B-145905, AUG. 24, 1961

B-145905: Aug 24, 1961

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TO JETMOTIVE CORPORATION: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 5. SINCE WE HAVE NO REPLY TO OUR LETTER OF MAY 26. WE ASSUME THAT YOU HAVE ABANDONED YOUR REQUEST FOR THE CONFERENCE AND. THE SETTLEMENT WILL BE REVIEWED ON THE BASIS OF THE FACTS OF RECORD. WHICH WAS ISSUED ON FEBRUARY 19. ITEM NO. 1 WAS DESCRIBED IN THE INVITATION AS FOLLOWS: "POD ASSEMBLY. WAS ACCEPTED BY THE AIR FORCE ON MARCH 21. PAYMENT WAS MADE FOR THE POD ASSEMBLIES AND THE PROPERTY WAS FORWARDED TO YOU. IT APPEARS THAT WHEN YOU WERE DEMILITARIZING THE ASSEMBLIES YOU NOTIFIED THE AIR FORCE OF CERTAIN DISCREPANCIES DISCOVERED IN CONNECTION WITH THE PROPERTY. YOU ALLEGED THAT THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN THE METALLIC WEIGHT CONTENT OF THE STAINLESS STEEL TUBES AND THE ALUMINUM DELIVERED TO YOU AND THE REPRESENTED WEIGHT OF SUCH METALS.

B-145905, AUG. 24, 1961

TO JETMOTIVE CORPORATION:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED MAY 5, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED DECEMBER 21, 1960, DISALLOWING YOUR CLAIM FOR $14,939.08, REPRESENTING A PARTIAL REFUND OF THE PURCHASE PRICE PAID BY YOU FOR A QUANTITY OF POD ASSEMBLIES UNDER DEPARTMENT OF THE AIR FORCE CONTRACT NO. AF-09/603/S-445, DATED MARCH 21, 1960. YOU ALSO REQUESTED A HEARING IN CONNECTION WITH THE MATTER.

IN RESPONSE TO YOUR REQUEST FOR THE HEARING, WE ADVISED YOU, BY LETTER DATED MAY 26, 1961, THAT FURTHER ACTION IN THE MATTER WOULD BE WITHHELD FOR A REASONABLE TIME TO AFFORD YOU THE OPPORTUNITY TO CONFER WITH REPRESENTATIVES OF OUR OFFICE WITH RESPECT TO THE CLAIM. SINCE WE HAVE NO REPLY TO OUR LETTER OF MAY 26, 1961, WE ASSUME THAT YOU HAVE ABANDONED YOUR REQUEST FOR THE CONFERENCE AND, THEREFORE, THE SETTLEMENT WILL BE REVIEWED ON THE BASIS OF THE FACTS OF RECORD.

IN RESPONSE TO SALES INVITATION NO. 09-603-S-60-20, WHICH WAS ISSUED ON FEBRUARY 19, 1960, BY SUPPLY AND SERVICES, REDISTRIBUTION AND MARKETING DIVISION, ROBINS AIR FORCE BASE, GEORGIA, YOU SUBMITTED A BID DATED MARCH 16, 1960, OFFERING TO PURCHASE ITEM NO. 1, COVERING APPROXIMATELY $45,710 POUNDS OF POD ASSEMBLIES AT $0.0801 A POUND, OR FOR A TOTAL PRICE OF $35,701.37.

ITEM NO. 1 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"POD ASSEMBLY, 2.75 ROCKET, APPLICABLE TO F89 AIRCRAFT. EACH POD WT. 830 LBS. STAINLESS STEEL TUBES OF EACH POD WT. 290 LBS. SKIN ON POD CONTAMINATED ALUMINUM. (APPROX. 537 EA.). LOCATED OUTSIDE. CODES DLE AND ELA.'

YOUR BID, BEING THE HIGHEST BID RECEIVED, WAS ACCEPTED BY THE AIR FORCE ON MARCH 21, 1960, THEREBY CONSUMMATING CONTRACT NO. AF-09/603/S 445. PAYMENT WAS MADE FOR THE POD ASSEMBLIES AND THE PROPERTY WAS FORWARDED TO YOU. IT APPEARS THAT WHEN YOU WERE DEMILITARIZING THE ASSEMBLIES YOU NOTIFIED THE AIR FORCE OF CERTAIN DISCREPANCIES DISCOVERED IN CONNECTION WITH THE PROPERTY. YOU ALLEGED THAT THERE WAS A SUBSTANTIAL DIFFERENCE BETWEEN THE METALLIC WEIGHT CONTENT OF THE STAINLESS STEEL TUBES AND THE ALUMINUM DELIVERED TO YOU AND THE REPRESENTED WEIGHT OF SUCH METALS. BASED ON THE WEIGHT DIFFERENCE, YOU ALLEGE A LOSS FOR THIS PART OF YOUR CLAIM OF $8,828.28. IN ADDITION, YOU CLAIM A LOSS OF $6,110.80--- TOTAL CLAIM OF $14,939.09-- BY REASON OF THE SHIPMENTS INCLUDING LARGE QUANTITIES OF SCRAP WHICH YOU DID NOT CONTEMPLATE RECEIVING OR CONSIDER TO BE PROPERTY INCLUDED IN THE AWARD. THE SCRAP ALLEGEDLY CONSISTED OF 69,455 POUNDS OF IRON PLUG RODS, 3,600 POUNDS OF FIBERGLASS BLANKETS, AND 9,696 POUNDS OF STAINLESS STEEL NOSE CONES. YOUR CLAIM WAS DISALLOWED BY OUR SETTLEMENT DATED DECEMBER 21, 1960, FOR THE REASONS SET FORTH THEREIN.

IN YOUR LETTER DATED MAY 5, 1961, YOU CONTEND THAT THE FACT THE SALE WAS NOT A SALE BY SAMPLE DOES NOT PERMIT THE GOVERNMENT TO DELIVER PROPERTY OTHER THAN THAT ADVERTISED IN THE INVITATION OR DISPLAYED FOR INSPECTION; ALSO, THAT THE AIR FORCE MADE CERTAIN REPRESENTATIONS ABOUT THE UNINSPECTABLE PROPERTY WHICH WERE INCORRECT AND THAT THE GOVERNMENT DID NOT ABIDE BY NORMAL BUSINESS PRACTICES AND ACT IN GOOD BUSINESS FAITH IN THE SALE TRANSACTION.

REGARDING THE CLAIMED WEIGHT DISCREPANCIES REPRESENTING THE ALLEGED LOSS OF $8,828.28, YOUR ATTENTION AGAIN IS DIRECTED TO PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHICH EXPRESSLY PROVIDES, IN PERTINENT PART, THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, WEIGHT, ETC., OF THE PROPERTY OFFERED FOR SALE. CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH AN EXPRESS DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES; 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CL. 424. IT WILL BE NOTED THAT THE FOREGOING DISCLAIMER OF WARRANTY EXPRESSLY REFERS TO WEIGHT WHICH, OF COURSE, COVERED THE WEIGHT OF THE SAID TUBES AND ALUMINUM, AS WELL AS THE WEIGHT OF ANY OTHER PARTS OF THE ASSEMBLIES. UNDER THESE CIRCUMSTANCES, THERE IS NO LEGAL BASIS FOR HOLDING THAT ANY WEIGHTS SHOWN FOR THE POD ASSEMBLIES, OR ANY PARTS THEREOF, COULD BE RELIED UPON AS GUARANTEED WEIGHTS.

WITH RESPECT TO THAT PART OF YOUR CLAIM REPRESENTING THE LOSS OF $6,110.80 FOR WHAT YOU STATE WERE LARGE QUANTITIES OF SCRAP THAT WERE INCLUDED IN THE SHIPMENTS, YOU ARE INFORMED THAT THE WARNER ROBINS AIR MATERIAL AREA TECHNICIANS ADVISE THAT THE IRON PLUG RODS WERE USED AS BALLAST, IN LIEU OF ROCKETS, WHEN THE AIRCRAFT WAS FLOWN IN AN UNARMED CONDITION TO MAINTAIN WEIGHT AND BALANCE. THE MATERIAL AREA ALSO REPORTS THAT THE POD ASSEMBLIES CONTAIN ONE EACH BLANKET ASSEMBLY (FIBERGLASS). HENCE, THE IRON PLUG RODS AND THE FIBERGLASS BLANKETS WERE, AS REPORTED, AN INTEGRAL PART OF THE POD ASSEMBLIES. IT APPEARS EQUALLY OBVIOUS THAT THE NOSE CONES FALL WITHIN THE SAME CATEGORY. THIS BEING THE CASE, THERE ALSO IS FOR APPLICATION THAT PART OF PARAGRAPH 2, OF THE GENERAL SALE TERMS AND CONDITIONS WHICH EXPRESSLY DISCLAIMS ANY GUARANTY OR WARRANTY AS TO THE KIND, CHARACTER, OR QUALITY OF THE POD ASSEMBLIES OFFERED FOR SALE OR FOR THEIR FITNESS FOR ANY USE OR PURPOSE. THE BASIC PROPERTY OFFERED FOR SALE UNDER THE SUBJECT INVITATION WAS POD ASSEMBLIES AND POD ASSEMBLIES WERE DELIVERED TO YOU. THE FACT THAT SUCH ASSEMBLIES WERE COMPOSED OF SOME PARTS, WHICH HAVE BEEN REPORTED AS BEING AN INTEGRAL PART OF THE ASSEMBLIES THEMSELVES, THAT WERE UNKNOWN TO YOU AND WERE NOT SUCH PROPERTY AS YOU EXPECTED TO RECEIVE, MAY NOT BE ACCEPTED AS FORMING THE BASIS OF A CLAIM FOR THE WEIGHTS OF SUCH PARTS IN A CONTRACT OF SALE, SUCH AS HERE, WHICH EMBODIES THE EXPRESS DISCLAIMER OF WARRANTY PROVISIONS HERETOFORE REFERRED TO. REGARDING YOUR INABILITY, DUE TO CERTAIN EXISTING CONDITIONS, TO MAKE A PROPER OR THOROUGH INSPECTION, THE RESPONSIBILITIES OF BIDDERS IN THIS CONNECTION APPEAR TO BE CLEARLY OUTLINED IN PAXTON- MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHEREIN IT WAS HELD THAT, NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS OBLIGATION OF THE BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL,AND IF HE FAILS TO DO SO HE IS NOT ENTITLED TO ANY RELIEF IF THE PROPERTY DOES NOT CONFORM TO THE DESCRIPTION.