B-144092, NOV. 17, 1960

B-144092: Nov 17, 1960

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- 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 GROUNDSFOR 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. IF 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.

B-144092, NOV. 17, 1960

TO THE SECRETARY OF THE ARMY:

REFERENCE IF MADE TO LETTER OF SEPTEMBER 23, 1960, FROM THE DEPUTY THE QUARTERMASTER GENERAL, REQUESTING A DECISION WITH RESPECT TO THE REQUEST OF M. DORSKY COMPANY FOR RESCISSION OR ADJUSTMENT OF THE CONTRACT FOR ITEM 36 ON INVITATION FOR BIDS NO. 01-002-S-60-22.

THE INVITATION ISSUED BY THE PROPERTY DISPOSAL DIVISION, ANNISTON ORDNANCE DEPOT, ANNISTON, ALABAMA, REQUESTED BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY. ITEM NO. 36 COVERED CERTAIN PROPERTY, ON A LOT BASIS, DESCRIBED AS FOLLOWS:

"ENGINES, TURBINES, AND COMPONENTS, CONSISTING OF: GUIDES; RING SETS; RETAINERS; CRANKSHAFTS; BEARINGS; GEARS; LEVERS; GASKETS; BUSHINGS; KITS; CLAMPS; SUPPORTS; PLUGS; NUTS; COVERS; STEMS; SHIMS; ETC.

CHART

ETAC--- $10,472.83

COND--- UNUSED

ETW---- 171,226 LBS.

LOC---- ROW 18.'

THE GENERAL SALE TERMS AND CONDITIONS PROVIDE, IN PART 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 GROUNDSFOR 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.

"8. ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT.--- ANY VARIATION BETWEEN THE QUANTITY OR WEIGHT LISTED FOR ANY ITEM AND THE QUANTITY OR WEIGHT OF SUCH ITEM TENDERED OR DELIVERED TO THE PURCHASER WILL BE ADJUSTED ON THE BASIS OF THE UNIT PRICE QUOTED FOR SUCH ITEM; BUT NO ADJUSTMENT FOR SUCH VARIATION WILL BE MADE WHERE AN AWARD IS MADE ON A "PRICE FOR THE LOT" BASIS.'

IN RESPONSE TO THE INVITATION, M. DORSKY COMPANY SUBMITTED A BID ON, AMONG OTHERS, ITEM 36, OFFERING $684.90 FOR THE LOT. ITS BID ON ITEM 36, BEING THE HIGHEST RECEIVED, WAS ACCEPTED JUNE 29, 1960. INMAKING PREPARATIONS TO REMOVE THE PROPERTY, THE CONTRACTOR DISCOVERED A CONSIDERABLE DISCREPANCY IN THE WEIGHT. THIS WAS CALLED TO THE ATTENTION OF THE CONTRACTING OFFICER AND IT WAS DISCOVERED THAT THE WEIGHT WAS OVERESTIMATED BY ABOUT 160,000 POUNDS. THE CONTRACTOR ALLEGES THAT WHILE HE INSPECTED THE PROPERTY IT WAS DIFFICULT TO DETERMINE FROM VISUAL INSPECTION THE TOTAL WEIGHT OF THE MATERIAL IN THE PARTICULAR LOT, AND THAT HE BASED HIS BID ON THE ESTIMATED WEIGHT SHOWN IN THE INVITATION AT ONE-HALF CENT PER POUND, LESS 20 PERCENT TO COVER THE COST OF REMOVING AND HANDLING THE MATERIAL, ALLOWANCE FOR WOODEN BOXING AND PACKAGING, AND ALLOWANCE FOR REASONABLE VARIANCE BETWEEN THE GOVERNMENT'S ESTIMATED WEIGHT AND WHAT THE ACTUAL WEIGHT MIGHT BE.

IN VIEW OF THE SUBSTANTIAL OVERESTIMATE OF THE WEIGHT THE CONTRACTOR HAS NOT REMOVED THE PROPERTY, AND REQUESTS THAT HE BE RELIEVED FROM ALL LIABILITY UNDER THE CONTRACT. THE QUARTERMASTER GENERAL IN HIS REPORT STATES, IN PART, AS FOLLOWS:

"2. ITEM 36 WAS DESCRIBED AS ONE LOT OF ENGINES, TURBINES AND COMPONENTS, HAVING AN ESTIMATED WEIGHT OF 171,226 POUNDS. THE COMPONENT IN THE LOT WHICH ACCOUNTED FOR THE MAJOR PORTION OF THE WEIGHT ESTIMATE WAS A GROUP OF 64 OIL PANS IN 46 BOXES, WHICH THE TURN IN DOCUMENT SHOWED HAD A WEIGHT OF 160,000 POUNDS. THE AVERAGE WEIGHT OF ONE OF THESE PANS, WITHOUT CRATING, IS 19 POUNDS. INFORMATION STENCILLED ON THE BOXES SHOWS THAT THE ENTIRE GROUP OF 46 BOXES WEIGHS A TOTAL OF 3,506 POUNDS. THUS THE WEIGHT OF 171,226 APPEARING ON THE INVITATION FOR BIDS WAS OVERESTIMATED BY 156,500 POUNDS. THE MATHEMATICAL COMPUTATION BY WHICH THE ERRONEOUS FIGURE OF 160,000 POUNDS WAS REACHED DOES NOT APPEAR ON THE TURN-IN DOCUMENTS. HOWEVER, IT SHOULD HAVE BEEN OBVIOUS TO THE CONTRACTING OFFICER, WHEN USING THE DOCUMENTS TO PREPARE THE MATERIAL FOR SALE, THAT SUCH A WEIGHT WAS IMPOSSIBLE FOR 64 OIL PANS, EVEN THOUGH THEY WERE CRATED. THE ERROR APPARENTLY WAS READILY RECOGNIZED WHEN THE DOCUMENTS WERE RECHECKED, WITHOUT A PHYSICAL EXAMINATION OF THE LOT. SINCE AN ERROR WAS THUS APPARENT FROM THE TURN-IN DOCUMENTS, IT IS NOT CONSIDERED THAT A DESCRIPTION BASED ON SUCH DOCUMENTS WAS "BASED ON THE BEST AVAILABLE INFORMATION," AS IT WAS REPRESENTED TO BE.'

APPARENTLY, IN ARRIVING AT THE WEIGHT OF 160,000 POUNDS, THE WEIGHT OF 3,506 POUNDS FOR THE 46 BOXES OF OIL PANS MAY HAVE BEEN CONSIDERED AS THE WEIGHT PER BOX AND THIS WAS MULTIPLIED BY 46, THE NUMBER OF BOXES INVOLVED (46 TIMES 3,506 EQUALS 161,276). WE AGREE WITH THE QUARTERMASTER GENERAL THAT IT SHOULD HAVE BEEN OBVIOUS TO THE CONTRACTING OFFICER THAT THE TOTAL WEIGHT FOR THE 46 BOXES OF OIL PANS COULD NOT HAVE BEEN 160,000 POUNDS, OR APPROXIMATELY 3,500 POUNDS PER BOX. FURTHERMORE, AS STATED BY THE QUARTERMASTER GENERAL, THE CONTRACTOR'S INSPECTION APPEARS TO HAVE BEEN PRIMARILY TO DETERMINE THE VARIOUS KINDS OF ITEMS IN THE LOT AND THEIR CONDITION, INFORMATION AS TO WHICH WAS NOT COMPLETELY SHOWN IN THE DESCRIPTION, AND THAT HE MADE NO EFFORT TO CHECK THE WEIGHT. ALSO, CONSIDERING THE NATURE OF THE PROPERTY INVOLVED AND THE FACT THAT THE WEIGHT APPARENTLY WAS NOT ASCERTAINABLE BY SUCH INSPECTION AS REASONABLY COULD HAVE BEEN ALLOWED, WE BELIEVE THAT THE PURCHASER BID UNDER SUCH MISTAKE, EVEN THOUGH UNILATERAL, AS WOULD BE REGARDED BY THE COURTS AS GROUNDS FOR RESCISSION OF THE CONTRACT OF SALE.

ACCORDINGLY, THE CONTRACT FOR ITEM 36 ON INVITATION FOR BIDS NO. 01 002-S -60-22 MAY BE RESCINDED AND THE BID DEPOSIT REFUNDED TO M. DORSKY COMPANY.