B-173768, NOV 24, 1971

B-173768: Nov 24, 1971

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MORGAN FOR RESCISSION OF ONE ITEM OF A SALES CONTRACT BECAUSE THE 1/2-TON PICKUP TRUCK IS INOPERABLE. WHERE THE COVER PAGE OF THE INVITATION WARNED PROSPECTIVE BIDDERS THAT "DESCRIPTION NOT GUARANTEED - WE URGE INSPECTION PRIOR TO BIDDING" AND THE PROPERTY WAS OFFERED FOR SALE "AS IS. WHERE IS" AND THE GOVERNMENT MADE NO WARRANTIES AS TO QUALITY. THERE IS NO LEGAL BASIS TO ALLOW MR. NOTWITHSTANDING THE FACT THAT SEVERAL ITEMS WERE LISTED AS "INOPERABLE. " FOR THERE WAS NO REPRESENTATION AT ALL CONCERNING CONDITION OF THE PICKUP TRUCK. MORGAN: REFERENCE IS MADE TO YOUR LETTERS DATED JULY 15 AND AUGUST 29. AWARDS WERE MADE TO YOU FOR 8 OF THE 22 VEHICLES UPON WHICH YOU BID INCLUDING ITEM 12 DESCRIBED AS "1 EA. 1964 DODGE 1/2-TON PICKUP TRUCK S/N 1161374130.

B-173768, NOV 24, 1971

CONTRACTS - SURPLUS SALE - RELIEF REQUESTED DECISION DENYING REQUEST BY MR. HAROLD E. MORGAN FOR RESCISSION OF ONE ITEM OF A SALES CONTRACT BECAUSE THE 1/2-TON PICKUP TRUCK IS INOPERABLE. WHERE THE COVER PAGE OF THE INVITATION WARNED PROSPECTIVE BIDDERS THAT "DESCRIPTION NOT GUARANTEED - WE URGE INSPECTION PRIOR TO BIDDING" AND THE PROPERTY WAS OFFERED FOR SALE "AS IS, WHERE IS" AND THE GOVERNMENT MADE NO WARRANTIES AS TO QUALITY, KIND, CHARACTER, QUANTITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE ITEMS TO BE SOLD, THERE IS NO LEGAL BASIS TO ALLOW MR. MORGAN TO RESCIND THE CONTRACT, NOTWITHSTANDING THE FACT THAT SEVERAL ITEMS WERE LISTED AS "INOPERABLE," FOR THERE WAS NO REPRESENTATION AT ALL CONCERNING CONDITION OF THE PICKUP TRUCK.

TO MR. HAROLD E. MORGAN:

REFERENCE IS MADE TO YOUR LETTERS DATED JULY 15 AND AUGUST 29, 1971, TO CONGRESSMAN DAWSON MATHIS, REQUESTING RESCISSION OF ONE ITEM OF SALES CONTRACT NO. GS-04-DPS)-1-8213 AWARDED TO YOU UNDER INVITATION TO BID NO. 4DPS 71-175 BY THE GENERAL SERVICES ADMINISTRATION (GSA), REGION 4, ATLANTA, GEORGIA.

THE INVITATION COVERED A SALE OF 32 SURPLUS MOTOR VEHICLES. AWARDS WERE MADE TO YOU FOR 8 OF THE 22 VEHICLES UPON WHICH YOU BID INCLUDING ITEM 12 DESCRIBED AS "1 EA. 1964 DODGE 1/2-TON PICKUP TRUCK S/N 1161374130. ESSENTIALLY, YOUR REQUEST FOR RELIEF CONCERNS THE FACT THAT THE ITEM 12 PICKUP TRUCK IS AND HAS BEEN IN INOPERABLE CONDITION FROM THE TIME YOU ATTEMPTED TO TAKE DELIVERY. IN VIEW THEREOF, YOU STATE THAT THE INVITATION SHOULD HAVE ADVISED THE BIDDERS OF THE INOPERABILITY OF THAT ITEM, CITING FOUR OTHER ITEMS IN WHICH THE TERM INOPERABLE WAS CONTAINED IN THE ITEM DESCRIPTION.

THERE IS NO LEGAL BASIS UPON WHICH YOUR CLAIM MAY BE ALLOWED. THE COVER PAGE OF THE INVITATION WARNED PROSPECTIVE BIDDERS THAT "DESCRIPTION NOT GUARANTEED - WE URGE INSPECTION PRIOR TO BIDDING." IN ADDITION, THE COVER SHEET STATED THAT THE PROPERTY LISTED THEREIN WAS BEING OFFERED FOR SALE ON AN "AS IS, WHERE IS" BASIS AND SUBJECTED THE INVITATION TO GENERAL SALES TERMS AND CONDITIONS (STANDARD FORM 114C). THAT FORM PROVIDED THAT THE PROPERTY WAS SOLD ON AN "AS IS" AND "WHERE IS" BASIS AND THAT THE DESCRIPTION OF THE VARIOUS ITEMS WAS BASED ON THE BEST INFORMATION AVAILABLE. FURTHERMORE, BIDDERS WERE "INVITED, URGED, AND CAUTIONED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID." PAGE 3 OF THE INVITATION TO BID CONTAINS FURTHER LANGUAGE TO THIS EFFECT, AS FOLLOWS:

"ABOVE PROPERTY IS IN USED CONDITION." UNLESS OTHERWISE STATED AS A PART OF THE ITEM DESCRIPTION, THE CONDITION OF THE PROPERTY LISTED IN THIS INVITATION TO BID IS UNKNOWN. BIDDERS ARE URGED TO INSPECT ALL PROPERTY BEFORE PLACING BIDS. FAILURE TO INSPECT WILL NOT CONSTITUTE GROUNDS FOR ADJUSTMENT OR RESCISSION OF THE CONTRACT.

YOUR LETTERS INDICATE THAT WHILE YOU MADE A VISUAL EXAMINATION OF THE TRUCK, YOU FAILED TO START THE TRUCK, WHICH WOULD BE FUNDAMENTAL TO A CAREFUL AND MEANINGFUL INSPECTION.

THE GSA REPORT ON YOUR REQUEST FOR RELIEF STATES THAT:

"ITEM 12 IN THE INVITATION WAS DESCRIBED AS FOLLOWS:" '1 EA. 1964 DODGE 1/2-TON PICKUP TRUCK S/N 1161374130.' THE DESCRIPTION OF ITEM 12 WAS BASED ON A REPORT OF PERSONAL PROPERTY FOR SALE (STANDARD FORM 126) FURNISHED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE, GAINESVILLE, FLORIDA.

WHILE IT IS TRUE THAT CERTAIN ITEMS IN THE INVITATION WERE DESCRIBED AS 'INOPERABLE,' *** THERE WAS NO REPRESENTATION THAT ITEM 12 WAS 'OPERABLE.' UNDER THE TERMS OF THE INVITATION, IT FOLLOWS THAT WHERE NO DESCRIPTION WAS FURNISHED AS PART OF THE ITEM DESCRIPTION, THAT THE SPECIFIC LANGUAGE OF THE IFB CALLED ATTENTION TO THE FACT THAT THE CONDITION OF THE VEHICLE WAS UNKNOWN, AND THEREFORE, NO REPRESENTATION CAN BE IMPLIED THAT THE VEHICLE WAS OPERABLE.

"THE BIDDER HAS ALLEGED THAT THE VEHICLE (ITEM 12) WAS KNOWN TO BE INOPERABLE SINCE IT WAS TOWED TO THE PARKING LOT, AND THAT GSA KNEW THE MOTOR TO BE BAD." GSA HAD NO KNOWLEDGE OF THE CONDITION OF THE VEHICLE, ITS ONLY INFORMATION BEING OBTAINED FROM THE STANDARD FORM 126 WHICH WAS FURNISHED BY THE UNITED STATES DEPARTMENT OF AGRICULTURE, SOIL CONSERVATION SERVICE. THAT REPORT DID NOT INDICATE THAT THE VEHICLE WAS EITHER OPERABLE OR INOPERABLE. THUS, THE DESCRIPTION IN THE INVITATION FOR ITEM 12, BEING BASED SOLELY UPON SUCH REPORT, INDICATED ONLY THAT THE VEHICLE WAS 'USED.' IT SHOULD BE NOTED THAT 19 VEHICLES WERE REPORTED BY THE USDA, SOIL CONSERVATION SERVICE, AND THAT THE ONLY COMPLAINT RECEIVED ON THE SALE OF THESE ITEMS WAS ON ITEM 12.

THE ABOVE-MENTIONED TERMS OF THE SOLICITATION SPECIFICALLY ADVISED PROSPECTIVE BIDDERS THAT THE GOVERNMENT MADE NO WARRANTY AS TO QUALITY, KIND, CHARACTER, QUANTITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE ITEMS TO BE SOLD. WHERE THE GOVERNMENT HAS SO STIPULATED IN THE TERMS OF THE SOLICITATION COVERING THE SALE OF SURPLUS OR USED PROPERTY BASED ON THE BEST INFORMATION AVAILABLE FROM THE HOLDING ACTIVITY, IT HAS BEEN CONSISTENTLY HELD BY THE COURTS AND OUR OFFICE THAT SUCH AN EXPRESSED DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT BE IMPLIED FROM SALES TRANSACTION.

FURTHER, WITH RESPECT TO YOUR COMPLAINT AS TO THE ACTIONS OF GOVERNMENT PERSONNEL IN THE OPERATION OF THE TRUCK PRIOR TO THE DELIVERY FOR SALE TO GSA, WE HAVE REVIEWED THE STATEMENTS OF THE HOLDING ACTIVITY AND THE DRIVER INVOLVED AND TO THE BEST OF THEIR INFORMATION, KNOWLEDGE AND BELIEF THE TRUCK WAS IN AN OPERABLE CONDITION PRIOR TO SALE. IN THE CIRCUMSTANCES, IT APPEARS THAT THE DESCRIPTION OF THE TRUCK IN THE SALES INVITATION WAS BASED UPON THE BEST AVAILABLE INFORMATION REPORTED IN THE TURN-IN DOCUMENT FURNISHED BY THE SOIL CONSERVATION SERVICE AND THERE IS NO INDICATION OF BAD FAITH ON THE PART OF THE GOVERNMENT EMPLOYEES RESPONSIBLE FOR DRAFTING THE INVITATION.

IN VIEW OF THE FOREGOING, THE CLAIM FOR RELIEF IS DENIED.