B-155421, DEC. 3, 1964

B-155421: Dec 3, 1964

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WHICH WAS OPENED ON DECEMBER 3. YOURS WAS THE HIGHEST OF FIFTEEN BIDS RANGING FROM $5.50 EACH TO $50 EACH RECEIVED ON THE ITEM WHICH WAS AWARDED TO YOU. SHIPMENT WAS ACCOMPLISHED ON JANUARY 2. YOU STATE THAT THE PROPERTY IS OBSOLETE "JUNK" FOR WHICH IT IS ALMOST IMPOSSIBLE TO FIND PARTS OR BATTERIES. WE MUST REMIND YOU THAT BIDS WERE INVITED ON AN "AS IS" AND "WHERE IS" BASIS WITH NO WARRANTIES MADE AS TO DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE. BIDDERS WERE URGED AND CAUTIONED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING A BID. BOTH THE COURTS AND OUR OFFICE HAVE REGIDLY ADHERED TO THE RULE OF CAVEAT EMPTOR UNDER THESE CIRCUMSTANCES. IT APPEARS FROM THE RECORD THAT SALES PERSONNEL UTILIZED THE BEST INFORMATION AVAILABLE TO THEM IN DRAFTING THE ITEM DESCRIPTION PUBLISHED IN THE INVITATION BECAUSE THE PHRASEOLOGY WAS CARRIED OVER WITHOUT MODIFICATION FROM THE INFORMATION FURNISHED BY THE HOLDING ACTIVITY.

B-155421, DEC. 3, 1964

TO MR. CHARLES A. PENNINGTON:

YOUR REQUEST FOR RECONSIDERATION OF A SETTLEMENT CERTIFICATE DATED SEPTEMBER 30, 1964, DENYING YOUR CLAIM FOR RESCISSION OF SURPLUS SALE CONTRACT NO. DSA 35-S-1718 DATED DECEMBER 3, 1963, AND FOR REFUND OF THE $100 PURCHASE PRICE, HAS BEEN REVIEWED BY OUR OFFICE. THE CONTRACT COVERED ITEM 61, TWO BATTERY POWERED MINE DETECTORS ADVERTISED AS BEING IN "USED, GOOD" CONDITION, OF INVITATION FOR BIDS NO. 35-S-64-20 ISSUED BY THE DEFENSE SURPLUS SALES OFFICE, PUEBLO, COLORADO, WHICH WAS OPENED ON DECEMBER 3, 1963.

ALTHOUGH YOU HAD NOT INSPECTED THE PROPERTY YOU NONETHELESS SUBMITTED A BID. YOURS WAS THE HIGHEST OF FIFTEEN BIDS RANGING FROM $5.50 EACH TO $50 EACH RECEIVED ON THE ITEM WHICH WAS AWARDED TO YOU. SHIPMENT WAS ACCOMPLISHED ON JANUARY 2, 1964. BY LETTER DATED MAY 9, 1964, YOU FIRST MADE THE GOVERNMENT AWARE OF YOUR DESIRE TO BE RELIEVED FROM THE CONTRACT. YOU STATE THAT THE PROPERTY IS OBSOLETE "JUNK" FOR WHICH IT IS ALMOST IMPOSSIBLE TO FIND PARTS OR BATTERIES.

WE MUST REMIND YOU THAT BIDS WERE INVITED ON AN "AS IS" AND "WHERE IS" BASIS WITH NO WARRANTIES MADE AS TO DESCRIPTION OR FITNESS FOR ANY PARTICULAR PURPOSE. BIDDERS WERE URGED AND CAUTIONED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING A BID. BOTH THE COURTS AND OUR OFFICE HAVE REGIDLY ADHERED TO THE RULE OF CAVEAT EMPTOR UNDER THESE CIRCUMSTANCES. DADOURIAN EXPORT CORPORATION V. UNITED STATES, 291 F.2D 178 (1961); STANDARD MAGNESIUM CORPORATION V. UNITED STATES, 241 F.2D 677 (1957); UNITED STATES V. HOFFMAN, 219 F.SUPP. 895 (1963); IN THIS REGARD SEE ALSO 41 COMP. GEN. 97 AND IBID. 185.

IT APPEARS FROM THE RECORD THAT SALES PERSONNEL UTILIZED THE BEST INFORMATION AVAILABLE TO THEM IN DRAFTING THE ITEM DESCRIPTION PUBLISHED IN THE INVITATION BECAUSE THE PHRASEOLOGY WAS CARRIED OVER WITHOUT MODIFICATION FROM THE INFORMATION FURNISHED BY THE HOLDING ACTIVITY. YOU ARE UNDOUBTEDLY AWARE, THE GOVERNMENT DISPOSES OF A GREAT VARIETY AND VOLUME OF SURPLUS PROPERTY IN THE CONDUCT OF ITS AFFAIRS AND PERSONS CARRYING OUT THIS FUNCTION ON ITS BEHALF ARE COMPELLED BY THE BURDEN OF THE TASK TO PLACE GREAT RELIANCE UPON DATA SUPPLIED BY SUCH OTHER ACTIVITIES.

WE REGRET TO STATE THAT SINCE THE ACCEPTANCE OF YOUR BID BY THE CONTRACTING OFFICER CONSUMMATED A VALID CONTRACT, AND SINCE THERE IS NO REMEDY KNOWN TO THE LAW ON THE FACTS COMPLAINED OF, WE MUST DENY YOUR REQUEST FOR REFUND OF THE PURCHASE PRICE. UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389 (1928), AFFIRMED 32 F.2D 141, CERTIORARI DENIED 280 US 574.