B-156023, JAN. 14, 1966

B-156023, JAN. 14, 1966

TO LAPOINTE INDUSTRIES, INC.:

REFERENCE IS MADE TO YOUR LETTER OF AUGUST 25, 1965, WITH ENCLOSURES, PROTESTING THE FAILURE OF THE ARMY TO RELEASE AND PERMIT DELIVERY TO YOU OF CERTAIN TOOLS LOCATED AT FLEETWOOD METAL PRODUCTS CORPORATION, WHICH YOU STATE WERE PART OF THE GOVERNMENT-OWNED SURPLUS SPECIAL TOOLING SOLD TO YOU BY THE BENDIX CORPORATION FOR USE IN THE MANUFACTURE OF THE AN/ARC- 44 RADIO SET.

THE ARMY REPORTS THAT THE TOOLING IN QUESTION WAS ORIGINALLY PART OF A COMPLETE SET OF SPECIAL TOOLS FOR THE AN/ARC-44 WHICH WAS ACQUIRED BY THE BENDIX CORPORATION UNDER THE PURCHASE ORDER NO. 13611-PP-53 IN 1953 AND 1954 UNDER A SUPPLY CONTRACT AND WAS SUBSEQUENTLY TRANSFERRED AS GOVERNMENT-FURNISHED PROPERTY (LOANED) BY MODIFICATION NO. 3 TO PURCHASE ORDER NO. 4059-PP-60, CONTRACT NO. DA-36-039-SC-86028 (E), WITH THE SAME CONTRACTOR.

ON OCTOBER 18, 1962, THE BENDIX CORPORATION WAS DIRECTED BY THE GOVERNMENT TO TRANSFER THE TOOLING USED TO PRODUCE THE CASE FOR THE RADIO SET TO THE ELECTRONIC ASSISTANCE CORPORATION ON PURCHASE ORDER NO. 52715- PP-61, CONTRACT NO. DA-36-039-SC-89392 (E), AND FOR CONVENIENCE THE TOOLING WAS SHIPPED TO FLEETWOOD METAL PRODUCTS CORPORATION, SUBCONTRACTOR TO ELECTRONIC ASSISTANCE CORPORATION. ACCORDINGLY, ELECTRONIC ASSISTANCE CORPORATION ASSUMED, AND BENDIX WAS RELIEVED OF, RESPONSIBILITY AND ACCOUNTABILITY FOR THE CASE SPECIAL TOOLING LOCATED AT FLEETWOOD'S PLANT, IN ACCORDANCE WITH MODIFICATION NO. 14 TO PURCHASE ORDER NO. 52715-PP-61. THEREAFTER, THE SPECIAL TOOLING AT FLEETWOOD WAS RENTED TO YOU FOR USE ON PURCHASE ORDER NO. 15277-PP-63 AND SUBSEQUENTLY TRANSFERRED ON DECEMBER 1, 1964, BY GOVERNMENT REPRESENTATIVE, TO PURCHASE ORDER NO. 5920-PP-64, CONTRACT NO. DA-36-039-SC-03697 (E), WITH YOUR COMPANY.

ON MAY 27, 1964, THE CONTRACTING OFFICER REQUESTED THE U.S. ARMY ELECTRONICS COMMAND PROPERTY DISPOSAL OFFICER TO EFFECT DISPOSITION OF ALL SPECIAL TOOLING STILL ACCOUNTABLE ON PURCHASE ORDER NO. 4059-PP-60 WITH THE BENDIX CORPORATION, SINCE THE TOOLING WAS NOT IN USE AND THE GOVERNMENT HAD OTHER TOOLING LOCATED AT VARIOUS CONTRACTORS' PLANTS AVAILABLE FOR ANY ANTICIPATED REQUIREMENTS FOR THE RADIO SET AN/ARC 44. BENDIX THEREFORE SOLICITED BIDS TO BE OPENED NOVEMBER 3, 1964, ON:

"ONE LOT OF MISCELLANEOUS FIXTURES, DIES, MOLDS, ETC., USED IN THE MANUFACTURE OF THE AN/ARC-44 ACQUIRED AT A COST OF APPROXIMATELY $295,000.00 AND CONSISTING OF APPROXIMATELY 1750 LINE ITEMS. THE SPECIAL TOOLING IS LOCATED, IN PART, ON THE PREMISES OF THE BENDIX CORPORATION, THE PRIME CONTRACTOR, AND THE BALANCE AT THE PLANTS OF APPROXIMATELY FORTY (40) SUPPLIERS TO THE PRIME CONTRACTOR. ADDITIONAL INFORMATION WILL BE PROVIDED TO INTERESTED BIDDERS, BY THE BENDIX CORPORATION UPON REQUEST.'

THE SOLICITATION ALSO INCLUDED THE FOLLOWING PERTINENT PROVISIONS:

"BIDDERS ARE ADVISED THAT THIS SET OF SPECIAL TOOLING IS NOT GUARANTEED TO BE A COMPLETE SET, NOR TO BE CAPABLE OF PRODUCING THE END-ITEM ON ITS LATEST VERSION. THE TOOLING MAY BE INSPECTED OCTOBER 23 AND OCTOBER 27, 1964 DURING THE HOURS OF 1:00 P.M. TO 4:00 P.M.

"PROPERTY IS OFFERED FOR SALE "AS IS, WHERE IS.' FOR INSPECTION AND ADDITIONAL INFORMATION, CONTACT MR. C. W. UNDERWOOD, TELEPHONE 301 VA-3- 2200 AT THE BENDIX CORPORATION, TOWSON, MARYLAND.

"BIDS WILL BE ACCEPTED ON LOT BASIS ONLY.

"NEITHER THE GOVERNMENT NOR THIS COMPANY WILL MAKE GUARANTY, WARRANTY OR REPRESENTATION EXPRESSED OR IMPLIED AS TO QUANTITY, CONDITION, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY.

"NO CLAIMS WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION (SIC) OF THE SALE BASED ON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.'

IN YOUR LETTER OF PROTEST YOU STATE THAT THE LETTER FROM BENDIX OFFERING THE TOOLS FOR SALE TAKES NO EXCEPTION TO ANY PART OF THE AN/ARC-44 TOOLING WHATSOEVER, AND THAT IT STATES VERY PLAINLY THAT ALL TOOLS ARE AVAILABLE, THOUGH NOT GUARANTEED TO BE A COMPLETE SET. YOU STATE FURTHER THAT THESE PARTICULAR TOOLS WERE UNDER YOUR ACCOUNTABILITY AT THE TIME OF THE PURCHASE AND THAT IT IS THEREFORE QUITE OBVIOUS THAT YOU KNEW ABOUT THEM AND THAT THEY ARE YOUR PROPERTY. YOU ALSO REFER TO THE FACT THAT OUR LETTER OF JULY 2, 1965, B-156023, SPECIFICALLY MENTIONS THIS PORTION OF THE TOOLS.

AS STATED ABOVE THE TOOLING WAS DESCRIBED AS "ONE LOT OF MISCELLANEOUS FIXTURES, DIES, MOLDS, ETC.' AND WAS LIMITED TO TOOLING WHICH WAS "ACCOUNTABLE ON PURCHASE ORDER NO. 4059-PP-60," AND THEREFORE COULD NOT POSSIBLY INCLUDE TOOLING WHICH HAD BEEN TRANSFERRED TO ANOTHER CONTRACT OR PURCHASE ORDER. YOU MAKE A PARTICULAR POINT OF THE FACT THAT THE TOOLS TO WHICH YOU CLAIM TITLE WERE BEING USED BY YOU AND WERE "UNDER YOUR ACCOUNTABILITY" AT THE TIME OF THE SALE, WHICH WOULD MEAN THAT THEY VERY DEFINITELY WERE NOT A PART OF THE TOOLING SOLD AS BEING ACCOUNTABLE UNDER PURCHASE ORDER NO. 4059-PP-60 WITH THE BENDIX CORPORATION, AND AS "NOT IN USE," THE LATTER BEING ONE OF THE STATED REASONS FOR THE DISPOSITION, TOGETHER WITH THE AVAILABILITY OF NECESSARY TOOLING ELSEWHERE. AS TO THE REFERENCE MADE TO THESE TOOLS IN THE SECOND PARAGRAPH OF OUR LETTER OF JULY 2, 1965, THE SOLE PURPOSE WAS TO POINT OUT TO THE ADDRESSEE THAT THE SET OF TOOLS WAS NOT COMPLETE SINCE PORTIONS HAD BEEN TRANSFERRED TO PURCHASE ORDERS OTHER THAN NO. 4059-PP-60, AND WERE THEREFORE NOT INCLUDED IN THE SALE. THIS DIRECTLY CONTRADICTS THE POINT FOR WHICH YOU CONTEND.

BIDDERS WERE ADVISED THAT THE PROPERTY WAS OFFERED FOR SALES "AS IS, WHERE IS," AND THAT A REPRESENTATIVE OF BENDIX SHOULD BE CONTACTED FOR INSPECTION AND ADDITIONAL INFORMATION. BOTH THE GOVERNMENT AND BENDIX DISCLAIMED ANY GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO QUANTITY, CONDITION, ETC., OF THE PROPERTY. THE VALIDITY OF THESE PROVISIONS RELATIVE TO INSPECTION AND CONDITION OF PROPERTY AND THEIR EFFECT AS AN EXPRESS DISCLAIMER OF WARRANTY HAVE BEEN FULLY ESTABLISHED BY NUMEROUS DECISIONS OF THE COURTS. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER CO., INC. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676.

IN THE PRESENT CASE, IT APPEARS THAT YOU NOT ONLY DID NOT INSPECT THE PROPERTY BUT THAT YOU DID NOT EVEN EXAMINE A LIST, AVAILABLE AT THE BENDIX PLANT, OF THE TOOLS THAT WERE BEING OFFERED FOR SALE, ALL OF WHICH ARE IDENTIFIED BY NUMBER AND DESCRIPTION. FROM COMPARISON OF THIS LIST WITH THAT ATTACHED AS APPENDIX "A" TO MODIFICATION NO. 14 TO PURCHASE ORDER NO. 52715-PP-61, AND IN THE ABSENCE OF EVIDENCE THAT YOU DID NOT RECEIVE ALL OF THE TOOLS ON THE FORMER LIST, WE MUST CONCLUDE THAT NONE OF THE ADDITIONAL TOOLS TO WHICH YOU NOW CLAIM OWNERSHIP WERE AMONG THOSE OFFERED FOR SALE BY THE BENDIX CORPORATION. IN THE CIRCUMSTANCES, THERE WOULD APPEAR TO BE NO JUSTIFICATION FOR YOUR COMPLAINT, AND WE THEREFORE FIND NO BASIS FOR OBJECTION TO THE FAILURE OF THE DEPARTMENT OF THE ARMY TO PERMIT DELIVERY OF THE TOOLING IN QUESTION TO YOUR COMPANY.