B-153541, MAR. 31, 1964

B-153541, MAR. 31, 1964

TO AUTOMOTIVE TIRE SERVICE, INC.:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 7, 1964, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF JANUARY 21, 1964, DISALLOWING YOUR CLAIM FOR $773.80 UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-37-S 1016, DATED JULY 19, 1963. YOU STATE THAT IN YOUR OPINION THE INVITATION TO BID IS GUARANTEED REGARDING IDENTIFICATION, DESCRIPTION AND WEIGHT ON THE ITEMS AND ASK TO BE ADVISED IF THIS OFFICE HAS A COPY OF THE ORIGINAL BID 37-S-64-3 IN ITS POSSESSION. YOU ALSO REQUEST THE MEANING OF THE TERMS CITED IN THE DISALLOWANCE.

IN RESPONSE TO SALES INVITATION NO. 37-S-64-3, DATED JULY 17, 1963 (COPY ON FILE IN THIS OFFICE), WHICH WAS ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, FORT WORTH, TEXAS, YOU SUBMITTED BY MAIL, THE HIGH BID FOR ITEMS 6, 7, 8, 9 AND 10. THESE ITEMS CONSISTED IN ITEM 6, OF 1,000 SIZE 9.00 BY 16 (TRUCK AND BUS) PNEUMATIC TIRE INNER TUBES, AND OF 2,000 OF THE DESCRIBED PROPERTY IN EACH OF THE REMAINING ITEMS. THE ESTIMATED TOTAL GROSS WEIGHT WAS LISTED IN THE INVITATION AT THE RATE OF 3,000 POUNDS PER 1,000 TUBES, OR 3 POUNDS EACH. THE ITEMS WERE ADVERTISED AND SOLD ON AN "EACH BASIS. YOUR BID WAS ACCEPTED BY THE SALES OFFICE ON JULY 19, 1963, THEREBY CONSUMMATING CONTRACT NO. DSA-37-S-1016, AND PAYMENT IN FULL WAS MADE BY YOU. THE PROPERTY WAS RELEASED TO THE COTTON BELT RAILROAD ON AUGUST 16, 1963.

IN YOUR LETTER DATED OCTOBER 2 TO THE SALES OFFICE YOU CLAIMED MISTAKE IN CATALOGUED ESTIMATED GROSS WEIGHT FOR ITEMS 6 THROUGH 10 AND ASKED FOR A REFUND OF $773.80, REPRESENTING THE TRANSPORTATION COSTS OF 73,000 POUNDS. UPON RECEIPT OF THIS LETTER THE SALES CONTRACTING OFFICE CONTACTED PERSONNEL AT RED RIVER ARMY DEPOT IN ORDER TO OBTAIN THE FACTS SHOWN BY THE RECORD. IT WAS REVEALED THAT THE HOLDING ACTIVITY REPORTED THE WEIGHT OF THOSE ITEMS AS THEY WERE TAKEN FROM TURN-IN DOCUMENTS. WHILE THE INVITATION STATED THAT THE TUBES WERE "PACKED," IT WAS REVEALED THAT THE WEIGHT OF THE PACKING WAS NOT INCLUDED IN THE ESTIMATED GROSS WEIGHT. HOWEVER, A CURSORY INSPECTION BY A PROSPECTIVE BIDDER WOULD HAVE READILY REVEALED THIS DISCREPANCY EVEN AS IT SHOULD HAVE BEEN OBVIOUS TO ONE IN THE TIRE TRADE.

UNDER ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS BIDDERS WERE INVITED, URGED AND CAUTIONED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID. FURTHER, EACH PAGE OF THE INVITATION BORE THE ADMONITION THAT THE BIDDER WAS CAUTIONED TO INSPECT THE PROPERTY. RESPECTING YOUR STATEMENT OF OPINION THAT THE INVITATION TO BID IS GUARANTEED REGARDING IDENTIFICATION, DESCRIPTION AND WEIGHT OF ITS ITEMS, YOU ARE ADVISED THAT ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS CLEARLY PROVIDES THAT THE GOVERNMENT MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE PROPERTY. SUCH EXPRESS DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF SALES TRANSACTION. SEE W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; UNITED STATES V. KELLY, 112 F.SUPP. 831; MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67 AND LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

REGARDING THE INSPECTION ASPECTS OF THE CASE, YOUR RESPONSIBILITIES ASA BIDDER APPEAR TO BE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463. IT WAS HELD IN THIS CASE THAT NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE KIND OF AN INSPECTION THAT IS EFFECTUAL. IN THE ABSENCE OF A THOROUGH INSPECTION OF THE PROPERTY, IT MUST BE PRESUMED THAT A BIDDER HAS ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY SET FORTH IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED.

THE LEGAL MAXIM CAVEAT EMPTOR REFERRED TO IN THE DISALLOWANCE SUMMARIZES THE RULE THAT THE PURCHASER OF AN ARTICLE MUST EXAMINE, JUDGE AND TEST IT FOR HIMSELF BEING BOUND TO DISCOVER ANY OBVIOUS DEFECTS OR IMPERFECTIONS. AS STATED IN THE DISALLOWANCE, WHERE THE PROPERTY IS SOLD ON AN "AS IS" AND "WHERE IS" BASIS, WITHOUT WARRANTY OR GUARANTY--- IN THE ABSENCE OF BAD FAITH, FRAUD OR MISREPRESENTATION -- THE TRANSACTION IS CLOSED WHEN THE GOODS ARE SO SOLD. THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE BAD FAITH ON THE PART OF THE SALES CONTRACTING OFFICER OR ANY REPRESENTATIVE OF THE GOVERNMENT IN CONNECTION WITH THE TRANSACTION.