B-154452, JUL. 24, 1964

B-154452, JUL. 24, 1964

TO MAX ZUCKERMAN AND SONS:

REFERENCE IS MADE TO YOUR LETTER OF APRIL 23, 1964, REGARDING YOUR CLAIM FOR ADJUSTMENT OF THE PURCHASE PRICE OF ALLOY SCRAP UNDER CONTRACT NO. DSA -46-S-3561 (ITEM 45).

THE INVOLVED ITEM WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"ITEM 45

"HI-TEMP ALLOY SCRAP. CONSISTING OF:

TABLE

GROUP NO. 1 150 LBS. GROUP NO. 15 400 LBS.

GROUP NO. 2 3,600 LBS. GROUP NO. 16 500 LBS.

GROUP NO. 3 135 LBS. GROUP NO. 18 600 LBS.

GROUP NO. 4 175 LBS. GROUP NO. 60 2,300 LBS.

GROUP NO. 8 6,700 LBS.

"SLIGHTLY CONTAMINATED WITH SMALL ATTACHMENTS OF OTHER METALS.

"STORED OUTSIDE, IN DRUMS AND BOXES.

EST. 14,560 LBS.'

THE GROUPS REFER TO THE AIR FORCE BREAKDOWN OF METALS ACCORDING TO THEIR CONTENT "AS SET FORTH IN T.O. OO-25-113 AND OTHER AIR FORCE PUBLICATIONS.' GROUP NO. 8 IS INCONEL AND GROUP NO. 60 IS TITANIUM. YOU WERE AWARDED ITEM 45 AS THE HIGH BIDDER IN THE AMOUNT OF ?26765 PER POUND, OR A TOTAL OF $3,896.98.

SUBSEQUENT TO THE AWARD OF THE CONTRACT AND BEFORE YOU MADE ANY PAYMENT FOR THE MATERIALS, YOU ALLEGED THAT THE PROPERTY WAS MISDESCRIBED IN THAT GROUP 8 CONSISTED OF ONLY 1,500 POUNDS OF INCONEL AND GROUP 60 CONSISTED OF ONLY 500 POUNDS OF TITANIUM, AND THE BALANCE OF THE POUNDAGE IN EACH GROUP WAS LESS VALUABLE STAINLESS STEEL. ALSO, YOU STATED THAT BY REASON OF THE ALLEGED MISDESCRIPTION THE UNIT PRICE SHOULD BE REDUCED FROM ?26765 TO ?14 PER POUND, OR IN THE ALTERNATIVE THAT THE CONTRACT BE CANCELED.

THE FIRST TWO PROVISIONS OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT ARE THE USUAL ONES USED IN GOVERNMENT SALES OF PROPERTY AND RELATE TO INSPECTION AND DISCLAIMER OF WARRANTY. BEFORE DISCLAIMING ANY WARRANTY, THE GOVERNMENT INVITES, URGES AND CAUTIONS ALL BIDDERS TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO SUBMITTING A BID AND WARNS THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF THE BID AFTER OPENING. THE RECORD SHOWS THAT YOU DID NOT INSPECT THE PROPERTY BEFORE YOU SUBMITTED YOUR BID. IT WAS STATED BY THE COURT IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, THAT A BIDDER FAILS TO INSPECT AT HIS PERIL AND HIS FAILURE TO INSPECT LEAVES HIM NO ROOM TO COMPLAIN. ALSO, IN UNITED STATES V. SILVERTON, 200 F.2D 824, THE COURT STATED, WITH REGARD TO THE INSPECTION PROVISION, THAT UNDER THE TERMS OF THE SALE CAVEAT EMPTOR WAS CERTAINLY INTENDED TO BE APPLIED TO THE FURTHEST LIMIT THAT CONTRACT STIPULATIONS COULD ACCOMPLISH IT. WHATEVER MAY HAVE BEEN YOUR REASONS FOR YOUR FAILURE TO INSPECT, THIS FACT DOES NOT ENLARGE THE GOVERNMENT'S OBLIGATION AND IF YOU WERE NOT WILLING TO ASSUME THE RISK OF A VARIANCE BETWEEN THE ACTUAL MATERIAL AND THE DESCRIPTION THEREOF, YOU SHOULD NOT HAVE SUBMITTED A BID. SEE DADOURIAN EXPORT COMPANY V. UNITED STATES, 291 F.2D 178. ALSO, SEE 41 COMP. GEN. 185.

THE DISCLAIMER OF WARRANTY UNDER THE SECOND PROVISION SPECIFICALLY ADVISED BIDDERS THAT THE DESCRIPTION OF THE MATERIAL WAS BASED ON THE BEST AVAILABLE INFORMATION WHICH IS SHOWN TO HAVE BEEN THE CASE HERE. THE SALES AGENCY REPORTED THAT IT HAD NO KNOWLEDGE OF ANY GREAT AMOUNT OF CONTAMINATION OF EACH GROUP. IT DID KNOW OF SOME CONTAMINATION AND THIS INFORMATION WAS INSERTED IN THE INVITATION. FURTHERMORE, YOU ADMIT IN YOUR LETTER OF MARCH 5, 1964, ADDRESSED TO THE ATTENTION OF THE CONTRACTING OFFICER, THAT THE GOVERNMENT ACTED IN GOOD FAITH IN DESCRIBING THE PROPERTY AND THIS IS ALL THAT IT IS REQUIRED TO DO. SEE LUMBRAZO V. WOODRUFF, 175 N.E. 525.

WHILE THE SALES DESCRIPTION MAY HAVE BEEN INACCURATE, IT WAS PREPARED IN GOOD FAITH AND IN VIEW OF THE CONDITIONS OF SALE, NO RELIEF MAY BE GRANTED BECAUSE OF THE VARIANCE IN THE DESCRIPTION OF THE PROPERTY IN THE INVITATION AND THE PROPERTY ACTUALLY ON HAND.

ACCORDINGLY, YOUR CLAIM FOR ADJUSTMENT OF THE CONTRACT PRICE OR CANCELLATION OF THE CONTRACT MUST BE DENIED.