B-147235, OCT. 18, 1961

B-147235, OCT. 18, 1961

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 18, 1961, WITH ENCLOSURES, FORWARDED IN BEHALF OF THE ASSISTANT SECRETARY OF THE ARMY FOR INSTALLATIONS AND LOGISTICS BY THE DEPUTY THE QUARTERMASTER GENERAL, REQUESTING OUR DECISION AS TO THE APPROPRIATE ACTION TO BE TAKEN WITH RESPECT TO A REQUEST BY GEORGE E. MCNEELY, MCGEHEE, ARKANSAS, FOR RESCISSION OF ITEM NO. 221 FROM CONTRACT NO. DA/S/09-030 QM-151, DATED JANUARY 24, 1961, BY REASON OF A MISDESCRIPTION OF THE ITEM IN THE SALES INVITATION.

IN RESPONSE TO INVITATION NO. 09-030-S-61-22, ISSUED BY THE ATLANTA CONSOLIDATED SURPLUS SALES OFFICE, ATLANTA GENERAL DEPOT, FOREST PARK, GEORGIA, COVERING A PUBLIC AUCTION VIA TELEPHONE OF VARIOUS TYPES OF SURPLUS PROPERTY, GEORGE E. MCNEELY SUBMITTED A BID ON ITEM NO. 221, COVERING ONE 1 1/2 TON, 8-CYLINDER CARGO TRUCK FOR $425. MR. MCNEELY'S BID FOR ITEM NO. 221, AS WELL AS FOR THREE OTHER ITEMS, WAS ACCEPTED ON JANUARY 24, 1961, IN THE TOTAL AMOUNT OF $4,550, THEREBY CONSUMMATING CONTRACT NO. DA/S/09-030-QM-151. SUBSEQUENTLY, PAYMENT WAS MADE IN FULL BY MR. MCNEELY BUT UPON HIS ARRIVAL AT FORT CAMPBELL, KENTUCKY--- WHERE THE TRUCKS HAD BEEN TURNED IN TO THE PROPERTY DISPOSAL ACTIVITY FOR SALE-- - HE DISCOVERED THAT THE CARGO TRUCK UNDER ITEM NO. 221 DID NOT HAVE AN 8- CYLINDER ENGINE AS ADVERTISED BUT RATHER A 6-CYLINDER. IN VIEW OF THIS, MR. MCNEELY REFUSED TO ACCEPT THE TRUCK AND HAS ASKED THAT THE SALE OF ITEM NO. 221 BE RESCINDED.

ARTICLE 2--- CONDITION AND LOCATION OF PROPERTY--- OF THE GENERAL SALE TERMS AND CONDITIONS OF THE SALES INVITATION CONTAINS THE STANDARD "DISCLAIMER OF WARRANTY" CLAUSE. THIS CLAUSE EXPRESSLY PROVIDES, AMONG OTHERS, THAT THE GOVERNMENT MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO KIND, CHARACTER, SIZE, ETC., OF THE PROPERTY OFFERED FOR SALE. IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, SUCH AN EXPRESS DISCLAIMER OF WARRANTY 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. BAD FAITH IN ASCERTAINING AND USING THE DESCRIPTIVE INFORMATION FOR ITEM NO. 221 OF THE INVITATION MAY NOT BE ATTRIBUTABLE TO ANY OF THE GOVERNMENT OFFICIALS INVOLVED. THE TRUCK WAS DESCRIBED BY THE CONTRACTING OFFICER AT THE ATLANTA CONSOLIDATED SURPLUS SALES OFFICE, WHO CONDUCTED THE SALE, ON THE BASIS OF INFORMATION FURNISHED HIM BY PROPERTY DISPOSAL PERSONNEL AT FORT CAMPBELL, KENTUCKY. SUCH PERSONNEL HAD DETERMINED THAT THE TRUCK HAD AN 8 -CYLINDER ENGINE ONLY AFTER AN INSPECTION SHOWED THAT A V-8 EMBLEM ONCE HAD BEEN ATTACHED TO THE TRUCK. THEREFORE, SINCE THIS APPEARS TO HAVE BEEN A REASONABLE DETERMINATION UNDER THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE MISDESCRIPTION WHICH OCCURRED RESULTED FROM NOTHING MORE THAN AN HONEST MISTAKE WHICH IS, OF COURSE, COMPLETELY COVERED BY THE "DISCLAIMER OF WARRANTY" CLAUSE. MOREOVER, IT IS NOTED THAT MR. MCNEELY APPARENTLY SUBMITTED HIS BID FOR THE PURCHASE OF ITEM NO. 221 WITHOUT MAKING ANY INSPECTION OF THE TRUCK NOTWITHSTANDING THAT ARTICLE 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION ALSO EXPRESSLY PROVIDED THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF A BID AFTER OPENING.'

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR AUTHORIZING RESCISSION OF ITEM NO. 221 FROM CONTRACT NO. DA/S/09-030-QM-151.

THE PAPERS, WITH THE EXCEPTION OF THE REPORT DATED SEPTEMBER 18, 1961, FROM THE DEPUTY THE QUARTERMASTER GENERAL, AND THE FINDINGS OF FACT OF THE CONTRACTING OFFICER, ARE RETURNED HEREWITH.