B-167905, SEP. 29, 1969

B-167905: Sep 29, 1969

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REFUSED DELIVERY BECAUSE CAR WAS BURNED OUT BEYOND REPAIR SO THAT IT WAS "SCRAP" MAY NOT HAVE FACT THAT HE DID NOT INSPECT THE PROPERTY CONSIDERED FATAL TO CLAIM SINCE CONTRACTING OFFICER IF HE HAD SOUGHT TO VERIFY VALUE OF VEHICLE COULD HAVE FURNISHED A MORE ACCURATE DESCRIPTION. THEREFORE RECISSION AND REFUND OF DEPOSIT IS AUTHORIZED. SECRETARY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 12. THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "EXPRESSED OR IMPLIED" AS TO QUANTITY. FROM THE RECORD IT IS CONCEDED THAT SEYMOUR DID NOT INSPECT THE PROPERTY BEFORE BIDDING.

B-167905, SEP. 29, 1969

CONTRACTS - SALES - MISDESCRIPTION DECISION TO SECRETARY OF THE ARMY AUTHORIZING RECISSION OF SALES CONTRACT FOR USED VEHICLE AND REFUND OF BID DEPOSIT. PURCHASER WHO, AFTER BIDDING $281.81 FOR "USED" CARRYALL VEHICLE, REFUSED DELIVERY BECAUSE CAR WAS BURNED OUT BEYOND REPAIR SO THAT IT WAS "SCRAP" MAY NOT HAVE FACT THAT HE DID NOT INSPECT THE PROPERTY CONSIDERED FATAL TO CLAIM SINCE CONTRACTING OFFICER IF HE HAD SOUGHT TO VERIFY VALUE OF VEHICLE COULD HAVE FURNISHED A MORE ACCURATE DESCRIPTION. THEREFORE RECISSION AND REFUND OF DEPOSIT IS AUTHORIZED.

TO MR. SECRETARY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 12, 1969, WITH ENCLOSURES, FROM YOUR ACTING GENERAL COUNSEL, OFFICE OF THE CHIEF OF ENGINEERS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF FREDERICK M. SEYMOUR, 380 PARKVIEW DRIVE, DETROIT, MICHIGAN, FOR RECISION OF A SALES CONTRACT COVERING THE PURCHASE OF A USED VEHICLE.

BY INVITATION NO. DACW35-69-B-0023, ISSUED DECEMBER 27, 1968, THE UNITED STATES ARMY ENGINEER DISTRICT, DETROIT, CORPS OF ENGINEERS, REQUESTED BIDS -- TO BE OPENED JANUARY 27, 1969 -- FOR THE SALE OF 2 ITEMS OF SURPLUS PROPERTY, ITEM NO. 1 BEING DESCRIBED AS FOLLOWS: "CARRYALL, 3/4 TON, 4 X 2, 1964, CHEVROLET, S/N 123443, USED, ORIG. COST $2,608.44.'

THE PROPERTY WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE GOVERNMENT STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES "EXPRESSED OR IMPLIED" AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS URGED BIDDERS TO INSPECT THE PROPERTY BEFORE BIDDING THEREON AND CAUTIONED THEM THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM AGAINST THE GOVERNMENT.

FROM THE RECORD IT IS CONCEDED THAT SEYMOUR DID NOT INSPECT THE PROPERTY BEFORE BIDDING, HOWEVER, THERE IS EVIDENCE THAT ORAL ADVICE WAS GIVEN PRIOR TO BID OPENING CONCERNING THE FACT THAT THE VEHICLE HAD BEEN BURNED.

SEYMOUR SUBMITTED A BID ON ITEM 1 IN THE AMOUNT OF $281.81, THE ONLY OTHER BID WAS FOR $41.00. SINCE SEYMOUR SUBMITTED THE HIGHEST BID, NOTICE OF AWARD OF ITEM 1 WAS MAILED TO SEYMOUR ON FEBRUARY 5, 1969. BY LETTER DATED FEBRUARY 13, 1969, SEYMOUR NOTIFIED THE SALES OFFICER THAT THE CAR WAS BURNED OUT BEYOND REPAIR. IN VIEW OF THIS THE BIDDER REFUSED TO ACCEPT DELIVERY AND MAKE PAYMENT. BY LETTER DATED FEBRUARY 14, 1969, THE SALES OFFICER DECLARED SEYMOUR IN DEFAULT AND ADVISED OF ACTION TO BE TAKEN WITH SEYMOUR'S BONDING COMPANY. SEYMOUR BY LETTER DATED FEBRUARY 18, 1969, SUBMITTED THE REQUIRED 20 PERCENT OF HIS BID PRICE AND REQUESTED A REFUND OF $56.36 THE AMOUNT OF BID DEPOSIT ON THE GROUND THAT THE CAR WAS MISDESCRIBED IN THE INVITATION.

IN THE ADMINISTRATIVE REPORT FROM THE CHIEF OF ENGINEERS, THERE IS A COPY OF DA FORM 285, WHICH SHOWS UNDER SECTION C THAT THE ESTIMATED TOTAL DAMAGES (INCLUDING LABOR AND PARTS) TO THE VEHICLE AMOUNTED TO $2,608.44. SINCE THIS EQUALS THE ORIGINAL COST OF THE VEHICLE, IT IS APPARENT THAT THE VEHICLE WAS SO DAMAGED AS TO CONNOTE, IN GENERALLY ACCEPTED TERMS, THAT THE PROPERTY WAS "SCRAP". THEREFORE, IT IS OUR OPINION THAT WHEN THE CONTRACTING OFFICER DESCRIBED THE CONDITION OF THE VEHICLE AS MERELY "USED" HE DID SO WITHOUT UTILIZING, TO THE FULLEST EXTENT, THE "BEST AVAILABLE INFORMATION" AS TO THE CONDITION OF THE VEHICLE. THERE WOULD APPEAR TO BE LITTLE, IF ANY, DOUBT FROM THE CIRCUMSTANCES REPORTED THAT HAD THE CONTRACTING OFFICER SOUGHT TO FURTHER VERIFY THE RECORD REGARDING THE VALUE OF THE VEHICLE A MORE ACCURATE DESCRIPTION OF THE PROPERTY COULD HAVE BEEN SET FORTH IN THE INVITATION. FURTHERMORE, THE FAILURE OF THE BIDDER TO INSPECT THE PROPERTY IS NOT NECESSARILY FATAL TO HIS CLAIM.

IN VIEW OF THE FOREGOING, AND SINCE THE ADMINISTRATIVE REPORT DOES NOT DISPUTE THE STATEMENTS OF SEYMOUR AS TO THE ACTUAL CONDITION OF THE VEHICLE, OUR OFFICE WILL HAVE NO OBJECTION TO A REFUND OF THE BID DEPOSIT OF $56.36 TO THE BIDDER, IN THIS PARTICULAR CASE.

THE PAPERS TRANSMITTED WITH THE LETTER OF SEPTEMBER 12, 1969, ARE RETURNED HEREWITH.