B-155907, FEB. 5, 1965

B-155907: Feb 5, 1965

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INC.: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9. YOU WERE AWARDED CONTRACT NO. ITEM 114 IS LISTED IN THE INVITATION AS 191 REPAIR KITS OF THE SAME DESCRIPTION AS ITEM 111. WHICH IS THEREIN DESCRIBED AS: "111. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS ADVISES BIDDERS THAT THE DESCRIPTION OF THE PROPERTY IS BASED ON THE BEST AVAILABLE INFORMATION. IT APPEARS THAT THE DESCRIPTION OF THIS PROPERTY WAS TAKEN FROM THE BEST AVAILABLE INFORMATION. THERE IS NO INDICATION IN THE RECORD BEFORE US OF BAD FAITH ON THE PART OF THE GOVERNMENT EMPLOYEES RESPONSIBLE FOR DRAWING THE INVITATION. OR THAT SUCH EMPLOYEES HAD ANY INFORMATION THAT ITEM 114 WAS OTHER THAN AS DESCRIBED IN THE INVITATION.

B-155907, FEB. 5, 1965

TO HAROLD J. RITTER COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 9, 1964, REQUESTING RECONSIDERATION OF OUR DECISION OF OCTOBER 29, 1964, DISALLOWING YOUR CLAIM FOR REFUND OF A PART OF THE PRICE PAID FOR CERTAIN SURPLUS PROPERTY SOLD TO YOU PURSUANT TO INVITATION FOR BIDS (IFB) NO. 37-S-64 81.

ON APRIL 2, 1964, YOU WERE AWARDED CONTRACT NO. DSA-37-S-2764 BY THE DEFENSE SURPLUS SALES OFFICE, FORT WORTH, TEXAS, WHICH INCLUDED ITEM 114 OF THE ABOVE IFB. ITEM 114 IS LISTED IN THE INVITATION AS 191 REPAIR KITS OF THE SAME DESCRIPTION AS ITEM 111, WHICH IS THEREIN DESCRIBED AS:

"111. KIT, REPAIR, MFR AMERICAN ELECTRONICS, P/N 164SP6, FSN 1680 664- 6724; EACH KIT CONTAINS THE FOLLOWING NET DEPARTURE BEARINGS OR EQUAL:

TABLE 2 EA P/N 773L00 4 EA P/N SRRS77R3 4 EA P/N R77R6 AND 114 PIECES OTHER RELATED HARDWARE. TAC: $20,160.00 COND: UNUSED, APPEARS EXCELLENT. ETGW: 360 LBS. IN CARTONS--- NOT PACKED FOR SHIPMENT.

QUANTITY--- 320 EA"

YOU PAID $649.40 (191 UNITS AT $3.40 EACH) FOR ITEM 114 AND TOOK DELIVERY THROUGH YOUR AGENT ON APRIL 20, 1964. THEREAFTER, YOU NOTIFIED THE SALES ACTIVITY IN A LETTER DATED JUNE 4, 1964, AND IN SUBSEQUENT CORRESPONDENCE, THAT ONLY 49 OF THE 191 KITS CONTAINED THE TWO 773L00 BEARINGS LISTED IN THE DESCRIPTION IN THE IFB, AND THAT PACKING SLIPS, WHICH YOU FORWARDED, FOUND IN THESE 49 KITS INDICATED THE PRESENCE OF THE BEARINGS, WHEREAS THE PACKING SLIPS FOUND IN THE REMAINING 142 KITS DID NOT LIST SUCH BEARINGS AS BEING INCLUDED. YOU SET THE VALUE OF THE BEARINGS AT $ .40 EACH AND REQUEST A REFUND OF $113.60 (284 BEARINGS AT $ .40 EACH).

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS ADVISES BIDDERS THAT THE DESCRIPTION OF THE PROPERTY IS BASED ON THE BEST AVAILABLE INFORMATION, WITHOUT WARRANTY AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION. UNDER SUCH PROVISIONS, IT HAS CONSISTENTLY BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH EXPRESS DISCLAIMERS OF WARRANTY VITIATE ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT BE IMPLIED FROM A SALES TRANSACTION. LUMBRAZO V. WOODRUFF, ET AL., 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CL. 424. IT APPEARS THAT THE DESCRIPTION OF THIS PROPERTY WAS TAKEN FROM THE BEST AVAILABLE INFORMATION, AS SET OUT IN THE TURN-IN DOCUMENT FROM THE HOLDING ACTIVITY AND THE STOCK AND PARTS NUMBERS STENCILED ON THE CARTONS, AND THERE IS NO INDICATION IN THE RECORD BEFORE US OF BAD FAITH ON THE PART OF THE GOVERNMENT EMPLOYEES RESPONSIBLE FOR DRAWING THE INVITATION, OR THAT SUCH EMPLOYEES HAD ANY INFORMATION THAT ITEM 114 WAS OTHER THAN AS DESCRIBED IN THE INVITATION.

IN THE LETTERS PRESENTING YOUR CLAIM YOU HAVE PUT MUCH EMPHASIS ON THE FACT THAT ALL 191 KITS WERE IN THE ORIGINAL CARTONS OF THE MANUFACTURER, AND ALL MARKED WITH THE IDENTIFYING NUMBERS P/N 164-SP-6 AND FSN 1680-664- 6724, AND THAT "IN CATALOGING THIS ITEM AND PRESENTING REPRESENTATIVE SAMPLES FOR INSPECTION ALL OF THE PACKAGES WHICH WERE OPEN CONTAINED PACKING SLIPS AS PER SPECIMEN A AND IT WAS, OF COURSE, ASSUMED THAT THIS WAS REPRESENTATIVE OF ALL THE CARTONS.' YOU HAVE ALSO POINTED OUT THE IMPRACTICABILITY OF EXAMINING EACH AND EVERY CARTON WHICH, HOWEVER, YOU ADMIT WOULD HAVE REVEALED THAT NOT ALL KITS CONTAINED THE BEARINGS IN QUESTION. IN THIS CONNECTION, WE DIRECT YOUR ATTENTION TO PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHICH INVITES, URGES AND CAUTIONS BIDDERS TO INSPECT THE PROPERTY OFFERED FOR SALE, AND ADVISES THAT SAID PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED. PAGES 19 AND 24 OF THE INVITATION GIVE THE PLACES AND TIMES INSPECTION MAY BE MADE. ALSO, PLEASE NOTE THE LAST SENTENCE OF PARAGRAPH 2, WHICH STATES,"THIS IS NOT A SALE BY SAMPLE.' EVEN THOUGH WE AGREE THAT INSPECTION OF ALL 191 KITS WOULD BE ATTENDED WITH CERTAIN DIFFICULTIES, WE THINK THE FOREGOING PROVISIONS OF THE INVITATION MAKE IT AMPLY CLEAR THAT THE RISK OF FAILING TO MAKE A THOROUGH INSPECTION IS TO BE BORNE BY THE BIDDER. MOREOVER, THE BIDDER'S RESPONSIBILITY IN THIS CONNECTION WAS CLEARLY ENUNCIATED IN THE CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHEREIN IT WAS HELD THAT NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE KIND OF INSPECTION THAT IS EFFECTUAL. THERE IS NO EVIDENCE THAT THE PROPERTY DELIVERED TO YOU WAS NOT THE SAME PROPERTY WHICH HAD BEEN MADE AVAILABLE FOR INSPECTION. WAS SAID IN THE PAXTON-MITCHELL CASE, SUPRA, FAILURE TO "MAKE THE SORT OF INSPECTION THAT WAS EFFECTUAL * * * LEAVES * * * NO ROOM TO MPLAIN.'