B-150380, DEC. 11, 1962

B-150380: Dec 11, 1962

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THE GOVERNMENT ACCEPTED YOUR OFFER AND PAYMENT WAS MADE. ONLY 138 TIRES WERE AS DESCRIBED. WHILE THE OTHER 155 TIRES WERE USED AND NOT IN GOOD CONDITION. YOUR CLAIM WAS DENIED BY OUR CLAIMS DIVISION AND YOU NOW ASK US TO REVIEW THE DENIAL. THE BIDDER IS INVITED. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF A BID AFTER OPENING. "2. ALL PROPERTY LISTED THEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS.'. IF IT IS PROVIDED THEREIN THAT THE GOVERNMENT SHALL LOAD. THEN "WHERE IS" MEANS F.O.B. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. NO REQUEST FOR ADJUSTMENT IN PRICE OR FOR RESCISSION OF THE SALE WILL BE CONSIDERED.

B-150380, DEC. 11, 1962

TO GANS SURPLUS TIRE COMPANY:

IN YOUR LETTER OF NOVEMBER 19, 1962, YOU REQUEST REVIEW OF OUR CLAIMS DIVISION SETTLEMENT, WHICH DENIED YOUR CLAIM IN REGARD TO YOUR PURCHASE OF ITEM NO 58 OF SPOT BID SALE NO. 33-167-S-62-69, DATED APRIL 24, 1962.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION FOR BIDS ISSUED BY THE DEPARTMENT OF THE ARMY, COLUMBUS GENERAL DEPOT, COLUMBUS, OHIO, YOU OFFERED TO PURCHASE 293 PNEUMATIC TIRES LISTED UNDER ITEM NO. 58 AT $22.99 PER UNIT, FOR A TOTAL PRICE OF $6,736.07. THE GOVERNMENT ACCEPTED YOUR OFFER AND PAYMENT WAS MADE. AFTER DELIVERY OF THE ITEM, YOU ADVISED BY LETTER OF MAY 18, 1962, THAT, DUE TO A MISDESCRIPTION CONTAINED IN THE SALES ANNOUNCEMENT, ONLY 138 TIRES WERE AS DESCRIBED, WHILE THE OTHER 155 TIRES WERE USED AND NOT IN GOOD CONDITION, SHOWING VARYING DEGREES OF WEAR AND SPLIT, AND BEING UNFIT FOR RESALE AS UNUSED TIRES. YOU THEREFORE OFFERED TO RETURN THE 155 TIRES AND SUBMITTED A CLAIM THEREFOR IN THE AMOUNT OF $3,050.45. YOUR CLAIM WAS DENIED BY OUR CLAIMS DIVISION AND YOU NOW ASK US TO REVIEW THE DENIAL.

PARAGRAPHS 1 AND 2 OF GENERAL SALE TERMS AND CONDITIONS INCLUDED IN THE INVITATION PROVIDED:

"1. INSPECTION. THE BIDDER IS INVITED, URGED, AND CAUTIONED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION AND LOCATION OF PROPERTY. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE INVITATION, ALL PROPERTY LISTED THEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS.' IF IT IS PROVIDED THEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. HOWEVER, 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. EXCEPT AS PROVIDED IN CONDITIONS NO. 8 AND 10, NO REQUEST FOR ADJUSTMENT IN PRICE OR FOR RESCISSION OF THE SALE WILL BE CONSIDERED. THIS IS NOT A SALE BY SAMPLE.'

THESE PROVISIONS CLEARLY CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY AND PLACE UPON THE PURCHASER THE ENTIRE RISK OF ANY DEFECTS. OTHERWISE, THESE PROVISIONS OF THE INVITATION WOULD BE MEANINGLESS AND THE GOVERNMENT WOULD BE SUBJECTED TO A FLOOD OF COMPLAINTS AND CLAIMS ARISING FROM SALES OF SURPLUS PROPERTY. IN THE RECENT CASE OF DEDOURIAN EXPORT CORPORATION V. UNITED STATES, 291 F.2D 178 (1961), THE COURT STATED:

"* * * WHEN THE GOVERNMENT SELLS SURPLUS GOODS IT IS TRYING TO DISPOSE OF A VAST MISCELLANY OF USED AND UNUSED PROPERTY IN AN EFFORT, SO FAR AS MAY UNDER THE CIRCUMSTANCES BE POSSIBLE, TO MINIMIZE ITS LOSS. SALES OF THIS CHARACTER ARE PROCESSED ON A MASS QUANTITY BASIS BY MEMBERS OF THE ARMED FORCES WHO SELDOM IF EVER HAVE ANY EXPERTISE IN THE PARTICULAR ITEMS WHICH COME TO THEIR WAREHOUSES AND DEPOTS. BUYERS OF SUCH SURPLUS PROPERTY KNOW PERFECTLY WELL THAT THERE IS ALWAYS THE CHANGE OF BUYING PROPERTY THAT MAY TURN OUT TO BE OF LITTLE VALUE, OR MAY DEVELOP INTO A GREAT BARGAIN WITH A HUGE WINDFALL OF PROFIT. ACCORDINGLY, THE GOVERNMENT VERY PROPERLY HAS PROTECTED ITSELF BY FORMULATING ITS CONTRACT FOR THE SALE OF SUCH SURPLUS PROPERTY SO AS TO SHIFT THE RISK FROM ITSELF TO THE BUYER. AS PROFESSOR CORBIN TELLS US, A PARTY TO A CONTRACT MAY AGREE TO ASSUME CERTAIN RISKS THAT IN THE ABSENCE OF AGREEMENT THE LAW WOULD NOT CAST UPON HIM. SEE 3 CORBIN, CONTRACT (1960), SECTION 598. SEE ALSO UNITED STATES V. HATHAWAY, 9 CIR., 1957, 242 F.2D 897. * * *"

YOU CONTEND THAT A CURSORY INSPECTION OF THE TIRES WOULD NOT HAVE DISCLOSED THE ALLEGED ERROR IN THE DESCRIPTION. OUR OFFICE CONSISTENTLY HAS HELD THAT WHERE AN INVITATION URGES AND CAUTIONS THE BIDDER TO MAKE AN INSPECTION, AND CONTAINS A CLAUSE FULLY DISCLAIMING ANY WARRANTY, THE BIDDER WHO FAILS TO MAKE AN ADEQUATE OR THOROUGH INSPECTION, EVEN THOUGH SUCH INSPECTION IS IMPRACTICABLE IF NOT IMPOSSIBLE, ASSUMES ANY LOSS WHICH MIGHT RESULT FROM A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. AS WAS HELD BY THE COURT IN PAXTON MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959), THE FACT THAT THE INFERIOR NATURE OF THE PURCHASED PRODUCT COULD NOT BE DISCOVERED EXCEPT BY MICROSCOPIC EXAMINATION OR CHEMICAL ANALYSIS IS NO BASIS FOR RELIEF, SINCE THE GOVERNMENT SALES CONTRACT REQUIRES A BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL.

FOR THE FOREGOING REASONS THE ACTION TAKEN IN DISALLOWING YOUR CLAIM IS SUSTAINED.