B-159701, OCT. 24, 1966

B-159701, OCT. 24, 1966

TO MADISONVILLE SUPPLY COMPANY:

FURTHER REFERENCE IS MADE TO YOUR LETTER DATED JULY 14, 1966, WITH ENCLOSURES, PROTESTING AGAINST THE SURPLUS SALE PROCEDURES EMPLOYED UNDER GENERAL SERVICES ADMINISTRATION SALES INVITATION NO. 5UPS-66-200 AND REQUESTING DELIVERY OF THE EXACT ITEM BID UPON AND PERMISSION TO NEGOTIATE THE PURCHASE OF THE DELIVERED ITEM WHICH YOU ALLEGE WAS MISDESCRIBED IN THE SALES INVITATION. IN AN ENCLOSURE TO YOUR LETTER, YOU STATE IN PERTINENT PART, AS FOLLOWS:

"* * * WE ARE REQUESTING YOU TO MAKE AVAILABLE TO US ONE CLARK MODEL PLANE LOADER FITTING THE DESCRIPTION OF THE ONE YOU ADVERTISED IN ABOVE SAID SALE, OF WHICH WE HAVE COPY NO. 7, YELLOW COPY, OF YOUR CONTRACT NO. G.S.-05-U-/P/-66-608, WHICH SAYS WE HAVE BOUGHT AND PAID FOR IT IN FULL, SOMEWHERE IN THE AREA OF REGION 5. ALSO WE WILL APPRECIATE THE CHANCE TO NEGOTIATE THE PURCHASE FROM YOU OF THE SERIAL NO. UT431107, FORKLIFT, WHICH WE ALREADY HAVE, AND GET SOME SORT OF A BILL OF SALE, SO WE MAY SELL IT.'

IN SUPPORT OF YOUR REQUEST FOR ADJUSTMENT, REFERENCE IS MADE TO SALES NOS. 5UPS-66-43, OPENED AUGUST 7, 1965; 5UPS-66-153, OPENED DECEMBER 13, 1965; AND 5UPS-66-285, OPENED APRIL 25, 1966, WHEREIN ADJUSTMENTS OR REFUNDS WERE PERMITTED TO BE MADE DUE TO THE CONDITION OF THE ITEMS SOLD.

INVITATION FOR BIDS NO. 5UPS-66-200 DATED JANUARY 31, 1966, COVERED FOUR ITEMS OF EQUIPMENT, ONE OF WHICH, ITEM NO. 2, WAS A FORKLIFT TRUCK STATED TO BE IN A SCRAP CONDITION. THE ITEM WAS DESCRIBED AS FOLLOWS:

"TRUCK, FORKLIFT, CLARK EQUIPMENT CO. MODEL PLANELOADER 51 MHE 117, GASOLINE ENGINE, 3500 LBS. CAPACITY, 2 DUAL DRIVE AND 2 STEERING PNEUMATIC TIRED WHEELS, TELESCOPIC UPRIGHT BOOM TYPE LIFT, TILT, 1 1/2 DEGREE, FORWARD, 10 DEGREE TILT BACKWARD, LIFT HEIGHT 173 INCHES, S/N PL218. SCRAP

1 EACH -----------

"LOCATION: UNIVERSITY OF ILLINOIS

URBANA, ILLINOIS

"CUSTODIAN: MR. D. L. HARTMAN, BUYER,

PURCHASING DEPT.

UNIVERSITY OF ILLINOIS, URBANA, ILL.'

SIX BIDS WERE RECEIVED AND OPENED ON FEBRUARY 15, 1966, IN THE AMOUNTS OF $1.99, $129, $160, $321.81, $512.99 AND YOUR HIGH BID OF $612.67. AWARD WAS MADE TO YOU ON FEBRUARY 18, 1966, AND THE FORKLIFT TRUCK WAS REMOVED BY YOU PRIOR TO MARCH 11, 1966.

SUBSEQUENTLY, YOU INFORMED THE SALES OFFICER THAT THE WRONG FORKLIFT TRUCK WAS DELIVERED BY THE CUSTODIAN IN THAT ACLARK EQUIPMENT CO. UTILITRUC WAS RECEIVED RATHER THAN THE CLARK PLANELOADER DESCRIBED IN THE INVITATION. IT WAS CONFIRMED BY THE DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, THE ILLINOIS STATE AGENCY FOR SURPLUS PROPERTY AND THE DONEE, THE UNIVERSITY OF ILLINOIS, THAT THE ONLY UNIT AVAILABLE FOR SALE WAS THE UNIT DELIVERED TO YOUR COMPANY. IT FURTHER APPEARS THAT THIS FORKLIFT TRUCK HAD BEEN CARRIED IN THE CUSTODIAN'S RECORDS AS A CLARK EQUIPMENT CO. MODEL PLANELOADER 51 IDENTIFIED AS USA NO. 10317842. THE EQUIPMENT DELIVERED TO YOU WAS THE FORKLIFT TRUCK BEARING THIS IDENTIFICATION NUMBER AND CARRIED IN THE RECORDS AS A CLARK EQUIPMENT CO. MODEL PLANELOADER 51. YOU ADVISE THAT THE FORKLIFT TRUCK RECEIVED BY YOU BEARS TAG SHOWING SERIAL NO. UT431107, WHICH IS STATED BY YOU TO BE A NUMBER INDICATING A UNIT DESCRIBED AS A CLARK EQUIPMENT CO. MODEL UTILITRUC. SINCE THE IDENTIFYING NUMBERS OF THE UNIT RECEIVED BY THE CUSTODIAN AND IN TURN DELIVERED TO YOU ARE THE SAME, IT WOULD APPEAR THAT THE EQUIPMENT WAS ORIGINALLY INCORRECTLY DESCRIBED AS A PLANELOADER AND THAT THIS INCORRECT DESCRIPTION HAS BEEN CARRIED FORWARD IN ALL SUCCEEDING RECORDS.

THE FORKLIFT TRUCK WAS OFFERED FOR SALE ON AN "AS IS" AND "WHERE IS" BASIS AND IN PARAGRAPH 2 OF THE GENERAL SALE TERMS AND CONDITIONS, THE SALES AGENCY STATED THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT DISCLAIMED ALL WARRANTIES AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY. PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS URGED BIDDERS TO INSPECT THE PROPERTY BEFORE BIDDING AND CAUTIONED THEM THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR THE WITHDRAWAL OF A BID AFTER OPENING.

GENERALLY, WHEN GOVERNMENT SURPLUS PROPERTY IS SOLD ON AN "AS IS" AND "WHERE IS" BASIS, WITH OPPORTUNITY TO INSPECT AND WITH NO WARRANTY OR GUARANTY, THERE IS NO IMPLIED WARRANTY THAT THE DESCRIPTION GIVEN IS CORRECT AND THE SUCCESSFUL BIDDER CANNOT ESCAPE LIABILITY UNDER A CONTRACT, NOR IS HE ENTITLED TO REFUND OF MONEY PAID FOR PROPERTY BECAUSE IT DOES NOT FULLY ANSWER THE DESCRIPTION GIVEN. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MOTTRAM, V. UNITED STATES, 271, U.S. 15, TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151; AND YANKEE EXPORT AND TRADING CO. V. UNITED STATES, 72 CT.CL. 258. IN VARIOUS DECISIONS INVOLVING SALES OF GOVERNMENT SURPLUS PROPERTY, THE BUYER'S FAILURE TO INSPECT, OR TO ADEQUATELY INSPECT, THE PROPERTY OFFERED FOR SALE HAS BEEN REGARDED AS AN ADDITIONAL REASON FOR DENYING RELIEF TO HIM BECAUSE THE PROPERTY DOES NOT MEET HIS EXPECTATIONS. SEE PAXTON MITCHELL COMPANY V. UNITED STATES, 172 F.SUPP. 463. THE ITEM ADVERTISED WAS PURCHASED BY YOU UNDER THE INSPECTION CONDITIONS AND UPON THE LIMITED INSPECTION YOUR EMPLOYEES MADE OF THE ITEM.

IN THE ABSENCE OF BAD FAITH ON THE PART OF GOVERNMENT OFFICIALS IN SETTING OUT THE DESCRIPTION OF THE ARTICLES TO BE SOLD, THE PURCHASER OF SURPLUS PROPERTY UNDER A CONTRACT CONTAINING THE USUAL DISCLAIMER OF WARRANTY PROVISION IS BOUND BY THAT PROVISION UNLESS THE DISCREPANCY BETWEEN THE DETAILS OF THE INVITATION AS TO THE ARTICLE TO BE SOLD AND THE ARTICLES ACTUALLY TENDERED BY THE GOVERNMENT IS SO GREAT THAT IT AMOUNTS TO WHAT WAS STATED IN STANDARD MAGNESIUM CORPORATION V. UNITED STATES, 241 F.2D 677, AS A "RIDICULOUS DISCREPANCY" OR AS A "CASE OF ORDERING APPLES AND GETTING ORANGES.' THERE IS NO INDICATION IN THE RECORD BEFORE US THAT THE INCORRECT DESCRIPTION OF ITEM 2 OF THE SUBJECT INVITATION TO BID WAS A RESULT OF BAD FAITH ON THE PART OF THE OFFICIALS DRAWING THE INVITATION, NOR IS BAD FAITH ALLEGED. THE INFORMATION USED IN DESCRIBING THE ITEM WAS THE BEST AVAILABLE DESCRIPTION TAKEN FROM THE TURN-IN DOCUMENTS. SEE 41 COMP. GEN. 185. IN FACT, YOU BID ON A CLARK FORKLIFT TRUCK, AND YOU RECEIVED A CLARK FORKLIFT TRUCK. THAT ITS LIFTING HEIGHT CAPACITY WAS NOT AS HIGH AS YOU ANTICIPATED (THIS IS THE ONLY DISCREPANCY IN THE ITEM TO WHICH YOU OBJECT) COULD HAVE BEEN ASCERTAINED UPON ADEQUATE INSPECTION BY YOU PRIOR TO SUBMITTING YOUR BID.

ON THE BASIS OF THE RECORD BEFORE US, IT CANNOT BE CONCLUDED THAT THE DISCREPANCY BETWEEN THE FORKLIFT EQUIPMENT DESCRIBED IN THE INVITATION AND THE FORKLIFT EQUIPMENT TENDERED BY THE GOVERNMENT WAS SO GREAT AS TO AMOUNT TO A "RIDICULOUS DISCREPANCY" OR AS A "CASE OF ORDERING APPLES AND GETTING ORANGES.' THE EQUIPMENT TENDERED BY THE GOVERNMENT, ALTHOUGH NOT A CLARK PLANELOADER MODEL FORKLIFT TRUCK, WAS NEVERTHELESS A CLARK FORKLIFT TRUCK.

THE EQUIPMENT WAS AVAILABLE FOR INSPECTION AND BIDDERS WERE EXPRESSLY URGED TO INSPECT THE PROPERTY BEING SOLD PRIOR TO BIDDING THEREON. FAILING TO ADEQUATELY INSPECT THE EQUIPMENT, IT MUST BE CONCLUDED THAT, IN SUBMITTING YOUR BID, YOU ASSUMED THE RISK THAT THE PROPERTY TENDERED FOR DELIVERY MIGHT NOT BE THE EXACT PROPERTY DESCRIBED IN THE INVITATION. ACCORDINGLY, WE MUST ADVISE THAT THERE IS NO LEGAL BASIS FOR RELIEVING YOU OF YOUR OBLIGATIONS UNDER THE SALES CONTRACT. SEE DADOURIAN EXPORT CORPORATION V. UNITED STATES, 291 F.2D 178, 182.

WE HAVE REVIEWED THE CIRCUMSTANCES INVOLVED IN THE SALES INVITATIONS CITED BY YOU AND WE HAVE CONCLUDED ON THE BASIS OF THE RECORD BEFORE US THAT THE SITUATIONS THERE INVOLVED WERE NOT COMPARABLE TO THE SALE WHICH IS THE SUBJECT OF YOUR COMPLAINT.

UPON REVIEW, WE FIND NO LEGAL BASIS TO DISTURB THE AWARD AS MADE OR TO GRANT THE SPECIFIC ADJUSTMENTS REQUESTED.