B-153541, MAY 18, 1964

B-153541, MAY 18, 1964

TO AUTOMOTIVE TIRE SERVICE:

YOUR LETTER OF APRIL 6, 1964, REFERS TO DECISION B-153541, DATED MARCH 31, 1964, WHICH SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $773.80 UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-37-S-1016, DATED JULY 19, 1963. YOU STATE, IN PERTINENT PART, AS FOLLOWS:

"* * * WE DID RELY UPON THE GUARANTEED DESCRIPTION WHICH WAS A PART OF THE SALES TERMS AND CONDITIONS OF THIS BID. THEREFORE, THE SUPPLEMENT ARTICLE NO. 2 OF THE GENERAL SALES TERMS AND CONDITIONS IS NOT APPLICABLE IN OUR INSTANCE.'

YOUR OPINION THAT INVITATION FOR BIDS NO. 37-S-64-3 WAS GUARANTEED REGARDING IDENTIFICATION, DESCRIPTION AND WEIGHT OF ITS ITEMS, WAS FULLY CONSIDERED IN OUR DECISION OF MARCH 31. YOU WERE THEN ADVISED THAT ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS CLEARLY PROVIDED THAT THE GOVERNMENT MADE NO WARRANTY, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE PROPERTY. IT WAS STATED THAT SUCH EXPRESS DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION, CITING W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; UNITED STATES V. KELLY, 112 F.SUPP. 831; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67 AND LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

REEXAMINATION OF INVITATION NO. 37-S-64-3, ITS GENERAL SALE TERMS AND CONDITIONS AND THE GENERAL INFORMATION AND INSTRUCTIONS ISSUED AS PART THEREOF, DISCLOSES WITH REFERENCE TO A DESCRIPTION GUARANTEE ONLY THAT INSTRUCTION CONTAINED ON PAGE NO. 8, AS FOLLOWS:

"NO GUARANTEED DESCRIPTIONS:

THE BIDDERS ARE CAUTIONED THAT THE PROPERTY BEING OFFERED FOR SALE UNDER THIS INVITATION FOR BID IS SOLD "AS IS," "WHERE IS," WITH NO WARRANTY EXPRESSED OR IMPLIED AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION. THE SPECIAL CONDITION ENTITLED "GUARANTEED DESCRIPTIONS" BEING USED BY CERTAIN DEFENSE SURPLUS SALES OFFICES IS NOT PART OF THIS INVITATION FOR BID.'

THUS, THE DESCRIPTION GUARANTEE TO WHICH YOU REFER WAS EXPRESSLY DISCLAIMED BY THE ABOVE CLAUSE, AND, WHILE THE INVITATION MAY HAVE STATED THAT AN ITEM WAS OF A CERTAIN WEIGHT, IT DID NOT WARRANT THAT IT WAS; THIS WAS NOT GUARANTEED. SEE PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463. UNDER THE DISCLAIMER CLAUSE SET FORTH IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS ALL RISKS AS TO THE ACCURACY OF THE INVITATION DESCRIPTIONS ARE ACCEPTED BY THE BIDDER AND ARE IMPOSED ON THE CONTRACTOR BY THE ACCEPTANCE OF HIS OFFER. SEE DADOURIAN EXPORT CORP. V. UNITED STATES, 291 F.2D 178 (1961) AND UNITED STATES V. SILVERTON, 200 F.2D 824.