B-126048, JAN. 31, 1956

B-126048, JAN. 31, 1956

TO MR. JAMES SHAINFINE:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 10, 1955, WITH ENCLOSURE, REQUESTING REVIEW OF THE GOVERNMENT'S CLAIM AGAINST YOU IN THE AMOUNT OF $379.74, REPRESENTING THE BALANCE DUE THE UNITED STATES BY REASON OF YOUR FAILURE TO COMPLY WITH THE TERMS OF CONTRACT NO. O.I. 124-SALV-50, DATED DECEMBER 21, 1949.

IN RESPONSE TO INVITATION NO. 28-009-S-50-23, DATED DECEMBER 6, 1949, ISSUED BY BELLE MEAD GENERAL DEPOT, YOU SUBMITTED A BID DATED DECEMBER 17, 1949, OFFERING TO PURCHASE LOTS NOS. 23, 24, 25, AND 26, COMPRISING CERTAIN CHEMICALS, FOR THE TOTAL AMOUNT OF $2,036.74. THE BID, ACCOMPANIED BY A DEPOSIT OF $408, WAS ACCEPTED DECEMBER 21, 1949, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN YOU AND THE GOVERNMENT. YOU CONTEND THAT THE CHEMICALS OFFERED WERE DIFFERENT FROM THE DESCRIPTION CONTAINED IN THE INVITATION IN THAT SOME OF THE CHEMICALS WERE NOT ZEOLITE, BUT WERE MADE BY VARIOUS OTHER MANUFACTURERS RATHER THAN BY THE ALUMINATE CORPORATION AS STATED IN THE INVITATION.

PARAGRAPH 6 OF THE GENERAL PROVISIONS OF THE CONTRACT PROVIDES THAT, UNLESS OTHERWISE SPECIFIED, ALL PROPERTY IS SOLD "AS IS," AND THE GOVERNMENT MAKES NO GUARANTY, EXPRESS OR IMPLIED, AS TO THE KIND, DESCRIPTION, OR CONDITION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY PARTICULAR USE. IN CONSTRUING THE RIGHTS AND LIABILITIES OF THE PARTIES UNDER THOSE STIPULATIONS IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND BY OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, THE SPECIFIC LANGUAGE OF SUCH A PROVISION CONSTITUTES A COMPLETE DISCLAIMER OF WARRANTY AND NONE MAY BE IMPLIED. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER AND 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.

IN YOUR LETTER OF OCTOBER 10, 1955, YOU STATE THAT YOU MADE A PARTIAL RATHER THAN A COMPLETE INSPECTION OF THE DRUMS OF CHEMICALS OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. PARAGRAPH 5 OF THE GENERAL PROVISIONS NOT ONLY INVITED BUT URGED BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS AND IT PROVIDED FURTHER THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. UNDER THOSE PROVISIONS IT HAS BEEN HELD THAT A BIDDER WHO SUBMITS A BID WITHOUT FULL INSPECTION ASSUMES ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION AND THE PROPERTY ACTUALLY SOLD. IF YOU WERE UNWILLING TO ASSUME SUCH A RISK YOU SHOULD NOT HAVE SUBMITTED THE BID.

IN VIEW OF THE FOREGOING THERE IS NO LEGAL BASIS UPON WHICH THIS OFFICE MAY GRANT YOU THE RELIEF REQUESTED. ACCORDINGLY, THE OBLIGATION SHOULD BE LIQUIDATED PROMPTLY BE FORWARDING HERE A CHECK OR MONEY ORDERS PAYABLE TO THE "U.S. GENERAL ACCOUNTING OFFICE," AS PREVIOUSLY INSTRUCTED. OTHERWISE, THE MATTER WILL BE REFERRED TO THE DEPARTMENT OF JUSTICE FOR APPROPRIATE COLLECTION ACTION.