B-149102, AUG. 8, 1962

B-149102: Aug 8, 1962

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GENERAL SERVICES ADMINISTRATION: REFERENCE IS MADE TO YOUR LETTER DATED JULY 16. WHICH WAS DESCRIBED IN THE SALES ADVERTISEMENT AS FOLLOWS: "LAMP. WAS AWARDED THE MATERIAL IN ITEM NO. 197 OF THE SPOT BID SALE. ADVISING HIM THAT THE LAMPS DELIVERED TO IT UNDER THE SALE CONTRACT WERE FOUND TO BE USED AND NOT "UNUSED" AS STATED IN THE DESCRIPTION FOR ITEM NO. 197 ON THE SPOT BID SALES ADVERTISEMENT. RELIEF FROM THE CONTRACT WAS SOUGHT BY THE PURCHASER ON THE GROUND OF MISREPRESENTATION OF THE PROPERTY IN THE SALES CATALOG. THIS REQUEST FOR RELIEF WAS DENIED BY GSA REGIONAL COUNSEL. ON THE GROUND THAT UNDER THE TERMS AND CONDITIONS OF THE SPOT BID SALE NO BASIS COULD BE FOUND FOR ALLOWING ITS CLAIM AS THE MATERIAL WAS SOLD WITHOUT WARRANTY OF ANY KIND.

B-149102, AUG. 8, 1962

TO ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

REFERENCE IS MADE TO YOUR LETTER DATED JULY 16, 1962, WITH ENCLOSURES, IN WHICH YOU RECOMMEND THAT RHE BIERI AND COMPANY, DENVER, COLORADO, BE RELEASED FROM ITS OBLIGATION TO PURCHASE ITEM NO. 197 ON SPOT BID SALE NO. GS-62-08-73/UDS) AND THAT GENERAL SERVICES ADMINISTRATION (GSA) BE AUTHORIZED TO RESCIND THE CONTRACT AND REFUND THE FULL PURCHASE PRICE OF $527 PAID BY THE COMPANY FOR THE MATERIAL COVERED BY THE SALE.

ON MARCH 14, 1962, SURPLUS SALES CENTER, DENVER FEDERAL CENTER REGION 8, GSA, HELD SPOT BID SALE NO. GS-62-08-73/UDS) COVERING A VARIETY OF GOVERNMENT SURPLUS PERSONAL PROPERTY. THE CLAIMANT, BIERI AND COMPANY, SUBMITTED A SPOT BID CARD OFFERING TO PURCHASE FOR $527 THE LOT OF MATERIAL COVERED BY ITEM NO. 197, WHICH WAS DESCRIBED IN THE SALES ADVERTISEMENT AS FOLLOWS:

"LAMP, FLUORESCENT, 40 WATT, T-12 BULB, MED. BI-PIN BASE, COOL WHITE, 48 INCHES LONG, ASSORTED MAKES, APPROX 3100 EACH (GSA-PBS) UNUSED 1 LOT"

BIERI AND COMPANY, BEING THE HIGHEST BIDDER ON THE ITEM, WAS AWARDED THE MATERIAL IN ITEM NO. 197 OF THE SPOT BID SALE. UPON RECEIPT OF THE LAMPS THE COMPANY ON MARCH 26, 1962, TELEPHONED THE CONTRACTING OFFICER (CONFIRMED BY LETTER DATED MARCH 27, 1962), ADVISING HIM THAT THE LAMPS DELIVERED TO IT UNDER THE SALE CONTRACT WERE FOUND TO BE USED AND NOT "UNUSED" AS STATED IN THE DESCRIPTION FOR ITEM NO. 197 ON THE SPOT BID SALES ADVERTISEMENT. RELIEF FROM THE CONTRACT WAS SOUGHT BY THE PURCHASER ON THE GROUND OF MISREPRESENTATION OF THE PROPERTY IN THE SALES CATALOG. THIS REQUEST FOR RELIEF WAS DENIED BY GSA REGIONAL COUNSEL, IN CERTIFIED LETTER DATED MARCH 29, 1962, ON THE GROUND THAT UNDER THE TERMS AND CONDITIONS OF THE SPOT BID SALE NO BASIS COULD BE FOUND FOR ALLOWING ITS CLAIM AS THE MATERIAL WAS SOLD WITHOUT WARRANTY OF ANY KIND.

THE SPOT BID SALES CONTRACT IN THIS CASE WAS SUBJECT TO ALL THE TERMS AND CONDITIONS USUALLY APPLICABLE TO THE SALE OF SURPLUS GOVERNMENT PROPERTY, INCLUDING THOSE WITH REGARD TO INSPECTION AND DISCLAIMER OF WARRANTY AND THE STATEMENT THAT THE DESCRIPTION WAS "BASED ON THE BEST AVAILABLE INFORMATION.'

REGARDING THE PURCHASER'S ALLEGATION THAT THE MATERIAL IN QUESTION WAS MISREPRESENTED IN THE SALES ADVERTISEMENT AS TO ITS CONDITION, THE CONTRACTING OFFICER IN HIS STATEMENT DATED JUNE 14, 1962, GIVING THE DETAILS OF THE SALES TRANSACTION, STATES THAT THE FLUORESCENT LAMPS WHICH WERE OFFERED ON THE SPOT BID SALE HELD IN DENVER ON MARCH 14, 1962, WERE REPRESENTED TO HIS OFFICE BY THE OWNING AGENCY AS BEING BOTH USED AND UNUSED LAMPS BUT THAT, THROUGH ERROR, THE LAMPS WERE SHOWN IN THE SALES ADVERTISEMENT CATALOG AS BEING ONLY "UNUSED.' HE STATES ALSO THAT THE ERROR WAS NOT DISCOVERED IN TIME TO ADVISE PROSPECTIVE BIDDERS OF THE ERROR PRIOR TO THE DATE OF THE SALE BUT THAT ANNOUNCEMENT WAS MADE DURING THE ACTUAL CONDUCT OF THE SALE THAT THE PROPERTY WAS, IN FACT,"USED.' HOWEVER, IT IS RECOGNIZED BY HIM THAT REPRESENTATIVES OF THE PURCHASER AND OTHERS AT THE SALE MAY NOT HAVE HEARD THE ANNOUNCEMENT AS CLAIMED BY THE PURCHASER.

IT IS APPARENT THAT THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE UNDER ITEM NO. 197 WAS ERRONEOUS IN THE SALES ADVERTISEMENT CATALOG AND THAT CORRECT INFORMATION AS TO THE CONDITION OF THE PROPERTY WAS AVAILABLE AT THE DISPOSAL DEPOT WHEN THE CATALOG OF THE PROPERTY FOR SALE WAS PREPARED. CONSEQUENTLY, IT MUST BE CONCLUDED THAT THE ERRONEOUS DESCRIPTION IN THE SALES CATALOG AS TO ITEM NO. 197 WAS NOT "BASED ON THE BEST AVAILABLE INFORMATION" IN POSSESSION OF THE DISPOSAL OFFICE AS STATED IN THE GENERAL SALE TERMS AND CONDITIONS OF THE SALE.

IN VIEW OF THE FOREGOING, AND IN ACCORDANCE WITH YOUR RECOMMENDATION IN LETTER OF JULY 16, 1962, RESCISSION OF SPOT BID SALE NO. GS-62-08-73/UDS) IS AUTHORIZED AND REFUND OF THE PURCHASE PRICE OF $527 MAY BE MADE UPON THE RETURN OF THE MERCHANDISE TO THE GOVERNMENT.

THE PAPERS FORWARDED WITH YOUR LETTER OF JULY 16, 1962, EXCEPT THE STATEMENT DATED JUNE 14, 1962, OF F. P. SIMINGTON, CONTRACTING OFFICER, AND THE STATEMENT OF JUNE 6, 1962, OF JACK G. SIMMS, PROPERTY SPECIALIST, PERTAINING TO THE DESCRIPTION OF THE MATERIAL HERE INVOLVED, ARE RETURNED.