B-145211, MAR. 21, 1961

B-145211: Mar 21, 1961

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 14. THE ITEM WAS OFFERED FOR SALE BY LOT. 169.99 ON ITEM 19 WAS ACCEPTED BY THE GOVERNMENT ON FEBRUARY 2. HE STATED THAT HE INSPECTED THE PROPERTY BUT IT WAS NOT POSSIBLE FOR HIM TO DETERMINE THE WEIGHT. THE RESULT WAS THAT THE LOT CONTAINED APPROXIMATELY 89. THE ITEM INVOLVED WAS ADVERTISED AND AWARDED ON A "PRICE FOR THE LOT.'. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDED THAT THE PROPERTY WAS OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION. THE FACT THAT THE GOVERNMENT AND THE CLAIMANT MAY BOTH HAVE BEEN MISTAKEN AS TO THE WEIGHT OF THE PROPERTY DOES NOT ENTITLE THE CLAIMANT TO RELIEF SINCE THE COURTS HAVE HELD THAT THE DISCLAIMER OF WARRANTY CLAUSE EMPLOYED IN GOVERNMENT CONTRACTS SUCH AS HERE INVOLVED PRECLUDES RECOVERY ON THE THEORY OF MUTUAL MISTAKE.

B-145211, MAR. 21, 1961

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 14, 1961, WITH ENCLOSURES, FILE SO-X, FROM THE DEPUTY DIRECTOR OF THE UNITED STATES NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH, REQUESTING AN EARLY DECISION ON THE REQUEST OF B AND L SURPLUS SALES THAT ITS BID ON SURPLUS MATERIAL PURCHASED UNDER SALES CONTRACT NO. N63118S-51829 BE CANCELLED IN VIEW OF AN ALLEGED SHORTAGE.

BY SALES INVITATION NO. B-91-61-63118, THE DEPOT REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF VARIOUS ITEMS OF SURPLUS PROPERTY. RESPONSE TO THE INVITATION, THE CLAIMANT PLACED A BID ON ITEM NO. 19, CONSISTING OF APPROXIMATELY 24 EACH GUN STORAGE RACKS. THE GOVERNMENT, IN DESCRIBING THE PROPERTY, ESTIMATED THE WEIGHT TO BE 288,000 POUNDS. THE ITEM WAS OFFERED FOR SALE BY LOT. THE CLAIMANT'S BID OF $2,169.99 ON ITEM 19 WAS ACCEPTED BY THE GOVERNMENT ON FEBRUARY 2, 1961.

BY LETTER DATED FEBRUARY 7, 1961, THE CLAIMANT ADVISED THE CONTRACTING OFFICER THAT IT HAD BASED ITS BID AT $17 PER GROSS TON ON THE ESTIMATED WEIGHT OF 288,000 POUNDS SHOWN ON THE INVITATION. ALSO, HE STATED THAT HE INSPECTED THE PROPERTY BUT IT WAS NOT POSSIBLE FOR HIM TO DETERMINE THE WEIGHT. FURTHER HE STATED THAT AFTER THE AWARD OF THE CONTRACT HE HAD AN ,EXPERIENCED STEEL BUYER" INSPECT THE MATERIAL WHO ESTIMATED THE WEIGHT OF THE MATERIAL AT ABOUT 95,000 POUNDS. THE CLAIMANT ASKED THAT ITS BID BE WITHDRAWN.

THE CONTRACTING OFFICER REQUESTED THAT ONE OF THE GUN RACKS BE WEIGHED SO AS TO DETERMINE WEIGHT OF THE LOT. THE RESULT WAS THAT THE LOT CONTAINED APPROXIMATELY 89,760 POUNDS.

THE ITEM INVOLVED WAS ADVERTISED AND AWARDED ON A "PRICE FOR THE LOT.' PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDED THAT THE PROPERTY WAS OFFERED "AS IS" AND "WHERE IS" AND THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION, BUT THAT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO QUANTITY OR WEIGHT.

THE FACT THAT THE GOVERNMENT AND THE CLAIMANT MAY BOTH HAVE BEEN MISTAKEN AS TO THE WEIGHT OF THE PROPERTY DOES NOT ENTITLE THE CLAIMANT TO RELIEF SINCE THE COURTS HAVE HELD THAT THE DISCLAIMER OF WARRANTY CLAUSE EMPLOYED IN GOVERNMENT CONTRACTS SUCH AS HERE INVOLVED PRECLUDES RECOVERY ON THE THEORY OF MUTUAL MISTAKE. SEE AMERICAN SANITARY RAG CO. V. UNITED STATES, 142 CT.CL. 293.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR CANCELLING THE AWARD BECAUSE OF THE WEIGHT SHORTAGE OF THE ITEM INVOLVED.