B-146189, JUL. 5, 1961

B-146189: Jul 5, 1961

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TO EVER-READY APPLIANCE MANUFACTURING CO.: REFERENCE IS MADE TO YOUR LETTER OF JUNE 12. INVITATION NO. 23-012-S-61-1 WAS ISSUED BY THE LAKE CITY ARSENAL. PROSPECTIVE BIDDERS WERE ADVISED THAT THE TOOLS COULD BE INSPECTED MONDAY THROUGH FRIDAY. YOU WERE HIGH BIDDER IN THE AMOUNT OF $1. WERE ADVISED THAT SERIAL NO. 30751 WAS A 3-CRANK PRESS OF 56-TON CAPACITY. WHICH WAS A 56-TON PRESS SUBSTANTIALLY THE SAME AS THE ONE PURCHASED BY YOU. THE SALE COVERED A LARGE NUMBER OF MACHINE TOOLS WHICH WERE VALUED AT MORE THAN $1. 000 AND WERE SHIPPED TO THE STORAGE FACILITY FROM VARIOUS LOCATIONS AND THE PROPERTY DISPOSAL OFFICER NECESSARILY RELIED ON THE OFFICIAL DESCRIPTIONS ACCOMPANYING THE VARIOUS TOOLS.

B-146189, JUL. 5, 1961

TO EVER-READY APPLIANCE MANUFACTURING CO.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED MAY 5, 1961, WHICH DISALLOWED YOUR CLAIM FOR $600, REPRESENTING AN ALLEGED OVERPAYMENT ON A PRESS PURCHASED FROM THE DEPARTMENT OF THE ARMY UNDER CONTRACT NO. 23-012-61-7 (S), DATED SEPTEMBER 14, 1960.

INVITATION NO. 23-012-S-61-1 WAS ISSUED BY THE LAKE CITY ARSENAL, INDEPENDENCE, MISSOURI, GIVING NOTICE OF AN AUCTION SALE OF SURPLUS GOVERNMENT MACHINE TOOLS TO BE HELD AT THE ATCHISON ORDNANCE STORAGE FACILITY, ATCHISON, KANSAS, ON SEPTEMBER 14, 1960. PROSPECTIVE BIDDERS WERE ADVISED THAT THE TOOLS COULD BE INSPECTED MONDAY THROUGH FRIDAY, AUGUST 19 THROUGH SEPTEMBER 13, 1960, EXCEPT HOLIDAYS.

YOU WERE HIGH BIDDER IN THE AMOUNT OF $1,200 ON ITEM NO. 83, DESCRIBED AS A USED PRESS, 1-CRANK, 75-TON CAPACITY, SERIAL NO. 30751. AFTER RECEIPT OF THE PRESS YOU REQUESTED INFORMATION AS TO ITS OPERATION FROM THE MANUFACTURER, E. W. BLISS COMPANY, AND WERE ADVISED THAT SERIAL NO. 30751 WAS A 3-CRANK PRESS OF 56-TON CAPACITY. YOUR CLAIM FOR $600 REPRESENTS THE DIFFERENCE BETWEEN THE AMOUNT PAID BY YOU AND THE SUM OF $600 PAID BY ANOTHER BIDDER FOR ITEM NO. 43, WHICH WAS A 56-TON PRESS SUBSTANTIALLY THE SAME AS THE ONE PURCHASED BY YOU.

THE SALE COVERED A LARGE NUMBER OF MACHINE TOOLS WHICH WERE VALUED AT MORE THAN $1,000,000 AND WERE SHIPPED TO THE STORAGE FACILITY FROM VARIOUS LOCATIONS AND THE PROPERTY DISPOSAL OFFICER NECESSARILY RELIED ON THE OFFICIAL DESCRIPTIONS ACCOMPANYING THE VARIOUS TOOLS. YOU STATE THAT YOU INSPECTED ITEM 83 BUT THAT THIS INSPECTION DID NOT DISCLOSE THE CAPACITY, AND EVEN AFTER RECEIPT OF THE PRESS YOU WERE NOT AWARE OF THE TRUE CAPACITY UNTIL ADVISED BY THE MANUFACTURER. IN THE CIRCUMSTANCES, IT CAN HARDLY BE SAID THAT THE PROPERTY DISPOSAL OFFICER SHOULD HAVE DETECTED THE MISDESCRIPTION.

THE DECISIONS OF THE COURTS ARE CLEARLY TO THE EFFECT THAT THE RESPONSIBILITY FOR DETECTING THE VARIATION WAS UPON YOU. THE CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, INVOLVED A SITUATION WHERE THE DEFICIENCY COULD ONLY BE DETECTED BY MICROSCOPIC INSPECTION OR CHEMICAL ANALYSIS, AND THE COURT HELD THAT IT WAS THE RESPONSIBILITY OF THE BIDDER TO MAKE THE SORT OF INSPECTION THAT WOULD BE EFFECTUAL.

THE INVITATION TO BID WAS PREPARED BY THE CONTRACTING OFFICER IN GOOD FAITH AND THE FACT THAT THE PRESS WAS NOT EXACTLY AS DESCRIBED GIVES NO RIGHT OF REDRESS. THE PROVISIONS OF THE CONTRACT RELATIVE TO THE NECESSITY FOR INSPECTION AND THE DISCLAIMER OF WARRANTY AS TO THE CHARACTER, SIZE AND DESCRIPTION OF THE PROPERTY ARE PLAIN AND UNEQUIVOCAL IN WARNING PROSPECTIVE PURCHASERS OF THE RISKS INVOLVED. IN DISPOSING OF SURPLUS PROPERTY THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS UNAWARE OF THE EXACT NATURE OF THE GOODS IT SELLS, AND BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATSOEVER. SEE AMERICAN ELASTICS, INC. V. UNITED STATES, 187 F.2D 109, 112.

ACCORDINGLY, THE SETTLEMENT OF MAY 5, 1961, DISALLOWING YOUR CLAIM, IS SUSTAINED.