B-145525, APR. 25, 1961

B-145525, APR. 25, 1961

TO HARRIS MACHINERY COMPANY:

RECEIPT IS ACKNOWLEDGED OF YOUR LETTER DATED MARCH 27, 1961, REQUESTING REVIEW OF OUR SETTLEMENT DATED MARCH 23, 1961, DISALLOWING YOUR CLAIM FOR $263 ARISING OUT OF A SALE TRANSACTION COVERED BY DEPARTMENT OF ARMY INVITATION NO. 30-069-S-60-21.

IN RESPONSE TO THE INVITATION, WHICH WAS ISSUED ON MARCH 7, 1960, BY THE NEW YORK ORDNANCE DISTRICT, YOU SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 10, COVERING ONE REBUILT AIR COMPRESSOR FOR $526. YOUR BID, BEING THE HIGHEST BID RECEIVED FOR ITEM NO. 10, WAS ACCEPTED BY THE GOVERNMENT CONTRACTING OFFICER ON APRIL 8, 1960. FULL PAYMENT WAS MADE BY YOU AND THE COMPRESSOR WAS RELEASED ON APRIL 22, 1960, TO YOUR AGENT, THE STANLEY TRUCKING COMPANY, FOR DELIVERY TO YOU. BY LETTER DATED APRIL 26, 1960, YOU ADVISED THE NEW YORK ORDNANCE DISTRICT THAT THE AIR COMPRESSOR HAD BEEN STRIPPED AND WAS NOT A COMPLETE UNIT. BY REASON OF THIS YOU CLAIM A REFUND OF $263--- ONE-HALF OF THE PURCHASE PRICE--- WHICH YOU CONSIDER TO BE A FAIR ADJUSTMENT FOR RESTORING THE COMPRESSOR TO A SATISFACTORY CONDITION.

YOUR REQUEST OF MARCH 27, 1961, FOR REVIEW OF THE SETTLEMENT IS BASED ON YOUR CONTENTION THAT SINCE THE WORD "REBUILT" WAS USED IN THE INVITATION TO DESCRIBE THE CONDITION OF THE AIR COMPRESSOR YOU HAD THE RIGHT TO RELY COMPLETELY ON THAT DESCRIPTION WITHOUT MAKING AN INSPECTION.

WITH RESPECT TO THIS CONTENTION, THE DEPARTMENT OF THE ARMY REPORTS THAT THE AIR COMPRESSOR COVERED BY ITEM NO. 10 OF THE INVITATION DEFINITELY HAD BEEN REBUILT. THUS, INSOFAR AS THE USE OF THE DESCRIPTIVE TERM "REBUILT" ITSELF IS CONCERNED IT MAY NOT BE CONCLUDED THAT THIS PART OF THE DESCRIPTION WAS ERRONEOUS. HOWEVER, EVEN IF THE COMPRESSOR HAD NOT BEEN REBUILT, SINCE THE DESCRIPTIVE TERM "REBUILT" SPECIFICALLY REFERS TO NOTHING MORE THAN THE KIND OR CHARACTER OF THE PROPERTY OFFERED FOR SALE, THE SOLE QUESTION HE REPRESENTED, AS IN ALL GOVERNMENT SALE CASES OF THIS KIND, IS WHETHER THE GOVERNMENT DID OR DID NOT WARRANT THE KIND OR CHARACTER OF THE PROPERTY SOLD. IN THIS REGARD, YOUR ATTENTION AGAIN IS DIRECTED TO ARTICLE 2--- CONDITION OF PROPERTY--- OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION WHEREIN, AS POINTED OUT IN OUR SETTLEMENT OF MARCH 23, 1961, IT IS EXPRESSLY PROVIDED THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, ETC., OF THE PROPERTY OFFERED FOR SALE. CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH AN EXPRESS DISCLAIMER OF WARRANTY, WHICH SPECIFICALLY REFERS TO KIND OR CHARACTER, VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. 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 CT.CL. 151; AND I. SHAPIRO AND COMPANY V. UNITED STATES, 66 CT.CL. 424.

MOREOVER, IT IS APPARENT THAT HAD YOU MADE AN INSPECTION OF THE AIR COMPRESSOR PRIOR TO SUBMITTING THE BID, AS YOU NOT ONLY WERE INVITED BUT WERE URGED TO DO, YOU WOULD HAVE IMMEDIATELY NOTICED ANY STRIPPED OR INCOMPLETE CONDITION OF THE UNIT. WHERE A BIDDER SUBMITS A BID WITHOUT MAKING AN INSPECTION UNDER SUCH A CONTRACT OF SALE, IT ONLY REASONABLY MAY BE CONCLUDED THAT THE BIDDER HAS ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY SET FORTH IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. THE BIDDER'S RESPONSIBILITIES IN THIS CONNECTION APPEAR TO BE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHEREIN IT WAS HELD THAT, NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL.