B-144541, DEC. 13, 1960

B-144541: Dec 13, 1960

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WHICH WAS DESCRIBED AS. THAT THESE BIDS WERE SUBMITTED BY LOCAL CONCERNS. YOUR BID AS TO ITEM 4 WAS ACCEPTED ON SEPTEMBER 9. THAT THE SURPLUS PROPERTY COVERED BY THAT ITEM WAS MISREPRESENTED IN THE SALES INVITATION. SINCE THE CONDITION OF THE PROPERTY WAS DESCRIBED AS "UNUSED-GOOD. " WHEREAS THE CONDITION OF THE PROPERTY YOU RECEIVED WAS "USED-POOR.'. YOU DISCOVERED THAT TWO OF THE SAWS WERE OF THE MODEL AND CONDITION AS DESCRIBED IN THE INVITATION AND THAT. THEY WERE ACCEPTABLE TO YOU. THAT THE OTHER FOUR SAWS WERE OF A DIFFERENT MODEL NUMBER AND WERE IN AN ESPECIALLY POOR CONDITION. YOU STATED THAT YOU WERE THEREFORE REDUCING THE AMOUNT OF YOUR ORIGINAL CLAIM FROM $468.71 TO $312.48.

B-144541, DEC. 13, 1960

TO MR. REG. RUXTON:

THERE HAS BEEN REFERRED TO THIS OFFICE YOUR LETTER DATED OCTOBER 29, 1960, ADDRESSED TO THE PRESIDENT OF THE UNITED STATES, RELATIVE TO OUR SETTLEMENT DATED OCTOBER 19, 1960, WHICH DISALLOWED YOUR CLAIM FOR $312.48, REPRESENTING FREIGHT CHARGES OF $144.52 AND THE AMOUNT PAID FOR SURPLUS PROPERTY PURCHASED FROM THE GOVERNMENT UNDER CONTRACT NO. N604S- 34487.

IT APPEARS THAT IN RESPONSE TO INVITATION NO. B-23-60-604, ISSUED BY THE NAVAL SUPPLY CENTER, DISPOSAL DEPARTMENT, PEARL HARBOR, HAWAII, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM 4 AT A PRICE OF $41.99 EACH, WHICH WAS DESCRIBED AS---

TABLE

"CHAIN SAW-MFR MALL TOOL CO., SIZE 36 INCHES, MODEL 18420A,

TYPE 536, DRIVEN BY 2 CYCLE, 5 HP, GASOLINE ENGINE.

EST.WT. 1,800 LBS., IN BOXES, NOT PACKED FOR SHIPMENT.

(EST ACQ COST $2400)

CONDITION: UNUSED-GOOD 140 CUFT 3 PLTS" THE RECORD INDICATES THAT THE FOUR BIDS ON ITEM 4 RANGED FROM $41.10 TO $26, AND THAT THESE BIDS WERE SUBMITTED BY LOCAL CONCERNS. YOUR BID AS TO ITEM 4 WAS ACCEPTED ON SEPTEMBER 9, 1959.

UPON DELIVERY OF THE SURPLUS PROPERTY COVERED BY ITEM 4, YOU ADVISED THE DISPOSAL AGENCY BY LETTER DATED DECEMBER 24, 1959, THAT THE SURPLUS PROPERTY COVERED BY THAT ITEM WAS MISREPRESENTED IN THE SALES INVITATION, SINCE THE CONDITION OF THE PROPERTY WAS DESCRIBED AS "UNUSED-GOOD," WHEREAS THE CONDITION OF THE PROPERTY YOU RECEIVED WAS "USED-POOR.' YOU REQUESTED THAT YOU BE REFUNDED THE FULL PURCHASE PRICE OF THE PROPERTY AND BE REIMBURSED FREIGHT CHARGES OF $216.77, INCURRED BY YOU. BY LETTER DATED DECEMBER 31, 1959, THE CONTRACTING OFFICER ADVISED YOU THAT, IN VIEW OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, NO BASIS EXISTED FOR FAVORABLE CONSIDERATION OF YOUR CLAIM FOR RELIEF.

IN A LETTER DATED JANUARY 5, 1960, YOU ADVISED THE CONTRACTING OFFICER THAT UPON A FURTHER INSPECTION OF THE CHAIN SAWS, YOU DISCOVERED THAT TWO OF THE SAWS WERE OF THE MODEL AND CONDITION AS DESCRIBED IN THE INVITATION AND THAT, THEREFORE, THEY WERE ACCEPTABLE TO YOU; AND THAT THE OTHER FOUR SAWS WERE OF A DIFFERENT MODEL NUMBER AND WERE IN AN ESPECIALLY POOR CONDITION. YOU STATED THAT YOU WERE THEREFORE REDUCING THE AMOUNT OF YOUR ORIGINAL CLAIM FROM $468.71 TO $312.48.

YOUR REQUEST FOR REVIEW APPEARS TO BE BASED ON THE QUESTION WHETHER THE GOVERNMENT ACTED IN GOOD FAITH IN THIS TRANSACTION. YOU CONTEND THAT YOU HAVE A RIGHT TO RELY ON THE DESCRIPTION WHEN AN ITEM IS DESCRIBED AS HAVING A PARTICULAR MANUFACTURER'S NUMBER AND AS BEING IN A CERTAIN CONDITION.

YOUR BID AND THE SALE WERE SUBJECT TO THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2 OF 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 2O 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 NEITHER YOU NOR YOUR REPRESENTATIVE INSPECTED THE CHAIN SAWS PRIOR TO THE SUBMISSION OF YOUR 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; MATTRAM 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.