B-126465, JAN. 19, 1956

B-126465, JAN. 19, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED DECEMBER 23, 1955, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIEL), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN IN CONNECTION WITH A CLAIM BY MR. CHARLES H. ALDER, TAMPA, FLORIDA, FOR REFUND OF THE SUM OF $32 DEPOSITED BY HIM IN CONNECTION WITH HIS BID TO PURCHASE ONE LIFEBOAT COVERED BY ITEM 1 OF SALES INVITATION NO. B-2-56, DATED JULY 12, 1955.

THE RECORD SHOWS THAT BY THE ABOVE INVITATION THE U.S. NAVAL STATION, NEW ORLEANS (ALGIERS), LOUISIANA, OFFERED FOR SALE CERTAIN USED BOAT HULLS AMONG WHICH WAS ITEM 1 FOR THE SALE OF ONE LIFEBOAT, METAL HULL, HAVING A LENGTH OF 38 FEET AND A CAPACITY OF 40 PERSONS, ETC. IN RESPONSE TO THE INVITATION MR. ALDER SUBMITTED AN OFFER TO PAY THE SUM OF $160 FOR THE LIFEBOAT IN QUESTION AND, IT BEING HIGHEST BID RECEIVED, HE WAS AWARDED CONTRACT NO. N205S-6764 UNDER DATE OF AUGUST 1, 1955.

IT IS REPORTED THAT WHEN MR. ALDER CALLED AT THE NAVAL STATION ON AUGUST 8, 1955, FOR THE PURPOSE OF REMOVING THE LIFEBOAT IN QUESTION, IT WAS DISCOVERED THAT THE BOAT MEASURED 28 FEET IN LENGTH RATHER THAN 38 FEET AS INDICATED IN THE INVITATION TO BID. MR. ALDER THEREUPON INDICATED, IN EFFECT, THAT A 28 FOOT BOAT WOULD NOT SERVE HIS NEEDS AND WITH THE CLAIM, THE COMMANDING OFFICER OF THE NAVAL STATION INVITED PRIOR TO SALE, TO MAKE AN INSPECTION OF THE PROPERTY HE DID NOT AVAIL HIMSELF OF THIS PRIVILEGE; ALSO, AS A BASIS FOR HIS RECOMMENDATION THAT THE CLAIM BE DENIED, THE COMMANDING OFFICER MADE REFERENCE TO CERTAIN PERTINENT PROVISIONS OF THE CONTRACT.

UNDER PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS, AND IT WAS SPECIFICALLY PROVIDED THEREIN THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' FURTHERMORE, PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS INFORMED BIDDERS THAT THE PROPERTY LISTED THE OFFERED FOR SALE "AS IS" AND "WHERE IS" AND THAT---

"* * * THE DESCRIPTION (HEREIN) 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.'

THERE IS ALSO FOR CONSIDERATION PARAGRAPH 18 OF THE "ADDITIONAL PROVISIONS" WHICH PROVIDES THAT IF AFTER AWARD THE PURCHASER FAILS TO PAY THE BALANCE OF THE PURCHASE PRICE, FAILS TO REMOVE THE MATERIAL, OR OTHERWISE FAILS TO PERFORM ANY OF ITS OBLIGATIONS, HE WILL THEREBY LOSE ALL RIGHT, TITLE, AND INTEREST IN THE MATERIAL THEREUNDER, AND THE GOVERNMENT MAY, AT ITS ELECTION, RETAIN THE MATERIAL AND MAY RETAIN FROM ANY AMOUNT PAID BY THE PURCHASER, AS LIQUIDATED DAMAGES, A SUM EQUAL TO TWENTY PERCENT OF THE PURCHASE PRICE PLUS ANY ACCRUED CHARGES.

IN VIEW OF THE CITED PROVISIONS OF THE CONTRACT THERE IS NO LEGAL BASIS UNDER WHICH A REFUND MAY BE MADE TO MR. ALDER OF HIS BID DEPOSIT.

THE PAPERS TRANSMITTED WITH THE LETTER OF DECEMBER 23, 1955, WITH THE EXCEPTION OF THE COMMANDING OFFICER'S REPORT OF AUGUST 18, 1955, ARE RETURNED HEREWITH.