B-142251, MAR. 31, 1960

B-142251, MAR. 31, 1960

TO MIDWEST WASTE MATERIAL COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 25, 1960, REQUESTING REVIEW OF OUR SETTLEMENT OF FEBRUARY 19, 1960, DISALLOWING YOUR CLAIM FOR $1,536.55 UNDER CONTRACT NO. N665S-45737, DATED SEPTEMBER 25, 1959.

IN RESPONSE TO INVITATION NO. B-34-60-665, ISSUED ON AUGUST 28, 1959, BY THE U.S. NAVAL SUPPLY DEPOT CLEAR FIELD, DISPOSAL DEPARTMENT, OGDEN, UTAH, YOU SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, ITEMS NUMBERS 108, COVERING JUMPERS, MAN'S WHITE, SIZE 34, ETC., AND 109 COVERING JUMPERS, MAN'S WHITE, SIZE 32 CHEST, 25 IN. LENGTH, ETC. THE INVITATION FOR THESE TWO ITEMS PROVIDED THAT "BIDS MUST BE FOR ALL OR ANY PART IN MULTIPLES OF 300. IF QUANTITIES LESS THAN THAT BID FOR ARE NOT DESIRED, BIDDERS MUST SPECIFY.' OF THE 39,434 JUMPERS OFFERED FOR SALE UNDER ITEM NO. 108, YOU QUOTED A PRICE OF $0.0931 EACH FOR THE FIRST 9,000 AND A PRICE OF $0.0867 EACH FOR AN ADDITIONAL 9,000. ALSO, YOU BID $0.1011 EACH FOR 12,731 OF THE 13,031 JUMPERS OFFERED UNDER ITEM NO. 109. THE RECORD SHOWS THAT YOUR BID WAS ACCEPTED ON SEPTEMBER 25, 1959, ON ITEMS NUMBERS 70, 108, AND 109 IN THE TOTAL AMOUNT OF $3,044.96, WHICH ACCEPTANCE RESULTED IN CONTRACT NO. N665S 45737. PAYMENT WAS MADE IN FULL AND SHIPMENT OF THE MERCHANDISE COVERED BY THE CONTRACT WENT FORWARD TO YOU. UPON YOUR RECEIPT OF A LETTER DATED OCTOBER 28, 1959, FROM THE CONTRACTING OFFICER ADVISING OF CERTAIN MISDESCRIPTIONS IN THE INVITATION WITH RESPECT TO ITEMS NUMBERS 108 AND 109 YOU ADDRESSED A LETTER DATED NOVEMBER 3, 1959, TO THE ATTENTION OF THE CONTRACTING OFFICER ADVISING THAT DUE TO THE MISREPRESENTATION OF SIZES, WHICH WAS FORCING YOU TO SELL AT A LOSS, YOU WERE SUBMITTING A CLAIM OF $0.05 EACH FOR THE 30,731 JUMPERS PURCHASED BY YOU. IN THAT LETTER YOU STATED THAT LOT NO. 108 WAS ADVERTISED AS SIZE 34 AND LOT NO. 109 AS SIZE 32, WHEREAS YOU RECEIVED SIZES 30A AND 28A FOR THE RESPECTIVE LOTS.

IT APPEARS FROM YOUR LETTER OF FEBRUARY 25, 1960, THAT YOUR REQUEST FOR REVIEW OF OUR SETTLEMENT IS BASED PRIMARILY ON THIS CONTENTION THAT HAD IT NOT BEEN FOR AN OVERSIGHT IN THE OFFICE OF THE PROPERTY DISPOSAL OFFICER YOU WOULD HAVE BEEN INFORMED, AFTER THE AWARD WAS MADE TO YOU AND PRIOR TO THE DELIVERY OF THE PROPERTY, AS OTHER SUCCESSFUL BIDDERS WERE, OF THE MISDESCRIPTION IN THE SIZES AND, THEREFORE, WOULD HAVE BEEN UNDER NO OBLIGATION TO ACCEPT DELIVERY OF ITEMS NUMBERS 108 AND 109. ALSO, YOU TAKE THE POSITION THAT INSOFAR AS THE STANDARD OF PROPERTY EXPECTED IS CONCERNED, BIDDERS HAD THE RIGHT TO RECEIVE JUMPERS IN ACCORDANCE WITH THE DESCRIPTION OF SIZES SHOWN IN THE INVITATION.

IN A MATTER COVERED BY A CONTRACT OF SALE SUCH AS THAT PRESENT IN THE INSTANT CASE, THE PRINCIPAL ISSUE IS WHETHER THE GOVERNMENT DOES OR DOES NOT WARRANT THE PROPERTY SOLD. IN THIS CONNECTION, THERE IS REITERATED HERE THE FOLLOWING PERTINENT PART OF ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF CONTRACT NO. N665S-45737:

"ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * 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; * *

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, SUCH LANGUAGE CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY. ALSO, ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION, THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION; BUT WHERE THERE EXISTS AN EXPRESS DISCLAIMER OF WARRANTY--- AS IN THE INSTANT CASE--- NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD, AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. 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; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C.CLS. 424.

THERE IS NOTHING IN THE RECORD BEFORE US TO SHOW THAT BAD FAITH MAY BE ATTRIBUTED TO THE GOVERNMENT IN THE TRANSACTION. MOREOVER, INSOFAR AS CONCERNS YOUR CONTENTION THAT UNDER THE CONTRACT YOU HAD THE RIGHT TO RECEIVE JUMPERS COMPLYING WITH THE STANDARD EXPECTED, IT IS PARTICULARLY SIGNIFICANT TO NOTE THAT THE LANGUAGE OF THE FOREGOING DISCLAIMER OF WARRANTY EXPRESSLY REFERS TO, AMONG OTHERS, THE "SIZE" OF THE JUMPERS INVOLVED. DESCRIPTIVE DETAILS IN INVITATIONS OF THIS KIND, SUCH AS THE SIZES REFERRED TO HERE, CONSISTENTLY HAVE BEEN HELD BY OUR OFFICE TO BE NOTHING MORE THAN A MERE EXPRESSION OF OPINION AS TO WHAT THE GOVERNMENT SALES OFFICER BELIEVES THE PROPERTY FOR SALE TO BE. THIS BEING THE CASE, NO LIABILITY MAY ATTACH TO THE GOVERNMENT BY REASON OF THE FACT THAT AN INCORRECT SIZE WAS SHOWN ON THE INVITATION FOR ITEM NO. 108 AND THAT APPARENTLY THE OVERALL SIZE OF ITEM NO. 109 WAS OMITTED, ALTHOUGH THE CHEST AND LENGTH SIZES SHOWN FOR THIS ITEM WERE CORRECT. THE RECORD SHOWS CLEARLY THAT WHILE SOME MISDESCRIPTION OR OMISSION EXISTED IN CONNECTION WITH ITEMS NUMBERS 108 AND 109, NEVERTHELESS YOU DID RECEIVE JUMPERS WHICH WAS THE BASIC MERCHANDISE OFFERED FOR SALE AND ANY IRREGULARITIES AS TO THE DESCRIPTIVE DETAILS OF THE JUMPERS WERE COMPLETELY COVERED BY THE EXPRESS DISCLAIMER OF WARRANTY. SUCH CONDITION IS UNEQUIVOCALLY SUPPORTED BY THE COURT CASES HERETOFORE CITED.

REGARDING YOUR CONTENTION AS TO THE UNTIMELY NOTIFICATION OF THE MISDESCRIPTION OF SIZES, YOU MAY BE ADVISED THAT SUCH A FACT ALONE ESTABLISHES NO RIGHT TO THE RESCISSION OF AN OTHERWISE VALID CONTRACT. THE ACCEPTANCE OF YOUR BID A BINDING CONTRACTUAL OBLIGATION WAS EFFECTED AND THE SUBSEQUENT DELIVERY OR SHIPMENT OF THE MERCHANDISE COVERED BY SUCH A CONTRACT IS MERELY AN INFORMAL DETAIL GENERALLY NECESSARY TO COMPLETE ALL PHASES OF THE TRANSACTION AND UPON WHICH THE LEGALITY OF THE CONTRACT ITSELF IN NO WAY DEPENDS.

IT MAY BE STATED FURTHER THAT ANY ADMINISTRATIVE ACTION CANCELING SHIPMENTS UNDER THE CONTRACT SOLELY BECAUSE OF THE REASONS STATED BY YOU WOULD APPEAR TO BE COMPLETELY UNAUTHORIZED.