B-148346, MAR. 15, 1962

B-148346, MAR. 15, 1962

TO THE MERIT TRUCK PARTS AND WHEEL COMPANY:

YOUR LETTER OF FEBRUARY 23, 1962, REQUESTS REVIEW OF OUR CLAIMS DIVISION SETTLEMENT DATED FEBRUARY 2, 1962, WHICH DISALLOWED YOUR CLAIM FOR $1,372.75, REPRESENTING THE AMOUNT PAID BY YOU FOR 425 RUBBER HOSE ASSEMBLIES.

THE CONSOLIDATED SURPLUS SALES OFFICE, SCHENECTADY GENERAL DEPOT, U.S. ARMY, ISSUED INVITATION FOR BIDS (IFB) 30-127-S-62-7 ON JULY 6, 1961. BIDS WERE OPENED ON JULY 26, 1961, AND YOUR COMPANY WAS DECLARED THE SUCCESSFUL BIDDER ON ITEM 14 OF THE IFB, WHICH WAS DESCRIBED AS FOLLOWS:

CHART

"HOSE ASSEMBLY, RUBBER, TRAILER AIR BRAKE QUANTITY

CONNECTOR, HOSE LENGTH 18 FT. (TRACTOR TO ----- --

TRAILER), FOR TRUCK, 5 TON, 4 BY 2 TRACTOR, 425 EA

INTERNATIONAL HARVESTER, MFG. AND PART NR.,

INTERNATIONAL HARVESTER NO. 140955H, MACK

NO. 31QE28P3, WHITE NO. 423606, FEDERAL

NO. 10A1720, AUTOCAR NO. 25B0350, BENDIX

WESTINGHOUSE NO. 22057C EST. WEIGHT 6840 LBS.'

THE CONTRACT FOR ITEM 14 WAS AWARDED ON JULY 27, 1961, AND PAID FOR ON AUGUST 25, 1961.

YOU ALLEGE THAT THE PROPERTY PURCHASED WAS NOT ACCURATELY DESCRIBED IN THE IFB IN THAT THE ASSEMBLIES WERE MANUFACTURED IN GERMANY AND, THEREFORE, OF INFERIOR QUALITY. YOU STATE THAT THE DESCRIPTION OF ITEM 14 LED YOU TO BELIEVE THAT YOU WERE PURCHASING BENDIX WESTINGHOUSE NO. 220570 ASSEMBLIES, WHEN IN FACT THE ASSEMBLIES WERE MERELY INTERCHANGEABLE WITH THE VARIOUS PARTS LISTED BY NUMBER AND MANUFACTURER AT THE END OF THE DESCRIPTION.

YOUR ATTENTION IS AGAIN DIRECTED TO PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE IFB, WHICH PROVIDES THAT ALL PROPERTY LISTED IN SUCH IFB WAS OFFERED FOR SALE "AS IS" AND "WHERE IS" WITH NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY OR DESCRIPTION OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE.

THE BIDDER IS EXPECTED TO RELY NOT ON THE GOVERNMENT'S DESCRIPTION OF THE PROPERTY BUT ON HIS OWN INSPECTION. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE IFB URGES AND CAUTIONS THE BIDDER TO INSPECT THE PROPERTY TO BE SOLD, PRIOR TO SUBMITTING A BID. THE COURTS HAVE CONSISTENTLY HELD THAT A BIDDER WHO FAILS TO RELY ON A THOROUGH AND EFFECTUAL INSPECTION OF SURPLUS PROPERTY ADVERTISED FOR SALE DOES SO AT HIS PERIL, AND HAS ONLY HIMSELF TO BLAME FOR THE PREDICAMENT OF DISCOVERING THAT THE ACTUAL CONDITION OF THE PROPERTY DOES NOT MEET HIS EXPECTATIONS OR IS AT VARIANCE WITH THE DESCRIPTION IN THE IFB. SEE PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463 (1959); DADOURIAN EXPORT CORP. V. UNITED STATES, 291 F.2D 178 (1961); LIPSCHITZ AND COHEN V. UNITED STATES, 269 U.S. 90 (1925).

SINCE YOU MADE NO INSPECTION BUT INSTEAD RELIED ON THE DESCRIPTION OF ITEM 14, THE ABOVE RATIONALE IS FOR APPLICATION IN THE INSTANT CASE. ACCORDINGLY, OUR CLAIMS DIVISION SETTLEMENT OF FEBRUARY 2, 1962, IS SUSTAINED.