B-132154, JUL. 5, 1957

B-132154, JUL. 5, 1957

TO MUTNICK WOOL STOCK COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 22, 1957, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED FEBRUARY 13, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT OF $1,343.89 PAID BY YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED FROM THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, UNDER ITEM 61 OF CONTRACT NO. N251S 8661- A, PLUS THE AMOUNT OF $482.94 FOR FREIGHT EXPENSES OR A TOTAL CLAIM OF $1,826.83.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION B-50-56, DATED MAY 16, 1956, YOU SUBMITTED A BID DATED JUNE 1, 1956, OFFERING TO PURCHASE, AMONG OTHER ITEMS, ITEM 61 COVERING 14,768 CHISEL BLANKS, AT A UNIT PRICE OF $0.091 EACH, OR FOR A TOTAL PRICE OF $1,343.89. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $450 WAS ACCEPTED ON JUNE 13, 1956, AND AWARD MADE TO YOU. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF THE MERCHANDISE TO YOU, YOU CLAIMED A REFUND OF THE PURCHASE PRICE PLUS THE FREIGHT CHARGES.

YOU STILL CONTEND THAT THE MERCHANDISE YOU RECEIVED DID NOT CORRESPOND WITH THE DESCRIPTION FURNISHED UNDER ITEM 61 OF THE SALES INVITATION AND THAT THE CONTRACTING OFFICER WAS NEGLIGENT IN DESCRIBING THE ITEM IN THE INVITATION. ALSO, YOU REQUEST AN OPPORTUNITY TO PRESENT YOUR CLAIM TO THE "CONTRACT APPEALS BOARD" UNDER PARAGRAPH 23 OF THE CONTRACT CONDITIONS.

THE CONTRACTING OFFICER HAS ADVISED THAT A REVIEW OF THE ABSTRACT OF BIDS ON ITEM 61 DID NOT INDICATE A SUFFICIENT VARIANCE IN PRICE BETWEEN YOUR BID AND OTHER BIDS SUBMITTED AS TO PLACE HIM ON NOTICE OF AN ERROR IN BID FOR ALLEGEDLY OBSOLETE MATERIAL.

AS POINTED OUT IN THE SETTLEMENT OF FEBRUARY 13, 1957, PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS INVITED AND URGED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND SPECIFICALLY PROVIDES THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. MOREOVER, PARAGRAPH 2 PROVIDES THAT THE GOVERNMENT "MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF ANY OF THE PROPERTY, ORITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON THE FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED: THIS IS NOT A SALE BY SAMPLE.' SUCH LANGUAGE WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES ARE MADE BY THE GOVERNMENT, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY OFFERED FOR SALE WILL CORRESPOND WITH THE DESCRIPTION, NO SUCH WARRANTY MAY BE IMPLIED WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY, AS IN THIS CASE. 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; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

IT WOULD APPEAR FROM THE RECORD THAT YOU FAILED TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. HOWEVER, IF YOU HAD MADE SUCH AN INSPECTION, AS YOU WERE CAUTIONED TO DO BY THE INVITATION, YOU WOULD HAVE DISCOVERED THE DISCREPANCY OF WHICH YOU NOW COMPLAIN.

I REALIZE THAT THE RESULTS IN THESE CASES MAY SOMETIMES SEEM HARD BUT THE GOVERNMENT HAS USED THE PLAINEST AND CLEAREST LANGUAGE POSSIBLE TO ADVISE PROSPECTIVE BIDDERS THAT IN THESE SURPLUS SALES THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY. THE FACT THAT THE CONTRACTING OFFICER FAILED TO PROPERLY DESCRIBE THE PROPERTY OFFERED FOR SALE IS NOT SUFFICIENT, IN AND OF ITSELF, TO GRANT RELIEF UNLESS THE CIRCUMSTANCES INDICATE BAD FAITH ON THE PART OF THE DISPOSAL OFFICER.

WITH REGARD TO YOUR REQUEST THAT YOUR CLAIM SHOULD BE PROCESSED UNDER THE PROVISIONS OF PARAGRAPH 23 OF THE CONTRACT CONDITIONS, THE CONTRACTING OFFICER CORRECTLY ADVISED YOU IN REPLY TO YOUR LETTER OF OCTOBER 29, 1956, THAT THESE PROVISIONS DEALT WITH QUESTIONS OF FACT ONLY, AND THAT THE INSTANT MATTER WAS ONE OF LAW WHICH IS FOR CONSIDERATION BY OUR OFFICE AND THE COURTS.

IN THE CIRCUMSTANCES AND SINCE THE ADMINISTRATIVE AGENCY OF THE GOVERNMENT IS NOT SHOWN TO HAVE ACTED IN BAD FAITH IN DESCRIBING THE PROPERTY FOR WHAT IT WAS BELIEVED TO BE, THERE IS NO LEGAL BASIS ON WHICH YOUR CLAIM FOR A REFUND PROPERLY MAY BE ALLOWED. ACCORDINGLY, THE SETTLEMENT OF FEBRUARY 13, 1957, IS SUSTAINED.