B-152587, OCT. 22, 1963

B-152587, OCT. 22, 1963

TO HUB APPAREL, INCORPORATED:

WE REFER TO YOUR LETTER OF AUGUST 3, 1963, REQUESTING THAT WE REVIEW OUR SETTLEMENT OF NOVEMBER 19, 1962, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE PRICE YOU PAID FOR THE PURCHASE OF 2,947 WATERPROOF BAGS UNDER CONTRACT NO. 63066S-5450. THIS CONTRACT WAS AWARDED TO YOU AS THE HIGH BIDDER PURSUANT TO INVITATION FOR BIDS NO. B-109-62-63066 ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, NEWPORT, RHODE ISLAND ON APRIL 11, 1962.

THE PROPERTY WHICH YOU PURCHASED WAS LISTED AS ITEM 65 IN THIS INVITATION AND WAS DESCRIBED AS FOLLOWS:

"BAG, WATERPROOF, CLOTHING

CONDITION: USED, FAIR

ACQ. COST: $4,715.20"

CLAUSE 1 ON PAGE 8 OF THE INVITATION URGED BIDDERS TO INSPECT THE PROPERTY OFFERED FOR SALE. CLAUSE 2 ON PAGE 8 OF THE INVITATION STATED THAT THIS PROPERTY WAS SOLD ON AN "AS IS" AND "WHERE IS" BASIS, AND CONTAINED THE STANDARD DISCLAIMER OF WARRANTY PROVISIONS. THIS CLAUSE ALSO PROVIDED THAT "THIS IS NOT A SALE BY SAMPLE.' THE INVITATION STATED THAT THE PROPERTY DESCRIBED AS ITEM 65 WAS LOCATED AT THE UNITED STATES ARMY GARRISON, FORT DEVENS, AYER, MASSACHUSETTS, AND WE ARE INFORMED BY THE CONTRACTING OFFICER THAT THIS PROPERTY WAS AVAILABLE FOR INSPECTION FOR 21 DAYS.

YOUR BID WAS THE HIGHEST BID RECEIVED AND AWARD WAS MADE TO YOU ON THIS BASIS. AFTER AWARD YOU FOUND THAT MANY OF THE BAGS WHICH WERE DELIVERED TO YOU CONTAINED HOLES AND WERE UNUSABLE AND YOU REQUESTED THAT THE PURCHASE PRICE BE REFUNDED TO YOU. IN THIS REGARD YOU CONTEND THAT THIS INVITATION DID NOT ACCURATELY DESCRIBE THE PROPERTY OFFERED FOR SALE; THAT THERE WAS AN ERROR IN THE CLASSIFICATION OF THIS MATERIAL; THAT YOUR COULD NOT INSPECT THE PROPERTY BECAUSE OF THE FACT THAT THE BAGS WERE PLACED IN BALES AND TIGHTLY CLOSED; AND THAT THE PROPERTY WHICH WAS DELIVERED TO YOU DID NOT CONFORM TO THE SAMPLE WHICH WAS ON DISPLAY.

IN REGARD TO CLAUSE 2 ON PAGE 8 OF THIS INVITATION THE RULE IS WELL ESTABLISHED THAT THIS CLAUSE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND THAT IN THE ABSENCE OF BAD FAITH ON THE PART OF THE GOVERNMENT ITS EFFECT IS TO IMPOSE UPON THE PURCHASER THE RISK OF MISDESCRIPTION. THE RULE IS ALSO ESTABLISHED THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, NO WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD. SEE LUMBRAZO V. WOODRUFF 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES 52 F.2D. 31, CERTIORARI DENIED 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES 63 CT.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CLS. 424. WE HAVE REVIEWED THIS RECORD AND FIND NO EVIDENCE OF BAD FAITH BY THE GOVERNMENT, AND WE FIND NO EVIDENCE THAT THE PROPERTY SOLD WAS OTHER THAN THE PROPERTY REFERRED TO IN THE INVITATION.

NEITHER DO WE FIND ANY BASIS FOR YOUR CONTENTION THAT THE GOVERNMENT SHOULD BEAR THE RISK OF MISDESCRIPTION HERE BECAUSE AN INSPECTION BY YOU WAS IMPRACTICABLE. THE GOVERNMENT MAY NOT BE CHARGED WITH ANY LEGAL RESPONSIBILITY BY REASON OF YOUR FAILURE TO MAKE WHATEVER INSPECTION MIGHT BE NECESSARY TO ASCERTAIN FULLY ALL CHARACTERISTICS OF THE PROPERTY OFFERED FOR SALE. SEE PAXTON-MITCHELL CO. V. UNITED STATES, 145 CT.CLS. 502, 172 F.SUPP. 463. MOREOVER, THE FACT THAT THE CONTENTS OF A SAMPLE WHICH YOU CLAIM WAS ON DISPLAY MAY HAVE BEEN OF A BETTER GRADE THAN THE ITEMS ACTUALLY DELIVERED TO YOU WOULD NOT BE A BASIS FOR YOU TO COMPLAIN. THE LANGUAGE IN CLAUSE 2 ON PAGE 8 WHICH SPECIFICALLY PROVIDED THAT THIS WAS NOT A SALE BY SAMPLE, TOGETHER WITH THE OVER-ALL DISCLAIMER OF WARRANTY PROVISIONS, CLEARLY ADVISED YOU THAT NO WARRANTIES WERE ATTACHED TO THE SAMPLES. IN THIS REGARD WE HAVE STATED THAT A DISPLAY OF SAMPLES UNDER SUCH CONDITIONS SERVES NO OTHER PURPOSE THAN A MERE CONVENIENCE FOR PROSPECTIVE PURCHASERS OR, IN A SENSE, AN EXPRESSION OF OPINION, IN ADDITION TO THE USUAL DESCRIPTIVE LANGUAGE IN THE INVITATION, AS TO WHAT THE GOVERNMENT SALES OFFICERS BELIEVE, BUT DO NOT WARRANT, THE LOT OR ITEMS FOR SALE TO BE. IN THESE CIRCUMSTANCES NO LIABILITY MAY ATTACH TO THE GOVERNMENT UNLESS THERE EXISTS MORE THAN AN HONEST ERROR IN THE DESCRIPTIVE MANNER OF THE INVITATION. SEE B-134730, JANUARY 30, 1958.

FOR THE FOREGOING REASONS OUR SETTLEMENT OF NOVEMBER 19, 1962, DENYING YOUR CLAIM FOR THE REFUND OF THE PURCHASE PRICE FOR THESE ITEMS IS SUSTAINED.