B-153316, MAR. 30, 1964

B-153316: Mar 30, 1964

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YOU WERE AWARDED SEVERAL ITEMS DESCRIBED AS CRANES ON THE BASIS OF YOUR HIGH BID. WHICH WAS SUBMITTED WITHOUT INSPECTION OF THE ITEMS. CONTENDING THAT YOU HAD EXPECTED TO RECEIVE CRANES WITH HOISTS BUT THAT THE ITEMS WERE MERE STEEL BEAMS USED TO SUPPORT HOISTS. YOU STATE THAT THE ITEMS ARE USELESS WITHOUT THE HOISTING MECHANISMS AND THAT ANY PERSON ASSOCIATED WITH CRANES LOOKING AT THE ACTUAL ITEM OFFERED WOULD HAVE IMMEDIATELY TERMED THEM AS INCOMPLETE CRANES SINCE THE HOISTS WERE REMOVED. WHICH APPEAR TO HAVE AGREED WITH THE MANUFACTURER'S CATALOG DESCRIPTIONS. THERE WERE NO INTENTIONAL MISDESCRIPTIONS. THE BIDDER IS INVITED. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION.

B-153316, MAR. 30, 1964

TO CASEY EQUIPMENT COMPANY:

YOUR LETTER OF FEBRUARY 18, 1964, REQUESTS RECONSIDERATION OF OUR SETTLEMENT DATED FEBRUARY 12, 1964, DISALLOWING YOUR CLAIM FOR REFUND OF BID DEPOSIT UNDER CONTRACT NO. DSA-27-S-1981.

PURSUANT TO INVITATION FOR BIDS NO. 27-S-63-62 ISSUED BY THE DEFENSE CONSTRUCTION SUPPLY CENTER, SURPLUS SALES OFFICE, COLUMBUS, OHIO, YOU WERE AWARDED SEVERAL ITEMS DESCRIBED AS CRANES ON THE BASIS OF YOUR HIGH BID, WHICH WAS SUBMITTED WITHOUT INSPECTION OF THE ITEMS. YOU REFUSED TO ACCEPT THE ITEMS, HOWEVER, WHEN YOU REPORTED AT THE DISPOSAL FACILITY TO MAKE SHIPPING ARRANGEMENTS, CONTENDING THAT YOU HAD EXPECTED TO RECEIVE CRANES WITH HOISTS BUT THAT THE ITEMS WERE MERE STEEL BEAMS USED TO SUPPORT HOISTS. YOU STATE THAT THE ITEMS ARE USELESS WITHOUT THE HOISTING MECHANISMS AND THAT ANY PERSON ASSOCIATED WITH CRANES LOOKING AT THE ACTUAL ITEM OFFERED WOULD HAVE IMMEDIATELY TERMED THEM AS INCOMPLETE CRANES SINCE THE HOISTS WERE REMOVED.

THE RECORD INDICATES THAT THE SALES OFFICE USED THE BEST AVAILABLE INFORMATION IN PREPARING THE DESCRIPTIONS INSERTED IN THE INVITATION, WHICH APPEAR TO HAVE AGREED WITH THE MANUFACTURER'S CATALOG DESCRIPTIONS, AND THERE WERE NO INTENTIONAL MISDESCRIPTIONS, THE SALES PERSONNEL HAVING ACTED IN GOOD FAITH THROUGHOUT THE TRANSACTION.

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

"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, 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.'

THE COURTS HAVE HELD THAT UNDER SUCH PROVISIONS, IN THE ABSENCE OF BAD FAITH OR FRAUD ON THE PART OF THE SELLER, BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER, THE PURPOSE AND EFFECT OF SUCH PROVISIONS BEING TO IMPOSE ALL RISKS OF MISTAKE UPON THE BUYER. THE COURTS HAVE ALSO HELD THAT AN EXPRESS DISCLAIMER OR WARRANTY AS USED IN SURPLUS PROPERTY SALES BY THE GOVERNMENT PRECLUDES A SUIT FOR DAMAGES ON THE THEORY OF MUTUAL MISTAKE. UNITED STATES V. HATHAWAY, 242 F.2D 897; AMERICAN SANITARY RAG CO. V. UNITED STATES, 142 CT.CL. 293. FURTHERMORE, IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959), THE COURT HELD THAT EVEN THOUGH ADEQUATE OR THOROUGH INSPECTION BE IMPRACTICABLE, IF NOT IMPOSSIBLE, THE BIDDER WHO FAILS TO INSPECT ASSUMES THE RISK OF ANY LOSS WHICH MIGHT RESULT FROM A VARIANCE BETWEEN THE PROPERTY DESCRIBED IN THE INVITATION AND THE PROPERTY DELIVERED.

FROM THE FOREGOING, IT IS OBVIOUS THAT YOUR FAILURE TO INSPECT BEFORE BIDDING RATHER THAN THE SALES DESCRIPTION WAS THE CAUSE OF YOUR DIFFICULTY. THEREFORE, UNDER THE TERMS OF THE INVITATION AS CONSTRUED BY THE COURTS, THERE IS NO LEGAL BASIS FOR GRANTING YOU THE REQUESTED RELIEF.

REGARDING YOUR CONTENTION THAT YOU HAVE MORE MORAL RIGHT TO YOUR BID DEPOSIT THAN HAS THE GOVERNMENT, THIS OFFICE IS AUTHORIZED TO SETTLE CLAIMS ONLY IN STRICT ACCORDANCE WITH APPLICABLE LEGAL PRINCIPLES. IT HAS NO AUTHORITY OR JURISDICTION TO ALLOW CLAIMS BASED SOLELY ON MORAL OR EQUITABLE CONSIDERATIONS WHICH HAVE NOT BEEN ACCEPTED BY THE COURTS AS BASES FOR IMPOSING LIABILITY UPON THE GOVERNMENT. THE SETTLEMENT DISALLOWING YOUR CLAIM IS THEREFORE SUSTAINED.