B-153268, FEB. 5, 1964

B-153268: Feb 5, 1964

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ALBERT PRATT: WE ARE IN RECEIPT OF YOUR LETTER DATED DECEMBER 27. THE GIST OF YOUR COMPLAINT IS THAT ITEM 49. UPON WHICH YOU WERE THE SUCCESSFUL BIDDER. WAS DESCRIBED IN THE INVITATION AS 4 EACH RADIO RECEIVERS. NONETHELESS AWARD SEEMS TO HAVE BEEN MADE ON MAY 10TH BEFORE THE LETTER ARRIVED. THE REFERENCED LETTER STATED "YOU HAVE ME CONFUSED IN THIS MATTER * * *. A CONFUSING DISCREPANCY IS THAT THIS IS LISTED AS RADIO RECEIVER. ALTHOUGH THE BC-653 IS A RADIO TRANSMITTER WITH VERY DIFFERENT SPECS.'. THIS CONFUSION OF YOURS COULD HAVE BEEN DISPELLED BY PHYSICAL INSPECTION OF THE PROPERTY ON YOUR PART AT SALES WAREHOUSE 4 DURING THE ANNOUNCED INSPECTION PERIOD FROM APRIL 17 UNTIL MAY 7.

B-153268, FEB. 5, 1964

TO MR. ALBERT PRATT:

WE ARE IN RECEIPT OF YOUR LETTER DATED DECEMBER 27, 1963, REQUESTING RECONSIDERATION OF THE DISALLOWANCE OF YOUR CLAIM FOR $250.12 SUBMITTED IN CONNECTION WITH DISPOSAL INVITATION NO. 31-S-63-31 ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, MEMPHIS ARMY DEPOT, MEMPHIS, TENNESSEE.

THE GIST OF YOUR COMPLAINT IS THAT ITEM 49, UPON WHICH YOU WERE THE SUCCESSFUL BIDDER, WAS DESCRIBED IN THE INVITATION AS 4 EACH RADIO RECEIVERS, BC-653, BUT THAT THE ITEM CONSISTED OF RADIO TRANSMITTERS INSTEAD, A FACT WHICH YOU DID NOT DISCOVER UNTIL AFTER DELIVERY HAD BEEN EFFECTED. YOU SEEK RESCISSION OF THE CONTRACT AND REIMBURSEMENT FOR FREIGHT COSTS.

BECAUSE YOU HAD CROSSED OUT THE UNIT PRICE OF $52.20 AND REPLACED IT WITH $54.00, THE PROPERTY DISPOSAL OFFICER REQUESTED VERIFICATION OF YOUR BID BY TELEPHONE ON MAY 8, 1963, BEFORE MAKING AWARD. THE CONVERSATION APPARENTLY FAILED TO ALERT GOVERNMENT OFFICIALS TO THE POSSIBILITY OF ERROR BUT YOUR TELEGRAM DATED MAY 10, 1963, URGED THE PROPERTY DISPOSAL OFFICER TO "REFER TO LETTER MAY EIGHTH BEFORE MAKING AWARD.' NONETHELESS AWARD SEEMS TO HAVE BEEN MADE ON MAY 10TH BEFORE THE LETTER ARRIVED. THE REFERENCED LETTER STATED "YOU HAVE ME CONFUSED IN THIS MATTER * * *. A CONFUSING DISCREPANCY IS THAT THIS IS LISTED AS RADIO RECEIVER, BC-653, ALTHOUGH THE BC-653 IS A RADIO TRANSMITTER WITH VERY DIFFERENT SPECS.'

THIS CONFUSION OF YOURS COULD HAVE BEEN DISPELLED BY PHYSICAL INSPECTION OF THE PROPERTY ON YOUR PART AT SALES WAREHOUSE 4 DURING THE ANNOUNCED INSPECTION PERIOD FROM APRIL 17 UNTIL MAY 7, 1963. THE INVITATION INCLUDED THE CUSTOMARY SALES TERMS TO THE EFFECT THAT THE PROPERTY WAS BEING OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS; THAT THE GOVERNMENT MADE NO WARRANTY WHATSOEVER REGARDING THE DESCRIPTION OF THE PROPERTY; AND THAT THE BUYER WAS PLACED UNDER A DUTY TO INSPECT THE PROPERTY BEFORE TENDERING A BID ON IT UNDER PENALTY OF BEARING THE RISK OF ANY MISDESCRIPTION INCLUDED IN THE INVITATION.

A GREAT VOLUME AND VARIETY OF PROPERTY IS SOLD BY THE GOVERNMENT DURING THE COURSE OF A YEAR AND DISPOSAL OFFICERS CANNOT BE EXPECTED TO BE SKILLED IN THE DIVERSE TECHNOLOGIES INVOLVED IN THESE SALES. OF NECESSITY RELIANCE MUST IN MANY CASES BE PLACED UPON DESCRIPTIONS FURNISHED TO THE SALES OFFICE BY THE HOLDING OFFICE OR BY THE ACTIVITY DECLARING THE ITEMS EXCESS TO THE NEEDS OF THE GOVERNMENT.

IN THIS CASE SALES PERSONNEL WERE GIVEN NO COMPLETE DESCRIPTION OF THE ITEM BUT HAD ONLY THE STOCK NUMBER AND THE DESIGNATION "RECEIVER BC-653.' NO QUALIFIED RADIO TECHNICIAN IS ASSIGNED TO THE SALES OFFICE. HENCE IT MUST BE CONCLUDED THAT THE BEST INFORMATION AVAILABLE WAS INCLUDED IN THE INVITATION AND THAT THE PURCHASER MUST BEAR THE FULL CONSEQUENCES OF HIS FAILURE TO INSPECT THE PROPERTY UPON WHICH HE WAS BIDDING IN ACCORDANCE WITH THE TERMS OF THE INVITATION AND ESTABLISHED PRECEDENTS ON THE SUBJECT. 41 COMP. GEN. 185; STANDARD MAGNESIUM CORP. V. UNITED STATES, 241 F.2D 677; AMERICAN SANITARY RAG CO. V. UNITED STATES, 161 F.SUPP. 414; AMERICAN ELASTICS V. UNITED STATES, 187 F.2D 109, CERTIORARI DENIED 342 U.S. 829; M. BERGER CO. V. UNITED STATES 199, F.SUPP. 22.

NO BASIS IN LAW EXISTS TO JUSTIFY THE RESCISSION OF YOUR CONTRACT. DADOURIAN EXPORT CORP. V. ..END :