B-155909, FEB. 10, 1965

B-155909, FEB. 10, 1965

TO BULL MOOSE TUBE COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED DECEMBER 14, 1964, CONCERNING OUR SETTLEMENT CERTIFICATE DATED DECEMBER 2, 1964, DISALLOWING YOUR CLAIM FOR A REFUND OF $690 REPRESENTING THE PURCHASE PRICE PAID BY YOU FOR A BOOKKEEPING AND PAYROLL MACHINE UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-44-S-05517.

IT APPEARS THAT IN RESPONSE TO SALES INVITATION NO. 44-S-64-82, WHICH WAS ISSUED ON DECEMBER 27, 1963, BY THE DEFENSE SURPLUS SALES OFFICE, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, YOU SUBMITTED A BID OFFERING TO PURCHASE ITEM NO. 71 COVERING ONE BOOKKEEPING AND PAYROLL MACHINE FOR $690. YOUR BID BEING THE HIGHEST RECEIVED WAS ACCEPTED ON JANUARY 27, 1964. SUBSEQUENTLY, PAYMENT FOR THE MACHINE AND DELIVERY THEREOF WAS ACCOMPLISHED. BY LETTER DATED APRIL 29, 1964, ADDRESSED TO THE SURPLUS SALES OFFICE YOU ALLEGED MISDESCRIPTION OF THE MACHINE AND REQUESTED A REFUND OF THE PURCHASE PRICE.

IN YOUR LETTER DATED DECEMBER 14, 1964, TO OUR OFFICE YOU CONTEND THAT SINCE THE MACHINE IS COMPLETELY BEYOND REPAIR THE DESCRIPTION THEREOF WAS MISREPRESENTED AND, THEREFORE, THAT YOU ARE ENTITLED TO PAYMENT OF YOUR CLAIM. THE REFERENCE IS OUR SETTLEMENT TO "MISREPRESENTATION" OF THE PROPERTY WAS INTENDED TO MEAN WILFUL OR DELIBERATE MISREPRESENTATION. INDICATED HEREAFTER THERE IS NOTHING IN THE RECORD TO INDICATE ANY PURPOSEFUL MISREPRESENTATION OF THE PROPERTY ON THE PART OF GOVERNMENT REPRESENTATIVES.

IT CONSISTENTLY HAS BEEN HELD BY THE COURTS AND OUR OFFICE THAT, IN THE ABSENCE OF BAD FAITH, AN EXPRESS DISCLAIMER OF WARRANTY SUCH AS THAT SET FORTH IN ARTICLE 2 OF CONTRACT NO. DSA-44-S-05517, AND REFERRED TO IN THE THIRD PARAGRAPH OF OUR SETTLEMENT CERTIFICATE DATED DECEMBER 2, 1964, VITIATES ANY AND ALL WARRANTIES WHICH OTHERWISE MIGHT ARISE OUT OF A SALES TRANSACTION. IN ADDITION TO THE COURT CASES CITED IN SUPPORT OF THIS CONCLUSION IN OUR SETTLEMENT CERTIFICATE, SEE ALSO W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED 284 U.S. 676. THERE IS NOTHING IN THE RECORD BEFORE US TO INDICATE BAD FAITH ON THE PART OF THE SALES CONTRACTING OFFICER IN CONNECTION WITH THE TRANSACTION AND IN THIS REGARD THERE IS NOTED THE STATEMENT IN YOUR LETTER DATED SEPTEMBER 16, 1964, TO THE CONTRACTING OFFICER THAT "I DO NOT BELIEVE THAT THE GOVERNMENT WAS MOTIVATED BY OTHER THAN GOOD FAITH, * * *.'

MOREOVER, THE DISCLAIMER OF WARRANTY CLAUSE SPECIFICALLY APPLIES TO THE "DESCRIPTION" OF THE PROPERTY AND TO ITS FITNESS FOR ANY USE OR PURPOSE. THEREFORE, IT COVERS ALL DESCRIPTIVE DETAILS SET FORTH IN THE INVITATION, INCLUDING THE CONDITION OF THE PROPERTY AS TO WHICH YOU COMPLAIN. TO MAKE INAPPLICABLE THE TERMS OF THE DISCLAIMER OF WARRANTY CLAUSE MERELY BECAUSE THERE WERE OMITTED CERTAIN DETAILS AS TO THE CONDITION OF A PARTICULAR ITEM OR PRODUCT BEING OFFERED FOR SALE WOULD, OF COURSE, DEFEAT THE VERY PURPOSE FOR WHICH THE CLAUSE WAS INTENDED AND WOULD BE INCONSISTENT WITH THE DECISIONS IN THE NUMEROUS COURT CASES INVOLVING SALES CONTRACTS CONTAINING SUCH CLAUSES.

WITH REGARD TO YOUR FAILURE TO MAKE AN INSPECTION OF THE MACHINE BEFORE SUBMITTING YOUR BID, YOU STATE THAT A "CURSORY" INSPECTION WOULD NOT HAVE ENABLED YOU TO DETERMINE THE EXACT CONDITION OF THE MACHINE. THE RESPONSIBILITIES OF A BIDDER IN THIS REGARD ARE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463. IT WAS HELD IN THAT CASE THAT NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE KIND OF AN INSPECTION THAT IS EFFECTUAL. MOREOVER, OUR OFFICE HAS CONSISTENTLY HELD THAT WHERE A BIDDER SUBMITS A BID WITHOUT MAKING SUCH A THOROUGH INSPECTION AS WOULD COMPLETELY PROTECT ITSELF AS TO THE EXACT IDENTITY, QUALITY, CONDITION, ETC., OF THE PROPERTY BEING OFFERED FOR SALE, IT MUST BE PRESUMED THAT THE BIDDER HAS ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY SET FORTH IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED.