B-146212, AUG. 16, 1961

B-146212, AUG. 16, 1961

TO MR. DANIEL MCMENAMIN:

REFERENCE IS MADE TO YOUR LETTER DATED JUNE 10, 1961, WITH ENCLOSURE, REQUESTING RECONSIDERATION OF OUR SETTLEMENT OF MARCH 2, 1961, WHICH DISALLOWED YOUR CLAIM FOR $110.25 AS REFUND OF PART OF THE PRICE PAID FOR COST LINERS PURCHASED FROM THE DEPARTMENT OF THE ARMY, PROPERTY DISPOSAL OFFICE, FORT DIX, NEW JERSEY, UNDER CONTRACT NO. O.I.(S/28-013-61-66, DATED SEPTEMBER 1, 1960.

THE U.S. GOVERNMENT OFFERED 288 MISCELLANEOUS ITEMS AT PUBLIC AUCTION FOR SALE AT FORT DIX, NEW JERSEY, AS DESCRIBED IN BROCHURE SALE NO. 28-013-S- 61-7. ITEM NO. 158 WAS DESCRIBED AS APPROXIMATELY 2,100 POUNDS, AND IN USED CONDITION. WHILE IT WAS INITIALLY INTENDED TO SELL THE ITEMS ON A "LOT" BASIS, THE PROPERTY DISPOSAL OFFICER, PRIOR TO SALE, RECEIVED INSTRUCTIONS FROM THE U.S. ARMY PROPERTY DISPOSAL CENTER TO AFFECT THE SALE OF ITEM NO. 158 AS WELL AS ALL OTHER ITEMS SIMILARLY CONSTRUCTED ON THE BASIS OF A UNIT OF MEASURE RATHER THAN A "LOT" BASIS. BIDS WERE SOLICITED ON THE BASIS OF POUNDS. THIS WAS MADE VERY CLEAR BY THE AUCTIONEER PRIOR TO OFFERING THE ITEMS FOR SALE. YOUR BID OF $0.105 PER POUND WAS THE HIGHEST RECEIVED ON ITEM NO. 158 AND AWARD WAS MADE ON THIS BASIS. THE RECORD SHOWS THAT AT THE TIME OF DELIVERY THE SEVEN BALES WERE WEIGHED IN YOUR PRESENCE. YOU ACCEPTED THE PROPERTY AT THAT TIME AND IT WAS THEN DELIVERED TO YOUR TRUCK.

AS POINTED OUT ABOVE THE SALE WAS NOT MADE ON A LOT BASIS BUT ON A UNIT MEASURE. AS STATED IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS THE PROPERTY WAS OFFERED ON AN "AS IS" AND ,WHERE IS" BASIS AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. ALSO, IT IS STATED THAT THE DESCRIPTION IS BASED UPON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE QUANTITY ETC. YOU AS WELL AS ALL BIDDERS WERE ADVISED OF THIS CHANGE AND YOU WERE WELL AWARE OF THIS CHANGE AS THE RECORD SHOWS YOU WERE PRESENT AT THE TIME OF WEIGHING OF THE SEVEN BALES OF LINERS. THERE WAS NO VARIATION IN THE WEIGHT AND YOU PAID ON THAT BASIS, PARAGRAPH 8 OF THE GENERAL SALE TERMS AND CONDITIONS IS NOT FOR APPLICATION HERE.

YOUR ATTENTION IS SPECIFICALLY INVITED TO THE CASE OF LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, WHEREIN THE PLAINTIFF CONTENDED THAT THE UNITED STATES WAS LIABLE IN DAMAGES FOR A SHORTAGE IN DELIVERY OF SPECIFIED LOTS OF SCRAP IRON AND STEEL. IN REJECTING SUCH CONTENTION THE COURT STATES (PAGE 92):

"* * * THE NAMING OF QUANTITIES CANNOT BE REGARDED AS IN THE NATURE OF A WARRANTY, BUT MERELY AS AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.'

THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE TRANSACTION.

ALSO, PARAGRAPH 12 OF THE GENERAL SALE TERMS AND CONDITIONS IS NOT FOR APPLICATION HERE, AS YOU CONTEND. THAT PARAGRAPH PROVIDES THAT ANY ORAL STATEMENT OF ANY REPRESENTATIVE MODIFYING OR CHANGING ANY CONDITION OF THE CONTRACT, IS AN EXPRESSION OF OPINION ONLY AND CONFERS NO RIGHT UPON THE PURCHASER. AS STATED ABOVE, YOU, AS WELL AS THE OTHER BIDDER, WERE ADVISED PRIOR TO THE OPENING OF THE AUCTION THAT ITEM NO. 158 WAS NOT TO BE SOLD ON A LOT BASIS BUT BY THE POUND. IT IS EVIDENT THAT YOU UNDERSTOOD THE CHANGE IN THE BROCHURE AS THE RECORD SHOWS THAT YOU WERE PRESENT AT THE TIME OF WEIGHING OF THE LINERS AND PAYMENT THEREFOR WAS BASED UPON THE WEIGHT OF THE MATERIAL.

ACCORDINGLY, THE SETTLEMENT OF MARCH 2, 1961, IS SUSTAINED.