B-147634, DEC. 14, 1961

B-147634: Dec 14, 1961

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INC.: REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 10. THE BID YOU SUBMITTED ON ITEM NO. 2 AT $333.33 EACH WAS HIGH AND THEREFORE YOU WERE AWARDED THE CONTRACT ON THAT MATERIAL. THE MATERIAL IN ITEM NO. 2 WAS DESCRIBED IN THE INVITATION AS FOLLOWS: "2. THAT ALL THREE MACHINES WERE INCOMPLETE IN THAT THEY WERE DELIVERED WITHOUT SPARE TOOLS. SINCE YOU WERE UNABLE TO REACH AN ACCOMMODATION WITH THE DISPOSAL OFFICER SATISFACTORY TO YOU. THIS CLAIM WAS FORWARDED ON SEPTEMBER 6. YOUR CLAIM WAS DISALLOWED. ALL THREE BORING MACHINES WERE . WERE NOT INCLUDED WITH THE MACHINE. ALL PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS. IT WAS ALSO STATED IN THAT ARTICLE THAT "THIS IS NOT A SALE BY SAMPLE.'.

B-147634, DEC. 14, 1961

TO BRUNSWICK AUTOMOTIVE SURPLUS, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED NOVEMBER 10, 1961, REQUESTING REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED SEPTEMBER 29, 1961, WHICH DISALLOWED YOUR CLAIM FOR $999.99, REPRESENTING THE AMOUNT PAID BY YOU FOR THREE BORING MACHINES UNDER ITEM NO. 2 OF AIR FORCE CONTRACT AF14/604/S- 1830.

BY SALES INVITATION NO. 14-604-S-61-8, THE REDISTRIBUTION AND MARKETING DIVISION, TOPEKA AIR FORCE DEPOT, TOPEKA, KANSAS, SOLICITED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF CERTAIN MISCELLANEOUS SURPLUS PROPERTY. THE BID YOU SUBMITTED ON ITEM NO. 2 AT $333.33 EACH WAS HIGH AND THEREFORE YOU WERE AWARDED THE CONTRACT ON THAT MATERIAL. THE MATERIAL IN ITEM NO. 2 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"2. CODE 4910 3 EACH

BORING MACHINE, ENGINE CYLINDER, PORTABLE,

CAPACITY, 7 1/4 IN. MAX., 3 1/4 IN. MIN.

BORE DIA., 18 IN. MAX. DEPTH OF BORE,

218 TO 405 RPM SPINDLE SPEED RANGE, 0.003

IN. AND 0.0055 IN. PER MIN. SPINDLE FEED,

ELECTRIC MOTOR DRIVE, 1/2 HP, AC, 110 TO

120 V, 60 CYCLE, SINGLE PHASE. MODEL

MK6-2445. MFG. BY STORM MFG. CO.

TO BE SOLD BY EACH.

APPROX. 1,300 POUNDS GROSS WEIGHT.

IN WOODEN BOX AND CRATES.

UNUSED AND USED. COND. GOOD AND FAIR.

UNIT COST $ 720.00

TOTAL COST $2,160.00

LOCATED IN WHSE 5, SECTION A BAY 8, ROW A-9

FOB LOCATION"

UPON PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MATERIALS, YOU ADVISED THE DISPOSAL OFFICE BY LETTER DATED APRIL 25, 1961, THAT ALL THREE MACHINES WERE INCOMPLETE IN THAT THEY WERE DELIVERED WITHOUT SPARE TOOLS. SINCE YOU WERE UNABLE TO REACH AN ACCOMMODATION WITH THE DISPOSAL OFFICER SATISFACTORY TO YOU, YOU EXERCISED YOUR RIGHT OF APPEAL AND SENT A LETTER DATED JULY 24, 1961, ADDRESSED TO THE GENERAL ACCOUNTING OFFICE TO AIR FORCE LOGISTICS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE. THIS CLAIM WAS FORWARDED ON SEPTEMBER 6, 1961, BY THE AIR FORCE ACCOUNTING AND FINANCE CENTER TO OUR CLAIMS DIVISION FOR DIRECT SETTLEMENT, WITH AN ADMINISTRATIVE RECOMMENDATION FOR DISAPPROVAL. AS INDICATED IN THE SETTLEMENT OF SEPTEMBER 29, 1961, YOUR CLAIM WAS DISALLOWED.

IN YOUR LETTER OF NOVEMBER 10, 1961, REQUESTING A REVIEW OF OUR DISALLOWANCE, YOU ALLEGE THAT CONTRARY TO THE DESCRIPTION IN THE INVITATION TO BID AND CONTRARY TO INFORMATION OBTAINED FROM A ,MISS STONE," APPARENTLY AN EMPLOYEE AT TOPEKA AIR FORCE DEPOT, ALL THREE BORING MACHINES WERE ,USED.' YOU ALSO REITERATE THAT SPARE TOOLS, WHICH BUSINESS PRACTICE ACCEPTS AS BEING A PART OF MODEL MK6-2445, WERE NOT INCLUDED WITH THE MACHINE.

UNDER ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SALE, WHICH YOU AGREED TO WHEN YOU SUBMITTED YOUR BID ON ITEM NO. 2, ALL PROPERTY WAS OFFERED FOR SALE "AS IS" AND "WHERE IS," WITHOUT EXPRESS OR IMPLIED GUARANTY OR WARRANTY OF ANY KIND, INCLUDING THE CONDITION AND DESCRIPTION OF THE PROPERTY, AND IT WAS ALSO STATED IN THAT ARTICLE THAT "THIS IS NOT A SALE BY SAMPLE.' ALSO, UNDER THE LANGUAGE IN ARTICLE 12, THE CONDITIONS SET FORTH IN ARTICLE 2 CANNOT BE CHANGED BY AN ORAL STATEMENT OF A GOVERNMENT EMPLOYEE. CONSEQUENTLY, THE ALLEGED STATEMENTS OF MISS STONE DID NOT MODIFY THE ABOVE DISCLAIMER OF WARRANTY.

IT IS EVIDENT, THEREFORE, THAT YOU HAD ACTUAL NOTICE OF THE FACT THAT THIS WAS NOT A SALE BY SAMPLE AND THAT THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY BEING SOLD UNDER ITEM NO. 2 WAS NOTHING MORE THAN A MERE STATEMENT OF OPINION. MOREOVER, WHILE THE DESCRIPTION OF THE PROPERTY IN QUESTION MAY NOT HAVE BEEN ENTIRELY ACCURATE, YOU DO NOT ALLEGE AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT IT WAS INTENTIONALLY MISDESCRIBED IN THE BID INVITATION, OR THAT THE GOVERNMENT AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE SALES TRANSACTION. THE FACTS IN THIS CASE ARE SIMILAR IN ONE RESPECT TO THOSE CONSIDERED IN TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 141, WHEREIN THE COURT REJECTED THE PLAINTIFF'S CLAIM ON THE BASIS THAT A CERTAIN NUMBER OF SURPLUS SADDLES DESCRIBED AS UNUSED WERE LATER FOUND TO HAVE BEEN USED AND RECONDITIONED.

IN VIEW OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE PURCHASE PRICE OF ITEM NO. 2 ON CONTRACT AF14/604/S-1830. ACCORDINGLY, THE SETTLEMENT OF SEPTEMBER 29, 1961, IS SUSTAINED.