B-145320, MAY 18, 1961

B-145320, MAY 18, 1961

TO WESTERN NON-FERROUS METALS CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 20, 1961, IN REGARD TO OUR SETTLEMENT OF FEBRUARY 9, 1961, DISALLOWING YOUR CLAIM FOR A REFUND OF THE $5,000 BID DEPOSIT MADE BY YOU IN CONNECTION WITH DEPARTMENT OF THE AIR FORCE CONTRACT NO. AF 23/606/-S-149, DATED JUNE 14, 1960.

IN RESPONSE TO INVITATION NO. 23-606-S-60-4, WHICH WAS ISSUED ON MAY 13, 1960, BY THE BASE PROCUREMENT OFFICE, WHITEMAN AIR FORCE BASE, YOU SUBMITTED A BID DATED JUNE 11, 1960, OFFERING TO PURCHASE ITEM NO. 12, COVERING 194 AIRCRAFT FUEL TANKS AT $121 EACH, OR FOR A TOTAL PRICE OF $23,474. YOUR BID WAS SUPPORTED BY A $5,000 BID DEPOSIT AND WAS ACCEPTED BY THE GOVERNMENT CONTRACTING OFFICER ON JUNE 14, 1960. A SUBSEQUENT WEIGHING BY A MR. BERMAN, WHO CALLED AT THE WHITEMAN AIR FORCE BASE IN YOUR BEHALF, ALLEGEDLY SHOWED THAT EACH OF THE FUEL TANKS WAS APPROXIMATELY 385 POUNDS LESS IN GROSS WEIGHT THAN THE ADVERTISED 1,685 POUNDS IN THE INVITATION. YOU THEREFORE CLAIM A REFUND OF THE BID DEPOSIT.

IN YOUR LETTER OF FEBRUARY 20, 1961, YOU CONTEND THAT YOU WERE EXPRESSLY FORBIDDEN BY THE GOVERNMENT SALVAGE OFFICER FROM WEIGHING ONE OF THE FUEL TANKS PRIOR TO BIDDING AND THAT IT WAS ONLY AFTER SUBMITTING YOUR BID THAT YOU WERE PERMITTED TO CHECK THIS WEIGHT.

THE PRINCIPAL QUESTION IN CASES OF THIS KIND IS WHETHER THE GOVERNMENT DID OR DID NOT WARRANT THE PROPERTY SOLD. IN THIS REGARD, YOUR ATTENTION AGAIN IS DIRECTED TO ARTICLE 2--- CONDITION OF PROPERTY -- OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHEREIN, AS POINTED OUT IN OUR SETTLEMENT OF FEBRUARY 9, 1961, IT IS EXPRESSLY PROVIDED THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, WEIGHT, ETC., OF THE PROPERTY OFFERED FOR SALE. IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH AN EXPRESS DISCLAIMER OF WARRANTY, WHICH SPECIFICALLY REFERS TO WEIGHT, VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HADGER 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.

MOREOVER, CONTRARY TO YOUR CONTENTION THAT YOU WERE FORBIDDEN TO WEIGH ONE OF THE FUEL TANKS PRIOR TO SUBMITTING YOUR BID, THE AIR FORCE REPORTS THAT NO SUCH REQUEST WAS MADE BY YOU AT THAT TIME. THE CONTRACTING OFFICER ADVISES THAT YOUR REPRESENTATIVE WAS PERMITTED TO MAKE A DETAILED INSPECTION OF THE PROPERTY AND TO MAKE ANY TESTS, INCLUDING WEIGHT, THAT HE CHOSE TO MAKE. HOWEVER, EVEN IF THE AIR FORCE HAD NOT PERMITTED YOU TO WEIGH ANY OF THE FUEL TANKS AND YOU STILL SUBMITTED A BID, THERE WOULD BE APPLICABLE THE RULE ESTABLISHED BY THE DECISIONS OF THIS OFFICE THAT WHERE A BIDDER FAILS TO MAKE INSPECTION UNDER SUCH A CONTRACT OF SALE--- WHETHER SUCH FAILURE WAS DUE TO THE BIDDER'S OPINION THAT INSPECTION WAS NOT IMPOSSIBLE--- THE BIDDER HAS ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY SET FORTH IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. THE BIDDER'S RESPONSIBILITIES IN THIS CONNECTION APPEAR TO BE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHEREIN IT WAS HELD THAT, NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL.

ACCORDINGLY, INSOFAR AS CONCERNS YOUR RIGHT, AT THIS TIME, TO A REFUND OF ANY PART OR ALL OF THE $5,000 BID DEPOSIT, THE SETTLEMENT OF FEBRUARY 9, 1961, IS SUSTAINED.

YOU ALSO MIGHT BE ADVISED THAT IF, AS A RESULT OF THIS DECISION AND YOUR CONTINUED REFUSAL TO ACCEPT AND REMOVE THE AIRCRAFT FUEL TANKS AT THE CONTRACT PRICE, IT BECOMES NECESSARY FOR THE WHITEMAN AIR FORCE BASE TO RESELL THE TANKS, ANY LOSS, COST AND EXPENSE INCURRED BY THE BASE IN CONNECTION WITH SUCH A RESALE IS PROPERLY CHARGEABLE AGAINST YOUR ACCOUNT IN ACCORDANCE WITH PARAGRAPH 4,"BID GUARANTEE," OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT AND YOUR BID DEPOSIT MAY BE APPLIED AGAINST THIS CHARGE. OF COURSE, SHOULD THE TOTAL OF ANY SUCH LOSS, COST AND EXPENSE TO THE GOVERNMENT BE LESS THAN $5,000, THE DEPARTMENT OF THE AIR FORCE WILL REFUND TO YOU THE DIFFERENCE BETWEEN THE ACTUAL TOTAL OF THE GOVERNMENT'S LOSS, COST AND EXPENSE, AND THE $5,000 DEPOSITED BY YOU.