B-154659, OCT. 30, 1964

B-154659, OCT. 30, 1964

TO EL MILITAR:

WE REFER AGAIN TO YOUR LETTER DATED JUNE 30, 1964, REQUESTING RESCISSION OF CONTRACT NO. DSA 15-S-4644 DATED MAY 11, 1964, COVERING THE PURCHASE OF ITEM 93 UNDER SURPLUS SALES INVITATION FOR BIDS NO. 15 S-64-95, AND THE REIMBURSEMENT OF THE PURCHASE PRICE OF $708.00 TOGETHER WITH AN ALLOWANCE OF $197.70 FOR INLAND AND OCEAN FREIGHT CHARGES. YOU BASE YOUR CLAIM ON AN ALLEGED MISDESCRIPTION OF THE PROPERTY, I.E., 1,200 PAIRS OF MEN'S COTTON TROUSERS, WHICH WAS ADVERTISED AS BEING IN "USED, GOOD," CONDITION, WHEN IN ACTUALITY YOU STATE IT BREAKS DOWN AS FOLLOWS:

CHART

COMPLETELY TORN (UNREPAIRABLE) 356 PAIRS

POORLY AND HEAVILY MENDED (NOT SALEABLE) 387 PAIRS

UNCLEANED AND STAINED FROM OILS AND PAINTS 78 PAIRS

FAIR 386 PAIRS

WOMEN'S PANTS 13 PAIRS

THE INVITATION, AT PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS (STANDARD FORM 114-C, MARCH 1960 EDITION) SET FORTH THE CUSTOMARY SALES PROVISIONS TO THE EFFECT THAT THE PROPERTY WAS BEING OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS, CAUTIONED BIDDERS TO INSPECT IT PRIOR TO SUBMISSION OF THEIR BIDS, AND EXPRESSLY NEGATIVED THE MAKING OF ANY WARRANTIES ON THE PART OF THE GOVERNMENT AS TO THE QUANTITY, KIND, CHARACTER, QUALITY OR DESCRIPTION OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE. IT RECITED ALSO THAT THE ADVERTISEMENT UTILIZED THE BEST INFORMATION AVAILABLE AND THAT NO REQUEST FOR RESCISSION OF ANY CONTRACT AWARDED UNDER THE INVITATION WOULD BE CONSIDERED.

ALTHOUGH INSPECTION WAS INVITED BETWEEN 9:30 A.M. AND 3:30 P.M., MONDAY THROUGH FRIDAY, FROM APRIL 17, 1964, UNTIL THE DATE OF BID OPENING, MAY 7, 1964, THE PROPERTY DISPOSAL OFFICER'S REGISTER BOOK DOES NOT SHOW INSPECTION OF ITEM 93 WAS EVER ACCOMPLISHED BY YOUR REPRESENTATIVES. THE PAGE ENTITLED "GENERAL INFORMATION AND INSTRUCTIONS" THE INVITATION STIPULATED THE INAPPLICABILITY OF THE SPECIAL CONDITION ENTITLED "GUARANTEED DESCRIPTIONS" TO THIS PARTICULAR DISPOSAL OF 98 LINE ITEMS OF CLOTHING AND SOFT GOODS.

IT APPEARS FROM THE RECORD BEFORE US THAT SALES PERSONNEL ACTED IN COMPLETE GOOD FAITH IN DRAFTING THE DESCRIPTION OF ITEM 93, PLACING THEIR RELIANCE SOLELY ON THE INFORMATION CONTAINED IN THE TURN-OVER DOCUMENTS. IT CANNOT BE SAID, THEREFORE, THAT THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE WAS NOT EMPLOYED. CF. B-141936 DATED FEBRUARY 19, 1960; B- 149535 DATED AUGUST 10, 1962; B-150215 DATED NOVEMBER 30, 1962. IN EACH OF THESE CASES SALES PERSONNEL OMITTED, CHANGED, OR MISINTERPRETED MATERIAL FACTS CERTIFIED TO THEM BY THE HOLDING ACTIVITY IN THE FORMULATION OF THE PROPERTY DESCRIPTION.

YOUR FAILURE TO INSPECT THE MERCHANDISE PRIOR TO BID SUBMISSION MUST ALSO BE CONSIDERED. THE RULE OF CAVEAT EMPTOR IS FOR APPLICATION IN THE INTERPRETATION OF THE STANDARD GOVERNMENT SURPLUS SALES CONTRACT AND, BY THE TERMS THEREOF, THE RISK OF DISPARITY BETWEEN DESCRIPTION AND FACT WAS IMPOSED UPON THE BUYER. SEE DADOURIAN EXPORT CORPORATION V. UNITED STATES, 291 F.2D 178, 183 (1961); PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959); UNITED STATES V. HOFFMAN, 219, F.SUPP. 895 (1963); PAVCOR COMPANY V. UNITED STATES, NO. 186-63 IN THE UNITED STATES COURT OF CLAIMS, JULY 17, 1964.

WE REGRET TO SAY WE PERCEIVE NO BASIS IN LAW UPON WHICH TO GRANT RESCISSION OF YOUR CONTRACT.