B-145044, MAR. 9, 1961

B-145044, MAR. 9, 1961

TO BONA-FIDE NOVELTIES, INC.:

WE REFER TO YOUR LETTER OF JANUARY 31, 1961, REQUESTING A REVIEW OF OUR SETTLEMENT OF JANUARY 4, 1961, WHICH DISALLOWED YOUR CLAIM FOR $400 ARISING OUT OF THE DEPARTMENT OF THE NAVY CONTRACT NO. N604S-35116, DATED MARCH 30, 1960.

BY INVITATION NO. B-86-60-604, DATED MARCH 7, 1960, THE NAVAL SUPPLY CENTER, PEARL HARBOR, HAWAII, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF A NUMBER OF ITEMS OF MISCELLANEOUS SURPLUS MATERIAL. ITEM NO. 5 WAS DESCRIBED IN THE INVITATION AS ONE LOT OF MISCELLANEOUS PHOTOGRAPHIC SUPPLIES CONSISTING OF THE FOLLOWING: "PHOTOGRAPHIC FILMS, PHOTOGRAPHIC PAPERS, PLATES, ETC; MFRS EASTMAN KODAK CO., ANSCO AND POSSIBLY OTHERS; CONSISTING OF 35 ITEMS TOTALING 551 PCS. MORE OR LESS, EST.WT. 650 LBS., IN BOXES AND CARTONS, NOT PACKED FOR SHIPMENT. (EST ACQ COST $7,294.50) CONDITION: UNUSED-FAIR.'

AT THE REQUEST OF SEVERAL PROSPECTIVE BIDDERS, AN AMENDMENT DATED MARCH 21, 1960, FURNISHED TO ALL BIDDERS A MORE DETAILED DESCRIPTION OF THE MATERIAL INCLUDED IN ITEM 5. SEVENTEEN SEPARATE GROUPS OF PHOTOGRAPHIC SUPPLIES WERE DESCRIBED INCLUDING: NO. 10, 51 ROLLS OF AERIAL FILM, SIZE 9 1/2 INCHES BY 200 FEET, AND NO. 11, 74 BOXES OF AERIAL FILM, SIZE 9 1/2 INCHES BY 390 FEET.

THE NAVAL SUPPLY CENTER REPORTED THAT THE SURPLUS FILM LENGTHS WERE NOT MEASURED, BUT INFORMATION CONCERNING LENGTH WAS OBTAINED BY COMPARING THE STOCK NUMBERS OF THE SURPLUS FILM WITH STOCK NUMBERS OF OTHER FILM WHICH BORE LENGTH MARKINGS AND BY CHECKING DATA FURNISHED IN THE NAVY STOCK LIST.

YOU STATE THAT INSTEAD OF THE MATERIAL DESCRIBED IN SECTIONS 10 AND 11 OF THE AMENDMENT, YOU RECEIVED 123 ROLLS OF FILM 9 1/2 INCHES BY 180 FEET. YOU FURTHER STATE THAT YOU WOULD HAVE BID $625 INSTEAD OF $1,025 IF YOU HAD KNOWN THE CORRECT DESCRIPTION OF THE FILM.

YOU DID NOT INSPECT THE MATERIAL OFFERED FOR SALE BUT CHOSE TO RELY ON THE DESCRIPTION DESPITE THE PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS, PARAGRAPHS 1 AND 2 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 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.'

IT IS DIFFICULT TO PERCEIVE HOW CLEARER OR MORE EXPLICIT LANGUAGE COULD HAVE BEEN USED TO ADVISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE REPEATEDLY HELD THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676.

THOSE CASES AND OTHERS TOO NUMEROUS TO MENTION CONCLUDE THAT, UNDER SUCH CIRCUMSTANCES, BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. IN DISPOSING OF SURPLUS MATERIALS, THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OR QUANTITY OF THE GOODS IT SELLS. THE GENERAL SALE TERMS AND CONDITIONS MAKE THAT FACT KNOWN TO ALL BIDDERS AND THE PURCHASER ASSUMES THE RISK REGARDING CONDITION AND THE QUANTITY OF THE MATERIAL AS ONE OF THE ELEMENTS OF THE BARGAIN. SEE 36 COMP. GEN. 612.

THE RECORD DISCLOSES THAT YOU DID NOT INSPECT THE MATERIALS OFFERED FOR SALE PRIOR TO SUBMITTING YOUR BID. THE LAW IS CLEAR THAT IN A SALE OF SURPLUS MATERIAL UNDER THE CONDITIONS STATED IN THE GENERAL SALE TERMS AND CONDITIONS, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUND THAT THE MATERIALS WERE OF AN INFERIOR QUALITY OR THAT THEY WERE SOMETHING OTHER THAN HE THOUGHT HE WAS BUYING. SEE TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; SACHS MERCANTILE CO. V. UNITED STATES, 78 CT.CL. 801; MATTRAM V. UNITED STATES, 271 U.S. 15; PAXTON-MITCHELL CO. V. UNITED STATES. 172 F.SUPP. 463. SINCE A BIDDER FAILS TO INSPECT AT HIS PERIL, YOU HAVE NO BASIS FOR RECOVERY MERELY BECAUSE IT WAS INCONVENIENT FOR YOU TO TRAVEL TO THE PLACE WHERE THE MATERIAL WAS AVAILABLE FOR INSPECTION.

THE DISPOSAL OFFICE IN THIS CASE USED THE INFORMATION AVAILABLE IN ITS RECORDS IN DESCRIBING THE PROPERTY OFFERED FOR SALE AND THEN MADE THE PROPERTY AVAILABLE FOR INSPECTION. THE ONLY FURTHER DUTY OWING TO BIDDERS WAS TO DELIVER THE EXACT PROPERTY WHICH WAS AVAILABLE FOR INSPECTION, UNDER THE PRINCIPLES STATED IN THE ABOVE CITED CASES.

WE FIND NO LEGAL BASIS FOR AUTHORIZING A REFUND OF ANY PART OF THE PURCHASE PRICE. ACCORDINGLY, THE SETTLEMENT OF JANUARY 4, 1961, DISALLOWING YOUR CLAIM, IS SUSTAINED.