B-160014, OCT. 27, 1966

B-160014: Oct 27, 1966

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TO BURBANK INDUSTRIAL SALES: FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30. BIDS WERE OPENED ON APRIL 25. YOUR COMPANY WAS HIGH BIDDER ON ITEM 8 IN THE AMOUNT OF $203.25. WAS AWARDED THE PROPERTY. ITEM NO. 8 WAS DESCRIBED IN THE INVITATION AS FOLLOWS: "8. FOR THE REASON THAT SUBITEM 3 OF ITEM 8 WAS MISDESCRIBED IN THAT THE HANDLE SOCKETS WERE ACTUALLY 9/32 INCH DRIVE AND NOT 1/4 INCH AS REPRESENTED. ENCLOSED WITH YOUR PROTEST ADDRESSED TO THIS OFFICE YOU HAVE SUBMITTED A CARDBOARD BOX FRONT FROM ONE OF THE CONTAINERS HOLDING THE HANDLES IN QUESTION. " AND FROM THIS YOU DISPUTE THE CONTRACTING OFFICER'S STATEMENT TO YOU THAT THE "BEST AVAILABLE INFORMATION" WAS USED IN DESCRIBING THE ITEM.

B-160014, OCT. 27, 1966

TO BURBANK INDUSTRIAL SALES:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED AUGUST 30, 1966, WITH ENCLOSURES, PROTESTING AGAINST THE SURPLUS SALES PROCEDURES EMPLOYED UNDER GENERAL SERVICES ADMINISTRATION (GSA) SALES INVITATION NO. 9UPS/LA) 66- 225, AND REQUESTING RELIEF FROM THE CONTRACT PURCHASE PRICE THEREUNDER DUE TO AN ALLEGED MISDESCRIPTION OF PROPERTY.

ON APRIL 8, 1966, THE SAN FRANCISCO REGIONAL OFFICE OF GSA ISSUED A SALES LETTER--- INFORMAL COMPETITIVE OFFERING NO. 9UPS/LA) 66-225--- COVERING THE SALE OF A VARIETY OF PERSONAL PROPERTY. BIDS WERE OPENED ON APRIL 25, 1966. YOUR COMPANY WAS HIGH BIDDER ON ITEM 8 IN THE AMOUNT OF $203.25, AND WAS AWARDED THE PROPERTY. ITEM NO. 8 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"8. ONE LOT OF UNUSED HAND TOOLS, HARDWARE AND EQUIPMENT, CONSISTING OF:

149 CANS FLUX, SOLDERING, 4 OZ. CANS

52 EA. WRENCHES, SOCKET, 3/8 INCH DRIVE, 5/16 INCH

1493 EA. HANDLE SOCKET, SLIDING T-TYPE, 1/4 INCH DRIVE

484 EA. WRENCH, OPEN END, FIXED DOUBLE HEAD, 9/16 INCH

5/8 INCH, 7/8 INCH--- 1 INCH, LOT"

11 EA. HOLDERS,"KENNAMETAL," NUMBER WSK-3, CTY, TOOL,

CLAMP ROLLER, TURNER TYPE

31 EA. STUD CHUCKS

1 LOT LAMPS, INCANDESCENT, 120 V., 60 WATT

272 EA. WRENCH,"ALLEN," VARIOUS TYPES AND SIZES

100 EA. WRENCH,"ALLEN," VARIOUS TYPES AND SIZES

47 EA. DRIFT PINS

4 EA. VALVES, ASSORTED

26 EA. FILTERS, 10 INCH FOR ENGINES AND COMPRESSORS LOT"

AFTER THE PROPERTY HAD BEEN PAID FOR AND DELIVERY MADE, YOU ALLEGED A MISDESCRIPTION IN ITEM 8 AND REQUESTED A REFUND OF $120.14, FOR THE REASON THAT SUBITEM 3 OF ITEM 8 WAS MISDESCRIBED IN THAT THE HANDLE SOCKETS WERE ACTUALLY 9/32 INCH DRIVE AND NOT 1/4 INCH AS REPRESENTED. THE CALIFORNIA STATE AGENCY FOR SURPLUS PROPERTY, SACRAMENTO, CALIFORNIA, THROUGH THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, HAD REPORTED THE PROPERTY IN QUESTION TO THE SAN FRANCISCO REGIONAL OFFICE FOR SALES ACTION, AND THE AGENCY'S DESCRIPTION OF THE SUBITEM HAD BEEN CARRIED FORWARD INTO THE INVITATION. THE STATE OF CALIFORNIA BY LETTER DATED JUNE 6, 1966, CONFIRMED THE MISDESCRIPTION SHOWN ON ITS REPORTING DOCUMENT. ENCLOSED WITH YOUR PROTEST ADDRESSED TO THIS OFFICE YOU HAVE SUBMITTED A CARDBOARD BOX FRONT FROM ONE OF THE CONTAINERS HOLDING THE HANDLES IN QUESTION, MARKED "SAC 6409-3, HANDLE SLIDING "T" 9/32 INCH 100 EA," AND FROM THIS YOU DISPUTE THE CONTRACTING OFFICER'S STATEMENT TO YOU THAT THE "BEST AVAILABLE INFORMATION" WAS USED IN DESCRIBING THE ITEM. YOU CITE THE "GUARANTEED DESCRIPTIONS CLAUSE APPEARING ON DLSC FORM 575 APR 66 (ALL SALES)" IN SUPPORT OF YOUR POSITION THAT THE MISDESCRIPTION OF THE ITEM MAKES THE GOVERNMENT LIABLE FOR THE RELIEF SOUGHT BY YOU.

THE SALES LETTER PROVIDED THAT THE PROPERTY WAS AVAILABLE FOR INSPECTION AT CALIFORNIA STATE AGENCY WAREHOUSE, BELL, CALIFORNIA, FROM APRIL 11 THROUGH APRIL 22, 1966, DAILY, EXCEPT SATURDAYS, SUNDAYS AND HOLIDAYS. ADDITION THE SALES LETTER CARRIED THE FOLLOWING ADVICE:

"THIS OFFICE IS OFFERING FOR SALE THE FOLLOWING PROPERTY, "AS-IS, WHERE- IS," ON AN INFORMAL COMPETITIVE BID BASIS. THIS OFFERING IS SUBJECT, EXCEPT AS MODIFIED HEREIN, TO THE GENERAL SALE TERMS AND CONDITIONS (STANDARD FORM 114C), WHICH ARE INCORPORATED AS PART OF THIS OFFERING. COPY OF SF 114C IS ON FILE AND WILL BE MADE AVAILABLE UPON REQUEST.'

PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS (STANDARD FORM 114-C, INCORPORATED BY REFERENCE IN THE SALES LETTER) PROVIDE THAT THE BIDDER IS CAUTIONED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID, AND 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 ., 175 N.E. 525; W.E. HEDGER CO. 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 CO. V. UNITED STATES, 66 CT.CL. 424.

SURPLUS SALES OFFICES RECEIVE PROPERTY FOR DISPOSITION FROM MANY HOLDING ACTIVITIES WHICH, IN TURN, HAVE ACQUIRED THE ITEMS FROM A STILL GREATER NUMBER OF USING ACTIVITIES WHICH ARE THE INSTALLATIONS DECLARING THE GOODS SURPLUS. SALES PERSONNEL GENERALLY RELY UPON THE RECORDS CERTIFIED TO THEM BY THE HOLDING ACTIVITIES IN PREPARING THE PROPERTY DESCRIPTIONS WHICH ARE INSERTED IN DISPOSAL INVITATIONS AND ARE UNDER NO DUTY TO MAKE ANY INSPECTION OF THE ITEMS THEMSELVES IN PREPARING FOR THE SALE. RELIEF CAN ONLY BE GRANTED WHERE THE MISDESCRIPTION IS THE RESULT OF SOME ACT ON THE PART OF SALES PERSONNEL THEMSELVES. THE RULE OF CAVEAT EMPTOR PREVAILS WITH RESPECT TO MISDESCRIPTIONS RESULTING FROM THE FAULT OF EMPLOYEES OF THE HOLDING ACTIVITIES. THUS, 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 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 SUBITEM 3 OF ITEM 8 WAS OTHER THAN AS DESCRIBED IN THE INVITATION.

WHILE YOU CITE THE "GUARANTEED DESCRIPTIONS" CLAUSE AS BEING APPLICABLE TO THIS SALE, SUCH CLAUSE WAS NOT A PART OF THE CONDITIONS ATTACHED TO THE SALE BY REFERENCE. HENCE, ITS PROVISIONS ARE NOT FOR CONSIDERATION IN DETERMINING THE VALIDITY OF YOUR CLAIM.

THERE IS NO EVIDENCE IN THE FILE THAT YOU MADE ANY INSPECTION OF THE PROPERTY PRIOR TO THE TIME THE CONTRACT CAME INTO BEING. BY THE TERMS OF THE INVITATION, YOU WERE WARNED TO INSPECT THE PROPERTY BEFORE TENDERING A BID UNDER PENALTY OF BEARING THE RISK OF ANY MISDESCRIPTION INCLUDED IN THE INVITATION. SEE PAXTON-MITCHELL COMPANY V. UNITED STATES, 145 CT.CL. 502, 172 F.SUPP. 463.

SINCE THE ERRONEOUS DESCRIPTION INVOLVED IN THIS CASE ORIGINATED AT THE HOLDING ACTIVITY LEVEL AND WAS IN NO WAY COMPOUNDED BY THE GOVERNMENT SALES PERSONNEL, WE MUST DENY YOUR REQUEST FOR AN ..END :