B-132244, AUG. 9, 1957

B-132244, AUG. 9, 1957

TO ENGINE PARTS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1957, AND TO LETTERS OF JUNE 5 AND 28, 1957, IN YOUR BEHALF FROM THE LAW FIRM OF WACHTEL, WIENER AND ROSS, REQUESTING A REVIEW OF OUR SETTLEMENT DATED MAY 15, 1957, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF $634 BID DEPOSIT UNDER CONTRACT NO. N228S-17438, AWARDED TO YOU SEPTEMBER 25, 1956, BY THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, PURSUANT TO YOUR BID DATED SEPTEMBER 14, 1956, ON ITEM NO. 65APA OF INVITATION NO. B-37-57, DATED AUGUST 24, 1956, FOR THE PURCHASE OF 42 GENERATORS AT A UNIT PRICE OF $72 OR A TOTAL OF $3,024.

AFTER AWARD OF THE CONTRACT AND UPON YOUR REQUEST YOU WERE ALLOWED SEVERAL EXTENSIONS OF TIME FOR MAKING PAYMENT OF THE BALANCE DUE AND REMOVAL OF THE MATERIAL. BY LETTER OF NOVEMBER 6, 1956, YOU WERE DECLARED IN DEFAULT FOR FAILURE TO PAY FOR AND REMOVE THE MATERIAL WITHIN THE TIME SPECIFIED AND THE CONTRACT WAS TERMINATED FOR THAT REASON. IN ACCORDANCE WITH THE TERMS OF THE CONTRACT, LIQUIDATED DAMAGES OF $604.80--- 20 PERCENT OF THE TOTAL CONTRACT PRICE--- WERE RETAINED FROM YOUR BID DEPOSIT OF $634 AND THE BALANCE OF $29.20 WAS RETURNED TO YOU.

IN LETTER OF NOVEMBER 5, 1956, TO THE CONTRACTING OFFICER YOU ALLEGED THAT 42 GENERATORS LISTED UNDER ITEM NO. 65 WERE MISADVERTISED IN THE INVITATION, SINCE THE UNITS WERE NOT MOTOR GENERATOR SETS BUT "JET AIRCRAFT ENERGIZERS, MADE SPECIFICALLY FOR THAT PURPOSE.' YOU REQUESTED THE RETURN OF YOUR BID DEPOSIT.

THE 42 UNITS UNDER ITEM NO. 65 WERE DESCRIBED IN THE INVITATION AS "GENERATOR, MOTOR GENERATOR SET, MG SET, 100 AMPERES CONTINUOUS, 150 AMPERES, INTERMITTENT, AT 28 1/2 VOLTS DC, MOTOR: 230 VOLTS DC, 47 AMPERES, FULL LOAD, 3600 RPM, INSTRUCTION BOOK GE1-20688, BUSHIPS 59200- 855910. ACQUISITION: $14,500.00 APPARENTLY UNUSED--- IN GOOD CONDITION. APPROXIMATE WEIGHT 2,950 LBS.--- CUBE 57--- PACKED IN 5 BOXES.' PHOTOGRAPH OF THE GENERATOR TO BE SOLD APPEARED JUST ABOVE THE DESCRIPTION. THE INVITATION REQUIRED THAT A DEPOSIT OF 20 PERCENT OF THE TOTAL AMOUNT BID MUST ACCOMPANY THE BID, AND PARAGRAPHS 7 AND 18 OF THE GENERAL SALE TERMS AND CONDITIONS SET FORTH THE LIABILITY OF THE CONTRACTOR IN THE EVENT OF HIS DEFAULT OR FAILURE TO COMPLY WITH THE CONTRACT REQUIREMENTS. THE INVITATION ALSO CONTAINED THE USUAL PROVISIONS CAUTIONING BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND PUT THEM ON NOTICE AND CHARGED THEM WITH THE DUTY OF ASCERTAINING, FOR THEMSELVES, THE NATURE AND CONDITION OF THE PROPERTY INSTEAD OF RELYING ON THE GOVERNMENT TO FURNISH A FULL AND ACCURATE DESCRIPTION. BIDDERS WERE TOLD, IN EFFECT, THAT IF THEY BOUGHT SOMETHING OTHER THAN THAT WHICH THEY THOUGHT THEY WERE BUYING IT WAS NOT THE FAULT OF THE GOVERNMENT AND THAT THEY AFTERWARDS COULD NOT ASSERT A CLAIM UPON THE GROUND THAT THEY WERE MISTAKEN. PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDES---

"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 ABOVE LANGUAGE HAS BEEN HELD BY THE COURTS TO CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY; THAT THERE IS ESPECIALLY FOR APPLICATION THE PRINCIPLE THAT THE PURCHASER BUYS ENTIRELY AT HIS OWN RISK; AND THAT RECOVERY CANNOT BE HAD AGAINST THE VENDOR ON THE GROUND THAT THE PURCHASER WAS MISTAKEN AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE OR DESCRIPTION OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE. 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; M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; S. BRODY V. UNITED STATES, 64 C.CLS. 538; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; AND MAGUIRE COMPANY V. UNITED STATES, 273 U.S. 67.

IT DOES NOT APPEAR THAT YOU WERE PREVENTED BY ANY ACT OF THE GOVERNMENT FROM INSPECTING THE PROPERTY, AND HAD YOU AVAILED YOURSELF OF THAT OPPORTUNITY WHICH CONTINUALLY WAS OPEN TO YOU UNTIL THE TIME OF THE SUBMISSION OF YOUR BID YOU COULD HAVE DETERMINED THE EXACT TYPE OF PROPERTY PRIOR TO BIDDING THEREON. YOU, OF COURSE, WERE UNDER NO OBLIGATION EITHER TO INSPECT THE PROPERTY OR TO BID ON IT, BUT HAVING SUBMITTED A BID WHICH WAS ACCEPTED YOU WERE SUBJECT TO THE PROVISIONS OF THE CONTRACT INCLUDING THOSE OF THE GENERAL SALE TERMS AND CONDITIONS CONTAINED THEREIN.

IN THE CIRCUMSTANCES, YOU CANNOT NOW CHARGE THE GOVERNMENT WITH THE CONSEQUENCES OF YOUR OWN FAILURE TO INSPECT. THUS, THE MATTER FALLS SQUARELY WITHIN THE PRINCIPLE OF LAW ANNOUNCED BY THE UNITED STATES COURT OF CLAIMS IN THE CASE OF TRAID CORPORATION V. UNITED STATES, ABOVE, WHEREIN IT WAS STATED, AT PAGE 156, THAT:

"THE PLAINTIFF DID NOT TAKE ADVANTAGE OF ITS RIGHT TO INSPECT BUT BOUGHT THE LOT WITHOUT INSPECTING IT.

"UNDER THE TERMS OF THE CATALOGUE IT IS DIFFICULT TO PERCEIVE HOW THE GOVERNMENT COULD HAVE GIVEN PURCHASERS MORE SPECIFIC WARNING THAN IT DID, THAT THEY BOUGHT AT THEIR RISK WHAT MATERIAL IT HAD AND WAS OFFERING FOR SALE; THAT IF A PURCHASER WISHED TO PROTECT HIMSELF HE COULD DO SO BY INSPECTION, FULL OPPORTUNITIES FOR WHICH WERE OFFERED, AND THAT IF HE FAILED TO INSPECT AND RECEIVED SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING HE COULD HAVE NO REDRESS AND COULD NOT CLAIM ALLOWANCES BY REASON THEREOF. MORE THAN THAT, HE WAS DISTINCTLY TOLD THAT FAILURE TO INSPECT WOULD NOT BE CONSIDERED AS A GROUND FOR ADJUSTMENT. IF PLAINTIFF NEGLECTED TO EMBRACE THE OPPORTUNITY OFFERED IT TO INSPECT AND PURCHASED THE PROPERTY WITHOUT DOING SO, WITH NOTICE THAT IT BOUGHT AT ITS OWN RISK, IT CREATED BY ITS OWN NEGLIGENCE THE SITUATION FROM WHICH IT NOW SEEKS RELIEF.'

FURTHERMORE, THE ADMINISTRATIVE OFFICE ADVISES THAT A JET AIRCRAFT ENERGIZER IS A MOTOR GENERATOR. THE CONTRACTING OFFICER STATES THAT ITEM NO. 65 OF THE INVITATION ACCURATELY DESCRIBED THE MATERIAL AS A MOTOR GENERATOR SET, GIVING COMPLETE ELECTRICAL DATA OF BOTH THE GENERATOR AND MOTOR, AND IN ADDITION INCLUDED A PHOTOGRAPH OF THE SET. THERE IS NO EVIDENCE IN THE RECORD OF BAD FAITH ON THE PART OF THE GOVERNMENT IN DESCRIBING THE MATERIAL. AS A MATTER OF FACT, THE GOVERNMENT SOLD TO YOU EXACTLY THE MATERIAL WHICH IT ADVERTISED FOR SALE, NAMELY, MOTOR GENERATOR SETS. THE DISCREPANCY, IF ANY, BETWEEN THE GOODS TENDERED AND THE GOODS DESCRIBED IS NOT SUCH AS WOULD WARRANT YOU TO RESCIND THE SALE. SEE STANDARD MAGNESIUM CORPORATION V. UNITED STATES, 241 F.2D 677, 679.

THE FACT THAT AN ALLOWANCE OF A CLAIM MAY HAVE BEEN MADE IN ANOTHER CASE DOES NOT GOVERN THE DISPOSITION OF THE INSTANT CLAIM, ESPECIALLY WHERE, AS HERE, THE MATERIAL APPEARS TO HAVE BEEN ACCURATELY DESCRIBED.

IN THE LIGHT OF THE FOREGOING, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM, AND, ACCORDINGLY, THE SETTLEMENT OF MAY 15, 1957, IS SUSTAINED.