B-84997, SEPTEMBER 16, 1949, 29 COMP. GEN. 128

B-84997: Sep 16, 1949

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SALES - SURPLUS PROPERTY - DISCLAIMER OF WARRANTY WHERE GOVERNMENT SALVAGE MATERIAL WAS OFFERED FOR SALE WITHOUT ANY WARRANTIES OR GUARANTEES WHATSOEVER. - BIDDERS BEING URGED TO INSPECT SINCE DESCRIPTIONS WERE OPINIONS ONLY AND QUANTITIES AND WEIGHTS WERE APPROXIMATE. - THE FACT THAT A QUANTITY OF SIMILAR MATERIAL CONTAINING SOME EXTRANEOUS ITEMS WAS ADDED TO THE LOT PRIOR TO OPENING OF BIDS MAY NOT BE REGARDED AS A BREACH OR A MISREPRESENTATION OF THE MATERIAL AS TO QUALITY OR QUANTITY. SO THAT A CONTRACTOR WHO SUBMITTED A LUMP-SUM BID FOR THE ENTIRE LOT PRIOR TO INSPECTING THE MATERIAL IS NOT ENTITLED TO A RESCISSION OF THE CONTRACT OR PARTIAL REFUND OF ITS BID DEPOSIT REPRESENTING LIQUIDATED DAMAGES ASSESSED FOR FAILURE TO PAY THE BALANCE OF THE PURCHASE PRICE.

B-84997, SEPTEMBER 16, 1949, 29 COMP. GEN. 128

SALES - SURPLUS PROPERTY - DISCLAIMER OF WARRANTY WHERE GOVERNMENT SALVAGE MATERIAL WAS OFFERED FOR SALE WITHOUT ANY WARRANTIES OR GUARANTEES WHATSOEVER--- BIDDERS BEING URGED TO INSPECT SINCE DESCRIPTIONS WERE OPINIONS ONLY AND QUANTITIES AND WEIGHTS WERE APPROXIMATE--- THE FACT THAT A QUANTITY OF SIMILAR MATERIAL CONTAINING SOME EXTRANEOUS ITEMS WAS ADDED TO THE LOT PRIOR TO OPENING OF BIDS MAY NOT BE REGARDED AS A BREACH OR A MISREPRESENTATION OF THE MATERIAL AS TO QUALITY OR QUANTITY, SO THAT A CONTRACTOR WHO SUBMITTED A LUMP-SUM BID FOR THE ENTIRE LOT PRIOR TO INSPECTING THE MATERIAL IS NOT ENTITLED TO A RESCISSION OF THE CONTRACT OR PARTIAL REFUND OF ITS BID DEPOSIT REPRESENTING LIQUIDATED DAMAGES ASSESSED FOR FAILURE TO PAY THE BALANCE OF THE PURCHASE PRICE.

ACTING COMPTROLLER GENERAL YATES TO THE SECRETARY OF THE NAVY, SEPTEMBER 16, 1949:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 24, 1949, WITH ENCLOSURES, IN RESPONSE TO OFFICE LETTER DATED APRIL 21, 1949, B-84997, RELATIVE TO THE PURCHASE BY THE SUPREME STEEL WAREHOUSE CORPORATION, INC., OF A LOT OF SALVAGE MATERIAL AT PEARL HARBOR UNDER CONTRACT NO. N604S-3629, DATED JANUARY 28, 1949.

IT APPEARS THAT ON DECEMBER 29, 1948, THE NAVAL SUPPLY CENTER, PEARL HARBOR, ISSUED SALES CATALOG B-166-49 TO A LIST OF PROSPECTIVE BIDDERS REQUESTING BIDS ON THE PURCHASE OF CERTAIN SALVAGE MATERIAL INCLUDING LOT NO. 2 DESCRIBED AS FOLLOWS:

REPAIR PARTS, ( SALVAGE) AUTOMATIC CONSTRUCTION, MATERIALS-HANDLING AND UTILITY EQUIPMENT. SEVENTEEN HUNDRED (1700) MEASUREMENT TONS, MORE OR LESS. INSPECTION IS STRONGLY ENCOURAGED. ATTENTION INVITED TO PARAGRAPH TWO (2) OF THE CONDITIONS AND TERMS OF SALE.

PARAGRAPH 2 OF THE " CONDITIONS AND TERMS OF SALE" IS AS FOLLOWS:

2. ALL MATERIAL IS SOLD WITHOUT ANY WARRANTIES OR GUARANTEES WHATSOEVER, EXPRESSED OR IMPLIED. THE DESCRIPTIONS IN EACH LOT (AND ANY STATEMENT ORAL OR WRITTEN, WITH RESPECT TO THE MATERIAL HERETOFORE MADE) ARE STATEMENTS OF OPINION ONLY, THE QUANTITIES AND WEIGHTS IN EACH LOT ARE APPROXIMATE, AND ARE NEITHER BINDING ON THE GOVERNMENT NOR CONFER ANY RIGHTS ON THE PURCHASER UNLESS THE PURCHASER HAS INSPECTED THE MATERIAL IN ANY PARTICULAR LOT, IN WHICH EVENT THE GOVERNMENT SHALL DELIVER THE MATERIAL INSPECTED OR MATERIAL SIMILAR THERETO, AND, IF THE GOVERNMENT DOES NOT SO DELIVER, THE PURCHASER MAY RESCIND AS TO SUCH LOT BUT SHALL HAVE NO CLAIM TO THE UNDELIVERED MATERIAL OR FOR DAMAGES. THE PURCHASER AGREES THAT IT HAS HAD AMPLE OPPORTUNITY TO INSPECT THE MATERIAL. THIS IS NOT A SALE BY SAMPLE. IF, AFTER THE DATE OF THE PURCHASER'S BID, THE GOVERNMENT DIVERTS ANY MATERIAL IN A LOT IN WHICH THE PRICE IS NOT STATED IN TERMS OF QUANTITY OR WEIGHT, THE PURCHASER MAY RESCIND AS TO SUCH LOT BUT SHALL HAVE NO CLAIM TO THE DIVERTED MATERIAL OR FOR DAMAGES. RESPONSE TO THE REQUEST FOR BIDS THE SUPREME STEEL WAREHOUSE CORPORATION SUBMITTED A BID WHEREIN IT OFFERED TO PURCHASE LOT NO. 2 AT THE LUMP-SUM PRICE OF $130,611 AND FORWARDED THEREWITH A DEPOSIT OF $35,000 AS REQUIRED BY THE CATALOG. SIX OTHER BIDS WERE RECEIVED RANGING IN AMOUNT FROM $4,500 TO $43,689. THE BID OF THE SUPREME STEEL WAREHOUSE CORPORATION, BEING THE HIGHEST RECEIVED, WAS ACCEPTED ON JANUARY 28, 1949, AND THE CORPORATION WAS REQUESTED TO MAKE PAYMENT OF THE BALANCE OF THE PURCHASE PRICE. ALSO, THE CORPORATION WAS ADVISED THAT RELEASE OF MATERIAL WOULD BE AUTHORIZED AS SOON AS PAYMENT WAS RECEIVED AND THAT THE EXPIRATION DATE FOR THE REMOVAL OF THE MATERIAL WAS FEBRUARY 28, 1949.

IN YOUR LETTER IT IS STATED THAT, PRIOR TO THE DATE SET FOR OPENING OF BIDS, APPROXIMATELY 700 MEASUREMENT TONS OF SIMILAR MATERIAL WERE ADDED TO THE LOT, THEREBY INCREASING THE ESTIMATED GROSS MEASUREMENT TONNAGE TO 2,400 TONS, IT BEING STATED THAT " THE ADDITIONAL TONNAGE WAS ADDED TO COMPENSATE FOR PALLETING AND VOIDS.' IT IS STATED FURTHER THAT THE ESTIMATE OF 1,700 MEASUREMENT TONS WAS ARRIVED AT BY MULTIPLYING THE LENGTH, WIDTH, AND HEIGHT OF THE LOT TO DETERMINE THE GROSS CUBIC FEET AND THE RESULT WAS DIVIDED BY 40. ALSO, IT IS STATED THAT " ALTHOUGH THE CONTRACTOR HAS ASSERTED THAT IT INSPECTED THE MATERIAL OFFERED FOR SALE PRIOR TO THE DATE THE BIDS WERE OPENED, THE CONTRACTING OFFICER HAS NO RECORD THAT SUCH INSPECTION WAS IN FACT EVER MADE.'

WITH SPECIFIC RESPECT TO THE CONTRACTOR'S PROTEST IT IS STATED IN YOUR LETTER THAT, AFTER THE MATERIAL WAS INSPECTED ON FEBRUARY 1, 1949, BY REPRESENTATIVES OF THE CORPORATION, ONE OF THE REPRESENTATIVES REQUESTED THE CONTRACTING OFFICER TO CANCEL THE CONTRACT AND ASSIGNED AS REASONS FOR SUCH REQUEST: (1) THAT THE LOT DID NOT CONTAIN 1,700 TONS; (2) THAT THERE WERE MARINE PARTS AND OTHER EXTRANEOUS MATERIALS IN THE LOT; AND (3) THAT THE MATERIAL WAS PACKED IN BOXES SO THAT THE NET TONNAGE DID NOT APPROXIMATE THE ESTIMATE SET FORTH IN THE CATALOG. IN ADDITION, THE CORPORATION ADVISED, BY TELEGRAM DATED FEBRUARY 1, 1949, THAT THE MATERIALS OFFERED FOR DELIVERY DID NOT CORRESPOND WITH THE PUBLISHED DESCRIPTION AND REQUESTED THAT THE DEPOSIT OF $35,000 BE RETURNED. THEREAFTER, THE CONTRACT WAS TERMINATED BECAUSE OF THE CONTRACTOR'S FAILURE TO PAY THE BALANCE OF THE PURCHASE PRICE WITHIN THE TIME SPECIFIED AND THE SUM OF $32,652.75 WAS ASSESSED AS LIQUIDATED DAMAGES IN ACCORDANCE WITH PARAGRAPH 4 OF THE CONDITIONS OF THE CONTRACT.

IT IS STATED IN YOUR LETTER THAT, WHILE THERE WERE SOME MARINE PARTS AND OTHER EXTRANEOUS MATERIAL IN THE LOT, IT IS ESTIMATED THAT NOT MORE THAN ONE OR TWO PERCENT OF THE LOT CONSISTED OF SUCH PARTS AND MATERIAL. IT IS STATED FURTHER THAT THE SALVAGE REPAIR PARTS WERE SOLD ON A LUMP-SUM BASIS, AND THAT THE TONNAGE ESTIMATE CONTAINED IN THE CATALOG REPRESENTS AN EFFORT ON THE PART OF THE CONTRACTING OFFICER TO GIVE BIDDERS AN APPROXIMATION OF THE AMOUNT OF MATERIAL OFFERED FOR SALE. FINALLY, IT IS STATED IN YOUR LETTER THAT, IN VIEW OF THE CLAIM MADE BY SUPREME STEEL WAREHOUSE CORPORATION, THE CONTRACTING OFFICER HAS BEEN DIRECTED NOT TO TAKE ANY FURTHER ACTION IN THE MATTER UNTIL A DECISION HAS BEEN RENDERED WITH RESPECT THERETO.

THE CONTRACTOR'S ATTORNEYS HAVE SUBMITTED TO THIS OFFICE A MEMORANDUM WHEREIN IT IS CONTENDED THAT THERE WAS NO MEETING OF MINDS OF THE PARTIES TO THE CONTRACT AS TO WHAT, HOW MUCH, OR UNDER WHAT CONDITIONS THE MATERIAL WAS SOLD AND THAT, IF THERE WAS A CONTRACT, THE CONTRACTOR, AS PURCHASER, IN GOOD CONSCIENCE AND AS A MATTER OF LAW, IS ENTITLED TO A RESCISSION---

(1) BECAUSE THE NAVY MADE MATERIAL MISREPRESENTATIONS WITH KNOWLEDGE OF THEIR FALSITY;

(2) BECAUSE THE MISREPRESENTATIONS, EVEN IF INNOCENTLY MADE, RELATED TO THE QUANTITY BEING SOLD AND NOT MERELY TO THE QUALITY OF THE GOODS;

(3) BECAUSE THE MISSTATEMENTS WENT TO THE VERY IDENTIFICATION OF THE GOODS SOLD AND NOT MERELY TO QUALITY;

(4) BECAUSE ANY DISCLAIMERS OF LIABILITY INSERTED IN THE ALLEGED CONTRACT BY THE NAVY ARE INEFFECTIVE AS A MATTER OF LAW, UNDER ALL OF THE AFOREMENTIONED CIRCUMSTANCES;

(5) BECAUSE IN ANY EVENT THE ATTEMPTED DISCLAIMERS OF LIABILITY WERE NEVER INTENDED BY THE PARTIES TO APPLY TO A DISCREPANCY IN QUANTITY SO GROSS AS THE ONE WHICH EXISTS BETWEEN THE ADVERTISED QUANTITY OF 1700 TONS AND THE AVAILABLE QUANTITY OF 600 TONS.

IN ADDITION TO THE FOREGOING, THE CONTRACTOR'S ATTORNEYS SUBMITTED A SUPPLEMENTAL MEMORANDUM WHEREIN IT IS CONTENDED THAT PHYSICAL OPPORTUNITY TO INSPECT THE MATERIAL WAS LIMITED; THAT THE 700 TONS WERE ADDED TO THE LOT AFTER INSPECTION HAD BEEN MADE BY THE CONTRACTOR'S REPRESENTATIVES BUT BEFORE AWARD; THAT NO NOTICE OF THE ADDITION OF THE 700 TONS WAS GIVEN BY THE NAVY DEPARTMENT UNTIL AFTER AWARD; THAT THE ADDITIONAL 700 TONS WHICH WERE ADDED AND COMMINGLED WITHOUT AN OPPORTUNITY FOR INSPECTION BY THE CONTRACTOR CONTAINED MATERIAL WHOLLY DIFFERENT FROM THAT ADVERTISED FOR SALE; AND THAT THE COMMINGLING OF THE 700 TONS WITH THE MATERIAL ADVERTISED FOR SALE WAS NOT ACCEPTABLE FOR THE REASON THAT THE CONTRACTOR, IF FORCED TO ACCEPT THE 700 TONS AS COMMINGLED WITH THE ORIGINAL LOT, WOULD HAVE TO INCUR EXPENSES FAR IN EXCESS OF THOSE ORIGINALLY CONTEMPLATED FOR SORTING, MOVING, STEVEDORING, AND TRANSPORTING TO THE UNITED STATES MATERIAL WHICH THE CONTRACTOR NEVER HAD AN OPPORTUNITY TO INSPECT AND UPON WHICH IT DID NOT BID.

IN SUPPORT OF ITS CONTENTIONS THAT THE GOVERNMENT MADE MATERIAL MISREPRESENTATIONS WITH KNOWLEDGE OF THEIR FALSITY, OR MISREPRESENTATIONS WHICH, EVEN IF INNOCENTLY MADE, RELATED TO THE QUANTITY SOLD AND NOT MERELY TO THE QUALITY OF THE GOODS, THE CONTRACTOR CITED SEVERAL COURT DECISIONS, MOST OF WHICH NOT ONLY DID NOT INVOLVE CONTRACTUAL PROVISIONS SUCH AS ARE HERE UNDER CONSIDERATION BUT DID NOT EVEN RELATE TO THE SALE OF SURPLUS PROPERTY BY THE GOVERNMENT.

IN SUPPORT OF THE CONTENTION THAT THE CONTRACTOR SHOULD BE RELIEVED FROM THE CONTRACT BECAUSE THE 700 TONS OF MATERIAL WERE COMMINGLED WITH THE MATERIAL ADVERTISED FOR SALE, THERE IS CITED THE CASE OF WILLIAM ROSENBLATT V. UNITED STATES, 63 C.1CLS. 362. HOWEVER, IN THAT CASE THE PLAINTIFF INSPECTED THE LOT OFFERED FOR SALE, BID ACCORDINGLY, WAS ANNOUNCED AS THE HIGHEST BIDDER, AND MADE THE REQUIRED DEPOSIT. THE BIDDER REINSPECTED THE LOT AND FOUND THE MATERIAL CHANGED. HE PROTESTED AGAINST BEING REQUIRED TO TAKE THE LOT AS CHANGED, WHEREUPON HE WAS ADVISED THAT THE AWARD HAD BEEN CANCELED AND THE DEPOSIT SUBMITTED WITH HIS BID WAS FORFEITED AND RETAINED. THE COURT HELD THAT THE CONTRACT OF SALE WAS NOT COMPLETED AND SINCE THE GOVERNMENT SUFFERED NO LOSS IT COULD NOT, UNDER THE CIRCUMSTANCES, RETAIN THE DEPOSIT. ALSO, THERE IS CITED THE CASE OF ELLIS V. UNITED STATES, 68 C.1CLS. 11, CERTIORARI DENIED, 282 U.S. 846, WHEREIN THE COURT HELD THAT THE PLAINTIFFS HAD THE RIGHT TO RESCIND THE CONTRACT AND TO RECOVER THE AMOUNT PAID FOR THE MATERIAL. HOWEVER, IN THAT CASE THE ARTICLES OFFERED FOR SALE WERE AUCTIONED OFF BY LOT NUMBER AND DESCRIPTION WITHOUT BEING SEGREGATED IN LOTS AS DESCRIBED IN THE CATALOG. IN THE PRESENT CASE, THE CONTRACT NOT ONLY HAD BEEN AWARDED TO THE CONTRACTOR ON THE BASIS OF ITS BID BUT THE LOT OF MATERIAL OFFERED FOR SALE WAS SEGREGATED AND SOLD AS ADVERTISED. THE ADDITION OF 700 TONS OF MATERIAL WOULD NOT AFFORD ANY BASIS FOR RELIEVING THE CONTRACTOR FROM ITS OBLIGATION UNDER THE CONTRACT SINCE, FOR THE REASONS HEREINAFTER STATED, THE CONTRACTOR WOULD NOT HAVE BEEN ENTITLED TO RELIEF EVEN WITHOUT THE ADDITION OF SUCH MATERIAL. FURTHERMORE, THERE HAS NOT BEEN FURNISHED SATISFACTORY EVIDENCE ESTABLISHING THAT THE MATERIAL ADDED WAS NOT SIMILAR TO THAT IN THE ORIGINAL LOT OR THAT THE CONTRACTOR'S RIGHTS WERE PREJUDICED BY THE ADDITION OF SAID MATERIAL.

THE MATERIAL SOLD IN THE PRESENT CASE WAS OFFERED FOR SALE WITHOUT ANY WARRANTIES OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, AND IT WAS EXPRESSLY AGREED THAT THE DESCRIPTIONS IN EACH LOT AND ANY STATEMENTS, ORAL OR WRITTEN, WITH RESPECT TO THE MATERIAL WERE STATEMENTS OF OPINION ONLY, AND THAT THE QUANTITIES AND WEIGHTS IN EACH LOT WERE APPROXIMATE AND WERE NOT BINDING ON THE GOVERNMENT AND CONFERRED NO RIGHTS ON THE PURCHASER UNLESS THE PURCHASER INSPECTED THE MATERIAL IN ANY PARTICULAR LOT. THE CONTRACTOR'S BID WAS MADE AND ACCEPTED ON THESE TERMS. HENCE, IT CANNOT BE SAID THAT THE GOVERNMENT IN ANY WAY BREACHED THE TERMS AND CONDITIONS OF THE SALE OR THAT THERE WAS A MISREPRESENTATION OF THE MATERIAL BY THE GOVERNMENT EITHER AS TO QUALITY OR QUANTITY. THIS CONCLUSION IS IN ACCORDANCE WITH ESTABLISHED PRINCIPLES OF LAW APPLICABLE TO SIMILAR SITUATIONS. SEE LYNCH V. CURFMAN, 65 MINN. 170, 68 N.W. 5, 7; AND WILLISTON AND SALES (2D ED.), SECTION 213.

WHILE IT IS TRUE THE LOT INVOLVED WAS REPRESENTED IN THE CATALOG AS CONTAINING 1,700 MEASUREMENT TONS, MORE OR LESS, WHEREAS THE CONTRACTOR CLAIMS THAT LESS THAN 600 TONS, EXCLUSIVE OF THE ADDITIONAL 700 TONS, WERE AVAILABLE FOR DELIVERY, UNDER THE EXPRESS TERMS OF ARTICLE 3 OF THE CONDITIONS OF THE CONTRACT SUCH A VARIATION IN QUANTITY WOULD AFFORD A PROPER BASIS FOR A REFUND ONLY IF THE PRICE FOR THE LOT HAD BEEN STATED "IN TERMS OF QUANTITY.' AS IS POINTED OUT IN YOUR LETTER OF MAY 24, 1949, SUPRA, THE CONTRACTOR'S BID PRICE--- THE CONTRACT PRICE--- WAS FOR THE ENTIRE LOT AND CLEARLY IS NOT SUBJECT TO AN ADJUSTMENT. CF. 18 COMP. GEN. 594.

WHILE IT IS CONTENDED ON THE CONTRACTOR'S BEHALF THAT THE 700 TONS WERE ADDED TO THE LOT AFTER INSPECTION BUT BEFORE AWARD, THERE IS SOME INDICATION THAT THE CONTRACTOR SUBMITTED ITS BID BEFORE THE MATERIAL WAS INSPECTED IN RELIANCE UPON THE DESCRIPTION IN THE CATALOG, NOTWITHSTANDING THE STIPULATIONS IN PARAGRAPH 2 OF THE CONTRACT CONDITIONS, THE STIPULATION IN THE CATALOG THAT IN ORDER TO INSPECT THE MATERIAL CONTACT SHOULD BE MADE WITH J. D. BOWMAN, USN, AND THE STIPULATION THAT " INSPECTION IS STRONGLY ENCOURAGED.' IN THE CASE OF BARNARD V. KELLOGG, 77 U.S. 383, 388, THE SUPREME COURT STATED THE APPLICABLE PRINCIPLE OF LAW AS FOLLOWS:

NO PRINCIPLE OF THE COMMON LAW HAS BEEN BETTER ESTABLISHED, OR MORE OFTEN AFFIRMED, BOTH IN THIS COUNTRY AND IN ENGLAND, THAN THAT IN SALES OF PERSONAL PROPERTY, IN THE ABSENCE OF EXPRESS WARRANTY, WHERE THE BUYER HAS AN OPPORTUNITY TO INSPECT THE COMMODITY, AND THE SELLER IS GUILTY OF NO FRAUD, AND IS NEITHER THE MANUFACTURER NOR GROWER OF THE ARTICLE HE SELLS, THE MAXIM OF CAVEAT EMPTOR APPLIES. SUCH A RULE, REQUIRING THE PURCHASER TO TAKE CARE OF HIS OWN INTERESTS, HAS BEEN FOUND BEST ADAPTED TO THE WANTS OF TRADE IN THE BUSINESS TRANSACTIONS OF LIFE. AND THERE IS NO HARDSHIP IN IT, BECAUSE IF THE PURCHASER DISTRUSTS HIS JUDGMENT HE CAN REQUIRE OF THE SELLER A WARRANTY THAT THE QUALITY OR CONDITION OF THE GOODS HE DESIRES TO BUY CORRESPONDS WITH THE SAMPLE EXHIBITED. IF HE IS SATISFIED WITHOUT A WARRANTY, AND CAN INSPECT AND DECLINES TO DO IT, HE TAKES UPON HIMSELF THE RISK THAT THE ARTICLE IS MERCHANTABLE. AND HE CANNOT RELIEVE HIMSELF AND CHARGE THE SELLER ON THE GROUND THAT THE EXAMINATION WILL OCCUPY TIME, AND IS ATTENDED WITH LABOR AND INCONVENIENCE. IF IT IS PRACTICABLE, NO MATTER HOW INCONVENIENT, THE RULE APPLIES. * * * ALSO, SEE LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, WHEREIN IT WAS UNSUCCESSFULLY CONTENDED THAT THE UNITED STATES WAS LIABLE IN DAMAGES FOR A SHORTAGE IN DELIVERY OF SPECIFIED LOTS OF SCRAP IRON AND STEEL WHICH HAD BEEN OFFERED FOR SALE IN A SCHEDULE SHOWING THE VARIOUS FORTS WHERE THE SCRAP WAS ACCUMULATED AND THE APPROXIMATE WEIGHTS AT EACH LOCATION AND WHICH HAD BEEN PURCHASED "AS IS, WHERE IS" FOR A STIPULATED LUMP-SUM PRICE, THE COURT STATING AT PAGE 92: * * * THE NAMING OF QUANTITIES CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT. ALSO, SEE MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67, AND 16 COMP. GEN. 749.

ACCORDINGLY, I HAVE TO ADVISE THAT, ON THE BASIS OF THE PRESENT RECORD, I FIND NO LEGAL BASIS FOR A RESCISSION OF THE CONTRACT OR FOR REFUND OF THAT PORTION OF THE DEPOSIT REPRESENTING THE AMOUNT ASSESSED AS LIQUIDATED DAMAGES UNDER PARAGRAPH 4 OF THE CONTRACT.