B-150879, MAY 2, 1963

B-150879: May 2, 1963

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THE VEHICLE COVERED BY ITEM 2 WAS LOCATED AT PINE RIDGE. WAS AVAILABLE FOR INSPECTION THERE. ITEM 2 WAS DESCRIBED IN THE SALES INVITATION AS: "FORD. OSTERLOH WAS AWARDED ITEM 2 AS THE HIGHEST BIDDER THEREON. HE DISCOVERED THAT THE VEHICLE HE PURCHASED AND PAID FOR WAS A 1953 FORD 2-DOOR SEDAN. RELIEF FROM THE CONTRACT WAS SOUGHT ON THE BASIS OF ALLEGED MISDESCRIPTION OF THE PROPERTY BUT DENIED UNDER THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION RESPECTING DISCLAIMER OF WARRANTY. WARRANTY DISCLAIMER AND THE STATEMENT THAT THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE WAS "BASED ON THE BEST AVAILABLE INFORMATION.'. WE ALSO NOTE THAT IT IS REPORTED THAT MR. OSTERLOH FAILED TO INSPECT THE VEHICLE PRIOR TO SUBMITTING A BID ALTHOUGH HE WAS CAUTIONED TO DO SO BY THE INVITATION.

B-150879, MAY 2, 1963

TO THE ADMINISTRATOR, GENERAL SERVICES ADMINISTRATION:

BY LETTER DATED FEBRUARY 18, 1963, WITH ENCLOSURES, YOUR GENERAL COUNSEL RECOMMENDED THAT MR. JERROLD H. OSTERLOH, OF MADISON, SOUTH DAKOTA, BE RELEASED FROM HIS OBLIGATION TO PURCHASE ITEM 2 UNDER SEALED BID SALE NO. 6UPS-63-110 AND THAT YOUR ADMINISTRATION BE AUTHORIZED TO RESCIND THE CONTRACT COVERING ITEM 2 AND REFUND THE PURCHASE PRICE OF $79.79 THEREFOR.

ON NOVEMBER 30, 1962, YOUR KANSAS CITY, MISSOURI, REGIONAL OFFICE OFFERED FOR SALE A QUANTITY OF SURPLUS VEHICLES UNDER THE CITED SEALED BID SALE. MR. OSTERLOH SUBMITTED A BID TO PURCHASE ITEM 2 FOR $79.79. THE VEHICLE COVERED BY ITEM 2 WAS LOCATED AT PINE RIDGE, SOUTH DAKOTA, AND WAS AVAILABLE FOR INSPECTION THERE. ITEM 2 WAS DESCRIBED IN THE SALES INVITATION AS:

"FORD, STATION WAGON, 1953, 8 CYL., S/N A3PG119921, LIC NO. I-44023, BIA NO. 1-11156 (USED)"

MR. OSTERLOH WAS AWARDED ITEM 2 AS THE HIGHEST BIDDER THEREON. HOWEVER, UPON RECEIPT OF THE NOTICE OF AWARD, HE DISCOVERED THAT THE VEHICLE HE PURCHASED AND PAID FOR WAS A 1953 FORD 2-DOOR SEDAN, 6 CYLINDER. RELIEF FROM THE CONTRACT WAS SOUGHT ON THE BASIS OF ALLEGED MISDESCRIPTION OF THE PROPERTY BUT DENIED UNDER THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION RESPECTING DISCLAIMER OF WARRANTY.

WE NOTE THAT THE SALES INVITATION CONTAINED THE USUAL CONDITIONS APPLICABLE TO GOVERNMENT SURPLUS SALES, INCLUDING INSPECTION, WARRANTY DISCLAIMER AND THE STATEMENT THAT THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE WAS "BASED ON THE BEST AVAILABLE INFORMATION.' WE ALSO NOTE THAT IT IS REPORTED THAT MR. OSTERLOH FAILED TO INSPECT THE VEHICLE PRIOR TO SUBMITTING A BID ALTHOUGH HE WAS CAUTIONED TO DO SO BY THE INVITATION.

CONCERNING MR. OSTERLOH'S ALLEGATION THAT THE VEHICLE WAS MISREPRESENTED AS TO ITS BODY STYLE, NUMBER OF CYLINDERS AND YEAR OF MANUFACTURE, YOUR GENERAL COUNSEL ADVISED:

"WHILE WE RECOGNIZE THAT THE PROPERTY IN QUESTION WAS OFFERED FOR SALE ON AN "AS IS, WHERE IS" BASIS AND THAT THE PROSPECTIVE BIDDERS WERE URGED IN THE INVITATION FOR BID TO INSPECT THE PROPERTY, IT IS STILL OUR FEELING THAT THE GOVERNMENT, IN ADVERTISING A SIX CYLINDER 2-DOOR SEDAN AS AN EIGHT CYLINDER STATION WAGON, MADE THE ORIGINAL ERROR WHICH CREATED THE PROBLEM, AND, THUS, IT COULD NOT DELIVER THE SAME ITEM IT ADVERTISED.

"OWING TO THE DISTANCE BETWEEN KANSAS CITY AND THE LOCATION OF THE PROPERTY OFFERED FOR SALE, GSA, IN ITS INVITATION FOR BIDS, RELIED ON ERRONEOUS INFORMATION FURNISHED BY THE HOLDING AGENCY, THE BUREAU OF INDIAN AFFAIRS, AT PINE RIDGE, SOUTH DAKOTA. IN THIS CONNECTION, CONDITION NO. 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION PROVIDES IN PERTINENT PART,"THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION.' CORRECT INFORMATION AS TO THE DESCRIPTION OF THE ITEM IN QUESTION WAS AVAILABLE TO THE BUREAU OF INDIAN AFFAIRS. THEREFORE, WE SERIOUSLY QUESTION WHETHER THE ERRONEOUS DESCRIPTION IN THE INVITATION WAS "BASED ON THE BEST AVAILABLE INFORMATION.' SEE B-149102, DATED AUGUST 8, 1962. MR. OSTERLOH'S FAILURE TO INSPECT IS UNDERSTANDABLE, PINE RIDGE AND MADISON BEING LOCATED ON OPPOSITE SIDES OF THE STATE.'

THERE IS NOTHING IN THE RECORD TO INDICATE BAD FAITH ON THE PART OF THE CONTRACTING OFFICER OR ANY OF HIS REPRESENTATIVES IN CONNECTION WITH THE INSTANT SALE. WHILE THE RECORD INDICATES THAT THERE IS NO DISPUTE THAT THE VEHICLE HERE IN QUESTION WAS NOT A FORD STATION WAGON, 1953, 8- CYLINDER, IT IS NOT SHOWN THAT THE CONTRACTING OFFICER KNEW THAT THE VEHICLE IN ITEM 2 WAS DIFFERENT THAN THAT DESCRIBED IN THE INVITATION. THE DESCRIPTION IN THE BID INVITATION FOR ITEM 2 WAS BASED ON THE "BEST AVAILABLE INFORMATION" AVAILABLE TO THE CONTRACTING OFFICER--- AS STATED IN THE INVITATION--- HAVING BEEN TAKEN FROM THE INFORMATION FURNISHED BY THE PROPERTY HOLDING ACTIVITY REQUESTING SALE OF THE ITEM. UNDER THE CONDITIONS OF THE SALE THE GOVERNMENT WAS ONLY OBLIGED TO ACT IN GOOD FAITH, AND THIS IT DID. SEE LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, 92; LUNBRAZO V. WOODRUFF, 175 N.E. 525; AND UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED 253 F.2D 956. THERE IS NO BASIS, THEREFORE, FOR GRANTING ANY RELIEF ON THE GROUND THAT THE PROPERTY IN QUESTION WAS MISDESCRIBED IN THE INVITATION.

FURTHERMORE, THE EVIDENCE ESTABLISHES THAT THE PROPERTY DELIVERED WAS THE SAME PROPERTY DISPLAYED FOR INSPECTION AS ITEM 2. HAD MR. OSTERLOH MADE SUCH AN EXAMINATION BEFORE SUBMITTING HIS BID, AS HE WAS CAUTIONED TO DO, HE WOULD HAVE DISCOVERED THE CHARACTER OF THE VEHICLE OF WHICH HE NOW COMPLAINS.

THE LAW IS CLEAR THAT WHERE SURPLUS PROPERTY IS OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS S" AND "WHERE IS" BASIS, WITHOUT A WARRANTY OR GUARANTY OF ANY KIND, AS IN THE INSTANT SALE, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE MATERIALS ARE OF AN INFERIOR QUALITY OR THAT THEY ARE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. AMERICAN SANITARY RAG CO. V. UNITED STATES, 161 F.SUPP. 414; PAXTON MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463; KRUPP V. FEDERAL HOUSING ADMINISTRATION, 185 F.SUPP. 638.

IN THESE CIRCUMSTANCES, THERE IS NO LEGAL BASIS FOR ALLOWING MR. OSTERLOH ANY RELIEF UNDER THE SALES CONTRACT COVERING ITEM 2. SEE 36 COMP. GEN. 612; 41 ID. 185.