B-133881, DEC. 27, 1957
Highlights
T. OVERSTREET COMPANY: REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4. YOUR CLAIM WAS DISALLOWED FOR THE REASONS SET OUT THEREIN. THE SETTLEMENT WAS SUSTAINED BY OUR DECISIONS DATED OCTOBER 7. STATING FULLY THE REASONS ON WHICH THEY WERE BASED AND COURT DECISIONS SUPPORTING THE ACTION TAKEN. URGING THAT YOU WERE NOT SEEKING A REFUND BUT AN EXCHANGE. YOUR REQUEST WAS FOR A REFUND. THE SAME LEGAL PRINCIPLES WOULD APPLY WHETHER THE CLAIM IS TECHNICALLY FOR A REFUND OR FOR RELIEF IN SOME OTHER FORM. IT IS TO BE OBSERVED. THE COURT CASES CITED IN OUR DECISIONS TO YOU INDICATE CLEARLY THAT WHEN PROPERTY IS OFFERED FOR SALE UNDER TERMS AND CONDITIONS SUCH AS THOSE INCLUDED IN THE INVITATION FOR BIDS IN THE INSTANT MATTER.
B-133881, DEC. 27, 1957
TO R. T. OVERSTREET COMPANY:
REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 4, 1957, RELATIVE TO YOUR CLAIM FOR $809 ALLEGED TO BE DUE AS REFUND OF THE AMOUNT PAID FOR AN AIR COMPRESSOR UNIT PURCHASED BY YOU FROM THE GOVERNMENT UNDER CONTRACT NO. 189S-25395A (S), DATED MAY 17, 1957.
BY OFFICE SETTLEMENT DATED SEPTEMBER 9, 1957, YOUR CLAIM WAS DISALLOWED FOR THE REASONS SET OUT THEREIN. THE SETTLEMENT WAS SUSTAINED BY OUR DECISIONS DATED OCTOBER 7, OCTOBER 30, AND NOVEMBER 21, 1957, STATING FULLY THE REASONS ON WHICH THEY WERE BASED AND COURT DECISIONS SUPPORTING THE ACTION TAKEN.
THE "LANGUAGE USED" REFERRED TO IN THE SECOND PARAGRAPH OF OUR DECISION TO YOU DATED NOVEMBER 21, 1957, HAD REFERENCE TO THE LANGUAGE USED IN YOUR LETTER OF NOVEMBER 1, 1957, URGING THAT YOU WERE NOT SEEKING A REFUND BUT AN EXCHANGE. IN SUBSTANCE, IRRESPECTIVE OF THE LANGUAGE USED, YOUR REQUEST WAS FOR A REFUND, AND COMPLIANCE WITH YOUR REQUEST WOULD NECESSARILY REQUIRE A REFUND OF THE AMOUNT PAID BY YOU FOR THE MACHINERY. FURTHERMORE, THE SAME LEGAL PRINCIPLES WOULD APPLY WHETHER THE CLAIM IS TECHNICALLY FOR A REFUND OR FOR RELIEF IN SOME OTHER FORM.
IN VIEW OF THE REPEATED AND CAREFUL CONSIDERATION WHICH HAS BEEN GIVEN TO YOUR CLAIM HERETOFORE, NO FURTHER EXTENSIVE DISCUSSION APPEARS NECESSARY. IT IS TO BE OBSERVED, HOWEVER, THAT THE INVITATION FOR BIDS INCLUDED SPECIFIC NOTICE THAT THE COMPRESSOR UNIT REQUIRED REPAIRS. THE COURT CASES CITED IN OUR DECISIONS TO YOU INDICATE CLEARLY THAT WHEN PROPERTY IS OFFERED FOR SALE UNDER TERMS AND CONDITIONS SUCH AS THOSE INCLUDED IN THE INVITATION FOR BIDS IN THE INSTANT MATTER, THE PURCHASER ASSUMES THE ENTIRE RISK OF DEFECTS, SHORTAGES, ETC., EVEN IN THE ABSENCE OF ANY SPECIFIC NOTICE OF DEFECTS IN THE PROPERTY. OTHERWISE, THE GOVERNMENT WOULD BE SUBJECTED TO A FLOOD OF COMPLAINTS AND CLAIMS ARISING FROM SALES OF SURPLUS PROPERTY.
IN 36 COMP. GEN. 612, CITED IN OUR DECISION TO YOU DATED OCTOBER 7, 1957, IT WAS HELD THAT A BIDDER WAS BOUND BY HIS BID FOR SURPLUS PROPERTY SOLD ON AN "AS IS" "WHERE IS" BASIS WITH EXPRESS DISCLAIMER OF WARRANTY, EVEN THOUGH A GOVERNMENT PROPERTY DISPOSAL OFFICER HAD INDICATED, IN GOOD FAITH, THAT THE PROPERTY WAS IN GOOD CONDITION.
IN VIEW OF THE FOREGOING, THE ACTION HERETOFORE TAKEN ON YOUR CLAIM IS AFFIRMED AND FURTHER CORRESPONDENCE IN THE MATTER WILL SERVE NO USEFUL PURPOSE.