B-148703, MAY 8, 1962

B-148703: May 8, 1962

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INC: REFERENCE IS MADE TO YOUR LETTER OF APRIL 4. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $111 OF THE SUM OF $472.88 PAID BY YOU FOR ITEM 14. ITEM 14 WAS ADVERTISED AND DESCRIBED AS ONE LOT OF TIRE CHAINS FOR WHICH YOU BID $472.88. IN VIEW OF THE LARGE VOLUME OF SURPLUS PROPERTY SOLD IT IS NOT FEASIBLE FOR PROPERTY DISPOSAL PERSONNEL TO MAKE AN INDEPENDENT CHECK OF THE WEIGHT AND COUNT OF ALL PROPERTY. FOR THIS REASON WHEN QUANTITY OR WEIGHT IS USED IN THE DESCRIPTION OF PROPERTY THE TERM "APPROXIMATE" IS USUALLY USED. AS WAS DONE IN THIS CASE. THAT THE DISCREPANCY IN THE DESCRIPTION BETWEEN THE NUMBER OF PAIRS OF CHAINS AND THE WEIGHT WAS SUFFICIENT TO PUT AN INFORMED PURCHASER ON NOTICE THAT EITHER THE WEIGHT OR THE NUMBER OF PAIRS WAS ERRONEOUS.

B-148703, MAY 8, 1962

TO BRUNSWICK AUTOMOTIVE SURPLUS, INC:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 4, 1962, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 30, 1962, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR A REFUND OF $111 OF THE SUM OF $472.88 PAID BY YOU FOR ITEM 14, TIRE CHAINS, AWARDED TO YOU ON NOVEMBER 21, 1960, BY THE SHARPE CONSOLIDATED SURPLUS SALES OFFICE, SHARPE GENERAL DEPOT, U.S. ARMY, LATHROP, CALIFORNIA, UNDER INVITATION TO BID NO. AVI-04-513 S-61-26, DATED OCTOBER 24, 1960, CONTRACT NO. OI-513.

ITEM 14 WAS ADVERTISED AND DESCRIBED AS ONE LOT OF TIRE CHAINS FOR WHICH YOU BID $472.88. THE BID INVITATION ADVERTISED THE PROPERTY ON THE BASIS OF THE MARKINGS AS TO QUANTITY AND WEIGHT ON THE OUTSIDE OF THE BOXES CONTAINING THE CHAINS. IN VIEW OF THE LARGE VOLUME OF SURPLUS PROPERTY SOLD IT IS NOT FEASIBLE FOR PROPERTY DISPOSAL PERSONNEL TO MAKE AN INDEPENDENT CHECK OF THE WEIGHT AND COUNT OF ALL PROPERTY. FOR THIS REASON WHEN QUANTITY OR WEIGHT IS USED IN THE DESCRIPTION OF PROPERTY THE TERM "APPROXIMATE" IS USUALLY USED, AS WAS DONE IN THIS CASE. AS A MATTER OF FACT, IT APPEARS FROM YOUR LETTER OF JANUARY 6, 1961, THAT THE DISCREPANCY IN THE DESCRIPTION BETWEEN THE NUMBER OF PAIRS OF CHAINS AND THE WEIGHT WAS SUFFICIENT TO PUT AN INFORMED PURCHASER ON NOTICE THAT EITHER THE WEIGHT OR THE NUMBER OF PAIRS WAS ERRONEOUS. IN ANY EVENT, THE RECORD ESTABLISHES THAT THE INVITATION DESCRIPTION WAS BASED ON THE BEST INFORMATION READILY AVAILABLE TO THE PROPERTY DISPOSAL PERSONNEL. THERE IS NO REQUIREMENT THAT GREATER CARE THAN THIS BE TAKEN BY THE GOVERNMENT TO PROTECT THE INTEREST OF BIDDERS. SEE SALIGMAN V. UNITED STATES, 56 F.SUPP. 505, 507.

IT IS PRECISELY BECAUSE OF THE POSSIBILITY THAT AN ERRONEOUS DESCRIPTION OF PROPERTY MAY INADVERTENTLY BE USED THAT THE GOVERNMENT DISCLAIMS RESPONSIBILITY THEREFOR BY THE CLEAR TERMS OF THE INVITATION AND URGES BIDDERS TO INSPECT. THE FACT THAT THE EXPENSE OF INSPECTION DID NOT JUSTIFY DOING SO IN YOUR PARTICULAR CASE IS NO FAULT OF THE GOVERNMENT AND CANNOT CHANGE THE LEGAL CONSEQUENCES OF NON INSPECTION. IT MAY ALSO BE NOTED THAT, CONTRARY TO THE IMPLICATION IN YOUR LETTER OF APRIL 4, 1962, THE INVITATION PURPOSELY DID NOT "STATE A SPECIFIC QUANTITY" OF CHAINS, BUT GAVE THEIR DESCRIPTION AS "APPROX. 51 PAIR" WITH AN "APPROX. WT.' OF 5,553 POUNDS. IF, AS YOU STATE, YOU HAVE MADE AT LEAST 5,000 CONTRACTS FOR THE PURCHASE OF SURPLUS GOVERNMENT PROPERTY, YOU CERTAINLY HAVE HAD OPPORTUNITY TO BECOME FAMILIAR WITH THE USUAL DISCLAIMER OF WARRANTY AND THE OTHER TERMS OF SALE. WE CAN ASSURE YOU THAT THOSE CONDITIONS ARE NOT LEGALLY WRONG, AND IF IT BE YOUR OPINION THAT THEY ARE MORALLY WRONG THE ANSWER WOULD SEEM TO BE THAT YOU SHOULD NOT AGREE TO THEM BY CONTRACT.

ACCORDINGLY, THE SETTLEMENT OF MARCH 30, 1962, IS SUSTAINED.

WITH REGARD TO YOUR REQUEST FOR INFORMATION AS TO WHOM YOU MAY ADDRESS A FURTHER APPEAL TO, YOU ARE ADVISED THAT THE COURT OF CLAIMS OF THE UNITED STATES HAS JURISDICTION TO CONSIDER AND DETERMINE CONTRACT CLAIMS AGAINST THE UNITED STATES IF FILED THERE "WITHIN SIX YEARS AFTER SUCH CLAIM FIRST ACCRUES.' 28 U.S.C. 2501. ALSO, THE DISTRICT COURTS OF THE UNITED STATES HAVE CONCURRENT JURISDICTION AS TO SUCH CLAIMS UNDER $10,000.