B-123701, AUG. 2, 1955

B-123701, AUG. 2, 1955

TO HARRY KAUFMAN COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 1, 1955, REQUESTING THAT FURTHER THOUGHT AND RECONSIDERATION BE GIVEN CONCERNING THE GOVERNMENT'S CLAIM AGAINST YOU IN THE AMOUNT OF $280, REPRESENTING THE LOSS SUSTAINED BY THE UNITED STATES BY REASON OF YOUR DEFAULT UNDER A CERTAIN CONTRACT WITH THE DEPARTMENT OF THE ARMY FOR THE PURCHASE OF APPROXIMATELY 900 MATTRESSES.

IN RESPONSE TO INVITATION NO. 15-034-S-54-2 DATED SEPTEMBER 28, 1953, ISSUED BY THE QUARTERMASTER PROPERTY DISPOSAL OFFICER, CAMP BRECKINRIDGE, KENTUCKY, YOU SUBMITTED A BID DATED OCTOBER 12, 1953, OFFERING TO PURCHASE ITEM 55, CONSISTING OF 18,000 POUNDS OF COTTON (MATTRESSES-COTTON, APPROXIMATELY 900 EACH) SCRAP AT 6 CENTS PER POUND FOR THE TOTAL AMOUNT OF $1,080. THE BID, ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $350, WAS ACCEPTED ON OCTOBER 14, 1953, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES.

YOUR REQUEST FOR RECONSIDERATION APPEARS TO BE BASED PRIMARILY ON THE CONTENTION THAT THE COTTON SCRAP YOU PURCHASED UNDER THE CONTRACT WAS NOT THE PROPERTY REPRESENTED FOR SALE. THE APPLICABLE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDE AS FOLLOWS:

"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND BY OUR OFFICE THAT IN THE ABSENCE OF BAD FAITH OR WHERE IT IS NOT SHOWN THAT THE PROPERTY SOLD WAS OTHER THAN THAT ADVERTISED FOR SALE UNDER A CONTRACT CONTAINING, AS IN THE INSTANT MATTER, THE USUAL "AS IS" PROVISION, THAT THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. SEE IN THAT CONNECTION, 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 C.CLS. 424. THERE IS NOTHING IN THE RECORD TO SHOW, NOR DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION.

EQUALLY IMPORTANT IN SUCH A CASE IS THE FACT THAT YOU ADMIT IN YOUR LETTER OF NOVEMBER 2, 1953, THAT YOU DID NOT MAKE AN INSPECTION OF THE COTTON SCRAP OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION NOT ONLY INVITED BUT URGED BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS. IT PROVIDED FURTHER THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.'

HENCE, WHERE A BIDDER SUBMITS A BID WITHOUT INSPECTION UNDER SUCH A PROVISION IT ONLY REASONABLY MAY BE CONCLUDED THAT THE BIDDER ASSUMES ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION AND THE PROPERTY ACTUALLY SOLD. YOUR STATEMENT THAT IT MAY HAVE BEEN IMPRACTICABLE, IF NOT IMPOSSIBLE, TO MAKE A COMPLETE INSPECTION OF ALL THE MATTRESSES IN NO WAY MAY BE ACCEPTED AS AFFECTING THIS CONCLUSION. IF YOU WERE NOT WILLING TO ASSUME SUCH A RISK, YOU SHOULD NOT HAVE SUBMITTED SUCH A BID.

IN VIEW OF THE MATTERS SET FORTH ABOVE, YOU ARE REQUESTED TO PROMPTLY FORWARD TO THE GENERAL ACCOUNTING OFFICE A CHECK OR MONEY ORDERS PAYABLE TO THE TREASURER OF THE UNITED STATES IN THE AMOUNT OF $280. IN THE EVENT YOU DO NOT ELECT TO EFFECT SETTLEMENT OF YOUR INDEBTEDNESS IN THIS MANNER, THE ENTIRE MATTER WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE ACTION.