B-170310, SEP. 24, 1970

B-170310: Sep 24, 1970

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FAILURE OF CONTRACTING OFFICER IN DESCRIPTION OF SURPLUS SCRAP TO INCLUDE INFORMATION THAT FINS WERE SOLDERED TO COPPER TUBES THEREBY DECREASING VALUE IS A FAILURE TO USE THE "BEST INFORMATION AVAILABLE" AND THEREFORE NO OBJECTION TO THE CANCELLATION OF THE CONTRACT WILL BE MADE. KUNZIG: REFERENCE IS MADE TO LETTER DATED AUGUST 24. 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. ITEM 168 OF THE INVITATION WAS DESCRIBED AS FOLLOWS: "SCRAP METAL NONFERROUS.

B-170310, SEP. 24, 1970

SURPLUS PROPERTY SALE - MISDESCRIPTION AUTHORIZING RECESSION OF SALES CONTRACT WITH SURPLUS TIRE SALES ON BASIS OF MISDESCRIPTION OF SCRAP. FAILURE OF CONTRACTING OFFICER IN DESCRIPTION OF SURPLUS SCRAP TO INCLUDE INFORMATION THAT FINS WERE SOLDERED TO COPPER TUBES THEREBY DECREASING VALUE IS A FAILURE TO USE THE "BEST INFORMATION AVAILABLE" AND THEREFORE NO OBJECTION TO THE CANCELLATION OF THE CONTRACT WILL BE MADE.

TO MR. KUNZIG:

REFERENCE IS MADE TO LETTER DATED AUGUST 24, 1970, WITH ENCLOSURES, FROM YOUR GENERAL COUNSEL, CONCERNING THE DISPUTE BETWEEN SURPLUS TIRE SALES AND THE SALES CONTRACTING OFFICER UNDER CONTRACT NO. GS-09-DP-(S) 0-5046 ARISING OUT OF SURPLUS TIRE SALES BID FOR ITEM NO. 168 ON INVITATION NO. 9DPSSF)70-132, BID OPENING ON MAY 12, 1970, ISSUED BY THE GENERAL SERVICES ADMINISTRATION, SAN FRANCISCO, CALIFORNIA.

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.

ITEM 168 OF THE INVITATION WAS DESCRIBED AS FOLLOWS:

"SCRAP METAL NONFERROUS, CONSISTING OF APPROX. THE FOLLOWING: 1000 LBS COPPER PIPE & TUBING; 360 LBS COPPER WIRE BARE, VARIOUS SIZES; 1080 LBS COPPER WIRE LEAD COVERED; 2100 LBS COPPER WIRE INSULATED; 12,250 LBS, BRASS SEAMLESS TUBES, WITH COPPER RADIATING FINS SOLDERED TO TUBE, TUBES 8' 2" LONG; 8250 LBS, COPPER SEAMLESS TUBES, WITH COPPER RADIATING FINS 8' 2" LONG; 3500 LBS, BRASS SEAMLESS TUBES WITH COPPER RADIATING FINS SOLDERED TO TUBE 5' 1-7/8" LONG. 1 LOT"

TWENTY-NINE BIDS WERE RECEIVED ON ITEM 168 RANGING FROM A HIGH BID OF $11,788.17 TO A LOW BID OF $160. SURPLUS TIRE SALES, THE HIGH BIDDER, WAS AWARDED ITEM 168.

BY LETTER OF JUNE 5, 1970, TO THE CONTRACTING OFFICER SURPLUS TIRE CLAIMED THAT THE PORTION OF THE DESCRIPTION READING "8250 LBS, COPPER SEAMLESS TUBES, WITH COPPER RADIATING FINS 8' 2" LONG;" WAS ERRONEOUS BECAUSE IT FAILED TO MENTION THAT THE FINS WERE SOLDERED TO THE TUBES. SURPLUS TIRE CONTENDED THAT ITS BID WAS BASED ON THE ASSUMPTION THAT THE COPPER TUBES WERE FREE OF SOLDER. SURPLUS TIRE FURTHER STATED THAT THE SOLDER CONTAMINATED THE COPPER TUBES AND CAUSED A CHANGE IN THE SCRAP VALUE OF THE PROPERTY. ACCORDINGLY, THE CONTRACTING OFFICER WAS ASKED EITHER TO REVISE OR CANCEL THE CONTRACT ON THE GROUNDS OF THE MISDESCRIPTION.

FOLLOWING AN EXCHANGE OF CORRESPONDENCE THE CONTRACTING OFFICER DENIED RELIEF TO SURPLUS TIRE, STATING THAT SIX OF 29 BIDS RECEIVED ON THE ITEM WERE OVER $10,500 WITH THE SECOND HIGH BID BEING $11,758.65 AND THAT THE COMPETITIVE BIDDERS CONTACTED, INCLUDING THE SECOND HIGH BIDDER, INDICATE THE SOLDERED FINS IN THE LOT WERE TAKEN INTO ACCOUNT WHEN THEIR BIDS WERE SUBMITTED.

THE "REPORT OF PERSONAL PROPERTY FOR SALE" SUBMITTED BY THE BUREAU OF RECLAMATION TO THE GENERAL SERVICES ADMINISTRATION REGION 9, UTILIZATION AND DISPOSAL SERVICE DESCRIBED THE PROPERTY TO BE DESPOSED OF AS FOLLOWS:

"ONE LOT OF NONFERROUS METAL SCRAP, TOTAL WEIGHT APPROX. 28,540 POUNDS, CONSISTING OF:

(1) COPPER, SCRAP PIPE & TUBING. 1,000 LBS

(2) COPPER, BARE WIRE, VARIOUS SIZES. 360 LBS

(3) COPPER, WIRE, LEAD COVERED 1,080 LBS

(4) COPPER, WIRE, INSULATED. 2,100 LBS

(5) BRASS, SEAMLESS BRASS TUBES WITH COPPER RADIATING FINS SOLDERED TO TUBES. TUBES 8'2".

12,250 LBS

(6) COPPER, SAME AS (5) EXCEPT ALL COPPER. 8,250 LBS

(7) BRASS, SAME AS (5) EXCEPT TUBE LENGTH 5'-1-7/8". 3,500 LBS."

THUS THE RECORD SHOWS THAT THE HOLDING ACTIVITY REPORTED THE MATERIAL IN QUESTION AS BEING THE "SAME AS (5) EXCEPT ALL COPPER", AND (5) WAS REPORTED AS BEING "SEAMLESS BRASS TUBES WITH COPPER RADIATING FINS SOLDERED TO TUBES." WE ARE ADVISED THAT THE CONTRACTING OFFICER IN PREPARING THE SOLICITATION OF OFFERS INADVERTENTLY OMITTED FROM THE DESCRIPTIVE INFORMATION THAT THE FINS WERE SOLDERED TO THE COPPER TUBES.

IT IS OUR OPINION THAT WHEN THE CONTRACTING OFFICER OMITTED THE INFORMATION THAT THE FINS WERE "SOLDERED" TO THE TUBES HE DID SO WITHOUT UTILIZING TO THE FULLEST EXTENT, THE "BEST AVAILABLE INFORMATION" AS TO THE CONDITION OF THAT PORTION OF THE ITEM. SEE B 167905, SEPTEMBER 29, 1969.

IN VIEW OF THE FOREGOING, OUR OFFICE WILL HAVE NO OBJECTION TO RESCISSION OF THE CONTRACT AS RECOMMENDED IN THE ADMINISTRATIVE REPORT.