B-144972, FEB. 23, 1961

B-144972: Feb 23, 1961

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15. ITEMS 16 AND 17 WERE ADVERTISED AS 200 AND 176. YOU WERE AWARDED THE ITEMS ON THE BASIS OF YOUR BID PRICES OF $1.88 EACH FOR ITEM 16 AND $2.02 EACH FOR ITEM 17. YOU STATE THAT YOUR AGENTS ASSUMED THAT ALL HOODS WERE MADE OF COPPER AND THAT YOUR BID WAS BASED ON THIS ASSUMPTION. YOU STATE FURTHER THAT UPON RECEIVING THE PROPERTY IT WAS FOUND THAT ONLY 64 HOODS WERE MADE OF COPPER AND THE BALANCE WERE GALVANIZED STEEL. YOUR CLAIM APPEARS TO BE BASED CHIEFLY UPON THE FACT THAT UPON INSPECTION BY YOUR AGENT OF THE MATERIAL OFFERED FOR SALE THE ONLY CONTAINERS OPENED FOR INSPECTION CONTAINED COPPER HOODS AND YOU ASSUMED THAT ALL WERE COPPER.

B-144972, FEB. 23, 1961

TO KARL NUSSBAUM AND SONS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 15, 1960, REQUESTING REVIEW OF SETTLEMENT DATED NOVEMBER 30, 1960, WHICH DISALLOWED YOUR CLAIM FOR $602.24 IN CONNECTION WITH YOUR PURCHASE OF ITEMS 16 AND 17 AT SPOT BID SALE NO. 15-059-S-61-1, BY THE LOUISVILLE MEDICAL DEPOT, LOUISVILLE, KENTUCKY, OF VARIOUS ITEMS OF DENTAL EQUIPMENT AND SUPPLIES.

ITEMS 16 AND 17 WERE ADVERTISED AS 200 AND 176, RESPECTIVELY, UNUSED DENTAL AND LABORATORY HOODS FOR USE WITH GRINDING AND POLISHING MACHINE. YOU WERE AWARDED THE ITEMS ON THE BASIS OF YOUR BID PRICES OF $1.88 EACH FOR ITEM 16 AND $2.02 EACH FOR ITEM 17. YOU STATE THAT YOUR AGENTS ASSUMED THAT ALL HOODS WERE MADE OF COPPER AND THAT YOUR BID WAS BASED ON THIS ASSUMPTION. YOU STATE FURTHER THAT UPON RECEIVING THE PROPERTY IT WAS FOUND THAT ONLY 64 HOODS WERE MADE OF COPPER AND THE BALANCE WERE GALVANIZED STEEL. ACCORDINGLY, YOU CLAIM A REFUND OF $602.24 ON THE GALVANIZED ARTICLES. YOUR CLAIM APPEARS TO BE BASED CHIEFLY UPON THE FACT THAT UPON INSPECTION BY YOUR AGENT OF THE MATERIAL OFFERED FOR SALE THE ONLY CONTAINERS OPENED FOR INSPECTION CONTAINED COPPER HOODS AND YOU ASSUMED THAT ALL WERE COPPER.

IT MAY BE POINTED OUT THAT THE INVITATION FOR BID DID NOT STATE WHAT MATERIAL THE HOODS WERE MADE OF. WITH RESPECT TO YOUR CONTENTION THAT PRACTICAL INSPECTION OF THE HOODS WAS IMPOSSIBLE, ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING," AND ARTICLE 2 SPECIFICALLY STATES THAT THE SALE IS NOT ONE BY SAMPLE. OUR OFFICE CONSISTENTLY HAS HELD THAT WHERE A BIDDER WHO IS COMPLETELY APPRISED OF SUCH AN EXPRESS 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 INSPECTION EVEN THOUGH THE LATTER CIRCUMSTANCE IS DUE TO THE INSPECTION BEING IMPRACTICABLE IF NOT IMPOSSIBLE, IT MUST BE CONCLUDED THAT THE BIDDER ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. 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.

IN CONNECTION WITH THE HOODS YOU DID INSPECT, THE INVITATION FOR BIDS SPECIFICALLY STATED THAT THIS WAS NOT A SALE BY SAMPLE. TO CONSTITUTE A SALE BY SAMPLE IN THE LEGAL SENSE OF THAT TERM IT MUST APPEAR THAT THE PARTIES CONTRACTED SOLELY IN REFERENCE TO THE SAMPLE OR ARTICLE EXHIBITED AND THAT BOTH MUTUALLY UNDERSTOOD THAT THEY WERE DEALING WITH AN UNDERSTANDING THAT THE BULK WAS TO BE LIKE IT. WOOD V. MICHAUD, 63 MINN. 478.

THE RECORD SHOWS THAT ALL THE HOODS DELIVERED TO YOU WERE COMPLETE WITH DUCT AND TRAYS. IT APPEARS THAT THE CONTRACTING OFFICE ACTED IN GOOD FAITH AND THERE IS NOTHING TO SHOW THAT THE HOODS WERE DISPLAYED IN SUCH A MANNER AS TO MISLEAD YOU INTO BELIEVING THAT THEY WERE REPRESENTATIVE OF THE ENTIRE LOT OR THAT YOU PROPERLY COULD HAVE RELIED UPON SUCH SAMPLES AS REPRESENTATIVE OF THE LOT.