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B-173216, NOV 15, 1971

B-173216 Nov 15, 1971
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WHICH WERE PART OF THE CONTRACT. GAO HAS HELD THAT THIS REQUIREMENT IS MET WHEN SALES PERSONNEL USE THE SAME INFORMATION SUPPLIED BY THE REPORTING AGENCY WITHOUT NOTICE OF ERROR. THAT THE SALES PERSONNEL ARE UNDER NO DUTY TO DETERMINE THE ACCURACY OF THE INFORMATION. THE ACTIONS OF THE CONTRACTING OFFICER WERE PROPER. ITEM NO. 28 WAS ADVERTISED AS FOLLOWS: COPPER PLATE: 96" L. IS AS FOLLOWS: "CONDITION AND LOCATION OF PROPERTY. ALL PROPERTY LISTED THEREIN IS OFFERED FOR SALE 'AS IS'. 'WHERE IS'. THE DESCRIPTION OF THE PROPERTY IS BASED ON THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE. IT IS REPORTED THAT PRIOR TO EFFECTING DELIVERY ON ITEM NO. 28. YOU REQUESTED THE SALES CONTRACTING OFFICER TO HAVE THE ITEM WEIGHED TO VERIFY THAT THE COPPER THEREIN AMOUNTED TO APPROXIMATELY 4280 POUNDS.

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B-173216, NOV 15, 1971

CONTRACT - DEFAULT - ITEM SPECIFICATIONS DENIAL OF PROTEST BY FRED SCHWARTZ AGAINST THE ACTIONS OF THE SALE CONTRACTING OFFICE, DEFENSE SURPLUS SALES OFFICE, OAKLAND, CAL., WHO FOUND PROTESTANT IN DEFAULT ON A SALES CONTRACT, AND WITHHELD THE BID DEPOSIT AS LIQUIDATED DAMAGES. THE GENERAL SALE TERMS AND CONDITIONS, WHICH WERE PART OF THE CONTRACT, MERELY REQUIRE THAT THE SALES OFFICE PROVIDE THE "BEST INFORMATION AVAILABLE" AS TO THE ITEM BEING SOLD. GAO HAS HELD THAT THIS REQUIREMENT IS MET WHEN SALES PERSONNEL USE THE SAME INFORMATION SUPPLIED BY THE REPORTING AGENCY WITHOUT NOTICE OF ERROR, AND THAT THE SALES PERSONNEL ARE UNDER NO DUTY TO DETERMINE THE ACCURACY OF THE INFORMATION. THEREFORE, THE ACTIONS OF THE CONTRACTING OFFICER WERE PROPER.

TO MR. FRED SCHWARTZ:

WE REFER TO YOUR LETTER OF JUNE 5, 1971, AND SUBSEQUENT CORRESPONDENCE, PROTESTING THE DECISION OF THE SALES CONTRACTING OFFICER, DEFENSE SUPPLY AGENCY, DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA, WHICH FOUND YOU IN DEFAULT ON ITEM NO. 28, CONTRACT NO. 44 1158-146, AWARDED APRIL 22, 1971. IN ACCORDANCE WITH THE DEFAULT CLAUSE, GENERAL SALE TERMS AND CONDITIONS, OF THE CONTRACT, YOUR BID DEPOSIT OF $420.00 HAS BEEN RETAINED BY THE GOVERNMENT AS LIQUIDATED DAMAGES.

ITEM NO. 28 WAS ADVERTISED AS FOLLOWS:

COPPER PLATE: 96" L, 48" W, .2576" THICK.

FSN 9535-240-5122. OUTSIDE, AREA F,

ROW 24 - IN BUNDLES - UNUSED - FAIR

CONDITION.

TOTAL COST $3250

EST. TOTAL WT. 4280 LBS. 10 EACH

THE INVITATION FOR BIDS INCORPORATED BY REFERENCE A BOOKLET ENTITLED "SALE BY REFERENCE" CONTAINING THE GENERAL SALE TERMS AND CONDITIONS APPLICABLE TO SALES OFFERED BY THE DEFENSE SURPLUS SALES OFFICES. THE GENERAL SALE TERMS AND CONDITIONS, ON WHICH YOU BASE YOUR CLAIM, IS AS FOLLOWS:

"CONDITION AND LOCATION OF PROPERTY. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE INVITATION, ALL PROPERTY LISTED THEREIN IS OFFERED FOR SALE 'AS IS', AND 'WHERE IS'. THE DESCRIPTION OF THE PROPERTY IS BASED ON THE BEST INFORMATION AVAILABLE TO THE SALES OFFICE. HOWEVER, THE GOVERNMENT MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, ON ITS FITNESS FOR ANY USE OR PURPOSE *** ."

IT IS REPORTED THAT PRIOR TO EFFECTING DELIVERY ON ITEM NO. 28, YOU REQUESTED THE SALES CONTRACTING OFFICER TO HAVE THE ITEM WEIGHED TO VERIFY THAT THE COPPER THEREIN AMOUNTED TO APPROXIMATELY 4280 POUNDS, WHICH WAS SHOWN IN THE INVITATION AS THE ESTIMATED TOTAL WEIGHT FOR THE TEN COPPER PLATES COMPRISING THAT ITEM. BY LETTER OF MAY 10, 1971, THE SALES CONTRACTING OFFICER ADVISED YOU THAT THE GOVERNMENT WAS UNDER NO CONTRACTUAL OBLIGATION TO WEIGH THE ITEM; HOWEVER, AVAILABLE GOVERNMENT RECORDS REFLECTED THAT EACH PLATE WEIGHED 380-381 POUNDS (OR 3800-3810 POUNDS FOR THE TEN PLATES). YOU CONTEND THAT SINCE THE TRUE WEIGHT OF THE PLATES WAS AVAILABLE TO THE SALES CONTRACTING OFFICER, SHE NEGLIGENTLY OMITTED THOSE WEIGHTS FROM THE SALES DESCRIPTION, AND THEREFORE SHE FAILED TO UTILIZE TO THE FULLEST EXTENT THE BEST INFORMATION AVAILABLE. YOU CITE OUR DECISION, B-170310, SEPTEMBER 24, 1970, AS SUPPORT FOR YOUR POSITION.

THE "AVAILABLE GOVERNMENT RECORDS" REFERRED TO BY THE SALES CONTRACTING OFFICER WAS THE FEDERAL SUPPLY CATALOG WHICH THE HOLDING ACTIVITY, SHARPE ARMY DEPOT, CHECKED IN RESPONSE TO THE SALES CONTRACTING OFFICER'S INQUIRY OF MAY 3 AS TO THE ACTUAL WEIGHT OF THE PLATES. IN ADDITION, THE HOLDING ACTIVITY WEIGHED THE ITEM AND FOUND THAT THE TOTAL WEIGHT OF THE ITEM, INCLUDING PALLET, ETC., WAS 4,240 POUNDS. HOWEVER, IT IS REPORTED THAT THE HOLDING ACTIVITY USED THE ESTIMATED WEIGHT SHOWN ON THE TURN-IN DOCUMENT IN PREPARING THE SALES DESCRIPTION, AND THE RECORD DOES NOT CONTAIN ANY INDICATION THAT THE HOLDING ACTIVITY WAS AWARE AT THAT TIME, OR HAD REASON TO SUSPECT, THAT THE WEIGHT OF THE TEN PLATES WAS LESS THAN THE 4,280 POUNDS SHOWN ON THE TURN-IN DOCUMENT. THIS SALES DESCRIPTION WAS TURNED OVER TO THE DEFENSE SURPLUS SALES OFFICE WHICH USED IT WITHOUT CHANGE. THE SALES OFFICE DID NOT INSPECT THE PROPERTY FOR DESCRIPTION PURPOSES, AND IT DOES NOT APPEAR THAT THE SALES PERSONNEL HAD ANY NOTICE THAT THE ACTUAL WEIGHT OF THE PLATES MIGHT NOT HAVE BEEN FAIRLY REPRESENTED IN THE SALES DESCRIPTION.

IN DADOURIAN EXPORT CORP. V UNITED STATES, 291 F. 2D 178 (1961), THE COURT HELD THAT THE "BEST AVAILABLE INFORMATION" PROVISION IN A CLAUSE, SIMILAR TO THE ABOVE CONDITION AND LOCATION OF PROPERTY CLAUSE, DOES NOT CREATE EITHER A CONDITION OR WARRANTY BUT RATHER A NOTICE THAT THE DESCRIPTION MAY NOT BE ACCURATE AND THAT THE GOVERNMENT IS ONLY SAYING THAT IT TRIES TO DO ITS BEST. WE HAVE HELD THAT THE BEST INFORMATION AVAILABLE REQUIREMENT IS MET WHEN SALES PERSONNEL USE THE SAME INFORMATION SUPPLIED BY THE REPORTING AGENCY, WITHOUT NOTICE THAT IT MAY BE IN ERROR, AND THAT IN SUCH SITUATIONS THE SALES PERSONNEL ARE UNDER NO DUTY TO DETERMINE THE ACCURACY OF THE INFORMATION FURNISHED. B-166611, MAY 15, 1969; B-160014, OCTOBER 27, 1966.

SINCE THE SALES OFFICE USED THE SAME SALES DESCRIPTION SUPPLIED TO IT AND WAS WITHOUT NOTICE AS TO THE ACTUAL WEIGHT OF THE PLATES, WE BELIEVE THAT OFFICE SATISFIED THE "BEST INFORMATION AVAILABLE TO THE SALES OFFICE" PROVISION OF THE CONDITION AND LOCATION OF PROPERTY CLAUSE.

THE CASE INVOLVED IN OUR DECISION B-170310, SEPTEMBER 24, 1970, ON WHICH YOU RELY, IS DISTINGUISHABLE FROM THE PRESENT SITUATION SINCE IN THAT CASE THE SALES OFFICE LEFT OUT AN IMPORTANT PART OF THE SALES DESCRIPTION FURNISHED BY THE HOLDING ACTIVITY, AND BECAUSE OF SUCH DELETION WE CONCLUDED THAT THE BEST INFORMATION AVAILABLE WAS NOT USED. THERE WAS NO DELETION OF INFORMATION BY THE SALES OFFICE IN YOUR CASE, AND NO RELIEF MAY BE GRANTED UNDER THE PRINCIPLE SET FORTH IN THE CITED DECISION.

ACCORDINGLY, YOUR PROTEST AGAINST THE ACTIONS OF THE SALES CONTRACTING OFFICER IN FINDING YOU IN DEFAULT ON YOUR CONTRACT AND RETAINING YOUR BID DEPOSIT OF $420.00 IS DENIED.

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