B-151134, APR. 10, 1963

B-151134: Apr 10, 1963

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

SINCE ACME WAS DETERMINED TO BE THE SUCCESSFUL BIDDER ON ITEMS 28 AND 67. AWARD OF THOSE TWO ITEMS WAS MADE ON JUNE 12. WHICH IS THE SUBJECT OF THE CLAIM. WAS DESCRIBED IN THE INVITATION AS FOLLOWS: "WASTE PAPER: TABULATING CARDS. THIS ITEM WILL BE LOADED ON TRUCKS OR RAIL CARS. PAYMENT FOR ITEM 28 WAS MADE ON JUNE 18. YOUR LETTER DOES NOT STATE THE GROUNDS UPON WHICH REVIEW OF OUR SETTLEMENT IS REQUESTED. SINCE THE CLAIM IS BASED UPON REJECTION OF ITEM 28 BY ACME'S BUYER. WE WILL CONSIDER YOUR REQUEST FOR REVIEW AS HAVING REFERENCE TO AN ALLEGED MISDESCRIPTION OF ITEM 28. THE SCRAP PAPER WAS SOLD "AS IS. " "WHERE IS" TO ACME SUBJECT TO THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION.

B-151134, APR. 10, 1963

TO MR. LEON SEIDMAN:

YOUR LETTER OF MARCH 12, 1963, REQUESTS REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 19, 1963, WHICH DISALLOWED THE CLAIM OF ACME PAPER STOCK COMPANY, INC., FOR $606.54, REPRESENTING DIRECT LABOR AND HANDLING COSTS INCURRED IN REHANDLING A SHIPMENT OF TABULATING CARDS PURCHASED ON JUNE 12, 1962, UNDER A SALES CONTRACT RESULTING FROM THE COMPANY'S HIGH BID SUBMITTED UNDER INVITATION NO. B 117-62.

THE DEFENSE SURPLUS SALES OFFICE, NORFOLK, VIRGINIA, REQUESTED BIDS UNDER THE INVITATION TO BE OPENED ON JUNE 5, 1962, FOR VARIOUS ITEMS OF SCRAP MATERIALS. SINCE ACME WAS DETERMINED TO BE THE SUCCESSFUL BIDDER ON ITEMS 28 AND 67, AWARD OF THOSE TWO ITEMS WAS MADE ON JUNE 12, 1962. ITEM 28, WHICH IS THE SUBJECT OF THE CLAIM, WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"WASTE PAPER: TABULATING CARDS, VARIOUS COLORS--- STRIPED AND PLAIN. PACKED IN FIBERBOARD BOXES, NOT IN ORIGINAL MANUFACTURERS CARTONS. WEIGHTS INCLUDE BOXES, NO DEDUCTION FOR WEIGHT OF CARTONS. STORED INSIDE. THIS ITEM WILL BE LOADED ON TRUCKS OR RAIL CARS. QUANTITY--- 30,000 S.'

PAYMENT FOR ITEM 28 WAS MADE ON JUNE 18, 1962.

YOUR LETTER DOES NOT STATE THE GROUNDS UPON WHICH REVIEW OF OUR SETTLEMENT IS REQUESTED. SINCE THE CLAIM IS BASED UPON REJECTION OF ITEM 28 BY ACME'S BUYER, THE KIMBERLY-CLARK CORPORATION, BECAUSE OF THE CONTAMINATION OF THE CARDS BY ATTACHED CARBON SHEETS, WE WILL CONSIDER YOUR REQUEST FOR REVIEW AS HAVING REFERENCE TO AN ALLEGED MISDESCRIPTION OF ITEM 28.

THE SCRAP PAPER WAS SOLD "AS IS," "WHERE IS" TO ACME SUBJECT TO THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION, PARAGRAPH 2 OF WHICH CONTAINED AN EXPRESS DISCLAIMER OF WARRANTY AS TO THE "QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE.'

BIDDERS ARE EXPECTED, AND ARE EXPRESSLY WARNED AND CAUTIONED BY PARAGRAPH 1, TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO SUBMITTING A BID. THE COURTS HAVE CONSISTENTLY HELD THAT A BIDDER WHO FAILS TO RELY ON A THOROUGH AND EFFECTUAL INSPECTION OF SURPLUS PROPERTY OFFERED FOR SALE DOES SO AT HIS PERIL, AND HAS ONLY HIMSELF TO BLAME FOR THE PREDICAMENT OF DISCOVERING THAT THE ACTUAL CONDITION OF THE PROPERTY DOES NOT MEET HIS EXPECTATIONS OR IS AT VARIANCE WITH THE ADVERTISED DESCRIPTION. SEE DADOURIAN EXPORT CORPORATION V. UNITED STATES, 291 F.2D 178; PAXTON- MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

INASMUCH AS ACME FAILED TO INSPECT THE PROPERTY COVERED BY ITEM 28 BUT INSTEAD RELIED ON THE ADVERTISED DESCRIPTION, THE RATIONALE OF THE ABOVE CASES IS FOR APPLICATION. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 19, 1963, IS SUSTAINED.

CONCERNING YOUR REQUEST FOR A COPY OF THE FINDINGS OF FACT OF THE DISPOSAL OFFICER, YOU ARE ADVISED THAT WE ARE UNABLE TO COMPLY WITH YOUR REQUEST. COPIES OF RECORDS IN THE CUSTODY OF OUR OFFICE MAY BE FURNISHED ONLY UPON THE SUBMISSION OF A WRITTEN STATEMENT SATISFACTORILY SHOWING THE PURPOSE AND NECESSITY THEREFOR.