B-155156, OCT. 21, 1964

B-155156: Oct 21, 1964

Additional Materials:

Contact:

Edda Emmanuelli Perez
(202) 512-2853
EmmanuelliPerezE@gao.gov

 

Office of Public Affairs
(202) 512-4800
youngc1@gao.gov

WHICH IS THE SUBJECT MATTER OF THE CONTRACT AWARDED TO YOU. QUANTITIES ARE APPROXIMATE. ACQUISITION COST: $363.00 1 LOT" BIDS WERE OPENED AS SCHEDULED ON FEBRUARY 26. AWARD ACCORDINGLY WAS MADE TO YOU FOR ITEM 74 ON MARCH 2. ALLEGED THAT THE MATERIAL ADVERTISED UNDER ITEM 74 WAS MISDESCRIBED BECAUSE YOU ONLY RECEIVED 1/10 OF THE AMOUNT OF NYLON STRIP ADVERTISED. THERE IS NOTHING IN THE RECORD TO INDICATE BAD FAITH ON THE PART OF THE SALES CONTRACTING OFFICER IN CONNECTION WITH THE SALE OF ITEM 74. WHILE THE DESCRIPTION OF THE PROPERTY IN QUESTION WAS NOT ACCURATE. IT IS CLEAR THAT THE DESCRIPTION WAS BASED ON THE "BEST AVAILABLE INFORMATION" AVAILABLE TO THE SALES CONTRACTING OFFICER. THAT IS.

B-155156, OCT. 21, 1964

TO SEYMOUR AND COMPANY:

WE REFER TO YOUR LETTER DATED SEPTEMBER 5, 1964, REQUESTING REVIEW OF OUR SETTLEMENT OF AUGUST 7, 1964, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $9.81 AS PRICE ADJUSTMENT UNDER CONTRACT NO. DSA 11-S-4278, AWARDED TO YOU BY THE DEFENSE SURPLUS SALES OFFICE, UNITED STATES NAVAL BASE, PHILADELPHIA, PENNSYLVANIA, PURSUANT TO SEALED BID SALE INVITATION NO. 11- S-64-95, DATED FEBRUARY 6, 1964.

UNDER SALES INVITATION NO. 11-S-64-95, THE DESCRIPTIVE DATE FOR ITEM 74, WHICH IS THE SUBJECT MATTER OF THE CONTRACT AWARDED TO YOU, READS AS FOLLOWS:

"NONMETALLIC FABRICATED MATERIALS

"CONSISTING OF THE FOLLOWING:

STRIP, NYLON, APPROXIMATE .031 INCH BY 2 INCHES BY 5001 FEET. 1 ROLL RUBBER, SOFT, .10 INCH MINUS, .01 INCH THICK, 36 INCHES BY 36 INCHES. 137 SHEETS EST. GR. WT. 110 LBS. EST. 10 CU. FT. QUANTITIES ARE APPROXIMATE. NOT PACKED. INSIDE STORAGE. COND: UNUSED, GOOD. ACQUISITION COST: $363.00 1 LOT"

BIDS WERE OPENED AS SCHEDULED ON FEBRUARY 26, 1964, AND YOUR COMPANY SUBMITTED THE HIGH BID ON ITEM 74 AT $21.81 EVEN THOUGH YOU DID NOT INSPECT THE PROPERTY. AWARD ACCORDINGLY WAS MADE TO YOU FOR ITEM 74 ON MARCH 2, 1964.

AFTER REMOVAL OF THE PROPERTY, YOUR COMPANY BY LETTER DATED APRIL 30, 1064, ALLEGED THAT THE MATERIAL ADVERTISED UNDER ITEM 74 WAS MISDESCRIBED BECAUSE YOU ONLY RECEIVED 1/10 OF THE AMOUNT OF NYLON STRIP ADVERTISED. YOU THEREFORE CLAIM REFUND OF 9/10 OF 50 PERCENT OF THE PURCHASE PRICE, OR $9.81.

THERE IS NOTHING IN THE RECORD TO INDICATE BAD FAITH ON THE PART OF THE SALES CONTRACTING OFFICER IN CONNECTION WITH THE SALE OF ITEM 74. WHILE THE DESCRIPTION OF THE PROPERTY IN QUESTION WAS NOT ACCURATE, IT IS CLEAR THAT THE DESCRIPTION WAS BASED ON THE "BEST AVAILABLE INFORMATION" AVAILABLE TO THE SALES CONTRACTING OFFICER, THAT IS, INFORMATION FURNISHED BY THE HOLDING ACTIVITY. UNDER THE CONDITIONS OF THE SALE, THE GOVERNMENT WAS ONLY OBLIGATED TO ACT IN GOOD FAITH, AND THIS IT DID. SEE LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, 92; LUMBRAZO V. WOODRUFF, 175 N.E. 525; UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683. THERE IS NO BASIS, THEREFORE, FOR GRANTING ANY RELIEF ON THE GROUND THAT ITEM 74 WAS MISDESCRIBED. MOREOVER, PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS SPECIFICALLY PROVIDES THAT NO ADJUSTMENT FOR VARIATION IN QUANTITY OR WEIGHT WILL BE MADE WHERE THE PROPERTY IS SOLD ON A "PRICE FOR THE LOT" BASIS.

THE LAW IS CLEAR THAT WHERE SURPLUS PROPERTY IS OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS S" AND "WHERE IS" BASIS, WITHOUT WARRANTY OR GUARANTY, OF ANY KIND, AS IN THE INSTANT SALE, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE PROPERTY WAS OTHER THAN AS ADVERTISED. AMERICAN SANITARY RAG CO. V. UNITED STATES, 161 F.SUPP. 414; PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463; KRUPP V. FEDERAL HOUSING ADMINISTRATION, 185 F.SUPP. 638.

ACCORDINGLY, THE SETTLEMENT DATED AUGUST 7, 1964, IS SUSTAINED. SEE 36 COMP. GEN. 612; 41 ID. 185.