B-128374, JUL. 18, 1956

B-128374, JUL. 18, 1956

TO ROBERT W. RICE AND CO., INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 12, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED JUNE 7, 1956, WHICH DISALLOWED YOUR CLAIM FOR $287.89, ALLEGED TO BE DUE IN CONNECTION WITH THE PURCHASE OF A 5-TON ELECTRIC HOIST FROM THE DEPARTMENT OF THE AIR FORCE.

IN RESPONSE TO INVITATION NO. 33-601-S-55-9, DATED JANUARY 31, 1955, ISSUED BY THE PROCUREMENT DIVISION WRIGHT-PATTERSON AIR FORCE BASE, OHIO, YOU SUBMITTED A BID DATED FEBRUARY 18, 1955, OFFERING TO PURCHASE, AMONG OTHER THINGS, ITEM 352, FOR $250.50, WHICH WAS DESCRIBED AS FOLLOWS:

"CODE O4-HOIST, ELECT. 6 HP, 1200 RPM, TYPE C7-306, 5 TON CAP. W/3/4 HP MOTOR 220-440 VOLTS, 60 CYC. 3 PHASE, 114 RPM, MASTER ELECT. CO., MFG, ROBBIN AND MYERS, S/N 3129R12, REPARABLE, APPROX. WT. 1,000 LBS., * *

YOUR BID WAS ACCEPTED AND AWARD WAS MADE TO YOU MARCH 9, 1955, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT. AFTER PAYMENT OF THE PURCHASE PRICE AND DELIVERY OF ITEM 352 TO YOU, YOU CHARGED THAT THE GOVERNMENT HAD NOT DELIVERED ITEM 352 AS ADVERTISED BUT SOME OTHER ITEM IN ITS PLACE AND STEAD.

PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS, MADE PART OF THE CONTRACT READ AS FOLLOWS:

"1.INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. IF IT IS PROVIDED HEREIN THAT THE GOVERNMENT SHALL LOAD, THEN "WHERE IS" MEANS F.O.B. CONVEYANCE AT THE POINT SPECIFIED IN THE INVITATION. 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.'

THE RECORD HERE SHOWS THAT IN A LETTER DATED MAY 11, 1955, YOU WERE REQUESTED TO ADVISE THE CONTRACTING OFFICER WHETHER YOU DID OR DID NOT INSPECT ITEM 352 AT THE INSTALLATION AND IF SUCH INSPECTION WAS MADE, TO FURNISH THE NAME OF THE PERSON MAKING THE INSPECTION AND THE DATE OF SUCH INSPECTION. IN YOUR REPLY LETTER OF MAY 13, 1955, YOU STATED "WE DO NOT HAVE AT HAND THE DATE OF INSPECTION BUT WE SEE NO NEED FOR CREATING EXCUSES FOR YOUR DEPARTMENT.' BY LETTER OF MAY 19, 1955, YOU WERE AGAIN ADVISED THAT "THE DIRECT QUESTION PERTAINING TO STATUS OF PRIOR INSPECTION OF THE ITEM IN LETTER OF 11 MAY 1955 FROM THE UNDERSIGNED HAS NOT BEEN ANSWERED.' THESE REQUESTS APPEAR TO HAVE BEEN IGNORED. THE ADMINISTRATIVE AGENCY HAS REPORTED THAT MR. ROBERT W. RICE WAS CONTACTED AUGUST 26, 1955, AND HE STATED THAT THE HOIST WAS INSPECTED BY A REPRESENTATIVE OF YOUR COMPANY PRIOR TO THE PURCHASE BUT HE COULD NOT RECALL HIS NAME. THUS THERE IS NO CLEAR SHOWING THAT INSPECTION WAS ACTUALLY MADE BY YOU PRIOR TO THE SUBMISSION OF YOUR BID.

WITH REGARD TO THE LANGUAGE OF PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, SUCH LANGUAGE, WHICH SPECIFICALLY PROVIDES THAT NO WARRANTIES OR GUARANTIES ARE MADE BY THE GOVERNMENT CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION AS IN THE INSTANT CASE, NO SUCH WARRANTY MAY BE IMPLIED. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" "WHERE IS" BASIS, WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE MATERIALS ARE NOT AS DESCRIBED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; SACHS MERCANTILE CO., V. UNITED STATES, 78 C.CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MOTTRAM V. UNITED STATES, 271 U.S. 15; AND MAGUIRE V. UNITED STATES, 273 U.S. 67.

IN YOUR LETTER OF APRIL 28, 1955, YOU STATE "APPARENTLY SOMEBODY ELSE RECEIVED THE ITEM WHICH WE PURCHASED BUT WE MUST HOLD YOU RESPONSIBLE FOR DELIVERING IT AS PURCHASED TO OUR CARRIER. WE REFER YOU TO SECTION NO. 10 OF THE GENERAL SALES TERMS AND CONDITIONS.' IN YOUR RECENT LETTER OF JUNE 12, 1956, YOU AGAIN CONTEND THAT YOU NEVER HAD DELIVERED TO YOU THE ITEM YOU PURCHASED; THAT THERE WAS A MISTAKE MADE SOMEWHERE ALONG THE LINE; AND THAT THIS IS SUBSTANTIATED BY THE FACT THAT ADMISSIONS HAVE BEEN MADE REGARDING THE SIZE AND WEIGHT OF THE SHIPMENT.

WITH REGARD TO SUCH CONTENTION THE ADMINISTRATIVE AGENCY HAS REPORTED THAT THE DISPOSAL OFFICER MADE AN ERROR IN TRANSPOSING THE WEIGHT OF THE SHIPMENT FROM THE INVITATION FOR BID TO THE SHIPPING INVOICE; HOWEVER, THE OFFICER STATES THAT ALL PROPERTY UNDER ITEM 352 WAS DELIVERED TO YOUR AGENT FOR SHIPMENT, AND IF THE MERCHANDISE WAS NOT RECEIVED AT DESTINATION, IT WAS LOST WHILE IN TRANSIT. THERE IS NO SHOWING THAT YOU INSPECTED THE PROPERTY LISTED UNDER ITEM 352 AND THAT YOU RECEIVED PROPERTY OTHER THAN WHAT YOU HAD INSPECTED. ALSO, ACCORDING TO SECTION 10 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SUBJECT CONTRACT, THE GOVERNMENT'S RESPONSIBILITY FOR THE MERCHANDISE AFTER YOU HAVE TAKEN TITLE TO IT AND PRIOR TO REMOVAL, IS LIMITED TO THE EXERCISE OF REASONABLE CARE FOR ITS PROTECTION. THERE IS NO PROOF THAT THE GOVERNMENT FAILED TO EXERCISE SUCH CARE.

WITH REGARD TO THE AGENCY'S REPORT IN THIS MATTER, IT MAY BE SAID THAT OUR OFFICE HAS NO FIRSTHAND KNOWLEDGE OF THE FACTS AND NECESSARILY MUST RELY ON THE REPORT OF THE ADMINISTRATIVE AGENCY RELATIVE TO THE CLAIM. THE ABSENCE OF EVIDENCE LEGALLY SUFFICIENT TO OVERCOME THE CORRECTNESS OF SUCH REPORT, IT IS THE INVARIABLE RULE OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO ACCEPT THE STATEMENT OF FACT AS REPORTED BY THE ADMINISTRATIVE OFFICERS. THE BURDEN IS NOT UPON OUR OFFICE TO REFUTE CLAIMS PRESENTED HERE FOR SETTLEMENT OR TO CONTROVERT THE ALLEGATIONS ON WHICH SUCH CLAIMS ARE BASED. ON THE CONTRARY, IT IS INCUMBENT UPON CLAIMANTS TO FURNISH EVIDENCE SATISFACTORILY ESTABLISHING THEIR CLAIMS. THIS YOU HAVE FAILED TO DO. SEE 3 COMP. GEN. 51; 16 ID. 410.

UNDER THE CIRCUMSTANCES AND SINCE THE ADMINISTRATIVE AGENCY OF THE GOVERNMENT IS SHOWN TO HAVE ACTED IN GOOD FAITH IN THE MATTER BY DESCRIBING THE PROPERTY ON THE BASIS OF THE BEST INFORMATION AVAILABLE AND FOR WHAT IT WAS BELIEVED TO BE, THERE IS NO LEGAL BASIS ON WHICH YOUR CLAIM FOR REFUND PROPERLY MAY BE ALLOWED. ACCORDINGLY, THE SETTLEMENT OF JUNE 7, 1956, IS SUSTAINED.