B-151237, MAY 1, 1963

B-151237, MAY 1, 1963

TO THE DIRECTOR, DEFENSE SUPPLY AGENCY:

REFERENCE IS MADE TO LETTER DATED APRIL 3, 1963 (DSAH-G) WITH ENCLOSURES, FROM YOUR ASSISTANT COUNSEL REQUESTING A DECISION RELATIVE TO THE REQUEST OF GROBEN SUPPLY COMPANY, INC., FOR RESCISSION OF CONTRACT NO. DSA-25-S- 1931, DATED JANUARY 22, 1963, COVERING THE SALE BY THE GOVERNMENT OF 417 SLING ASSEMBLIES FOR THE AGGREGATE AMOUNT OF $2,351.88.

IN RESPONSE TO INVITATION NO. 25-S-63-62, DATED DECEMBER 26, 1962, ISSUED BY DEFENSE SURPLUS SALES OFFICE, DEFENSE LOGISTICS SERVICES CENTER, NORFOLK, VIRGINIA, GROBAN, WITHOUT PRIOR INSPECTION OF THE PROPERTY OFFERED FOR SALE, SUBMITTED THE HIGHEST BID ON ITEM NO. 31- 417 SLING ASSEMBLIES--- OF $5.64 EACH.

ITEM NO. 31 WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"SLING ASSEMBLY, BOMB, MFR. NAVAL AIR ENGINEERING FACILITY, PT. NO. 502775-1, STEEL, CONSISTS OF ONE WRAP-AROUND SLING DEVICE, AND 4 PIECES OF MORSE 50 ROLLER CHAIN. 2 PIECES OF CHAIN ARE APPROXIMATELY 58 INCHES LONG. 2 PIECES APPROXIMATELY 24 INCHES LONG. OVER-ALL WIDTH OF CHAIN 3/4 INCH. DISTANCE BETWEEN LINK ROLLERS 5/8 INCH CENTER TO CENTER. INSIDE WIDTH OF ROLLERS 3/8 INCH. ROLLER DIAM. 1/4 INCH. TOTAL NET WEIGHT 6,464 LBS. PACKED FOR SHIPMENT. INSIDE STORAGE. UNUSED, GOOD CONDITION, TOTAL ACQUISITION COST--- $20,850.00. QUANTITY--- 417 EACH.'

GROBAN'S OFFER WAS ACCEPTED ON JANUARY 22, 1963. BY LETTER DATED JANUARY 24, 1963, GROBAN RETURNED THE NOTICE OF AWARD ON ITEM NO. 31 AND CONTENDED THAT IT WAS "INVALID" BECAUSE THE DESCRIPTION IN THE INVITATION WAS IN ERROR AND THE CONTENTS DID NOT CONFORM TO THE DESCRIPTION. SPECIFICALLY, IT WAS STATED THAT WHILE THE DESCRIPTION REFERRED TO "MORSE 50 ROLLER CHAIN" AND TO THE DIAMETER OF THE ROLLERS, THE "CHAIN" DID NOT HAVE ROLLERS AND IT WAS NOT A ROLLER CHAIN.

AN INVESTIGATION BY THE CONTRACTING OFFICER FOLLOWING THE RECEIPT OF GROBAN'S LETTER OF JANUARY 24 DISCLOSED THAT THE CHAIN INCLUDED IN THE SLING ASSEMBLIES WAS ACTUALLY A SPROCKET CHAIN INSTEAD OF A ROLLER CHAIN AS DESCRIBED IN THE INVITATION.

THE QUESTION PRESENTED IS WHETHER THE GOVERNMENT IS LIABLE AS FOR BREACH OF WARRANTY FOR THE FAILURE OF THE ARTICLES TO CORRESPOND WITH THE DESCRIPTION OF THE PROPERTY SOLD. IN THIS REGARD, THE ACCEPTED BID IN THIS INSTANCE WAS SUBMITTED SUBJECT TO THE GENERAL SALES TERMS AND CONDITIONS CONTAINED IN THE INVITATION WHICH WERE THOSE OF STANDARD FORM 114-C PRESCRIBED BY GENERAL SERVICES ADMINISTRATION AND IN REGULAR USE FOR A NUMBER OF YEARS IN SALES OF GOVERNMENT PROPERTY. UNDER PARAGRAPH 1 OF THE GENERAL SALES TERMS AND CONDITIONS BIDDERS WERE INVITED, URGED, AND CAUTIONED TO INSPECT THE PROPERTY BEFORE SUBMITTING THEIR BIDS, AND WERE INFORMED THAT IN NO CASE WOULD FAILURE TO DO SO CONSTITUTE GROUNDS FOR WITHDRAWAL AFTER BID OPENING. UNDER PARAGRAPH 2 BIDDERS WERE PUT ON NOTICE THAT THE PROPERTY WAS BEING OFFERED FOR SALE "AS IS" AND "WHERE IS" AND THAT THE GOVERNMENT MADE NO WARRANTY, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF THE PROPERTY. IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT SUCH AN EXPRESS DISCLAIMER OF WARRANTY VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION, IMPOSES UPON THE BIDDER ALL RISKS OF MISDESCRIPTION AND REQUIRES OF THE GOVERNMENT ONLY THE EXERCISE OF GOOD FAITH. SEE 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 CT.CL. 151; AND I SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CL. 424. IN THIS INSTANCE WE FIND NO INDICATION OF BAD FAITH IN ASCERTAINING AND USING THE DESCRIPTIVE INFORMATION FOR ITEM NO. 31. THE SLING ASSEMBLIES WERE DESCRIBED BY THE DISPOSAL OFFICER ON THE BASIS OF INFORMATION FURNISHED BY THE HOLDING ACTIVITY'S EQUIPMENT SPECIALIST, WHICH APPEARS TO HAVE BEEN BASED UPON A BONA FIDE EFFORT TO DESCRIBE THE PROPERTY ACCURATELY. IN THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE MISDESCRIPTION WHICH OCCURRED RESULTED FROM NOTHING MORE THAN AN HONEST MISTAKE WHICH IS, OF COURSE, COMPLETELY COVERED BY THE DISCLAIMER OF WARRANTY CLAUSE. FURTHERMORE, IT IS NOTED THAT GROBAN APPARENTLY SUBMITTED ITS BID WITHOUT MAKING ANY INSPECTION OF THE MATERIAL, NOTWITHSTANDING THAT PARAGRAPH 1 OF THE GENERAL SALES TERMS AND CONDITIONS OF THE INVITATION EXPRESSLY PROVIDED THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR WITHDRAWAL OF A BID AFTER OPENING.' THE BIDDER'S RESPONSIBILITY INCIDENT TO MAKING AN INSPECTION OF THE PROPERTY OFFERED FOR SALE ARE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHERE THE COURT SAID THAT "A BIDDER FAILS TO INSPECT AT HIS PERIL" AND "ITS FAILURE TO DO SO LEAVES IT NO ROOM TO COMPLAIN.'

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR AUTHORIZING RESCISSION OF CONTRACT NO. DSA-25-S-1931, OR ANY OTHER RELIEF TO THE PURCHASER THEREUNDER.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT DATED FEBRUARY 8, 1963, BY THE SALES CONTRACTING OFFICER, ARE RETURNED.