B-129752, DEC. 10, 1956

B-129752, DEC. 10, 1956

TO BERGAN SUPPLY COMPANY, INC.:

REFERENCE IS MADE TO YOUR LETTER OF OCTOBER 26, 1956, REQUESTING RECONSIDERATION OF OUR SETTLEMENT DATED OCTOBER 23, 1956, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE AMOUNT OF $18.50, ON THE PURCHASE PRICE PAID BY YOU FOR CERTAIN SURPLUS MATERIAL PURCHASED FROM THE SUPPLY DEPARTMENT, UNITED STATES NAVAL GUN FACTORY, UNDER CONTRACT NO. H-171A-10276A.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. B-71-56 DATED APRIL 6, 1956, YOU SUBMITTED A BID DATED MAY 7, 1956, OFFERING TO PURCHASE ITEM NO. 3, COMPRISING ONE LOT OF MISCELLANEOUS CHEMICALS AND CHEMICAL PRODUCTS, IN "APPROXIMATE" QUANTITIES INCLUDING, AMONG OTHER THINGS, 100- GALLONS DIETHYL OXALATE (IN 2-50 GALLON KEGS), FOR THE PRICE OF $37. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $7.40, WAS ACCEPTED AND AWARD WAS MADE TO YOU, THEREBY CONSUMMATING A VALID AND BINDING CONTRACT. YOUR CLAIM FOR A REFUND OF $18.50, IS BASED UPON THE FACT THAT YOU RECEIVED 54 ONE-HALF GALLON BOTTLES OF DIETHYL OXALATE INSTEAD OF TWO FIFTY GALLON KEGS AS ADVERTISED IN THE INVITATION TO BID.

AS POINTED OUT IN THE SETTLEMENT OF OCTOBER 23, 1956, PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS INVITED AND URGED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS AND SPECIFICALLY PROVIDES THAT IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. MOREOVER, PARAGRAPH 2 PROVIDES THAT THE GOVERNMENT "MAKES NO GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED 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, AND NO CLAIM WILL BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON THE FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED: THIS IS NOT A SALE BY SAMPLE.'

WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND WITH THE DESCRIPTION, THE COURTS HAVE HELD THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY AS IN THIS CASE, NO SUCH WARRANTY MAY BE IMPLIED FROM THE DESCRIPTION OF THE PROPERTY SOLD AS THE DISCLAIMER OF WARRANTY EXTENDS TO AND INCLUDES THE DESCRIPTION. LUMBRAZO V. WOODRUFF, 175 N. E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31; I. SHAPIRO AND COMPANY V. UNITED STATES, 66 C. CLS. 424.

FURTHER, THE RECORD SHOWS THAT YOU FAILED TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO THE SUBMISSION OF YOUR BID. HOWEVER, IF YOU HAD MADE SUCH AN INSPECTION, AS YOU WERE CAUTIONED TO DO BY THE INVITATION, YOU WOULD HAVE DISCOVERED THE DISCREPANCY OF WHICH YOU NOW COMPLAIN SINCE IT IS ADMINISTRATIVELY REPORTED THAT THE ONE-HALF GALLON BOTTLES WERE DISPLAYED AS PART OF ITEM 3 PRIOR TO THE SALE. WHILE WE APPRECIATE THAT IN THIS INSTANCE IT WOULD NOT HAVE BEEN ECONOMICALLY SOUND FOR YOU TO INCUR THE EXPENSE OF TRAVELING TO WASHINGTON, D. C. TO MAKE THE INSPECTION, THE LAW IS CLEAR THAT WHERE A SALE IS MADE UNDER TERMS SUCH AS HERE INVOLVED FAILURE OF THE BIDDER TO INSPECT PRECLUDES RECOVERY ON THE GROUND THAT THE MATERIALS ARE NOT AS DESCRIBED. SEE TRIAD CORPORATION V. UNITED STATES, 63 C. CLS. 151; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT IN THE PRICE FIXED IN THE CONTRACT, AND THE SETTLEMENT OF OCTOBER 23, 1956, IS SUSTAINED.