B-160429, MAY 1, 1967

B-160429: May 1, 1967

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FELIX KARRER: FURTHER REFERENCE IS MADE TO LETTERS DATED NOVEMBER 5. ITEM NO. 63 (PARCEL NO. 73) WAS ADVERTISED AS CONTAINING 412.61 ACRES "MORE OR LESS.'. INSTRUCTIONS TO BIDDERS" CONTAINED THE FOLLOWING "SOLD "AS IS" AND "WHERE IS" " CLAUSE: "THE DESCRIPTIONS AND LOCATIONS OF THE PREMISES. INFORMATION TO BIDDERS" ARE BELIEVED TO BE SUFFICIENTLY SPECIFIC FOR PURPOSES OF IDENTIFICATION. RESTRICTIONS IS AVAILABLE AT THE GENERAL SERVICES ADMINISTRATION OFFICE. OR THAT SAME ARE IN CONDITION OR FIT TO BE USED FOR THE PURPOSE FOR WHICH INTENDED. HOWEVER NO GUARANTEE IS MADE AS TO ACCURACY. ALL PROSPECTIVE PURCHASERS ARE URGED TO MAKE A PHYSICAL INSPECTION OF THE PROPERTY. THEY ARE INTERESTED IN.

B-160429, MAY 1, 1967

TO MR. FELIX KARRER:

FURTHER REFERENCE IS MADE TO LETTERS DATED NOVEMBER 5, 1967, WITH ENCLOSURES, ON BEHALF OF YOURSELF AND KATHRYN KARRER, RALPH W. LEHMAN, LAURA LEHMAN, WILLIAM H. LEHMAN AND MARY N. LEHMAN REQUESTING A PRICE ADJUSTMENT OF $1,680.25 ON THE PURCHASE OF ITEM 63, PARCEL 73, UNDER GENERAL SERVICES ADMINISTRATION SALE NO. GSA-PBS-9-AL-47, ALLEGEDLY DUE BECAUSE OF A SHORTAGE IN THE AMOUNT OF ACREAGE SOLD TO YOU.

THE INVITATION PROVIDED FOR AN AUCTION SALE ON DECEMBER 21, 1959, OF APPROXIMATELY 40,000 ACRES OF SURPLUS REAL PROPERTY, WHICH COMPRISED 105 PARCELS OF UNIMPROVED LAND, INCLUDING THE PARCEL IN QUESTION, LOCATED AT THE FORMER CAMP BEALE AIR FORCE BASE, CALIFORNIA. THE SALES INVITATION AND BROCHURE LISTED THE AMOUNT OF ACREAGE (MORE OR LESS) CONTAINED IN EACH PARCEL AND THE AUCTIONEER ANNOUNCED AT THE SALE THAT HE WOULD, AND IN FACT DID, TAKE BIDS ON A PRICE PER ACRE BASIS. ITEM NO. 63 (PARCEL NO. 73) WAS ADVERTISED AS CONTAINING 412.61 ACRES "MORE OR LESS.' THE ,INSTRUCTIONS TO BIDDERS" CONTAINED THE FOLLOWING "SOLD "AS IS" AND "WHERE IS" " CLAUSE:

"THE DESCRIPTIONS AND LOCATIONS OF THE PREMISES, FACILITIES, AND PROPERTY NAMED IN THE ,INFORMATION TO BIDDERS" ARE BELIEVED TO BE SUFFICIENTLY SPECIFIC FOR PURPOSES OF IDENTIFICATION. ANY ERROR OR OMISSION IN SUCH DESCRIPTION SHALL NOT CONSTITUTE ANY GROUND OR REASON FOR NON-PERFORMANCE OF THE CONTRACT OR CLAIM BY THE SUCCESSFUL BIDDER FOR ANY ALLOWANCE, REFUND, OR DEDUCTION FROM THE AMOUNTS OFFERED. A COMPLETE DESCRIPTION OF THE PROPERTY WITH ALL EXCEPTIONS, RESERVATIONS, AND RESTRICTIONS IS AVAILABLE AT THE GENERAL SERVICES ADMINISTRATION OFFICE. THE GOVERNMENT DOES NOT MAKE ANY GUARANTY OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUANTITY, QUALITY, CHARACTER OR CONDITION, SIZE OR KIND, THEREOF; OR THAT SAME ARE IN CONDITION OR FIT TO BE USED FOR THE PURPOSE FOR WHICH INTENDED. SEE "INFORMATION TO BIDDERS.'"

THE INVITATION ALSO INFORMED BIDDERS THAT:

"THE ACREAGE (MORE OR LESS) ALLOCATED TO EACH PARCEL, AS SHOWN UNDER SALES ITEMS, REPRESENTS THE AREA FOR SALE. SOME PARCELS REPRESENT THE RESIDUAL AREA AFTER WITHDRAWALS BY BOTH THE FEDERAL POWER COMMISSION AND/OR THE SOUTH SUTTER WATER DISTRICT FROM THE ORIGINAL ACQUISITION OF PARCELS.

"EVERY EFFORT HAS BEEN MADE TO GIVE CORRECT INFORMATION; HOWEVER NO GUARANTEE IS MADE AS TO ACCURACY. ALL PROSPECTIVE PURCHASERS ARE URGED TO MAKE A PHYSICAL INSPECTION OF THE PROPERTY, WITH PARTICULAR REFERENCE TO THE PARCEL, OR PARCELS, THEY ARE INTERESTED IN, AND TO EXAMINE THE RECORDS OF THE COUNTY RECORDERS OFFICE IN THE COUNTY IN WHICH THE LAND IS SITUATED, EITHER NEVADA OR YUBA.'

YOUR BID ON ITEM NO. 63 (PARCEL 73) WAS THE HIGH "PER ACRE" BID AT $65 AND WAS ACCEPTED ON FEBRUARY 3, 1960, AT YOUR TOTAL BID PRICE FOR THE ITEM OF $26,819.65. THE CONTRACTING OFFICER DID NOT HAVE A SURVEY MADE IN CONNECTION WITH ITEM NO. 63 AT THE TIME OF SALE BUT RELIED ON THE INFORMATION SUPPLIED BY THE REPORTING AGENCY. ON CERTAIN OF THE 105 PARCELS SURVEYS WERE OBTAINED. ITEM NO. 37 WAS ONE SUCH CASE AND THE SURVEY REVEALED THAT IT CONTAINED 20 RATHER THAN 19 ACRES AS SHOWN IN THE SALES INVITATION. YOU WERE ADVISED OF THIS FACT IN THE LETTER OF AWARD AND THE SALE PRICE OF ITEM NO. 37 WHICH WAS ALSO AWARDED TO YOU WAS ADJUSTED TO REFLECT 20 ACRES.

THE CORPS OF ENGINEERS ADVISED THE GENERAL SERVICES ADMINISTRATION THAT THE ACREAGES SHOWN IN THE SALES INVITATION WERE TAKEN FROM COPIES OF THE ORIGINAL PLAT OF THE OFFICIAL SURVEY MADE BY THE GENERAL LAND OFFICE AND THAT THE GENERAL LAND OFFICE SURVEYS WERE ACCEPTED AS BEING ACCURATE.

YOU CONTEND THAT PARCEL NO. 73 CONTAINS ONLY 393.1 ACRES AS REFLECTED IN THE RECORDS OF NEVADA COUNTY, CALIFORNIA. THE CONTRACTING OFFICER RECENTLY CONTACTED THE CHIEF DEPUTY ASSESSOR OF NEVADA COUNTY AND WAS INFORMED THAT NO SURVEY HAD BEEN MADE BY THE COUNTY AND THAT THE 393.1 ACRES SHOWN ON ITS RECORDS FOR PARCEL 73 WAS AN ERROR ON ITS PART. THE ERROR OCCURRED IN 1963 WHEN THE NEVADA COUNTY RECORDS WERE CONVERTED TO THE PARCEL SYSTEM, WHICH INVOLVED PLATTING THE PARCELS ON A LOCATION MAP AND RUNNING A PLANOMETER AROUND THE BOUNDARY. A LETTER DATED FEBRUARY 9, 1967, CONFIRMED THIS INFORMATION AND ADVISED THAT THE NEVADA COUNTY TAX ASSESSOR'S OFFICE HAD CHANGED ITS RECORDS TO REFLECT THE 412.61 ACRES ORIGINALLY SHOWN IN THE SALES INVITATION. YOU HAVE BEEN ADVISED BY THE GENERAL SERVICES ADMINISTRATION OF THIS CHANGE IN THE RECORDS WHICH NOW LIST 412.61 ACRES AS THE CORRECT ACREAGE FOR PARCEL 73. HOWEVER, YOUR LETTER OF MARCH 7, 1967, INDICATES THAT YOU STILL DESIRE TO PURSUE YOUR CLAIM FOR REFUND AND YOU REQUEST OUR OFFICE TO MAKE THE PRICE ADJUSTMENT IF IT IS CONFIRMED BY AN OFFICIAL SURVEY THAT THE ACREAGE WAS LESS THAN CALLED FOR IN THE SALES INVITATION.

ON THE BASIS OF THE RECORD BEFORE US, THERE IS AN ABSENCE OF CONVINCING EVIDENCE THAT PARCEL 73 CONTAINED LESS THAN 412.61 ACRES AS ADVERTISED AND SOLD. MOREOVER, WE SEE NO REASON TO DISREGARD THE OFFICIAL ACREAGE RECORDS OF THE COUNTY WHEREIN THE PROPERTY IS SITUATED. NEITHER DO WE SEE ANY BASIS FOR THE GOVERNMENT TO CONDUCT, OR HAVE CONDUCTED, A SURVEY OF THE PROPERTY FOR THE PURPOSES OF YOUR CLAIM. HOWEVER, IN ORDER THAT YOU MAY BE FULLY INFORMED AS TO THE LEGAL CONSEQUENCES OF YOUR BID AND THE GOVERNMENT'S ACCEPTANCE THEREOF UNDER THE TERMS AND CONDITIONS OF THE SALES INVITATION, YOUR ATTENTION IS INVITED TO KRUPP V. FEDERAL HOUSING ADMINISTRATION, 285 F.2D 833; MONTREAL SECURITIES, INC. V. UNITED STATES, 329 F.2D 956.

INCLUDED IN YOUR CLAIM IS THE AMOUNT OF $412.10 ALLEGED TO BE DUE AS INTEREST ON THE BALANCE OWED UNDER THE TERMS OF THE AGREEMENT. INTEREST IS NOT PAYABLE ON CLAIMS AGAINST THE UNITED STATES UNLESS PROVIDED FOR BY CONTRACT OR DIRECTED BY STATUTE EXPRESSLY PROVIDING THEREFOR. SMYTH V. UNITED STATES, 302 U.S. 329 (1937); UNITED STATES V. THAYER-WEST POINT HOTEL CO., 329 U.S. 585 (1947); WILLIAM C. RAMSEY, ET AL. V. UNITED STATES, 121 CT.CL. 426 (1951); 37 COMP. GEN. 485, 487.