B-127208, APR. 11, 1956

B-127208, APR. 11, 1956

TO WESTERN INTERNATIONAL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF FEBRUARY 20, 1956, REQUESTING REVIEW OF SETTLEMENT DATED JANUARY 30, 1956, WHEREIN THERE WAS DISALLOWED YOUR CLAIM FOR REFUND OF $1,010 UNDER CONTRACT NO. AF 33/604/S-240, DATED MARCH 10, 1955.

IN RESPONSE TO INVITATION NO. 33-604-S-55-7, ISSUED BY THE DAYTON AIR FORCE DEPOT ON FEBRUARY 1, 1955, YOU SUBMITTED A BID DATED FEBRUARY 18, 1955, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 116, COVERING 100 ANALYZERS AT $10.10 EACH, OR FOR A TOTAL PRICE OF $1,010. YOUR BID WAS ACCEPTED AS TO THIS ITEM, IN ADDITION TO TWO OTHERS, ON MARCH 10, 1955, APPARENTLY IN THE TOTAL AMOUNT OF $2,497.27,THEREBY CONSUMMATING CONTRACT NO. AF 33/604/S-240. IT APPEARS THAT UPON RECEIPT OF THE PROPERTY YOU ALLEGED THAT THE ANALYZERS SOLD UNDER ITEM NO. 116 WERE IN A USED AND UNACCEPTABLE CONDITION. AS A RESULT OF THIS YOU HAVE CLAIMED A REFUND OF $1,010, THE TOTAL AMOUNT OF YOUR BID FOR THIS ITEM.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT IS BASED ON THE PREMISE THAT AT THE TIME THE EQUIPMENT WAS OFFERED FOR SALE A SAMPLE, WHICH WAS REPAIRABLE AND IN AN EXCELLENT CONDITION, WAS SHOWN TO YOU AND YOU WERE ADVISED THAT IT WAS REPRESENTATIVE OF THE LOT; ALSO, THAT YOU REQUESTED PERMISSION TO INSPECT THE ENTIRE LOT BUT YOU WERE TOLD IT WAS IMPOSSIBLE TO OPEN ALL OF THE CASES DUE TO THEIR INACCESSIBILITY AND THE TIME AND LABOR THAT WOULD BE INVOLVED.

AN EXAMINATION OF INVITATION NO. 33-604-S-55-7, SHOWS THAT THE FOLLOWING WARNING APPEARED UPON THE FACE THEREOF:

"THE SAMPLES ON DISPLAY IN BLDG. 56 WERE DRAWN AT RANDOM AND MAY NOT REPRESENT THE TRUE CONDITION OF ALL PROPERTY IN THE LOT. BIDDERS ARE ENCOURAGED TO EXAMINE THE ITEM IN THE WAREHOUSE IN THE LOCATION INDICATED AS PART OF THE DESCRIPTION OF THE ITEM.'

IN ADDITION, THERE WAS EXPRESSLY SET FORTH IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT THE STATEMENT, "* * * THIS IS NOT A SALE BY SAMPLE.' SUCH SPECIFIC LANGUAGE COMPLETELY AFFIRMS THE SOLE PURPOSE OF DISPLAYING A SAMPLE IN CONNECTION WITH A SALE OF THIS KIND, NAMELY, TO ACQUAINT PROSPECTIVE BIDDERS MERELY WITH THE TYPE OF PROPERTY BEING OFFERED FOR SALE. UNDER INVITATIONS INCORPORATING SUCH PROVISIONS SAMPLES ARE NOT, AND MAY NOT BE PRESUMED TO BE, REPRESENTATIVE OF THE CONDITION OF SUCH OTHER PROPERTY OF SIMILAR TYPE AS MAY BE OFFERED FOR SALE, REGARDLESS OF WHAT ORAL REPRESENTATIONS MIGHT BE MADE BY GOVERNMENT EMPLOYEES WITH RESPECT TO THE RELATION OF THE SAMPLE WITH SUCH OTHER PROPERTY. BOTH THE WARNING ON THE FACE OF THE INVITATION--- ENCOURAGING INSPECTION IN THE WAREHOUSE--- AND ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS URGED PROSPECTIVE BIDDERS TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS. THE RECORD FAILS TO SHOW THAT YOU WERE ABSOLUTELY REFUSED FURTHER INSPECTION PRIVILEGES. MOREOVER, EVEN HAD THIS BEEN THE CASE NOTWITHSTANDING YOUR INSISTENCE OTHERWISE, WHICH ALSO IS NOT SHOWN IN THE RECORD, IF YOU STILL ELECTED TO SUBMIT A BID, AFTER HAVING BEEN COMPLETELY APPRISED OF ALL OF THE CONDITIONS OF ARTICLES 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS, AS WELL AS THE WARNING ON THE FACE OF THE INVITATION, IT MUST BE CONCLUDED THAT YOU ASSUMED ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY IN THE SALE INVITATION AND THE ACTUAL PROPERTY DELIVERED.

IN VIEW OF THE FOREGOING, THERE WOULD APPEAR TO BE LITTLE, IF ANY, NEED TO REFER TO THAT PART OF ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS RELATIVE TO THE EXPRESS DISCLAIMER OF WARRANT, TO WHICH REFERENCE PREVIOUSLY WAS MADE IN THE SETTLEMENT OF JANUARY 30, 1956. HOWEVER, SINCE THIS PROVISION GENERALLY IS OF EVEN MORE IMPORTANCE IN DETERMINING THE RIGHTS OF THE PARTIES UNDER SUCH A CONTRACT OF SALE IT MAY BE ADVISABLE TO STATE MERELY THAT IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND 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, NO WARRANTIES MAY BE IMPLIED UNDER ANY CIRCUMSTANCES WHERE AN EXPRESS DISCLAIMER OF WARRANTY, SUCH AS THAT EMBODIED IN ARTICLE 2, EXISTS. 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. THE RECORD DOES SHOW, HOWEVER, THAT NOTWITHSTANDING THE ALLEGED CONDITION OF THE ANALYZERS YOU DID RECEIVE ANALYZERS WHICH WAS THE SPECIFIC PROPERTY ADVERTISED FOR SALE.