B-95762, NOVEMBER 16, 1950, 30 COMP. GEN. 188

B-95762: Nov 16, 1950

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HAVING FAILED TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT THE PROPERTY WHICH WOULD HAVE DISCLOSED THE ABSENCE OF THE MOTOR. MAY NOT BE REFUNDED THE VALUE OF THE MOTOR WHICH WAS NOT DELIVERED WITH THE COMPRESSOR. 1950: FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28. WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $75. WHICH WAS DESCRIBED AS FOLLOWS: AIR OR GAS COMPRESSOR. YOUR BID WAS ACCEPTED ON LOT NO. 8. PAYMENT THEREFOR WAS MADE BY YOU IN THE FULL AMOUNT. SUBSEQUENTLY YOU ADVISED THE PHILADELPHIA NAVAL SHIPYARD THAT THE MOTOR DESCRIBED UNDER LOT NO. 8 WAS NOT RECEIVED WITH THE AIR COMPRESSOR AND REQUESTED IMMEDIATE SHIPMENT THEREOF. AFTER FURTHER CORRESPONDENCE REVEALED THAT THE MOTOR WAS NOT WITH THE COMPRESSOR DURING THE INSPECTION PERIOD.

B-95762, NOVEMBER 16, 1950, 30 COMP. GEN. 188

SALES - SURPLUS PROPERTY - DISCLAIMER OF WARRANTY THE PURCHASER OF A SURPLUS COMPRESSOR ADVERTISED ON THE BASIS OF PROPERTY RECORDS AS BEING EQUIPPED WITH A MOTOR AND OFFERED FOR SALE BY THE GOVERNMENT WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, HAVING FAILED TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT THE PROPERTY WHICH WOULD HAVE DISCLOSED THE ABSENCE OF THE MOTOR, MAY NOT BE REFUNDED THE VALUE OF THE MOTOR WHICH WAS NOT DELIVERED WITH THE COMPRESSOR.

COMPTROLLER GENERAL WARREN TO MILL PRODUCTS COMPANY, NOVEMBER 16, 1950:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF APRIL 28, 1950, WITH RESPECT TO SETTLEMENT DATED DECEMBER 30, 1949, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR $75, UNDER CONTRACT NO. N151S-76498 DATED SEPTEMBER 24, 1946.

IN RESPONSE TO SALES CATALOG B-17-47, ISSUED BY THE PHILADELPHIA NAVAL SHIPYARD, YOU SUBMITTED A BID DATED SEPTEMBER 10, 1946, OFFERING TO PURCHASE, AMONG OTHERS, LOT NO. 8, FOR $155, WHICH WAS DESCRIBED AS FOLLOWS:

AIR OR GAS COMPRESSOR, LOCAL 40359. MFG. BY WORTHINGTON PUMP AND MACHINERY CO. 8 INCHES X 6 1/2 INCHES, 3 1/2 INCHES X 9 INCHES 6000 C.F.H. MOTOR 50HP/440V/AC3PH/60CY/1750RPM.

YOUR BID WAS ACCEPTED ON LOT NO. 8, IN ADDITION TO OTHER LOTS, ON SEPTEMBER 24, 1946, CONSUMMATING THE SUBJECT CONTRACT IN THE TOTAL AMOUNT OF $250.60, AND PAYMENT THEREFOR WAS MADE BY YOU IN THE FULL AMOUNT. SUBSEQUENTLY YOU ADVISED THE PHILADELPHIA NAVAL SHIPYARD THAT THE MOTOR DESCRIBED UNDER LOT NO. 8 WAS NOT RECEIVED WITH THE AIR COMPRESSOR AND REQUESTED IMMEDIATE SHIPMENT THEREOF. AFTER FURTHER CORRESPONDENCE REVEALED THAT THE MOTOR WAS NOT WITH THE COMPRESSOR DURING THE INSPECTION PERIOD, IT APPARENTLY HAVING BEEN REMOVED PRIOR TO ADVERTISING AND, THEREFORE, WAS NOT AVAILABLE FOR SHIPMENT, YOU FILED A CLAIM FOR $75 AS REPRESENTING THE VALUE OF THE MOTOR, AND THE SAID CLAIM WAS DISALLOWED BY THE SETTLEMENT OF DECEMBER 30, 1949, FOR THE REASONS SET FORTH THEREIN.

IN YOUR LETTER OF APRIL 28, 1950, YOU REQUEST IMMEDIATE SHIPMENT OF THE MOTOR OR PAYMENT OF THE AMOUNT CLAIMED. IN SUPPORT OF SUCH REQUEST YOU STATE THAT THE MOTOR WAS WITH THE COMPRESSOR AT THE TIME THE MATERIAL WAS ADVERTISED AND AVAILABLE FOR INSPECTION BUT THAT IT WAS LATER REMOVED, AND YOU REFER TO SUCH INFORMATION APPEARING IN THE SALES CATALOG AS THE MOTOR NUMBER, VOLTAGE, AND THE TYPE OF CURRENT USED, ETC., TO SHOW THAT THE INFORMATION WAS TAKEN FROM LABELS ON THE MOTOR; ALSO, YOU REFER TO THE DESCRIPTION OF THE EQUIPMENT ON THE INVOICE WHICH SHOWS MOTOR NUMBER, ETC., AS FURTHER PROOF THAT YOU HAD PURCHASED THE MOTOR AS WELL AS THE COMPRESSOR. BASICALLY, YOUR CONTENTION IS THAT YOU DID NOT RECEIVE WHAT WAS ADVERTISED FOR SALE AND PURCHASED BY YOU.

PARAGRAPH 2 OF THE CONDITIONS AND TERMS OF CONTRACT NO. N151S-76498 PROVIDES, IN PERTINENT PART, THAT:

ALL MATERIAL IS SOLD WITHOUT ANY WARRANTIES OR GUARANTIES WHATSOEVER, EXPRESS OR IMPLIED. THE DESCRIPTION IN EACH LOT * * * ARE STATEMENTS OF OPINION ONLY, * * * AND ARE NEITHER BINDING ON THE GOVERNMENTNOR CONFER ANY RIGHTS ON THE PURCHASER UNLESS THE PURCHASER HAS INSPECTED THE MATERIAL IN ANY PARTICULAR LOT * * *. THE PURCHASER AGREES THAT IT HAS HAD AMPLE OPPORTUNITY TO INSPECT THE MATERIAL. * * * SUCH LANGUAGE, WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES ARE MADE BY THE GOVERNMENT, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THE INSTANT CASE --- NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. SEE, IN THAT CONNECTION, LUMBRAZO V. WOODRUFF, 175 N.E. 525; W.E. HEDGER COMPANY V. UNITED STATES, 52 F. 2D 31, CERTIORARI DENIED, 284 U.S. 676; TRIAD CORPORATION V. UNITED STATES, 63 C.1CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.1CLS. 424. AS A MATTER OF FACT, PARAGRAPH 2 ALSO SPECIFICALLY STATES THAT THE DESCRIPTION FURNISHED IN EACH LOT OF THE SALES CATALOG IS MERELY A STATEMENT OF OPINION, THAT IS TO SAY, THE MATERIAL OFFERED FOR SALE IN LOT NO. 8 WAS ACCURATELY DESCRIBED. IN ADDITION, PARAGRAPH 2 CLEARLY PROVIDES THAT THE DESCRIPTIONS--- BEING STATEMENTS OF OPINION ONLY--- ARE NOT BINDING ON THE GOVERNMENT AND CONFER NO RIGHTS ON THE PURCHASER UNLESS AN INSPECTION OF THE MATERIAL HAS BEEN MADE BY THE PURCHASER PRIOR TO THE SUBMISSION OF THE BID. THE RECORD SHOWS THAT YOU DID NOT INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID AND THAT, IF YOU HAD MADE SUCH AN INSPECTION AS YOU WERE CAUTIONED TO DO BY THE INVITATION, YOU WOULD HAVE DISCOVERED THE DISCREPANCY OF WHICH YOU NOW COMPLAIN, SINCE IT IS ADMINISTRATIVELY REPORTED THAT THE COMPRESSOR ,WAS WITHOUT MOTOR WHEN IT WAS SHOWN FOR INSPECTION.' THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE MATERIALS ARE NOT AS DESCRIBED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.1CLS. 373; TRIAD CORPORATION V. UNITED STATES, 63 C.1CLS. 151; S. BRODY V. UNITED STATES, 64 C.1CLS. 538; SILVERSTEIN AND SON V. UNITED STATES, 69 C.1CLS. 412; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.1CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 273 U.S. 67. MOTTRAM V. UNITED STATES, 271 U.S. 15; MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67.

NOR DOES IT APPEAR THAT THE QUESTION HERE INVOLVED IS ONE OF SHORTAGE IN DELIVERY. THE BASIC ARTICLE SOLD WAS A COMPRESSOR WHICH WAS, IN FACT, DELIVERED. THE MOTOR MERELY CONSTITUTED EQUIPMENT FOR THE COMPRESSOR AND THE FACT THAT THE COMPRESSOR WAS NOT EQUIPPED WITH A MOTOR AS ADVERTISED AMOUNTED TO NOTHING MORE THAN AN ERROR IN DESCRIPTION. AN ALMOST IDENTICAL SITUATION WAS INVOLVED IN THE ABOVE CITED CASE OF W. E. HEDGER COMPANY V. UNITED STATES. THERE A TUGBOAT WHICH HAD BEEN ADVERTISED FOR SALE ON AN "AS IS" BASIS AND HAD BEEN DESCRIBED IN THE ADVERTISEMENT AS "EQUIPPED WITH TOWING ENGINE" WAS DELIVERED WITHOUT SUCH AN ENGINE. THE COURT IN DENYING RELIEF STATED IN PERTINENT PART THAT " THE PETITIONER DID NOT BUY A TUG AND A TOWING ENGINE SEPARATELY, BUT BOUGHT A TUG WHICH IT SUPPOSED WAS EQUIPPED WITH A TOWING ENGINE; THAT IS, THE SUBJECT MATTER OF THE SALE WAS A VESSEL WITH ITS EQUIPMENT INCLUDED.' IT SEEMS APPARENT THAT THE SUBJECT MATTER OF THE INSTANT SALE WAS INTENDED TO BE A COMPRESSOR WITH ITS EQUIPMENT--- MOTOR--- INCLUDED. THIS VIEW FINDS CONCLUSIVE SUPPORT IN THE FACT THAT THE SHIPMENT WAS NOT DESCRIBED SEPARATELY IN THE CONTRACT BUT WAS SPECIFICALLY DESIGNATED AS A LOT. THAT CONNECTION, SEE LIPSHITZ AND COHEN V. UNITED STATES AND MOTTRAM V. UNITED STATES, SUPRA.

UNDER THE CIRCUMSTANCES, AND SINCE THE SELLING AGENCY OF THE GOVERNMENT IS SHOWN TO HAVE ACTED IN ENTIRE GOOD FAITH IN THE MATTER BY DESCRIBING THE EQUIPMENT ON THE BASIS OF INFORMATION CONTAINED IN THE APPLICABLE PROPERTY RECORDS AND THEREFORE FOR WHAT IT WAS BELIEVED TO BE, THERE IS NO LEGAL BASIS ON WHICH YOUR CLAIM PROPERLY MAY BE ALLOWED AND THE SETTLEMENT OF DECEMBER 30, 1949, IS SUSTAINED.