B-139800, AUG. 12, 1959
Highlights
TO BRIGHTMAN TRUCK PARTS COMPANY: REFERENCE IS MADE TO YOUR LETTER OF JULY 29. THE BASIC REASON SET FORTH IN OUR DECISION FOR DENYING YOU RELIEF WAS THAT UNDER THE TERMS OF THE CONTRACT (PARAGRAPH 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS) THE PARTIES AGREED THAT ANY RISK AS TO THE CONDITION OF THE MATERIAL SOLD OR FROM THE FAILURE TO INSPECT THE MATERIAL BEFORE THE SALE WAS CONSUMMATED WAS ASSUMED BY YOU AS ONE OF THE ELEMENTS OF THE BARGAIN. WE HAVE REVIEWED THE CASE CAREFULLY AND WE FIND NO LEGAL BASIS FOR A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF JULY 27. WOULD HAVE BEEN APPARENT. INCLUDING THE "AS IS. WHERE IS" PROVISIONS. SPOKE FOR THEMSELVES AND THE PURCHASER WAS LEGALLY BOUND BY THEM.
B-139800, AUG. 12, 1959
TO BRIGHTMAN TRUCK PARTS COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF JULY 29, 1959, REQUESTING RECONSIDERATION OF OUR DECISION OF JULY 27, 1959, WHICH DISALLOWED YOUR CLAIM FOR $93, REPRESENTING REFUND OF THE AMOUNT PAID FOR QUANTITY OF COPPER TUBING PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N407S-7336, DATED FEBRUARY 4, 1959.
THE BASIC REASON SET FORTH IN OUR DECISION FOR DENYING YOU RELIEF WAS THAT UNDER THE TERMS OF THE CONTRACT (PARAGRAPH 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS) THE PARTIES AGREED THAT ANY RISK AS TO THE CONDITION OF THE MATERIAL SOLD OR FROM THE FAILURE TO INSPECT THE MATERIAL BEFORE THE SALE WAS CONSUMMATED WAS ASSUMED BY YOU AS ONE OF THE ELEMENTS OF THE BARGAIN. IN THE LATTER CONNECTION, YOU REITERATE YOUR CONTENTION THAT YOU FOUND IT IMPOSSIBLE TO VISIT THE DISPOSAL SITE TO EXAMINE THE MATERIAL, IN VIEW OF WHICH YOU SEEK A CREDIT OF ONE-HALF OF THE CONTRACT CONSIDERATION.
WE HAVE REVIEWED THE CASE CAREFULLY AND WE FIND NO LEGAL BASIS FOR A CONCLUSION DIFFERENT FROM THAT REACHED IN OUR DECISION OF JULY 27, 1959. REGARDING INSPECTION OF THE MATERIAL, IT SEEMS CLEAR THAT, HAD A REPRESENTATIVE OF YOUR FIRM INSPECTED THE DISPOSAL SITE BEFORE SUBMITTING A BID, THE DISPARITY BETWEEN THE ADVERTISED SIZE OF THE TUBING AND THE ACTUAL SIZE, OR THE SUITABILITY OF THE TUBING FOR ANY CONTEMPLATED USE, WOULD HAVE BEEN APPARENT. HOWEVER THAT MAY BE, THE EXPRESS DISCLAIMER OF WARRANTY PROVISIONS OF THE CONTRACT WOULD PRECLUDE ANY ADJUSTMENT OF THE CONTRACT PRICE. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 C.CLS. 70, THE COURT HELD THAT THE TERMS OF THE SALE CONTRACT THERE UNDER CONSIDERATION, INCLUDING THE "AS IS, WHERE IS" PROVISIONS, SPOKE FOR THEMSELVES AND THE PURCHASER WAS LEGALLY BOUND BY THEM.
THE SUPREME COURT HAS CLEARLY STATED THE PRINCIPLE THAT IN THESE CASES THE ONLY OBLIGATION OF THE GOVERNMENT IS TO ACT IN GOOD FAITH. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67. IN OUR NUMEROUS DECISIONS ON COMPLAINTS RECEIVED FROM PURCHASE OF GOVERNMENT SURPLUS PROPERTY WE HAVE CONSTANTLY SOUGHT TO APPLY THAT CRITERION.
IN THE CIRCUMSTANCES, THERE BEING NO INDICATION THAT THE SUBJECT SALE WAS CONDUCTED IN OTHER THAN GOOD FAITH, WE HAVE NO ALTERNATIVE BUT TO SUSTAIN THE ACTION PREVIOUSLY TAKEN.