B-157465, SEP. 22, 1965

B-157465: Sep 22, 1965

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AS WELL AS THE STATEMENT THAT THE PROPERTY IS OFFERED "AS IS" AND . WHERE IS.'. IT ALSO STATED THAT THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. ALTHOUGH THE GOVERNMENT'S OPINION AS TO THE CONDITION OF ITEM 156 WAS STATED AS "APPEARS TO BE FAIR. " THE TURN-IN DOCUMENT INSPECTION REPORT CONTAINS NOTATIONS THAT THE MILLING MACHINE (ITEM 156) WAS "IN A VERY POOR OPERATING CONDITION. " THAT THE "OVERARM WAYS ARE CRACKED AND MUST BE REPAIRED. " AND THAT THE MACHINE IS NOT IN "GOOD OPERABLE CONDITION.'. IT APPEARS THAT SUCH INSPECTION COULD NOT HAVE REVEALED THE TRUE CONDITION OF THE MACHINE SINCE THE BREAK HAD BEEN FILLED AND PAINTED OVER. THAT GENERAL PROPOSITION IS FOR APPLICATION IN CASES WHERE THE PURCHASER COULD HAVE MADE A VISUAL INSPECTION WHICH WOULD HAVE DISCLOSED THE TRUE CONDITION OF THE PROPERTY.

B-157465, SEP. 22, 1965

TO VICE ADMIRAL JOSEPH M. LYLE, DIRECTOR, DEFENSE SUPPLY AGENCY:

BY LETTER DATED JUNE 17, 1965, FILE DLSC-L, THE COUNSEL, DEFENSE LOGISTICS SERVICES CENTER, FORWARDED TO OUR OFFICE THE REQUEST OF THE MIDWESTERN MACHINE COMPANY TO BE RELEASED FROM ITS OBLIGATION UNDER CONTRACT DSA 44-S-10008, TO PURCHASE THE MILLING MACHINE DESCRIBED IN ITEM 156 OF SALES INVITATION NO. 44-S-65-60.

THE SALES INVITATION CONTAINED THE USUAL DISCLAIMER OF WARRANTY PROVISION WITH RESPECT TO CONDITION OF THE PROPERTY, AS WELL AS THE STATEMENT THAT THE PROPERTY IS OFFERED "AS IS" AND ,WHERE IS.' IT ALSO STATED THAT THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION. ALTHOUGH THE GOVERNMENT'S OPINION AS TO THE CONDITION OF ITEM 156 WAS STATED AS "APPEARS TO BE FAIR," THE TURN-IN DOCUMENT INSPECTION REPORT CONTAINS NOTATIONS THAT THE MILLING MACHINE (ITEM 156) WAS "IN A VERY POOR OPERATING CONDITION; " THAT THE "OVERARM WAYS ARE CRACKED AND MUST BE REPAIRED; " AND THAT THE MACHINE IS NOT IN "GOOD OPERABLE CONDITION.' THE EQUIPMENT SPECIALIST WHO PREPARED THE DESCRIPTION AT THE HOLDING ACTIVITY STATED THAT HE DID NOT NOTICE THE CRACKED COLUMN DURING HIS VISUAL INSPECTION OF THE MACHINE AND ALSO THAT HE FAILED TO NOTICE THE ANNOTATIONS OF CONDITION AND REPAIRS NECESSARY WHEN HE REVIEWED THE TURN- IN DOCUMENT. WHILE THE CLAIMANT VISUALLY INSPECTED THE MACHINE, IT APPEARS THAT SUCH INSPECTION COULD NOT HAVE REVEALED THE TRUE CONDITION OF THE MACHINE SINCE THE BREAK HAD BEEN FILLED AND PAINTED OVER.

ORDINARILY, A PURCHASER OF SURPLUS PROPERTY BEARS THE RISK OF ANY MISDESCRIPTION WHERE THE DISPOSAL AGENCY USED THE BEST INFORMATION MADE AVAILABLE TO IT BY THE HOLDING ACTIVITY RESPECTING THE CONDITION OF THE PROPERTY EVEN THOUGH SUCH INFORMATION PROVED TO BE INACCURATE. B 155907, FEBRUARY 5, 1965; B-154659, OCTOBER 30, 1964; B-150879, MAY 2, 1963. HOWEVER, THAT GENERAL PROPOSITION IS FOR APPLICATION IN CASES WHERE THE PURCHASER COULD HAVE MADE A VISUAL INSPECTION WHICH WOULD HAVE DISCLOSED THE TRUE CONDITION OF THE PROPERTY. THAT IS NOT THE CASE HERE SINCE THE RECORD ESTABLISHES THAT VISUAL INSPECTION COULD NOT HAVE DISCLOSED THE FACT THAT METAL COMPONENTS OF THE MACHINE WERE CRACKED AND CONCEALED BY FILLER AND PAINT. UNDER THESE CIRCUMSTANCES, WE FEEL THAT THE DESCRIPTION OF ITEM 156 WAS NOT BASED, TO THE FULLEST EXTENT, ON THE BEST AVAILABLE INFORMATION.

ACCORDINGLY, ITEM 156 MAY BE CANCELED FROM THE CONTRACT WITHOUT FURTHER LIABILITY TO THE MIDWESTERN MACHINE COMPANY.