B-139800, SEP. 28, 1959

B-139800, SEP. 28, 1959

TO BRIGHTMAN TRUCK PARTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 9, 1959, RELATING FURTHER TO YOUR CLAIM FOR REFUND OF ONE-HALF OF THE AMOUNT PAID FOR A QUANTITY OF COPPER TUBING PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT N407S-7336, DATED FEBRUARY 6, 1959.

IN OUR DECISION OF SEPTEMBER 4, 1959, AFFIRMING OUR DECISIONS OF JULY 27 AND AUGUST 12, 1959, IN THIS CASE, WE ADVISED YOU, AMONG OTHER THINGS, THAT YOU WERE CONTRACTUALLY BOUND TO ASSUME ANY RISK AS TO THE CONDITION OF THE MATERIAL SOLD OR FROM FAILURE TO INSPECT THE MATERIAL BEFORE THE SALE WAS CONSUMMATED. AS A BASIS FOR REQUESTING FURTHER CONSIDERATION OF YOUR CLAIM, IT WAS STATED IN YOUR LETTER THAT THE MATERIAL IN QUESTION WAS ENCLOSED BOXES AND COULD NOT BE INSPECTED SINCE YOU WERE NOT ALLOWED TO BREAK OPEN THE BOXES FOR INSPECTION. YOU REQUEST TO BE INFORMED AS TO WHETHER THIS FACT WAS BROUGHT TO OUR ATTENTION.

IT IS OUR VIEW THAT IF YOU WERE DENIED THE RIGHT OF INSPECTION IN THIS CASE THEN NO BID SHOULD HAVE BEEN SUBMITTED BY YOU FOR THE PURCHASE OF THE MATERIAL IN QUESTION UNLESS YOU WERE WILLING TO BUY WITHOUT INSPECTING. THE MATTER OF INSPECTION IS ONE WITHIN THE CONTROL OF THE ADMINISTRATIVE OFFICE.

IT WAS POINTED OUT IN OUR DECISION OF JULY 27, 1959, THAT UNDER THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS, AND IT WAS SPECIFICALLY PROVIDED THEREIN THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR WITHDRAWAL OF BID AFTER OPENING.'

RESPECTING YOUR PRESENT CLAIM THAT YOU WERE NOT ALLOWED TO OPEN THE BOXES FOR INSPECTION, THERE HAS BEEN NOTED THAT STATEMENT IN YOUR LETTER OF APRIL 27, 1959, TO THE U.S. NAVAL SUPPLY DEPOT, MECHANICSBURG, PENNSYLVANIA, THAT "IN THE MAJORITY OF PURCHASES WHICH WE MAKE, WE HAVE MADE PERSONAL INSPECTION OF THE MATERIAL UPON WHICH WE BID. IN THIS PARTICULAR CASE, OUR MR. HARRY BRIGHTMAN WHO DOES ALMOST ALL OF OUR BIDDING AND INSPECTING, WAS HOSPITALIZED AND ACTUALLY BID FROM HIS HOSPITAL BED, WITHOUT BEING ABLE TO PHYSICALLY INSPECT ITEM NO. 108," WE ASSUME, THEREFORE, THAT YOU MERELY ARE OF THE OPINION YOU WOULD NOT HAVE BEEN ALLOWED TO OPEN THE BOXES.

IT MAY BE SAID FOR YOUR INFORMATION THAT IN NUMEROUS CASES THE COURTS HAVE CONSIDERED PROVISIONS FOR INSPECTION, SUCH AS ARE INVOLVED IN THE INSTANT CASE, AND IT HAS BEEN HELD GENERALLY THAT FAILURE TO INSPECT IS SUFFICIENT TO DENY A CLAIM BY A PURCHASER ON THE GROUND THAT THE MATERIAL DELIVERED DID NOT CONFORM TO THE ADVERTISED DESCRIPTION. IN THE RECENT CASE OF PAXTON-MITCHELL COMPANY V. UNITED STATES, C.CLS. NO. 109-58, DECIDED APRIL 8, 1959, THERE WAS INVOLVED THE SALE OF A QUANTITY OF "STEEL, SCRAP, CAST STEEL," THE MATERIAL BEING SO REPRESENTED IN THE BID INVITATION. IT SUBSEQUENTLY DEVELOPED THAT APPROXIMATELY FIFTY PERCENT OF THE MATERIAL WAS MALLEABLE IRON, AND THE PLAINTIFF SUED FOR THE DIFFERENCE BETWEEN WHAT IT PAID FOR THE MALLEABLE IRON AND ITS MARKET PRICE. THE COURT FOUND THAT MALLEABLE IRON DIFFERS FROM STEEL ONLY IN CARBON CONTENT; THAT STEEL HAS A CARBON CONTENT OF NOT IN EXCESS OF 1.7 PERCENT, AND THAT WHEN THE CARBON CONTENT EXCEEDS 1.7 PERCENT, THE MATERIAL IS CALLED MALLEABLE IRON. THERE WAS NO INSPECTION OF THE MATERIAL BY THE PLAINTIFF.

AT THE TRIAL OF THE CASE IT WAS AGREED BY COUNSEL THAT STEEL AND MALLEABLE IRON ARE NOT DISTINGUISHABLE BY THE NAKED EYE, AND THAT THEY CAN BE DIFFERENTIATED ONLY BY MICROSCOPIC EXAMINATION OR BY CHEMICAL ANALYSIS. IT WILL BE SEEN FROM THE COURT'S FINDINGS THAT VISUAL INSPECTION WOULD HAVE BEEN INEFFECTUAL TO DETERMINE WHETHER THE MATERIAL WAS, IN FACT, AS DESCRIBED IN THE BID INVITATION. NEVERTHELESS, IT WAS HELD THAT A BIDDER FAILS TO INSPECT AT HIS PERIL, AND THE PLAINTIFF'S PETITION WAS DISMISSED. THIS CASE IS CITED AS AN INSTANCE WHEREIN THE COURT DENIED RECOVERY WHEN THERE WAS NO INSPECTION, EVEN THOUGH A VISUAL INSPECTION WOULD NOT HAVE DETERMINED THE QUALITY OF THE MATERIAL INVOLVED.

UPON THE BASIS OF THE FACTS APPEARING IN THIS CASE, INCLUDING THE STATEMENT QUOTED ABOVE FROM YOUR LETTER OF APRIL 27, 1959, TO THE EFFECT THAT YOUR BID IN THIS CASE WAS SUBMITTED WITHOUT A PHYSICAL INSPECTION OF THE MATERIAL--- WHICH WE ACCEPT AS TRUE--- WE MUST ADHERE TO OUR FORMER DECISION THAT THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.