B-153272, MAR. 30, 1964

B-153272, MAR. 30, 1964

TO THE CHEMICAL SERVICE CORPORATION:

BY CORRESPONDENCE DATED JANUARY 10, 1964, YOU REQUESTED THAT THIS OFFICE GIVE FAVORABLE CONSIDERATION TO YOUR CLAIM IN THE AMOUNT OF $300.00 AGAINST THE GENERAL SERVICES ADMINISTRATION AS A RESULT OF MATERIAL SHORTAGES WHICH SUBSEQUENTLY DEVELOPED IN SEVERAL OF THE ITEMS PURCHASED BY YOUR COMPANY UNDER INVITATION FOR BIDS NO. 6UPS-64 93.

THE RECORD SHOWS THAT YOUR COMPANY, IN ADDITION TO SUBMITTING VARIOUS INDIVIDUAL LOT BIDS, ALSO CHOSE TO ENTER AN ALTERNATE GROUP BID FOR THE LOTS COMPRISING ITEMS 1 THROUGH 8. SINCE THIS GROUP BID EXCEEDED THE AGGREGATE HIGH BIDS RECEIVED ON INDIVIDUAL LOTS, AWARD WAS APPROPRIATELY MADE TO YOUR FIRM ON THE BASIS OF YOUR ALTERNATE HIGH BID. APPARENTLY, HOWEVER, YOU TAKE THE POSITION THAT SINCE INDIVIDUAL BIDS WERE INCLUDED IN YOUR BID, THE BASIS OF VALUE ATTACHED TO INDIVIDUAL LOTS CAN BE EASILY ASCERTAINED AND THEREFORE ADJUSTMENT FOR A SUBSEQUENT WEIGHT VARIATION WOULD BE BOTH PROPER AND FEASIBLE.

IN DENYING YOUR CLAIM, THE GENERAL SERVICES ADMINISTRATION, BY LETTER DATED DECEMBER 18, 1963, MADE THE FOLLOWING SUCCINCT COMMENTS:

"THE ITEM BID PAGE AND THE PROPERTY DESCRIPTION PAGE OF SALE OFFERING 6UPS-64-93 CLEARLY STATES THAT THE PROPERTY WAS OFFERED ON A "PRICE FOR THE LOT" BASIS AND NOT A "UNIT PRICE" BASIS.

"ITEM 9 OF THE OFFERING WAS AN ALTERNATE BID CONSISTING OF ALL OF THE PROPERTY IN ITEMS 1 THROUGH 8. YOUR BID OF $2,759.25 FOR ITEM 9 EXCEEDED THE AGGREGATE HIGH BIDS RECEIVED FOR ITEMS 1 THROUGH 8; AND, THEREFORE, THE AWARD WAS MADE TO YOUR FIRM AS HIGH BIDDER ON ITEM 9.'

WHILE YOU ARE NO DOUBT WELL AWARE OF THE GENERAL SALES TERMS AND CONDITIONS WE THINK IT APPROPRIATE TO SPECIFICALLY CALL YOUR ATTENTION TO PARAGRAPHS 1 AND 2 THEREOF WHICH STATE:

"1. INSPECTION. THE BIDDER IS INVITED, URGED, AND CAUTIONED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION AND LOCATION OF PROPERTY. UNLESS OTHERWISE SPECIFICALLY PROVIDED IN THE INVITATION, ALL PROPERTY LISTED THEREIN IS OFFERED FOR SALE "AS IS" AND "WHERE IS.' IF IT IS PROVIDED THEREIN 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. HOWEVER, THE GOVERNMENT MAKES NO WARRANTY, EXPRESS 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. EXCEPT AS PROVIDED IN CONDITIONS NO. 8 AND 10, NO REQUEST FOR ADJUSTMENT IN PRICE OR FOR RESCISSION OF THE SALE WILL BE CONSIDERED. THIS IS NOT A SALE BY SAMPLE.'

IN VIEW OF THE ABOVE EXPRESS LANGUAGE, WE THINK IT IS CLEAR THAT PROSPECTIVE BIDDERS WERE FULLY APPRISED OF THE FACT THAT THEY WERE CONTRACTING FOR THE PURCHASE OF LISTED MATERIALS AT THEIR OWN RISK. SEE 34 COMP. GEN. 300, AND CASES CITED THEREIN. IN LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90, AN AGENT FOR THE GOVERNMENT LISTED FOR SALE CERTAIN ITEMS OF JUNK LOCATED AT SEVERAL FORTS, SETTING FORTH THE WEIGHTS AND KINDS OF EACH. NOTWITHSTANDING THAT IT WAS LATER SHOWN THAT THE ACTUAL QUANTITIES WERE IN FACT LESS THAN THAT ADVERTISED, PLAINTIFFS WERE PRECLUDED FROM RECOVERY ON THE BASIS THAT THE STATED QUANTITIES COULD NOT BE REGARDED IN THE NATURE OF A WARRANTY, BUT MERELY AN ESTIMATE OF THE PROBABLE AMOUNTS IN REFERENCE TO WHICH GOOD FAITH ONLY COULD BE REQUIRED OF THE PARTY MAKING IT.

YOUR ATTENTION IS ALSO INVITED TO PARAGRAPH 8 OF THE GENERAL SALES TERMS AND CONDITIONS, PREVIOUSLY REFERRED TO, WHEREIN IT EXPRESSLY PROVIDES:

"* * * NO ADJUSTMENT FOR VARIATION WILL BE MADE WHERE PROPERTY IS SOLD ON A "PRICE FOR THE LOT" BASIS.'

TO CONTEND THAT THE GOVERNMENT SHOULD LATER CONSIDER YOUR BID ON AN INDIVIDUAL BASIS AFTER IT HAS SIGNIFIED ITS ACCEPTANCE ON A LOT BASIS, WOULD NOT ONLY BE CONTRARY TO ESTABLISHED CONTRACT LAW, BUT WOULD ALSO BE DETRIMENTAL TO THE INTEGRITY OF THE BIDDING PROCESS AS SUCH. SHOULD WE HOLD THAT THE PROVISIONS OF THE INVITATION NEED NOT BE ENFORCED THE GOVERNMENT WOULD INDEED BE LITERALLY SWAMPED WITH A FLOOD OF COMPLAINTS AND CLAIMS ARISING OUT OF ITS SALES.

UNDER THE CIRCUMSTANCES AND HAVING REGARD FOR THE PLAIN PROVISIONS OF THE INVITATION FOR BIDS, WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS FOR PAYMENT OF THE CLAIM. ACCORDINGLY, YOUR CLAIM IS HEREBY DENIED.