B-149535, AUG. 10, 1962

B-149535: Aug 10, 1962

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THE CLAIMANT WAS AWARDED SEVERAL ITEMS OF SURPLUS PROPERTY AS SUCCESSFUL BIDDER UNDER THE SALES INVITATION. LATER IT WAS DETERMINED THAT THE UNITS INVOLVED. WERE ACTUALLY DIFFERENTIAL HOUSING AND. NEVERTHELESS ADVISED ALL BIDDERS THAT THE DESCRIPTION OF THE SEVERAL ARTICLES OFFERED FOR SALE WAS BASED UPON THE BEST AVAILABLE INFORMATION. NOTWITHSTANDING THE FOREGOING THE CONTRACTOR HAS STATED THAT A CHECK OF ORDNANCE STOCK MANUALS AVAILABLE TO THE DISPOSAL OFFICERS INVOLVED WOULD HAVE DISCLOSED THE STOCK NUMBERED ARTICLES TO BE HOUSINGS FOR REAR AXLES RATHER THAN FOR TRANSMISSIONS. IT WAS READILY ASCERTAINABLE THAT THE UNITS WERE NOT TRANSMISSION HOUSING AS ADVERTISED. IN VIEW OF THE ABOVE IT IS APPARENT THAT THE CLEARLY ERRONEOUS DESCRIPTION OF THE HOUSINGS WAS NOT BASED UPON THE "BEST AVAILABLE INFORMATION" CONVENIENT TO THE DISPOSAL OFFICERS ON OR BEFORE THE SALE WAS CONSUMMATED.

B-149535, AUG. 10, 1962

TO THE SECRETARY OF DEFENSE:

BY LETTER OF JULY 24, 1962, WITH ENCLOSURES, THE ASSISTANT COUNSEL, DEFENSE SUPPLY AGENCY, SUBMITTED FOR OUR CONSIDERATION THE REQUEST FOR RELIEF MADE BY THE BLUFF CITY AUTO PARTS, MEMPHIS, TENNESSEE, IN CONNECTION WITH ITS CONTRACT NO. O.I. 1839, EXECUTED PURSUANT TO INVITATION FOR BIDS NO. 09-030-S-62-33.

THE CLAIMANT WAS AWARDED SEVERAL ITEMS OF SURPLUS PROPERTY AS SUCCESSFUL BIDDER UNDER THE SALES INVITATION, INCLUDING ITEM NO. 146, IDENTIFIED IN THE CATALOGUE AS "HOUSING TRANSMISSION FOR 5 TON IHC TRUCK, 6 BY 6, G-744, 2520-741-1140, CODE 2520.' LATER IT WAS DETERMINED THAT THE UNITS INVOLVED, BEING EIGHT IN NUMBER, WERE ACTUALLY DIFFERENTIAL HOUSING AND, AS A RESULT OF THE MISDESCRIPTION THE CONTRACTOR REFUSED DELIVERY WITH THE REQUEST THAT THE SAID ITEM BE DELETED FROM THE CONTRACT. THE AGREEMENT CONTAINED THE USUAL DISCLAIMER OF WARRANTY AS TO QUANTITY, QUALITY OR DESCRIPTION, BUT NEVERTHELESS ADVISED ALL BIDDERS THAT THE DESCRIPTION OF THE SEVERAL ARTICLES OFFERED FOR SALE WAS BASED UPON THE BEST AVAILABLE INFORMATION. NOTWITHSTANDING THE FOREGOING THE CONTRACTOR HAS STATED THAT A CHECK OF ORDNANCE STOCK MANUALS AVAILABLE TO THE DISPOSAL OFFICERS INVOLVED WOULD HAVE DISCLOSED THE STOCK NUMBERED ARTICLES TO BE HOUSINGS FOR REAR AXLES RATHER THAN FOR TRANSMISSIONS. THE RECORD FURTHER SHOWS THAT UPON INSPECTION OF THE EQUIPMENT, AFTER DATE OF THE CONTRACT, IT WAS READILY ASCERTAINABLE THAT THE UNITS WERE NOT TRANSMISSION HOUSING AS ADVERTISED. IN VIEW OF THE ABOVE IT IS APPARENT THAT THE CLEARLY ERRONEOUS DESCRIPTION OF THE HOUSINGS WAS NOT BASED UPON THE "BEST AVAILABLE INFORMATION" CONVENIENT TO THE DISPOSAL OFFICERS ON OR BEFORE THE SALE WAS CONSUMMATED.

NOTWITHSTANDING THE FAILURE OF THE CLAIMANT TO INSPECT THE ARTICLES, WE DO NOT FEEL THAT SUCH FACT NECESSARILY IS FATAL TO ITS CLAIM, PARTICULARLY SINCE QUANTITY OR CONDITION OF THE SUBJECT MATTER IS NOT IN ISSUE. VIEW THEREOF, AND SINCE ACCEPTANCE OF THE UNITS HAS BEEN REFUSED, WE BELIEVE THAT AN ADJUSTMENT MAY BE MADE BY DELETING FROM THE CONTRACT ITEM NO. 146. SEE OUR DECISIONS TO THE SECRETARY OF THE ARMY UNDER DATE OF NOVEMBER 9, 1959, B-140996; DECEMBER 18, 1959, B 141337; AND, FEBRUARY 19, 1960, B-141963.

THE PAPERS TRANSMITTED WITH LETTER OF JULY 24, 1962, ARE RETURNED HEREWITH.