B-130273, FEB. 11, 1957

B-130273, FEB. 11, 1957

TO CALIFORNIA BAG AND METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF DECEMBER 7, 1956, REQUESTING REVIEW OF OUR SETTLEMENT DATED NOVEMBER 19, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND IN THE AMOUNT OF $238.35, REPRESENTING A PART OF AN AMOUNT PAID TO THE GOVERNMENT FOR SURPLUS MATERIAL PURCHASED BY YOU FROM THE DEPARTMENT OF THE NAVY, UNDER CONTRACT NO. N251S-8637A.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. B-52-56, DATED MAY 3, 1956, YOU SUBMITTED A BID DATED MAY 21, 1956, OFFERING TO PURCHASE ITEM NO. 10 COMPRISING ONE LOT OF MISCELLANEOUS SCRAP COPPER, CONTAMINATED, WEIGHING 20,000 POUNDS FOR THE PRICE OF $0.2588 PER POUND OR FOR THE TOTAL CONSIDERATION OF $5,176. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $7,000 WAS ACCEPTED AND AWARD WAS MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT. YOU REQUEST REVIEW OF THE SETTLEMENT ACTION PRIMARILY ON THE BASIS THAT WHEN YOU RECEIVED THE SCRAP COPPER 921 POUNDS WERE FOUND TO BE DIRT AND, THEREFORE, NOT AS ADVERTISED IN THE INVITATION. YOUR CLAIM IS FOR AN ALLOWANCE OF A REFUND ON 921 POUNDS OF THE ENTIRE LOT OF 32,520 POUNDS RECEIVED BY YOU, BASED ON THE PRICE OF $0.2588 PER POUND, OR A TOTAL OF $238.35.

AS POINTED OUT IN THE SETTLEMENT OF NOVEMBER 19, 1956, PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES AS FOLLOWS:

"CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" "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, EXPRESS 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.' 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 AS HERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY AS TO DESCRIPTION, NO SUCH WARRANTY MAY BE IMPLIED. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER CO., 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.

IN THIS REGARD IT HAS BEEN ADMINISTRATIVELY REPORTED THAT THE SUBJECT MATERIAL HAD BEEN STORED IN A CONCRETE BASE BIN; THAT RAIN TROUGHS AND ROOF GUTTERS WERE A PART OF THE SCRAP COPPER FFERED; AND THAT THESE MATERIALS HAD BEEN COATED WITH TAR AND FINE GRAVEL, AND HAD ACCUMULATED A QUANTITY OF DIRT WHILE THEY WERE IN USE. IT IS INDICATED THAT THIS ACCUMULATION OF DIRT WAS DUE TO SUCH FACTORS AND WAS IN FACT A PART OF THE CONTAMINATED SCRAP RATHER THAN HAVING BEEN ADDED TO THE CONTRACT QUANTITY OF SCRAP COPPER BY THE GOVERNMENT THROUGH NEGLIGENCE OR OTHERWISE.