B-144492, DEC. 29, 1960

B-144492: Dec 29, 1960

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

TO PAM MARROW FABRICS CO: REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8. BIDS WERE SOLICITED ON VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY. E.A.C. $4800.00 " THE PROPERTY WAS OFFERED ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "EXPRESSED OR IMPLIED" AS TO QUANTITY. THE NEXT HIGH BID WAS $0.00311 PER YARD. AWARD WAS MADE TO YOU AS THE HIGHEST BIDDER. WHEREUPON YOU COMPLETED PAYMENT OF THE AMOUNT OF YOUR BID AND THE PROPERTY WAS REPACKED AND SHIPPED TO YOU. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER OR HIS AGENT ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THIS TRANSACTION.

B-144492, DEC. 29, 1960

TO PAM MARROW FABRICS CO:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1960, REQUESTING REVIEW OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED NOVEMBER 4, 1960, WHICH DISALLOWED YOUR CLAIM FOR COMPLETE OR PARTIAL REFUND OF AN AMOUNT PAID BY YOU FOR SURPLUS PROPERTY PURCHASED FROM THE PROPERTY DISPOSAL BRANCH, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, UNDER INVITATION NO. 11-070-S-60- 25, DATED FEBRUARY 29, 1960.

BY THE INVITATION, BIDS WERE SOLICITED ON VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY, INCLUDING ITEMS NO. 30 WHICH COVERED 150,000 YARDS OF ASBESTOS YARN DESCRIBED AS FOLLOWS:

TABLE

"YARN, ASBESTOS, 2 PLY, 1/8 IN.DIA., OLD CODE

H009-08-98300, CODE H009-5330-522-0234, UNUSED, 16 BXS.,

APPROX.WT., 3528 GR.LB., E.A.C. $4800.00 "

THE PROPERTY WAS OFFERED ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "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. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS URGED BIDDERS TO INSPECT THE PROPERTY BEFORE BIDDING THEREON AND CAUTIONED THEM THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM AGAINST THE GOVERNMENT.

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OF $0.00342 PER YARD-- - A TOTAL BID OF $513--- ON ITEM NO. 30. THE NEXT HIGH BID WAS $0.00311 PER YARD. THE FILE SHOWS THAT YOU MADE A CASUAL INSPECTION OF THE PROPERTY BEFORE SUBMITTING YOUR BID. ON APRIL 1, 1960, AWARD WAS MADE TO YOU AS THE HIGHEST BIDDER, WHEREUPON YOU COMPLETED PAYMENT OF THE AMOUNT OF YOUR BID AND THE PROPERTY WAS REPACKED AND SHIPPED TO YOU. BY YOUR LETTERS OF APRIL 19, 1960, AND LATER DATES, YOU STATED THAT YOU HAD BASED YOUR BID ON THE WEIGHT STATED IN THE INVITATION (3,258 LBS. ( INSTEAD OF ON THE YARDAGE THEREIN STATED AND THAT YOU RECEIVED ONLY APPROXIMATELY 1,000 LBS. NET WEIGHT INSTEAD OF APPROXIMATELY 2,700 LBS. NET WEIGHT WHICH YOU EXPECTED TO RECEIVE. YOU REQUEST THAT YOU BE PERMITTED TO RETURN THE PROPERTY AND RECEIVE A REFUND OF THE ENTIRE AMOUNT PAID OR, IN THE ALTERNATIVE, THAT AN ADJUSTMENT IN THE PRICE BE MADE BY REFUNDING $342.

THE LANGUAGE USED IN THE SUBJECT INVITATION HAS BEEN HELD REPEATEDLY BY THE COURTS TO CONSTITUTE AN EXPRESS DISCLAIMER OF ANY WARRANTY WHATEVER AS TO THE QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HODGER COMPANY V. UNITED STATES, 52 F. 2D 31, CERTIORARI DENIED 284 U.S. 676; 36 COMP. GEN. 612.

NO LEGAL RESPONSIBILITY WOULD ATTACH TO THE GOVERNMENT IN THE ABSENCE OF A SHOWING OF BAD FAITH ON THE PART OF THE DISPOSAL OFFICER OR HIS AGENT. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER OR HIS AGENT ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THIS TRANSACTION. IT IS REPORTED THAT THE TRANSFER DOCUMENTS AND PROPERTY DISPOSAL AUTHORITY RESTRICTED DISPOSAL OF THE ASBESTOS YARN TO 150,000 YARDS PER MONTH. THEREFORE, THE TERMS OF SALE WERE SET ON A PER YARD BASIS AND THE TOTAL QUANTITY LIMITED TO 150,000 YARDS. THE DESCRIPTIVE DATA SET OUT IN THE INVITATION WAS TAKEN FROM THE TRANSFER DOCUMENTS AND THE MARKINGS ON THE ORIGINAL BOXES. THE ACQUISITION COST WAS CORRECTLY STATED AS $4,800, THAT BEING THE COST OF 150,000 YARDS AT $0.032 PER YARD. IT IS REPORTED FURTHER THAT THE SPECIFIC PROPERTY OFFERED FOR SALE AND INSPECTED BY YOU WAS DELIVERED TO YOU THOUGH IT WAS REPACKED FOR SHIPMENT IN 6 BOXES INSTEAD OF THE 16 BOXES ADVERTISED. THERE IS NO CONTENTION THAT YOU RECEIVED LESS THAN THE 150,000 YARDS SPECIFICALLY COVERED BY THE INVITATION.

FOR THE REASONS ABOVE SET FORTH, THERE APPEARS NO VALID BASIS FOR ALLOWANCE OF ANY PORTION OF YOUR CLAIM. THEREFORE, THE SETTLEMENT DATED NOVEMBER 4, 1960, DISALLOWING THE CLAIM, IS SUSTAINED.