEALING THE DECISION OF THE CONTRACTING OFFICER YOU STATED THAT AS FAR AS THE SHORTAGE AND COUNT WAS CONCERNED "WE WILL JUST HAVE TO FORGET ABOUT THAT," AND BASED YOUR CLAIM FOR ADJUSTMENT ON THE RECEIPT OF SOME MUSETTE BAGS RATHER THAN RUCKSACKS. IN YOUR LETTER OF AUGUST 25, 1960, REQUESTING REVIEW OF THE DISALLOWANCE OF THAT CLAIM, YOU STATED THAT THE CONDITION OF SALE "AS IS" AND "WHERE IS" HAS NOTHING TO DO WITH THE QUANTITY INVOLVED. ALSO, YOU STATED THAT YOU PURCHASED A CERTAIN NUMBER OF UNITS OF RUCKSACKS AND WERE NOT DISCUSSING THE CONDITION OF THE MERCHANDISE.

IT IS TRUE, AS YOU STATE, THAT A SHORTAGE IN QUANTITY OF ARTICLES SOLD ON A UNIT PRICE BASIS SHOULD NOT BE CHARGED FOR. HOWEVER, PARAGRAPH 22 (L) OF THE PROVISIONS OF SALE PROVIDES THAT THE SUCCESSFUL BIDDER IS RESPONSIBLE FOR VERIFYING PROPERTY COUNT AT THE TIME MATERIAL IS CHECKED OUT BY GOVERNMENT PERSONNEL. IT WAS FURTHER PROVIDED THAT THE GOVERNMENT WOULD CONSIDER NO CLAIMS FOR SHORTAGES AND/OR CONDITION OF THE PROPERTY AFTER SAME HAD BEEN RECEIPTED FOR AND REMOVED FROM THE BASE BY THE SUCCESSFUL BIDDER OR HIS AUTHORIZED REPRESENTATIVE.

THERE ARE OF RECORD SIGNED RECEIPTS OF YOUR AUTHORIZED REPRESENTATIVES ACKNOWLEDGING RECEIPT OF THE FULL CONTRACT AMOUNT OF 5,187 RUCKSACKS--- 4,636 BY TRANSCONTINENTAL TRUCKING, INC., AND 550 BY HARRY ZISAKIND. THIS RECORD NO ADJUSTMENT CAN BE MADE FOR ANY ALLEGED SHORTAGE. AS TO THE ALLEGED SUBSTITUTION OR MISDESCRIPTION, THERE IS NO INDICATION THAT THE LOT DELIVERED WAS NOT THAT OFFERED FOR SALE AND INSPECTION. ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDES THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' WHEN A BIDDER, WHO IS COMPLETELY APPRISED OF SUCH AN EXPRESS INSPECTION RESTRICTION IN THE INVITATION, AS WELL AS OF THE DISCLAIMER OF WARRANTY CLAUSE, SUBMITS A BID, EITHER WITHOUT MAKING ANY INSPECTION OR WITHOUT MAKING AN ADEQUATE OR THOROUGH FAILURE TO MAKE ADEQUATE INSPECTION LIES UPON THE BIDDER. AS WAS STATED BY THE COURT IN THE CASE OF PAXTON MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, IT IS INCUMBENT UPON A BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL. HAD YOU NOT BEEN WILLING TO ASSUME SUCH A RISK YOU SHOULD NOT HAVE SUBMITTED A BID IN THE FIRST INSTANCE, AND UNDER THE LAW THERE IS NO AUTHORITY FOR ANY RELIEF FROM THE CONTRACT WHICH AROSE UPON THE ACCEPTANCE OF YOUR BID.