B-124483, AUG. 1, 1955

B-124483, AUG. 1, 1955

TO HARRIS MACHINERY COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF MAY 2, 1955, REQUESTING RECONSIDERATION OF THE SETTLEMENT OF APRIL 29, 1955, WHICH DISALLOWED YOUR CLAIM FOR $353.24, AS REFUND OF A PART OF THE CONTRACT PRICE PAID FOR A QUANTITY OF MATERIALS PURCHASED UNDER INVITATION NO. 33-079-S-54 58, DATED JUNE 18, 1954.

THE RECORD BEFORE THIS OFFICE DISCLOSES THAT IN RESPONSE TO THE INVITATION ISSUED BY THE ROSSFORD ORDNANCE DEPOT, DEPARTMENT OF THE ARMY, TOLEDO, OHIO, YOU SUBMITTED AN UNDATED BID, OFFERING TO PURCHASE A QUANTITY OF VISES, BLOCKS, DRILLS, ET CETERA, DESCRIBED AS ITEM 32, FOR THE LOT PRICE OF $4,161. YOUR BID WAS ACCEPTED ON JULY 6, 1954. AFTER THE RECEIPT OF THE MATERIALS YOU FOUND THAT 23 VISES WERE NOT NEW. YOUR CLAIM FOR REFUND OF $353.24 IS BASED UPON ,THE DIFFERENCE BETWEEN THE VALUE OF THE NEW VISES WHICH WERE SUPPOSED TO HAVE BEEN DELIVERED AND THE USED VISES WHICH WERE ACTUALLY RECEIVED.'

IN YOUR LETTER OF MAY 2, 1955, YOU COMPLAIN THAT THE SETTLEMENT OVERLOOKED THE MAIN POINT OF YOUR CONTENTION, WHICH IS "THAT IT WAS IMPOSSIBLE TO MAKE AN INSPECTION OF THE MERCHANDISE.' THIS STATEMENT APPARENTLY IS PREDICATED UPON THE FACT, AS RELATED IN YOUR CORRESPONDENCE, THAT A MAJORITY OF THE VISES WERE COATED WITH A PRESERVATIVE WHICH PRECLUDED A VISUAL INSPECTION OF THE INDIVIDUAL VISES. IT IS ADMINISTRATIVELY REPORTED THAT AN OPPORTUNITY FOR INSPECTION WAS GIVEN TO ALL PROSPECTIVE BIDDERS TO THE EXTENT THAT THE BOXES CONTAINING THE VISES WERE OPENED FOR THEIR INSPECTION WHENEVER REQUESTED. HAD YOU LIKEWISE AVAILED YOURSELF OF THIS OPPORTUNITY FOR INSPECTION, YOU WOULD HAVE BEEN AWARE OF LIMITED VISUAL INSPECTION RESULTING FROM THE PRESERVATIVE COATING ON THE VISES AND COULD HAVE ADJUSTED YOUR BID ACCORDINGLY.

YOU MADE NO INSPECTION OF THE MATERIALS PRIOR TO THE SUBMISSION OF YOUR BID ALTHOUGH UNDER THE INVITATION ALL BIDDERS WERE URGED TO INSPECT THE PROPERTY TO BE SOLD AND WERE WARNED THAT FAILURE TO INSPECT WOULD NOT CONSTITUTE GROUNDS FOR A CLAIM. THE LAW IS CLEAR THAT WHEN PROPERTY OF THE CHARACTER HERE INVOLVED IS OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS, WITHOUT WARRANTY OR GUARANTY OF ANY KIND--- AND THE DISCLAIMER OF WARRANTY IN THIS CASE INCLUDED THE DESCRIPTION OF THE PROPERTY--- A BIDDER WHO FAILS TO TAKE ADVANTAGE OF THE OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUND THAT THE QUALITY OF THE PROPERTY IS INFERIOR TO THAT EXPECTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; S. BRODY V. UNITED STATES, 271 U.S. 15. IN THE CASE OF TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151, THE COURT STATED:

"* * * THE PLAINTIFF WAS THUS NOTIFIED BEFORE THE SALE THAT IF IT BID AND PURCHASED THE LOT OF MATERIAL IT COULD NOT CLAIM ANY ALLOWANCE ON ACCOUNT OF DEFICIENCY IN QUALITY, CHARACTER, OR KIND OF MATERIAL SOLD AND DELIVERED.

"THE PLAINTIFF DID NOT TAKE ADVANTAGE OF ITS RIGHT TO INSPECT BUT BOUGHT THE LOT WITHOUT INSPECTING IT.

"UNDER THE TERMS OF THE CATALOGUE IT IS DIFFICULT TO PERCEIVE HOW THE GOVERNMENT COULD HAVE GIVEN PURCHASERS MORE SPECIFIC WARNING THAN IT DID, THAT THEY BOUGHT AT THEIR RISK WHAT MATERIAL IT HAD AND WAS OFFERING FOR SALE; THAT IF A PURCHASER WISHED TO PROTECT HIMSELF HE COULD DO SO BY INSPECTION, FULL OPPORTUNITIES FOR WHICH WERE OFFERED, AND THAT IF HE FAILED TO INSPECT AND RECEIVED SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING HE COULD HAVE NO REDRESS AND COULD NOT CLAIM ALLOWANCES BY REASON THEREOF. MORE THAN THAT, HE WAS DISTINCTLY TOLD THAT FAILURE TO INSPECT WOULD NOT BE CONSIDERED AS A GROUND FOR ADJUSTMENT. IF PLAINTIFF NEGLECTED TO EMBRACE THE OPPORTUNITY OFFERED IT TO INSPECT AND PURCHASED THE PROPERTY WITHOUT DOING SO, WITH NOTICE THAT IT BOUGHT AT ITS OWN RISK, IT CREATED BY ITS OWN NEGLIGENCE THE SITUATION FROM WHICH IT NOW SEEKS RELIEF.'

YOUR CONTENTION THAT IT WAS IMPOSSIBLE TO MAKE AN INSPECTION OF THE MERCHANDISE IS, THEREFORE, WITHOUT MERIT AND MAY NOT BE ACCEPTED.