B-158303, JAN. 21, 1966

B-158303, JAN. 21, 1966

TO SENDAIR LIMITED:

REFERENCE IS MADE TO YOUR LETTER OF JANUARY 4, 1966, APPEALING THE DISALLOWANCE OF YOUR CLAIM FOR $749.42, REPRESENTING THE PURCHASE PRICE, HANDLING COSTS AND FREIGHT CHARGES INVOLVED IN YOUR PURCHASE OF ITEM NO. 30 OF CONTRACT NO. DSA-27-S-6659, AWARDED BY THE DEFENSE SURPLUS SALES OFFICE AT COLUMBUS, OHIO, ON APRIL 19, 1965.

ITEM NO. 30 WAS DESCRIBED IN INVITATION FOR BIDS NO. 27-S-65-65 AS FOLLOWS:

"SWITCH - ELECTRICAL, SENSITIVE, RATINGS 1/2 AMP-125 VOLTS DC, 1/4 AMP- 250 VOLTS DC, 10 AMP-125 OR 25 VOLTS AC, EXTERNAL PUSH BUTTON OPERATED, 3 SOLDER TYPE TERMINALS, PLASTIC BODY, OVERALL DIM. 1 3/16 INCHES BY 3/8 INCH BY 13/16 INCH. MICRO SWITCH CORP., TYPE V3-15. FSN: 5930-296-5811. (LOC: INSIDE STORAGE, BLDG. 74, PACKED IN WOODEN BOXES AND CARTONS, UNUSED).

GOVERNMENT'S OPINION AS TO:

TABLE

CONDITION: APPEARS TO BE EXCELLENT

TOTAL COST: $21,546.00

EST. TOTAL WT: 360 LBS. 5,130 EACH" HOWEVER, YOU CONTEND THAT THIS DESCRIPTION OF THE ITEM IS INCORRECT IN THAT THE MICRO V3-15 SWITCHES WERE, IN FACT, INCORPORATED AS PART OF WHITTAKER SPRING ASSEMBLIES IN SUCH A MANNER AS TO MAKE SEPARATION IMPOSSIBLE, HENCE COMPLETELY USELESS FOR YOUR PURPOSES.

YOUR CLAIM IS PREDICATED UPON THE THEORY THAT WHEN AN INVITATION ALLEGEDLY MISREPRESENTS AN ITEM TO BE SOMETHING THAT IT IS NOT, AND THE CONTRACTOR HAS RELIED ON THAT DESCRIPTION TO HIS DETRIMENT, THE GOVERNMENT IS LEGALLY RESPONSIBLE, AND SHOULD REIMBURSE THE CONTRACTOR FOR ALL THAT IT HAS LOST.

TO A CERTAIN EXTENT THE GOVERNMENT DOES THIS AS EVIDENCED BY THE GUARANTEED DESCRIPTIONS CLAUSE, FOUND ON PAGE NO. 37 OF THE INVITATION, WHICH STATES IN PART THAT IF THE PROPERTY DOES NOT CONFORM MATERIALLY WITH THE DESCRIPTION THE GOVERNMENT MAY REFUND OR ADJUST THE PURCHASE PRICE. HOWEVER, TO TAKE ADVANTAGE OF THIS PROVISION IT IS INCUMBENT UPON YOU, AS PURCHASER, TO FILE PROPER NOTICE OF THE DISCREPANCY WITHIN 20 CALENDAR DAYS FROM THE DATE OF REMOVAL OF THE PROPERTY. BECAUSE YOU FAILED TO SUBMIT NOTICE UNTIL AFTER THE EXPIRATION OF 30 DAYS FROM THAT DATE, NOTWITHSTANDING YOUR ALLEGATION THAT INSPECTION WITHIN 20 DAYS WOULD HAVE BEEN IMPRACTICAL OR IMPOSSIBLE, THE BENEFITS OF THE CLAUSE CANNOT INURE TO YOU.

THE RESPONSIBILITIES OF A BIDDER TO INSPECT THE GOODS ARE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463, WHERE IT WAS HELD THAT REGARDLESS OF THE DIFFICULTIES ATTENDANT UPON AN INSPECTION IT IS THE BIDDER'S RESPONSIBILITY TO MAKE THE KIND OF AN INSPECTION THAT IS EFFECTIVE. MOREOVER OUR OFFICE HAS CONSISTENTLY HELD THAT WHEN A BIDDER SUBMITS A BID WITHOUT MAKING A THOROUGH INSPECTION TO COMPLETELY INFORM ITSELF OF THE EXACT IDENTITY OF THE PROPERTY 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. SEE 41 COMP. GEN. 185; B-147438, DECIDED DECEMBER 15, 1961.

BECAUSE THE GUARANTEED DESCRIPTIONS CLAUSE IS INAPPLICABLE TO YOU, PARAGRAPH NO. 2 OF THE GENERAL SALES TERMS AND CONDITIONS IS CONTROLLING AS REGARDS ANY MISDESCRIPTION OF THE PROPERTY IN THE INVITATION. IT IS STATED THEREIN THAT THE SALE IS "AS IS" AND "WHERE IS," AND THAT THERE IS NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESCRIPTION OF THE PROPERTY. THE COURTS HAVE MANY TIMES CONSIDERED SUCH CONTRACT STIPULATIONS IN CASES INVOLVING THE SALE OF GOVERNMENT OWNED SURPLUS GOODS, AND HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. SEE W. E. HEDGER CO. V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151. THESE CASES AND OTHERS CONCLUDE THAT UNDER SUCH PROVISIONS BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. IN THE CASE OF OVERSEAS NAVIGATION CORPORATION V. UNITED STATES, 131 CT.CL. 70,THE COURT OF CLAIMS HELD THAT THE TERMS OF THE SALES CONTRACT THERE UNDER CONSIDERATION, INCLUDING ITS "AS IS, WHERE IS" PROVISIONS SPOKE FOR THEMSELVES AND THE PLAINTIFF WAS LEGALLY BOUND BY THEM.

SO EVEN THOUGH IT MAY BE THAT THE GOVERNMENT'S DESCRIPTION OF THE MATERIAL WAS ERRONEOUS, AS YOU ALLEGE, THIS COULD HAVE NO BEARING ON THE SETTLEMENT OF YOUR CLAIM BECAUSE THE PROPERTY WAS SOLD WITHOUT ANY WARRANTY OF ANY KIND. UNDER THE CONDITIONS OF THE SALE THE GOVERNMENT WAS ONLY OBLIGATED TO ACT IN GOOD FAITH, AND THIS IT DID. ANY MISREPRESENTATION SUCH AS YOU ALLEGE WOULD NOT MITIGATE THE DECISION, IN THAT THE REFERENCE TO A "MISREPRESENTATION" IN OUR SETTLEMENT WAS INTENDED TO MEAN THAT OF A WILFUL OR DELIBERATE NATURE.

ACCORDINGLY, FOR THE REASONS STATED ABOVE THE SETTLEMENT OF DECEMBER 29, 1965, IS SUSTAINED IN FULL.