B-153879, APR. 30, 1964

B-153879: Apr 30, 1964

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OFFERED VARIOUS ITEMS OF SURPLUS PROPERTY FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS. THE INVITATION STATED THAT THE SALES DESCRIPTIONS WERE BASED UPON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MADE NO WARRANTY AS TO QUANTITY. BIDDERS WERE URGED TO INSPECT THE PROPERTY BEFORE BIDDING AND WERE CAUTIONED THAT FAILURE TO INSPECT WOULD NOT CONSTITUTE GROUNDS FOR WITHDRAWAL OF BIDS AFTER OPENING. YOU WERE AWARDED ITEM NO. 165. WHICH WAS SUBMITTED WITHOUT INSPECTION OF THE ITEM. THE DESCRIPTION OF THE BALER WAS BASED ON THE TURN-IN DOCUMENT. WOULD HAVE DISCLOSED THE FACT THAT IT HAD ONLY A SINGLE CHAMBER. THE BURDEN OF INSPECTING THE PROPERTY WAS PLACED SQUARELY UPON PROSPECTIVE BIDDERS BY THE TERMS OF THE SALE.

B-153879, APR. 30, 1964

TO HARRY KAUFMAN COMPANY:

YOUR LETTER OF MARCH 25, 1964, PROTESTING OUR SETTLEMENT OF MARCH 3, 1964, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF THE PURCHASE PRICE OF CERTAIN SURPLUS PROPERTY, HAS BEEN CONSIDERED AS A REQUEST FOR RECONSIDERATION OF OUR SETTLEMENT.

UNDER INVITATION NO. 46-S-64-13, DATED SEPTEMBER 3, 1963, THE DEFENSE SURPLUS SALES OFFICE, SAN DIEGO, CALIFORNIA, OFFERED VARIOUS ITEMS OF SURPLUS PROPERTY FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS. THE INVITATION STATED THAT THE SALES DESCRIPTIONS WERE BASED UPON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MADE NO WARRANTY AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION. ADDITION, BIDDERS WERE URGED TO INSPECT THE PROPERTY BEFORE BIDDING AND WERE CAUTIONED THAT FAILURE TO INSPECT WOULD NOT CONSTITUTE GROUNDS FOR WITHDRAWAL OF BIDS AFTER OPENING.

YOU WERE AWARDED ITEM NO. 165, DESCRIBED, IN PART, AS A BALING PRESS WITH A REVOLVING DOUBLE CHAMBER, PURSUANT TO YOUR BID OF $375.00, WHICH WAS SUBMITTED WITHOUT INSPECTION OF THE ITEM. AFTER DELIVERY, YOU ALLEGED MISDESCRIPTION, IN THAT THE BALER HAD ONLY A SINGLE CHAMBER. ON SUCH BASIS, YOU CLAIM AN ADJUSTMENT OF $200.00 ON THE PURCHASE PRICE.

THE DESCRIPTION OF THE BALER WAS BASED ON THE TURN-IN DOCUMENT, WHICH LISTED THE FEDERAL STOCK NUMBER OF A BALER WITH TWO CHAMBERS. INSPECTION OF THE ITEM, WHICH BORE THE LETTERING "SGL CHA" ON ITS SIDE, WOULD HAVE DISCLOSED THE FACT THAT IT HAD ONLY A SINGLE CHAMBER. IT DOES NOT APPEAR, HOWEVER, THAT PERSONNEL IN THE SALES OFFICE HAD ANY KNOWLEDGE OF THE ERROR IN THE DESCRIPTION, AND THE BURDEN OF INSPECTING THE PROPERTY WAS PLACED SQUARELY UPON PROSPECTIVE BIDDERS BY THE TERMS OF THE SALE.

WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND TO THE DESCRIPTION, NO SUCH WARRANTY MAY BE IMPLIED WHERE, AS HERE, THE SALES CONTRACT CONTAINS AN EXPRESS DISCLAIMER OF WARRANTY. UNDER SUCH PROVISIONS, IN THE ABSENCE OF BAD FAITH OR FRAUD, BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER, THE PURPOSE OF THE PROVISIONS BEING TO IMPOSE ALL RISKS OF MISTAKE UPON THE BUYER. ALSO, SUCH PROVISIONS PRECLUDE 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.

UNDER CONTRACTS SUCH AS THESE, THE BIDDER IS REQUIRED TO MAKE AN EFFECTUAL INSPECTION. THEREFORE, EVEN THOUGH ADEQUATE OR THOROUGH INSPECTION IS IMPRACTICABLE, IF NOT IMPOSSIBLE, A BIDDER WHO FAILS TO INSPECT ASSUMES ANY LOSS WHICH MIGHT RESULT FROM A VARIANCE BETWEEN THE PROPERTY DESCRIBED IN THE INVITATION AND THE PROPERTY DELIVERED. PAXTON- MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959).

IT MUST BE ASSUMED THAT, HAD YOU INSPECTED THE BALER BEFORE SUBMITTING YOUR BID, YOU WOULD HAVE DISCOVERED THAT IT HAD BUT A SINGLE CHAMBER. UNDER SUCH CIRCUMSTANCES, AND SINCE THE SELLING AGENCY ACTED IN GOOD FAITH IN BASING THE DESCRIPTION OF THE BALER ON THE INFORMATION REFLECTED ON THE TURN-IN DOCUMENT, THERE IS NO LEGAL BASIS FOR YOUR CLAIM.

THIS OFFICE HAS NO AUTHORITY TO ALLOW CLAIMS WHICH ARE NOT LEGALLY ENFORCEABLE AGAINST THE GOVERNMENT AND, ACCORDINGLY THE SETTLEMENT WHICH DISALLOWED YOUR CLAIM IS SUSTAINED.

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