B-148863, JUN. 12, 1962
Highlights
TO THE BOND INDUSTRIAL MACHINERY COMPANY: REFERENCE IS MADE TO YOUR LETTER OF APRIL 27. 844.02 REPRESENTING THE ALLEGED REPLACEMENT COST OF CERTAIN PARTS WHICH WERE MISSING FROM MACHINERY PURCHASED BY YOU UNDER CONTRACT NO. BIDS WERE REQUESTED ON VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY LOCATED AT ROBERTSHAW-FULTON CONTROLS COMPANY. THE ACQUISITION COST OF THIS PROPERTY WAS OVER A MILLION AND A HALF DOLLARS AND IT INCLUDED MANY ITEMS OF HEAVY MACHINERY AND EQUIPMENT HAVING HUNDREDS OF COMPONENT PARTS. YOU ALLEGE THAT THE THREADING AND TAPPING MACHINES WHICH WERE PURCHASED BY YOU AS ITEMS 11 AND 12 WERE DELIVERED WITH CERTAIN COMPONENTS MISSING. THE DESCRIPTIONS OF THE ABOVE ITEMS IN THE INVITATION FOR BIDS INDICATED THAT THEY WERE EQUIPPED WITH WORK TABLES.
B-148863, JUN. 12, 1962
TO THE BOND INDUSTRIAL MACHINERY COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF APRIL 27, 1962, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED MARCH 30, 1962, WHICH DISALLOWED YOUR CLAIM FOR $1,844.02 REPRESENTING THE ALLEGED REPLACEMENT COST OF CERTAIN PARTS WHICH WERE MISSING FROM MACHINERY PURCHASED BY YOU UNDER CONTRACT NO. N-62775-S-190, DATED JULY 17, 1961.
BIDS WERE REQUESTED ON VARIOUS ITEMS OF SURPLUS GOVERNMENT PROPERTY LOCATED AT ROBERTSHAW-FULTON CONTROLS COMPANY, KNOXVILLE, TENNESSEE. THE ACQUISITION COST OF THIS PROPERTY WAS OVER A MILLION AND A HALF DOLLARS AND IT INCLUDED MANY ITEMS OF HEAVY MACHINERY AND EQUIPMENT HAVING HUNDREDS OF COMPONENT PARTS. YOU ALLEGE THAT THE THREADING AND TAPPING MACHINES WHICH WERE PURCHASED BY YOU AS ITEMS 11 AND 12 WERE DELIVERED WITH CERTAIN COMPONENTS MISSING, NAMELY, A WORK TABLE, TABLE ELEVATING MECHANISM AND TOP GUARD FOR EACH ITEM, AND A FINGER GUIDE ARM ASSEMBLY FOR ITEM 11.
THE DESCRIPTIONS OF THE ABOVE ITEMS IN THE INVITATION FOR BIDS INDICATED THAT THEY WERE EQUIPPED WITH WORK TABLES, BUT NO MENTION IS MADE OF THE OTHER MISSING PARTS AND THE RECORD SHOWS THAT THESE MACHINES HAD BEEN MODIFIED FOR A SPECIAL USE IN THE PRODUCTION OF CARTRIDGE CASES.
AS STATED IN OUR SETTLEMENT DISALLOWING YOUR CLAIM, PARAGRAPH 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE A PART OF THE CONTRACT, URGE ALL BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, WHICH YOU FAILED TO DO, AND PROVIDE THAT ALL PROPERTY IS OFFERED FOR SALE "AS S" AND "WHERE IS" AND THAT THE GOVERNMENT MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE.
THE VALIDITY OF THESE PROVISIONS RELATIVE TO INSPECTION AND CONDITION OF PROPERTY AND THEIR EFFECT AS AN EXPRESS DISCLAIMER OF WARRANTY HAVE BEEN FULLY ESTABLISHED BY NUMEROUS DECISIONS OF THE COURTS. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER CO., INC. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. ACCORDINGLY, THE DISALLOWANCES OF YOUR CLAIM MUST BE SUSTAINED.
HOWEVER, THE DEPARTMENT OF THE NAVY HAS REPORTED THAT THE ROBERTSHAW- FULTON CONTROLS COMPANY, WHICH HAD CUSTODY OF THE INVOLVED ITEMS, HAS OFFERED TO PAY THE GOVERNMENT APPROXIMATELY $444, BASED UPON APPLICATION OF THE RATIO OF MISSING COMPONENTS TO THE PRICES PAID BY YOU. ACCORDINGLY, THE NAVY IS BEING AUTHORIZED TO COLLECT THE AMOUNT OFFERED BY ROBERTSHAW-FULTON CONTROLS COMPANY AND TO TRANSMIT SAID AMOUNT TO YOUR COMPANY.