B-145551, MAY 11, 1961
Highlights
TO MIDWEST WASTE MATERIAL COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED MARCH 28. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $493.20 REPRESENTING AN ADJUSTMENT OF PRICE DUE TO AN ERRONEOUS DESCRIPTION OF SURPLUS MATERIAL PURCHASED FROM THE DEPARTMENT OF THE ARMY. YOU AGREE THAT IT WAS YOUR DUTY TO INSPECT THE MATERIAL OFFERED FOR SALE WHICH THE RECORDS SHOW YOU DID NOT DO. OUR OFFICE CONSISTENTLY HAS HELD THAT WHERE A BIDDER WHO IS APPRISED OF THE EXPRESS DISCLAIMER CLAUSE SUBMITS A BID. AS WAS STATED BY THE COURT IN THE CASE OF PAXTON-MITCHELL COMPANY V. IT IS INCUMBENT UPON A BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL. YOU STATE THAT YOUR CLAIM IS BASED ON THE POSSIBILITY THAT THE SHIRTS AND KHAKI KNITTED UNDERSHIRTS COULD HAVE BEEN MIXED WITH THE SHIRTS YOU BOUGHT AT THE TIME OF SHIPMENT TO THE DISPOSAL DEPOT FOR SALE.
B-145551, MAY 11, 1961
TO MIDWEST WASTE MATERIAL COMPANY:
REFERENCE IS MADE TO YOUR LETTER DATED MARCH 28, 1961, REQUESTING REVIEW OF OUR SETTLEMENT OF MARCH 3, 1961, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $493.20 REPRESENTING AN ADJUSTMENT OF PRICE DUE TO AN ERRONEOUS DESCRIPTION OF SURPLUS MATERIAL PURCHASED FROM THE DEPARTMENT OF THE ARMY, FORT WORTH GENERAL DEPOT, FORT WORTH, TEXAS.
AT AN AUCTION SALE HELD AT THE DEPOT YOU OFFERED TO PURCHASE FROM THE GOVERNMENT CERTAIN WOOL SHIRTS AT DIFFERENT UNIT PRICES, FOR A TOTAL BID OF $19,920. YOU ALLEGE THAT UPON SORTING THE SHIRTS PURCHASED YOU RECEIVED 338 PIECES OF GREEN KOREAN SHIRTS AND 726 PIECES OF KHAKI KNITTED UNDERSHIRTS.
YOU ADMIT IN YOUR LETTER THAT IN CONTRACTS CONTAINING THE "INSPECTION" AND WARRANTY CLAUSES CONTAINED IN THE PRESENT CONTRACT THE GOVERNMENT CANNOT BE HELD LIABLE FOR ANY VARIATION IN QUALITY. YOU AGREE THAT IT WAS YOUR DUTY TO INSPECT THE MATERIAL OFFERED FOR SALE WHICH THE RECORDS SHOW YOU DID NOT DO. OUR OFFICE CONSISTENTLY HAS HELD THAT WHERE A BIDDER WHO IS APPRISED OF THE EXPRESS DISCLAIMER CLAUSE SUBMITS A BID, EITHER WITHOUT MAKING AN INSPECTION OR WITHOUT MAKING AN ADEQUATE OR THOROUGH INSPECTION EVEN THOUGH INSPECTION MAY BE IMPRACTICABLE IF NOT IMPOSSIBLE, IT MUST BE CONCLUDED THAT THE BIDDER ELECTS TO ASSUME ANY RISK WHICH MAY 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.
YOU STATE THAT YOUR CLAIM IS BASED ON THE POSSIBILITY THAT THE SHIRTS AND KHAKI KNITTED UNDERSHIRTS COULD HAVE BEEN MIXED WITH THE SHIRTS YOU BOUGHT AT THE TIME OF SHIPMENT TO THE DISPOSAL DEPOT FOR SALE. WHILE THIS MAY HAVE HAPPENED, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER OR HIS AGENTS WERE AWARE THEREOF OR THAT THEY ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE TRANSACTION.