B-129947, JAN. 9, 1957

B-129947, JAN. 9, 1957

TO NORMAR PRODUCTS INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 6, 1956, REQUESTING A REVIEW OF OUR SETTLEMENT DATED OCTOBER 30, 1956, WHICH DISALLOWED YOUR CLAIM FOR $153.60, ARISING OUT OF CONTRACT N251S 8238A, DATED DECEMBER 29, 1955, WITH THE DEPARTMENT OF THE NAVY.

THE RECORD SHOWS THAT BY YOUR BID SUBMITTED IN RESPONSE TO SALES INVITATION NO. B-26-56, DATED NOVEMBER 30, 1955, WHICH REQUESTED BIDS ON VARIOUS ITEMS OF SURPLUS PROPERTY TO BE SOLD AT THE PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, ON DECEMBER 22, 1955, YOU OFFERED TO PURCHASE, AMONG OTHER THINGS, ITEM (LOT) NO. 34 DESCRIBED AS "MISC. SQUARE "D" ELECTRICAL MATERIAL, AS LISTED: .' YOUR BID WAS ACCEPTED AND AWARD MADE TO YOU DECEMBER 29, 1955, IN THE AMOUNT OF $105.70 FOR THE LOT IN ITEM NO. 34, AND THE MATERIAL WAS DELIVERED AND PAYMENT MADE THEREFOR IN THE CONTRACT AMOUNT.

YOUR CLAIM CONCERNS ONE PART OF ITEM NO. 34 LISTED AS "15 EA. MAGNETIC CONTACTORS, AC, SIZE 2," AND IS FOR REFUND OF THE FULL PURCHASE PRICE PAID FOR ITEM 34, PLUS PACKING AND FREIGHT CHARGES, IN A TOTAL AMOUNT OF $153.60. YOU ALLEGE THAT UPON EXAMINATION OF THE MATERIAL AFTER DELIVERY YOU FOUND THAT SQUARE D MAGNETIC CONTACTORS OF AN AC NATURE WHICH WERE NOT SIZE 2 HAD BEEN DELIVERED. YOU ADMIT THAT YOU DID NOT INSPECT THE PROPERTY PRIOR TO SUBMITTING YOUR BID.

YOUR REQUEST FOR REVIEW OF THE SETTLEMENT IS BASED UPON YOUR CONTENTIONS THAT THE SQUARE D MAGNETIC CONTACTORS WERE MISDESCRIBED IN THE INVITATION, AND THAT YOUR BID PRICE OF $105.70 FOR THE LOT OF MATERIAL INCLUDED AS ITEM 34 WAS PREDICATED ON RECEIVING THE SIZE 2 MAGNETIC CONTACTORS DESCRIBED THEREIN AND THAT THOSE DELIVERED ARE OF NO VALUE TO YOU. YOU ALSO CONTEND THAT YOU ARE NOT REQUIRED TO COMPLETE A PHYSICAL INSPECTION OF EQUIPMENT BEFORE PURCHASING, STATING IN THAT REGARD THAT "I BELIEVE YOU WOULD DEEM IT IMPOSSIBLE, IN VIEW OF THE AMOUNT INVOLVED ON THE ENTIRE CONTRACT, FOR US TO GO TO SEATTLE OR HIRE SOMEBODY IN SEATTLE, TO INSPECT THIS PARTICULAR LOT.'

YOU WERE, OF COURSE, UNDER NO OBLIGATION EITHER TO INSPECT THE PROPERTY OR TO BID ON IT, BUT YOUR BID AND THE SALE WERE SUBJECT TO THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2 OF WHICH PROVIDE:

"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 PLACE 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 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 ALLOWANCES OR ADJUSTMENTOR 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 ADMINISTRATIVE AGENCY HAS REPORTED THAT THE DESCRIPTION OF THE PROPERTY WAS BASED ON THE BEST INFORMATION AVAILABLE TO IT AND THE PROPERTY WAS SOLD FOR WHAT THE GOVERNMENT BELIEVED IT TO BE. UNDER THE CONDITIONS OF THE SALE THE GOVERNMENT WAS ONLY OBLIGED TO ACT IN GOOD FAITH, AND THIS IT DID.

THE LANGUAGE OF PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, ABOVE, HAS BEEN HELD TO CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY AND TO IMPOSE ON THE BIDDER THE ENTIRE RISK OF FAILURE OF THE PROPERTY TO CORRESPOND WITH THE DESCRIPTION. SEE LUMBRAZO V. WOODRUFF, 256 N.Y. 92, 175 N.E. 525; W. E. HEDGER CO., INC. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424; M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; AND MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67.

IN THE LIGHT OF THE FOREGOING, THERE IS NO LEGAL BASIS ON WHICH YOUR CLAIM FOR REFUND MAY PROPERLY BE ALLOWED.