B-125887, JAN. 6, 1956

B-125887, JAN. 6, 1956

TO A. D. HARRIS COMPANY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 6, 1955, FROM H. H. RIMMERMAN, REQUESTING ON YOUR BEHALF RECONSIDERATION OF OUR SETTLEMENT DATED JUNE 30, 1955, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $545.23, REPRESENTING A PART OF THE PURCHASE PRICE PAID FOR CERTAIN BULLDOZER BLADES BOUGHT FROM THE DEPARTMENT OF THE ARMY, ROCK ISLAND ARSENAL, ROCK ISLAND, ILLINOIS, UNDER CONTRACT NO. DA (S) 11-070-AV-65, DATED SEPTEMBER 21, 1953.

IN RESPONSE TO AN INVITATION ISSUED BY THE ARSENAL YOU SUBMITTED A BID DATED SEPTEMBER 15, 1953, OFFERING TO PURCHASE ITEMS 1 TO 17, INCLUSIVE, AMONG OTHERS, CONSISTING OF 107 BULLDOZER BLADES, DESCRIBED AS WEIGHING APPROXIMATELY, 7,100 POUNDS, FOR $53.31 EACH, OR A TOTAL PRICE OF $5,704.17. THE BID, ACCOMPANIED BY A DEPOSIT OF $1,400, WAS ACCEPTED SEPTEMBER 21, 1953. YOU NOW CONTEND THAT THE MATERIALS YOU PURCHASED AS ITEMS 1 TO 17 INCLUSIVE, WERE DIFFERENT FROM THE DESCRIPTION IN THE SALES INVITATION IN THAT THE BLADES WEIGHED ONLY 5,200 POUNDS EACH AND NOT 7,100 EACH, AS SET FORTH IN THE INVITATION, EQUAL TO A SHORTAGE OF 1,900 POUNDS PER BLADE, MAKING A TOTAL SHORTAGE OF 203,300 POUNDS.

PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT PROVIDES, IN PERTINENT PART, THAT:

"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * 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.'

ORDINARILY, IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, HOWEVER, THIS RULE IS NOT FOR APPLICATION IN THIS CASE SINCE THE ABOVE- QUOTED LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION. THE RECORD SHOWS THAT THE CONTRACTING AGENCY SOLD ITEMS 1 TO 17, INCLUSIVE, TO YOU ON AN "EACH" BASIS AND NOT BY WEIGHT; THAT THE DESCRIPTION WAS OBTAINED FROM PLATES ATTACHED THERETO BY THE MANUFACTURER; THAT THE CONTRACTING OFFICER BELIEVED IN GOOD FAITH THAT THE MATERIAL WAS ACCURATELY DESCRIBED; AND, THAT YOU ADMITTED IN YOUR LETTER OF JANUARY 7, 1954, TO THE CHIEF OF ORDNANCE THAT YOU WERE FAMILIAR WITH THE EXPRESS DISCLAIMER CLAUSE. IN VIEW THEREOF, IT IS APPARENT THAT THE DESCRIPTION IS NO MORE THAN A REPRESENTATION OF OPINION AS TO THE CONDITION OF QUALITY OF THE PROPERTY AND IS NOT TO BE RELIED UPON BY PROSPECTIVE BUYERS.

THE MATTER OF GRANTING RELIEF TO PURCHASERS OF SURPLUS PROPERTY UNDER TERMS AND CONDITIONS SIMILAR TO THOSE HERE PRESENT HAS BEEN THE SUBJECT OF NUMEROUS DECISIONS OF OUR OFFICE AND OF THE COURTS, AND IT HAS BEEN UNIFORMLY HELD THAT RECOVERY CANNOT BE HAD IN SUCH CASES. SEE SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; S. BRODY V. UNITED STATES, 64 C.CLS. 38; AND PARTICULARLY LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. WHILE THOSE DECISIONS MAY APPEAR TO BE HARSH, THE GOVERNMENT HAS USED THE PLAINEST LANGUAGE POSSIBLE TO ADVISE PROSPECTIVE BIDDERS THAT IN SURPLUS SALES CONTRACTS SUCH AS HERE INVOLVED THE PRINCIPLE OF CAVEAT EMPTOR WILL APPLY RIGIDLY.