B-145702, SEPTEMBER 7, 1961, 41 COMP. GEN. 185

B-145702: Sep 7, 1961

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UNIVERSAL MACHINE IN A SURPLUS SALES INVITATION CONTAINING AN EXPRESS DISCLAIMER OF WARRANTY CLAUSE AND CAUTIONING BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMISSION OF BIDS AND THE CHUCKING GRINDER TENDERED BY THE GOVERNMENT WHICH WAS NOT A TRAVELING TABLE TYPE AND HAD A LESSER CAPACITY AND A MORE RESTRICTED APPLICATION IS NOT SO GREAT AS TO AMOUNT TO A "RIDICULOUS DISCREPANCY" ENTITLING A PURCHASER TO RELIEF SO THAT A PURCHASER WHO FAILED TO INSPECT THE PROPERTY MUST BE HELD TO HAVE ASSUMED THE RISK THAT THE PROPERTY TENDERED FOR DELIVERY MIGHT NOT BE THE EXACT PROPERTY DESCRIBED IN THE INVITATION AND. 1961: REFERENCE IS MADE TO A LETTER DATED APRIL 24. TRUEING DEVICE SCC CODE: 3415-1431-8000-4419-701 THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPHS 1 AND 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION THE SOLAR AIRCRAFT COMPANY STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES AS TO QUALITY.

B-145702, SEPTEMBER 7, 1961, 41 COMP. GEN. 185

SALES - DISCLAIMER OF WARRANTY - ERRONEOUS DESCRIPTION - DISCREPANCY DETERMINATIONS THE DISCREPANCY BETWEEN A GRINDING MACHINE DESCRIBED AS A CYLINDRICAL, TRAVELING TABLE TYPE, UNIVERSAL MACHINE IN A SURPLUS SALES INVITATION CONTAINING AN EXPRESS DISCLAIMER OF WARRANTY CLAUSE AND CAUTIONING BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMISSION OF BIDS AND THE CHUCKING GRINDER TENDERED BY THE GOVERNMENT WHICH WAS NOT A TRAVELING TABLE TYPE AND HAD A LESSER CAPACITY AND A MORE RESTRICTED APPLICATION IS NOT SO GREAT AS TO AMOUNT TO A "RIDICULOUS DISCREPANCY" ENTITLING A PURCHASER TO RELIEF SO THAT A PURCHASER WHO FAILED TO INSPECT THE PROPERTY MUST BE HELD TO HAVE ASSUMED THE RISK THAT THE PROPERTY TENDERED FOR DELIVERY MIGHT NOT BE THE EXACT PROPERTY DESCRIBED IN THE INVITATION AND, THEREFORE, THE CONTRACT MAY NOT BE RESCINDED NOR MAY AN AMOUNT LESS THAN THE BID PRICE BE ACCEPTED IN FINAL SETTLEMENT.

TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 7, 1961:

REFERENCE IS MADE TO A LETTER DATED APRIL 24, 1961, WITH ENCLOSURES, FROM THE DEPUTY FOR PROCUREMENT AND PRODUCTION, OFFICE OF THE ASSISTANT SECRETARY, REQUESTING A DECISION AS TO WHETHER THERE MAY BE GRANTED THE RELIEF REQUESTED BY THE COASTAL MACHINERY SALES CO., INC., UNDER ITS BID ACCEPTED ON FEBRUARY 17, 1960.

THE SOLAR AIRCRAFT COMPANY, DES MOINES, IOWA, AS AN AGENT FOR THE DEPARTMENT OF THE AIR FORCE, BY BID NO. 2 REQUESTED BIDS FOR THE PURCHASE OF 101 ITEMS OF SURPLUS GOVERNMENT PROPERTY. ITEM 19 COVERED ONE GRINDING MACHINE DESCRIBED IN THE INVITATION AS FOLLOWS:

GRINDING MACHINE, EXTERNAL, CYLINDRICAL, UNIVERSAL, TRAVELING TABLE

TYPE 42 INCHES X 72 INCHES C.C. FOR JET ENGINE COMPONENTS, NORTON

CO., WORCESTER, MASS, S/N C25179, YEAR OF MFG. 1953, SPECIAL

PURPOSE, CONDITION 102

MOTOR DATA: 1-7 1/2 H.P., 1750 RPM, AC 220/440/3/60, 1- 3/4

H.P., 1160 RPM, AC 220/440/3/60, 1- 1/4 H.P., 1725 RPM, AC

220/440/3/60, 1-2 H.P., 1160 RPM, AC 220/440/3/60

ATTACH. AND ACCESS.: 1 SUNDSTRAND PUMP MODEL MMC-104, 1 VICKERS

PUMP MODEL VL1-105C2LH, 1 FALK MOTOR REDUCER, 1 INGERSOLL RAND

PUMP, MOD. F TYPE 10KVRS, 1 INTERNAL GRINDING ATTACHMENT WITH POPE

SPINDLE, PAWL STOP, TRUEING DEVICE

SCC CODE: 3415-1431-8000-4419-701

THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPHS 1 AND 3 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION THE SOLAR AIRCRAFT COMPANY STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES AS TO QUALITY, KIND, CHARACTER, QUANTITY, WEIGHT, CONDITION OR DESCRIPTION OF ANY OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE. PARAGRAPH 2 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 OR THE WITHDRAWAL OF A BID AFTER OPENING. THE COASTAL MACHINERY SALES CO., INC., DID NOT INSPECT THE PROPERTY BEFORE BIDDING.

THE COASTAL MACHINERY SALES CO., INC., SUBMITTED A BID OFFERING TO PURCHASE THE GRINDER COVERED BY ITEM 19 AT A PRICE OF $5,454. ELEVEN OTHER BIDDERS ON ITEM 19 QUOTED PRICES RANGING FROM $3,600 TO $52.22. THE BID OF THE CORPORATION AS TO ITEM 19 WAS ACCEPTED ON FEBRUARY 17, 1960.

BY TELEGRAM DATED FEBRUARY 23, 1960, THE COASTAL MACHINERY SALES CO., INC., ADVISED THE SOLAR AIRCRAFT COMPANY THAT ITEM 19 WAS INCORRECTLY IDENTIFIED IN THE INVITATION IN THAT IT WAS DESCRIBED AS A 42 INCH X 72 INCH CYLINDRICAL GRINDER WHEREAS IT ACTUALLY WAS A 42 INCH CHUCKING TYPE TURBINE WHEEL GRINDER AND THAT, THEREFORE, IT MUST WITHDRAW ITS BID ON ITEM 19.

IN A LETTER DATED FEBRUARY 24, 1960, THE CORPORATION FURTHER STATED THAT THE INVITATION DESCRIBED ITEM 19 AS A 42 INCH X 72 INCH UNIVERSAL CYLINDRICAL GRINDER AND THAT WHILE IT REALIZED THAT THE EQUIPMENT WAS OFFERED WITHOUT GUARANTY AS TO CONDITION, AND THAT THERE MAY BE MINOR DISCREPANCIES IN THE DESCRIPTION, IT SUBMITTED ITS BID ON THE BASIS OF CORRECT IDENTIFICATION OF THE MACHINE. THE CORPORATION STATED THAT SINCE THE MACHINE OFFERED FOR DELIVERY IS COMPLETELY DIFFERENT FROM ITS DESCRIPTION IN THE INVITATION, IT THEREFORE MUST WITHDRAW ITS BID ON SUCH MACHINE. WITH ITS LETTER THE CORPORATION SUBMITTED A LETTER FEBRUARY 16, 1960, AND A PHOTOGRAPH OF A 42 INCH X 72 INCH UNIVERSAL GRINDER, WHICH WERE RECEIVED FROM THE NORTON COMPANY, THE MANUFACTURER OF THE MACHINE IN QUESTION. THE LETTER FROM THE NORTON COMPANY STATED THAT THE NORTON GRINDER BEARING SERIAL NO. C-25179, IS A 42 INCH HIGH SWING CHUCKING GRINDER.

IN TELEGRAMS DATED FEBRUARY 25 AND 29, 1960, THE SOLAR AIRCRAFT COMPANY INVITED THE ATTENTION OF THE CORPORATION TO THE PROVISIONS OF PARAGRAPHS 1, 2, 3 AND 5 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION AND REQUESTED THAT THE CORPORATION TRANSMIT ITS CHECK AND REMOVAL INSTRUCTIONS FOR ITEM 19 IMMEDIATELY.

BY LETTER DATED JULY 28, 1960, THE CONTRACTING OFFICER FOR THE DEPARTMENT OF THE AIR FORCE ADVISED THE CORPORATION THAT IN VIEW OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, WHICH INCLUDED A STANDARD DISCLAIMER OF WARRANTY CLAUSE, THE BEST AVAILABLE DESCRIPTION CLAUSE, AND A CAUTION TO INSPECT CLAUSE, NO BASIS EXISTED FOR GRANTING ANY RELIEF TO THE CORPORATION AND THAT IT SHOULD FULFILL THE TERMS OF THE CONTRACT BY FORWARDING ITS CHECK AND SHIPPING INSTRUCTIONS. THE CORPORATION WAS ALSO ADVISED THAT IF IT FAILED TO COMPLY WITH THE TERMS AND CONDITIONS OF THE CONTRACT, THE PROPERTY WOULD BE RESOLD IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH 6 OF THE GENERAL SALE TERMS AND CONDITIONS.

IN A LETTER DATED AUGUST 18, 1960, THE CORPORATION ADVISED THE CHICAGO AIR PROCUREMENT DISTRICT THAT THE CHUCKING GRINDER OFFERED UNDER ITEM 19 WAS WORTH APPROXIMATELY $1,000 ON THE OUTSIDE EQUIPMENT MARKET AND THAT SINCE THAT OFFICE WOULD NOT PERMIT THE CORPORATION TO WITHDRAW ITS BID ON THAT ITEM, IT WAS WILLING TO FORFEIT 20 PERCENT OF THE PURCHASE PRICE IN ORDER TO SETTLE THE CASE.

IN A LETTER DATED MAY 15, 1961, FROM THE CHICAGO AIR PROCUREMENT DISTRICT TO THE WRIGHT-PATTERSON AIR FORCE BASE, OHIO, IT IS STATED THAT AT THE TIME THE MACHINE COVERED BY ITEM 19 WAS RECEIVED BY THE SOLAR AIRCRAFT COMPANY, A FORM 51, HISTORICAL RECORD, WAS PREPARED BY COMPANY PERSONNEL OR AIR FORCE PERSONNEL AND THAT SUCH FORM CONTAINED ERRONEOUS DESCRIPTIONS; THAT THESE DESCRIPTIONS WERE PERPETUATED ON REVISED FORM 51 PREPARED IN 1959; AND THAT PERSONNEL OF THE COMPANY USED THE FORM 51 AS THE BASIS FOR THE DESCRIPTION IN THE INVITATION TO BID.

GENERALLY, WHEN GOVERNMENT SURPLUS PROPERTY IS SOLD ON AN "AS IS" AND "WHERE IS" BASIS, WITH OPPORTUNITY TO INSPECT AND WITH NO WARRANTY OR GUARANTY, THERE IS NO IMPLIED WARRANTY THAT THE DESCRIPTION GIVEN IS CORRECT AND THE SUCCESSFUL BIDDER CANNOT ESCAPE LIABILITY UNDER A CONTRACT, NOR IS HE ENTITLED TO REFUND OF MONEY PAID FOR PROPERTY BECAUSE IT DOES NOT FULLY ANSWER THE DESCRIPTION GIVEN. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MOTTRAM V. UNITED STATES, 271 U.S. 15; TRIAD CORPORATION V. UNITED STATES, 63 CT.1CL. 151; AND YANKEE EXPORT AND TRADING CO. V. UNITED STATES, 72 CT.1CL. 258. IN VARIOUS COURT DECISIONS INVOLVING SALES OF GOVERNMENT SURPLUS PROPERTY, AS IN THE TRIAD CORPORATION CASE, SUPRA, THE BUYER'S FAILURE TO INSPECT THE PROPERTY OFFERED FOR SALE HAS BEEN REGARDED AS AN ADDITIONAL REASON FOR DENYING RELIEF TO HIM BECAUSE THE PROPERTY DOES NOT MEET EXPECTATIONS.

THE COURTS HAVE USUALLY DRAWN A DISTINCTION BETWEEN A SALE OF GOVERNMENT SURPLUS PROPERTY AND AN ORDINARY SALE OF SOME VALUABLE COMMODITY. DISPOSING OF SURPLUS GOODS THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE. AS WAS STATED IN THE RECENT CASE OF DADOURIAN EXPORT CORP. V. UNITED STATES, 291 F.2D 178, DECIDED BY THE SECOND CIRCUIT ON JUNE 5, 1961, DOCKET NO. 26699:

* * * WHEN THE GOVERNMENT SELLS SURPLUS GOODS IT IS TRYING TO DISPOSE OF A VAST MISCELLANY OF USED AND UNUSED PROPERTY IN AN EFFORT, SO FAR AS MAY UNDER THE CIRCUMSTANCES BE POSSIBLE, TO MINIMIZE ITS LOSS. SALES OF THIS CHARACTER ARE PROCESSED ON A MASS QUANTITY BASIS BY MEMBERS OF THE ARMED FORCES WHO SELDOM IF EVER HAVE ANY EXPERTISE IN THE PARTICULAR ITEMS WHICH COME TO THEIR WAREHOUSES AND DEPOTS. BUYERS OF SUCH SURPLUS PROPERTY KNOW PERFECTLY WELL THAT THERE IS ALWAYS THE CHANCE OF BUYING PROPERTY THAT MAY TURN OUT TO BE OF LITTLE VALUE, OR MAY DEVELOP INTO A GREAT BARGAIN WITH A HUGH WINDFALL OF PROFIT. ACCORDINGLY, THE GOVERNMENT VERY PROPERLY HAS PROTECTED ITSELF BY FORMULATING ITS CONTRACT FOR THE SALE OF SUCH SURPLUS PROPERTY SO AS TO SHIFT THE RISK FROM ITSELF TO THE BUYER. AS PROFESSOR CORBIN TELLS US, A PARTY TO A CONTRACT MAY AGREE TO ASSUME CERTAIN RISKS THAT IN THE ABSENCE OF AGREEMENT THE LAW WOULD NOT CAST UPON HIM. SEE 3 CORBIN, CONTRACTS (1960), SECTION 598. SEE ALSO UNITED STATES V. HATHAWAY, 9 CIR., 1957, 242 F.2D 897. * * *

IN THE ABSENCE OF BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS IN SETTING OUT THE DESCRIPTION OF THE ARTICLES TO BE SOLD, THE PURCHASER OF SURPLUS PROPERTY UNDER A CONTRACT CONTAINING THE USUAL DISCLAIMER OF WARRANTY PROVISION IS BOUND BY THAT PROVISION UNLESS THE DISCREPANCY BETWEEN THE DETAILS OF THE INVITATION AS TO THE ARTICLES TO BE SOLD AND THE ARTICLES ACTUALLY TENDERED BY THE GOVERNMENT IS SO GREAT THAT IT AMOUNTS TO WHAT WAS STATED IN STANDARD MAGNESIUM CORPORATION V. UNITED STATES, 241 F.2D 677, AS A "RIDICULOUS DISCREPANCY" OR AS A "CASE OF ORDERING APPLES AND GETTING ORANGES.' THERE IS NO INDICATION IN THE RECORD BEFORE US THAT THE INCORRECT DESCRIPTION OF ITEM 19 OF THE SUBJECT INVITATION TO BID WAS A RESULT OF BAD FAITH ON THE PART OF THE OFFICIALS DRAWING THE INVITATION, NOR IS BAD FAITH ALLEGED. THE ONLY QUESTION BEFORE US, THEREFORE, IS WHETHER THE DISCREPANCY BETWEEN THE GRINDER DESCRIBED IN THE INVITATION AND THE GRINDER OFFERED FOR DELIVERY WAS SO GREAT AS TO AMOUNT TO A "CASE OF ORDERING APPLES AND GETTING ORANGES.'

IN THE DADOURIAN EXPORT CORP. CASE, SUPRA, THE GOVERNMENT ADVERTISED FOR SALE A QUANTITY OF NETS DESCRIBED AS:

NETS, CARGO, 20 FEET X 40 FEET, MANILA ROPE MESHES 8 INCH SQUARE FRAME 3 3/4 CIRC MESH ROPE, 3 INCH CIRC WITH LANYARDS PAULSEN WEBER OR EQUAL LOOSE.

THE NETS WERE SOLD AS AN "AS IS" AND "WHERE IS" BASIS AND THE INVITATION FOR BIDS CONTAINED THE USUAL CLAUSES WITH REGARD TO INSPECTION, BEST AVAILABLE INFORMATION AND DISCLAIMER OF WARRANTY. THE PLAINTIFF WAS THE HIGH BIDDER AND ITS BID WAS ACCEPTED, BUT AT NO TIME BEFORE IT SUBMITTED ITS BID DID PLAINTIFF INSPECT THE NETS ALTHOUGH THEY WERE AVAILABLE FOR INSPECTION. AFTER ITS BID WAS ACCEPTED PLAINTIFF SOLD THE NETS TO A THIRD PARTY. WHEN THIS THIRD PARTY WENT TO THE ARMY DEPOT TO TAKE DELIVERY IT WAS DISCOVERED THAT SOME OF THE NETS TENDERED WERE NOT MADE OF MANILA ROPE. MOREOVER, THE NETS WERE NOT CARGO NETS BUT SAVE-ALL NETS. (A CARGO NET IS A NET USED TO MOVE CARGO, WHILE A SAVE-ALL NET IS A NET WHICH IS STRUNG BETWEEN SHIP AND PIER TO PREVENT CARGO WHICH IS BEING LOADED OR UNLOADED FROM DROPPING INTO THE WATER.) THE COURT HELD THAT THE PLAINTIFF WAS NOT ENTITLED TO RESCISSION AND THE RETURN OF ITS DEPOSIT OR TO A PRICE ADJUSTMENT. THE COURT REASONED THAT THE SUBJECT MATTER OF THE CONTRACT WAS NETS OR NETS USED IN SHIPPING AND THAT THE WORD " MANILA" WAS MERELY DESCRIPTIVE. PLAINTIFF HAD NO RIGHT TO RELY ON SUCH DESCRIPTIVE LANGUAGE BECAUSE OF THE EXPRESS DISCLAIMER OF WARRANTY CLAUSE AND THAT: "WHAT THE CASE COMES DOWN TO IS THAT APPELLANT (PLAINTIFF) DISREGARDED REPEATED WARNINGS IN THE INVITATION AND BID FORMS TO INSPECT THE PROPERTY AND HAS ONLY ITSELF TO BLAME FOR THE PREDICAMENT IN WHICH IT FINDS ITSELF.'

THE PLAINTIFF IN THE DADOURIAN EXPORT CORP. CASE ALSO CONTENDED THAT THE DESCRIPTION OF THE NETS WAS NOT BASED ON THE BEST AVAILABLE INFORMATION IN CONTRAVENTION OF THE BEST AVAILABLE INFORMATION CLAUSE IN THE INVITATION. IN ANSWERING THIS CONTENTION, THE COURT STATED:

IT IS ARGUED THAT THIS IS A CONDITION, THE PERFORMANCE OF WHICH IS PRECEDENT TO ANY OBLIGATION OF THE BUYER UNDER THE CONTRACT. WE DO NOT VIEW THIS CLAUSE AS EITHER A CONDITION OR A WARRANTY; RATHER WE VIEW IT IN CONNECTION WITH THE DISCLAIMERS FOLLOWING IT AS A WARNING TO BIDDERS THAT THE DESCRIPTION MAY NOT BE ACCURATE. IT CALLS ATTENTION TO THE POSSIBLE INCOMPLETENESS OR INACCURACY OF THE INFORMATION UPON WHICH THE DESCRIPTION IS BASED. THE GOVERNMENT IS MERELY SAYING THAT WE TRY TO DO OUR BEST. DOES NOT WARRANT THAT THE DESCRIPTION SHALL BE IN FACT BASED ON THE BEST AVAILABLE INFORMATION. AS ARTICLE 1 OF THE GENERAL SALES TERMS AND CONDITIONS (THE INSPECTION CLAUSE) AND THE STATEMENTS UPON BOTH THE INVITATION AND THE BID FORMS MAKE ABUNDANTLY CLEAR, A PROSPECTIVE BIDDER MAY ELIMINATE THE RISK THAT THE DESCRIPTION MAY NOT BE BASED UPON THE BEST AVAILABLE INFORMATION BY INSPECTING THE PROPERTY AND THUS ACTUALLY DETERMINE FOR HIMSELF WHETHER THE DESCRIPTION IS IN FACT ACCURATE.

THE COURT FURTHER QUOTED WITH APPROVAL THE FOLLOWING LANGUAGE APPEARING IN UNITED STATES V. SILVERTON, 200 F.2D 824, 827:

THE INVITATION TO BID WAS EVIDENTLY FRAMED TO SPARE THE GOVERNMENT THE NECESSITY OF ATTENDING TO THE NICETIES OF DETAIL IN DESCRIBING THE GOODS OFFERED, FOR EXAMPLE, TO MAKE THE DESCRIPTION CONFORM TO ANY POSSIBLE TRADE USAGES OF WHICH THE SALVAGE OFFICERS MIGHT NOT EVEN BE AWARE. UNDER THE TERMS OF THE SALE, WITH INSPECTION INVITED PRIOR TO THE SUBMISSION OF BIDS, CAVEAT EMPTOR WAS CERTAINLY INTENDED TO BE APPLIED TO THE FURTHEST LIMIT THAT CONTRACT STIPULATIONS COULD ACCOMPLISH IT.

ON THE BASIS OF THE RECORD BEFORE US IT CANNOT BE CONCLUDED THAT THE DISCREPANCY BETWEEN THE GRINDING MACHINE DESCRIBED IN THE INVITATION AND THE GRINDING MACHINE TENDERED BY THE GOVERNMENT WAS SO GREAT AS TO AMOUNT TO A "RIDICULOUS DISCREPANCY" OR AS A "CASE OF ORDERING APPLES AND GETTING ORANGES.' THE MACHINE TENDERED BY THE GOVERNMENT, ALTHOUGH NOT A UNIVERSAL CYLINDRICAL GRINDER, WAS NEVERTHELESS A GRINDER. IN ITS LETTER OF AUGUST 18, 1960, TO THE CHICAGO AIR PROCUREMENT DISTRICT, THE COASTAL MACHINERY SALES COMPANY, IN DEFINING THE DIFFERENCES BETWEEN THE TWO GRINDERS, STATES THAT " THE 42 INCH CHUCKING GRINDER IS NOT A TRAVELING TABLE TYPE, AND NOT UNIVERSAL, AS WELL AS NOT HAVING A CAPACITY OF 72 INCHES BETWEEN CENTERS" AND FURTHER THAT THE CHUCKING GRINDER WAS MUCH MORE RESTRICTED IN APPLICATION. IT CANNOT BE SAID, EVEN IF IT WERE CONCEDED THAT THE DIFFERENCES BETWEEN THE TWO GRINDERS ARE CORRECTLY STATED BY THE COASTAL MACHINERY SALES COMPANY, THAT THESE DIFFERENCES PRESENT A GREATER DISPARITY THAN THAT PRESENTED IN THE DADOURIAN EXPORT CORP. CASE. IT WILL BE RECALLED THAT IN THAT CASE NOT ONLY WERE THE NETS TENDERED FOR DELIVERY NOT CARGO NETS AS DESCRIBED IN THE INVITATION BUT ALSO WERE NOT MADE OF MANILA ROPE AS STATED IN THE INVITATION. THUS NOT ONLY WAS THE FUNCTIONAL USE OF THE NETS TENDERED FOR DELIVERY DIFFERENT THAN THAT OF THE NETS DESCRIBED IN THE INVITATION, BUT, ALSO, THE VERY MATERIAL OF WHICH SOME OF THE NETS WERE MADE DIFFERED.

THE GRINDING MACHINE WAS AVAILABLE FOR INSPECTION AND BIDDERS WERE EXPRESSLY URGED TO INSPECT THE PROPERTY BEING SOLD PRIOR TO SUBMITTING THEIR BIDS. IN FAILING TO DO SO, IT MUST BE CONCLUDED THAT THE COASTAL MACHINERY SALES COMPANY IN SUBMITTING ITS BID ASSUMED THE RISK THAT THE PROPERTY TENDERED FOR DELIVERY MIGHT NOT BE THE EXACT PROPERTY DESCRIBED IN THE INVITATION. ACCORDINGLY, WE MUST ADVISE THAT THERE IS NO LEGAL BASIS FOR RESCINDING THE CONTRACT SO AS TO AFFORD THE COASTAL MACHINERY SALES CO., INC., RELIEF OR FOR ACCEPTING, AS FINAL SETTLEMENT, A SUM IN THE AMOUNT OF 20 PERCENT OF THE CORPORATION'S ORIGINAL BID PRICE.