B-176387, MAR 7, 1973

B-176387, MAR 7, 1973

SALES CONTRACT - STATEMENT OF WEIGHTS - DISCLAIMER OF WARRANTY DECISION SUSTAINING A PRIOR DENIAL OF A REQUEST BY SURPLUS TIRE SALES FOR RELIEF WITH RESPECT TO AN ITEM OF A SALES CONTRACT AWARDED BY THE DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIF. SINCE THE TERMS AND CONDITIONS OF THE SALES CONTRACT WERE SPECIFIC IN THAT THERE WAS NO WARRANTY OF ESTIMATES AS TO THE WEIGHT OF PROPERTY SOLD BY THE LOT, THE COMP. GEN. AFFIRMS THE DECISION OF JANUARY 3, 1973, WHICH HELD THAT DSA IS NOT REQUIRED TO REWEIGH THE MATERIAL IN THE PRESENCE OF THE BUYER. LIPSHITZ & COHEN V. UNITED STATES, 269 U.S. 90, 92 (1925).

TO SURPLUS TIRE SALES:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 5, 1973, REQUESTING RECONSIDERATION OF THAT PART OF OUR DECISION OF JANUARY 3, 1973, TO THE DIRECTOR, DEFENSE SUPPLY AGENCY, WHICH DENIED YOUR REQUEST FOR RELIEF WITH RESPECT TO ITEM 201 OF SALES CONTRACT NO. 44-2174-136 WITH DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

ITEM 201 WAS DESCRIBED IN THE INVITATION FOR BIDS UPON WHICH THE CONTRACT IS BASED AS CONTAINING ONE LOT OF IRREGULAR SHAPED CORROSION RESISTANT STEEL PLATES ESTIMATED TO WEIGH 1,800 POUNDS. YOU STATE THAT YOU SUBMITTED A BID BASED ON THE ITEM DESCRIPTION AND THAT YOU EXPECT TO RECEIVE THE QUANTITY STATED THEREIN. YOU STATE THAT YOU WILL NOT ACCEPT ITEM 201 UNLESS YOU ARE PROVIDED AN OPPORTUNITY TO VERIFY THAT THE ITEM ACTUALLY CONTAINS THE ESTIMATED QUANTITY.

AS INDICATED IN THE JANUARY 3, 1973, DECISION, THE CONTRACTING AGENCY HAS WEIGHED THE MATERIAL AND FOUND IT TO BE 2,000 POUNDS. REGARDLESS OF THAT, THE TERMS AND CONDITIONS OF THE SALE WERE SPECIFIC THAT THERE WAS NO WARRANTY OF ESTIMATES AS TO THE WEIGHT OF PROPERTY SOLD BY THE LOT. ALTHOUGH YOU INDICATE THAT YOU WOULD PREFER AND INTENDED THE ESTIMATED WEIGHT IN THE SALES DESCRIPTION TO BE GUARANTEED, THE FACT REMAINS THAT THERE WAS A DEFINITE DISCLAIMER OF WARRANTY IN THE SALES TERMS AND CONDITIONS. FURTHER, SEE LIPSHITZ & COHEN V. UNITED STATES, 269 U.S. 90, 92 (1925), WHEREIN, IN CONSIDERING THE GROSS DISPARITY IN THE QUANTITY OF PROPERTY SOLD ON A LOT BASIS, IT WAS HELD THAT -

*** THE NAMING OF QUANTITIES CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS ***.

ACCORDINGLY, OUR DECISION OF JANUARY 3, 1973, HOLDING THAT OUR OFFICE WILL NOT REQUIRE THE MATERIAL TO BE REWEIGHED IN YOUR PRESENCE IS AFFIRMED.

IN THE LETTER OF JANUARY 5, 1973, YOU REQUESTED OUR OFFICE TO SEND A COPY TO THE DIRECTOR OF THE DEFENSE SUPPLY AGENCY BECAUSE YOU WOULD LIKE TO HAVE HIS REACTION TO IT. YOUR REQUEST IN THAT REGARD SHOULD BE DIRECTED TO THE DIRECTOR RATHER THAN TO OUR OFFICE.