B-123936, JUL. 8, 1955

B-123936, JUL. 8, 1955

TO NATIONAL SURPLUS SALES:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 18, 1955, REQUESTING REVIEW OF OFFICE SETTLEMENT DATED FEBRUARY 24, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT OF $510, DEPOSITED WITH THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, IN CONNECTION WITH THE PURCHASE OF MATERIALS UNDER CONTRACT NO. N228S-6448.

IN RESPONSE TO INVITATION NO. B-49-55 DATED SEPTEMBER 14, 1954, ISSUED BY THE DISPOSAL DIVISION, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOU SUBMITTED AN UNDATED BID OFFERING TO PURCHASE MISCELLANEOUS USABLE MATERIALS FOR THE TOTAL AMOUNT OF $2,533.93. THE BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $510, WHICH BID WAS ACCEPTED OCTOBER 1, 1954, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. PARAGRAPH 18 OF GENERAL SALES TERMS AND CONDITIONS PROVIDED THAT IF THE PURCHASER FAILED TO PERFORM ANY OF HIS OBLIGATIONS UNDER THE CONTRACT, THE GOVERNMENT MIGHT RETAIN THE SUPPLIES AND RETAIN FROM ANY AMOUNT PAID BY HIM, AS LIQUIDATED DAMAGES, A SUM EQUAL TO 20 PERCENT OF THE PURCHASE PRICE, PLUS ANY ACCRUED CHARGES. YOU FAILED TO REMOVE AND PAY FOR THE MATERIALS PURCHASED AND THE GOVERNMENT RETAINED THE BID DEPOSIT OF $510.

YOUR REQUEST FOR RECONSIDERATION APPEARS TO BE BASED PRIMARILY ON THE CONTENTION THAT THE MATERIALS YOU PURCHASED AS ITEM 21A WERE DIFFERENT FROM THE DESCRIPTION IN THE SALES INVITATION AND, NOT BEING PRECISELY AS ADVERTISED IN THE CATALOG, WERE MISREPRESENTED.

PARAGRAPH 2 OF THE GENERAL SALES TERMS AND CONDITIONS PROVIDES THAT THE DESCRIPTION IS BASED UPON THE BEST AVAILABLE INFORMATION, BUT THAT 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 THAT 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 SINCE THIS IS NOT A SALE BY SAMPLE.

WITH REGARD TO THE DISCLAIMER AS TO THE DESCRIPTION OF THE PROPERTY OFFERED FOR SALE, 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 CASE, THE USUAL "AS IS" PROVISION, THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AND, THEREFORE, NO WARRANTY MAY BE IMPLIED. 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; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424. THERE IS NOTHING IN THE RECORD TO SHOW OR INDICATE, NOR DO YOU ALLEGE, THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION. FACT, THE SELLING AGENCY REPORTED THAT THE DESCRIPTION OF THE PROPERTY WAS TAKEN FROM ITS STOCK RECORDS.

EQUALLY IMPORTANT IN SUCH A CASE IS THE FACT THAT YOU ADMIT YOU DID NOT MAKE AN INSPECTION OF THE MATERIALS OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. PARAGRAPH 1 OF THE GENERAL SALES TERMS AND CONDITIONS OF THE INVITATION NOT ONLY INVITED BUT URGED BIDDERS TO INSPECT THE MATERIALS 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 INSPECTING 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 OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY SOLD. YOUR CONTENTION THAT IT MAY HAVE BEEN IMPRACTICABLE, IF NOT IMPOSSIBLE, TO INSPECT EACH AND EVERY LOCATION IS NOT WELL TAKEN. IF YOU WERE NOT WILLING TO ASSUME SUCH A RISK, YOU SHOULD NOT HAVE SUBMITTED SUCH A BID.

THE RECORD INDICATES THAT THE ACCEPTANCE OF YOUR BID WAS IN GOOD FAITH AND IN THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. THE RIGHT WHICH VESTED IN THE GOVERNMENT UPON SUCH ACCEPTANCE CANNOT BE GIVEN AWAY OR SURRENDERED BY AN OFFICER OF THE UNITED STATES. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335; AND BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645. THE AMOUNT OF $510 HAS BEEN RETAINED IN ACCORDANCE WITH THE TERMS OF THE CONTRACT.