B-153815, JUN. 3, 1964

B-153815: Jun 3, 1964

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INC.: REFERENCE IS MADE TO YOUR LETTER OF MARCH 14. YOU WERE AWARDED CONTRACT NO. IN THAT 44 OF THE VACUUM PUMPS WERE NOT 3P 194 F. YOU WERE ADVISED THAT IN VIEW OF THE EXPRESS DISCLAIMER OF WARRANTY INCORPORATED IN THE SALES CONTRACT AND IN THE ABSENCE OF EVIDENCE OF BAD FAITH ON THE PART OF THE GOVERNMENT. YOU STATE THAT ALTHOUGH YOU ACCEPTED THE PROPERTY AFTER YOU HAD RECEIVED AN UNSOLICITED TELEPHONE CALL FROM AN EMPLOYEE OF THE CONTRACTING OFFICE ADVISING YOU THAT THE PROPERTY WAS NOT AS DESCRIBED. YOU DID NOT EXPECT THE GOVERNMENT WOULD AGAIN CHANGE THE LOT AFTER A CONTRACT WAS ISSUED AND THUS CHANGE THE TYPE OF ITEM TO BE SOLD. YOU RECEIVED ANOTHER UNSOLICITED TELEPHONE CALL FROM THE SAME EMPLOYEE OF THE CONTRACTING OFFICE ADVISING YOU THAT THE ITEMS WERE MISREPRESENTED AS TO CONDITION AND TYPE.

B-153815, JUN. 3, 1964

TO AVIATION SUPPLY COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 14, 1964, RELATIVE TO OUR SETTLEMENT OF FEBRUARY 28, 1964, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT OF $1,003.64 PAID BY YOU FOR CERTAIN SURPLUS GOVERNMENT PROPERTY.

INVITATION FOR BIDS NO. 34-S-64-28, ISSUED SEPTEMBER 26, 1963, BY THE DEFENSE SURPLUS SALES OFFICE, TINKER AIR FORCE BASE, OKLAHOMA CITY, OKLAHOMA, SOLICITED BIDS ON 182 ITEMS OF AIRCRAFT PARTS. ON THE BASIS OF THE HIGH ACCEPTABLE BIDS SUBMITTED BY YOU ON ITEM NO. 99, CONSISTING OF 97 FLUID PUMPS, AND ITEM NOS. 130, 152 AND 153, CONSISTING OF A TOTAL OF 650 VACUUM PUMPS, YOU WERE AWARDED CONTRACT NO. DSA 34-S-1929 ON OCTOBER 25, 1963. AFTER PAYMENT AND REMOVAL OF THE PROPERTY, WHICH YOU HAD PARTIALLY INSPECTED BEFORE BIDDING, YOU ALLEGED MISDESCRIPTION OF ITEM NOS. 130, 152 AND 153, IN THAT 44 OF THE VACUUM PUMPS WERE NOT 3P 194 F, AS INDICATED IN THE INVITATION DESCRIPTIONS. THEREFORE, YOU REQUESTED REFUND OF THE AMOUNT OF $1,003.64, REPRESENTING THE PURCHASE PRICE OF THE 44 PUMPS AT A UNIT PRICE OF $22.81.

IN OUR SETTLEMENT OF FEBRUARY 28, YOU WERE ADVISED THAT IN VIEW OF THE EXPRESS DISCLAIMER OF WARRANTY INCORPORATED IN THE SALES CONTRACT AND IN THE ABSENCE OF EVIDENCE OF BAD FAITH ON THE PART OF THE GOVERNMENT, THE COMMON LAW RULE OF CAVEAT EMPTOR APPLIES AND PRECLUDES ALLOWANCE OF YOUR CLAIM. IN YOUR PROTEST AGAINST SUCH SETTLEMENT, YOU ASSERT THAT THE GOVERNMENT DID NOT DELIVER TO YOU THE ITEMS WHICH YOU PURCHASED. YOU STATE THAT ALTHOUGH YOU ACCEPTED THE PROPERTY AFTER YOU HAD RECEIVED AN UNSOLICITED TELEPHONE CALL FROM AN EMPLOYEE OF THE CONTRACTING OFFICE ADVISING YOU THAT THE PROPERTY WAS NOT AS DESCRIBED, YOU DID NOT EXPECT THE GOVERNMENT WOULD AGAIN CHANGE THE LOT AFTER A CONTRACT WAS ISSUED AND THUS CHANGE THE TYPE OF ITEM TO BE SOLD.

YOU ASSERT, IN ADDITION, THAT AFTER YOU HAD BEEN ISSUED A CONTRACT IN DECEMBER 1963 FOR CERTAIN ITEMS SOLD UNDER INVITATION FOR BIDS NO. 34-S-64 -38, YOU RECEIVED ANOTHER UNSOLICITED TELEPHONE CALL FROM THE SAME EMPLOYEE OF THE CONTRACTING OFFICE ADVISING YOU THAT THE ITEMS WERE MISREPRESENTED AS TO CONDITION AND TYPE. THIS TIME, HOWEVER, YOU STATE YOU FIRST REFUSED TO ACCEPT THE PROPERTY BUT ULTIMATELY REMOVED IT AFTER YOU WERE DECLARED TO BE IN DEFAULT. YOU ALLEGE THAT YOU SUSTAINED A LOSS OF $300 ON THE PROPERTY.

THE RECORD INDICATES THAT THE DESCRIPTIONS OF THE PUMPS SOLD TO YOU UNDER INVITATION NO. 34-S-64-28 WERE TAKEN FROM THE TURN-IN DOCUMENT AS VERIFIED BY RANDOM SAMPLE INSPECTION. AS TO THE TELEPHONE CONVERSATION BETWEEN YOUR OFFICE AND THE CONTRACTING OFFICE EMPLOYEE (WHO HAS BEEN IDENTIFIED AS A SALES CONTRACTING OFFICER), HIS SWORN STATEMENT IS THAT THE CONVERSATION RELATED SOLELY TO THE CONDITION OF THE PUMPS, NOT TO THEIR IDENTIFICATION. IT IS ALSO THE POSITIVE STATEMENT OF THE RESPONSIBLE PERSONNEL THAT THE PROPERTY WHICH WAS DELIVERED TO YOU WAS THE SAME PROPERTY WHICH WAS OFFERED FOR INSPECTION AND SOLD TO YOU UNDER THE INVITATION.

INVITATION FOR BIDS NO. 34-S-64-38, ISSUED OCTOBER 14, 1963, BY THE SAME SALES OFFICE, SOLICITED BIDS ON 198 ITEMS OF SURPLUS PROPERTY. ON THE BASIS OF THE HIGH ACCEPTABLE BIDS SUBMITTED BY YOU ON ITEM NOS. 43 AND 52, DESCRIBED AS GENERAL METALS CORP. FLUID PUMPS P/N 20386-10, YOU WERE AWARDED CONTRACT NO. DSA 34-S-2067 ON NOVEMBER 19, 1963. INVESTIGATION REVEALS THAT ON DECEMBER 18, 1963, ABOUT A MONTH AFTER THE AWARD, A SALES OFFICE EMPLOYEE ADVISED YOU BY TELEPHONE THAT ITEM NO. 52 CONTAINED SOME PUMPS OF A DIFFERENT TYPE THAN DESCRIBED IN THE SALES CATALOG. ACCORDINGLY, YOU DECLINED TO REMOVE THE PROPERTY ON THE AGREED DATE BUT DID EFFECT REMOVAL ON DECEMBER 27, 1963, AFTER RECEIPT OF NOTICE OF DEFAULT DATED DECEMBER 20, 1963. THE RECORDS INDICATE THAT THE DESCRIPTION OF THE PUMPS IN THE SALES CATALOG WAS BASED ON INFORMATION CONTAINED IN THE PROPERTY LISTING AND IN THE HOLDING ACTIVITY TURN-IN DOCUMENT.

BOTH OF THE INVITATIONS URGED BIDDERS TO INSPECT, CAUTIONED THAT THE SALES WERE NOT BY SAMPLE, AND INCLUDED AN EXPRESS DISCLAIMER OF WARRANTY AS TO CONDITION, QUALITY, QUANTITY, ETC. UNDER SUCH PROVISIONS, IN THE ABSENCE OF BAD FAITH ON THE PART OF THE GOVERNMENT, PURCHASERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER, THE PURPOSE AND EFFECT OF THE PROVISIONS BEING TO IMPOSE ALL RISKS OF MISTAKE UPON THE BUYER. ALSO, THE EXPRESS DISCLAIMER OF WARRANTY PRECLUDES A SUCCESSFUL 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, EVEN THOUGH ADEQUATE OR THOROUGH INSPECTION IS IMPRACTICABLE, IF NOT IMPOSSIBLE, THE BURDEN AND RISK NEVERTHELESS ARE ON THE BIDDER, WHO BY BIDDING ASSUMES ANY LOSS WHICH MIGHT RESULT FROM A VARIANCE BETWEEN THE PROPERTY DELIVERED AND THE CATALOG DESCRIPTION. PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959).

THE RECORD HERE ESTABLISHES THAT THE SALES DESCRIPTIONS IN BOTH INVITATIONS WERE BASED BY THE GOVERNMENT, IN GOOD FAITH, ON THE BEST AVAILABLE INFORMATION. WHILE IT IS UNFORTUNATE THAT THERE MAY HAVE BEEN A MISUNDERSTANDING ON YOUR PART AS TO THE IDENTITY OF THE PROPERTY IN EACH CASE BECAUSE OF THE UNSOLICITED CALLS FROM THE SALES OFFICE EMPLOYEES, IT APPEARS THAT THE CALLS WERE MADE IN GOOD FAITH, AND THE PROPERTY DELIVERED TO YOU WAS THE SAME PROPERTY WHICH HAD BEEN MADE AVAILABLE FOR INSPECTION AND SOLD TO YOU. THEREFORE, NO RELIEF MAY BE GRANTED BECAUSE OF THE VARIATION BETWEEN THE DESCRIPTION IN THE INVITATION AND A PORTION OF THE PROPERTY ACTUALLY DELIVERED.