B-139800, JUL. 27, 1959

B-139800, JUL. 27, 1959

TO THE BRIGHTMAN TRUCK PARTS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED APRIL 27, 1959, AND ENCLOSURE, RELATIVE TO YOUR CLAIM FOR $93, REPRESENTING REFUND OF THE AMOUNT PAID FOR A QUANTITY OF COPPER TUBING PURCHASED FROM THE DEPARTMENT OF THE NAVY UNDER CONTRACT NO. N407A-7336, DATED FEBRUARY 4, 1959.

THE INVITATION DESCRIBED THE ITEM INVOLVED AS "COPPER TUBE, WITH FLARED CONNECTIONS. OVERALL LENGTH 108 INCHES, 5/8 INCH O.D., SOFT COPPER.' YOU ALLEGE THAT THE TUBING RECEIVED WAS 3/8 INCH O.D. AND NOT AS DESCRIBED. IN LETTER OF APRIL 8, 1959, TO THE DISPOSAL OFFICER, YOU STATED THAT YOU HAD NO USE FOR THE 3/8 INCH TUBING AND REQUESTED PERMISSION TO RETURN THE MATERIAL WITH A REFUND OF THE PURCHASE PRICE. BY LETTER OF APRIL 10, 1959, THE DISPOSAL OFFICER DENIED YOUR REQUEST.

PARAGRAPHS 1 AND 2 OF THE GENERAL SALE TERMS AND CONDITIONS PROVIDE AS FOLLOWS:

"1. INSPECTION.--- BIDDERS ARE INVITED AND URGED TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING BIDS. PROPERTY WILL BE AVAILABLE FOR INSPECTION AT THE PLACES AND TIMES SPECIFIED IN THE INVITATION. THE GOVERNMENT WILL NOT BE OBLIGED TO FURNISH ANY LABOR FOR SUCH PURPOSE. NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.

"2. CONDITION OF PROPERTY.--- ALL PROPERTY LISTED HEREIN IS OFFERED FOR SALE "AS IS" AND ,WHERE IS," AND WITHOUT RECOURSE AGAINST THE GOVERNMENT. * * * THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT 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 FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED; THIS IS NOT A SALE BY SAMPLE.'

IT IS CLEAR THAT MORE EXPLICIT LANGUAGE COULD NOT HAVE BEEN USED TO APPRISE ALL PROSPECTIVE BIDDERS THAT THEY WERE CONTRACTING FOR THE PURCHASE OF LISTED MATERIALS AT THEIR OWN RISK. THE COURTS HAVE HELD CONSISTENTLY THAT SUCH PROVISIONS CONSTITUTE AN EXPRESS DISCLAIMER OF WARRANTY. MAGUIRE AND COMPANY V. UNITED STATES, 273 U.S. 67; LUMBRAZO V. WOODRUFF, 175 N.E. 525; W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31, CERTIORARI DENIED, 284 U.S. 676. THESE CASES CONCLUDE THAT UNDER SUCH CIRCUMSTANCES BUYERS HAVE NO RIGHT TO EXPECT, HAVE NOTICE NOT TO EXPECT, AND CONTRACT NOT TO EXPECT ANY WARRANTIES WHATEVER. IN DISPOSING OF SURPLUS MATERIALS, THE GOVERNMENT IS NOT ENGAGED IN NORMAL TRADE AND FREQUENTLY IS NOT AWARE OF THE CONDITION OR THE QUANTITY OF THE GOODS IT SELLS. THAT FACT IS MADE KNOWN TO ALL BIDDERS BY THE TERMS OF THE CONTRACT WHEREBY THE PARTIES AGREE THAT THE RISK AS TO THE CONDITION AND THE QUANTITY OF THE MATERIAL SOLD IS ASSUMED BY THE PURCHASER AS ONE OF THE ELEMENTS OF THE BARGAIN. SEE 36 COMP. GEN. 612.

NO LEGAL RESPONSIBILITY WOULD ATTACH TO THE GOVERNMENT AS A RESULT OF THE SALE IN QUESTION IN THE ABSENCE OF A SHOWING OF BAD FAITH ON THE PART OF THE DISPOSAL OFFICER OR HIS AGENTS. LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90. THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE DISPOSAL OFFICER OR HIS AGENTS ACTED OTHER THAN IN GOOD FAITH THROUGHOUT THE TRANSACTION.

ALSO, IT APPEARS THAT YOU FAILED TO TAKE ADVANTAGE OF YOUR RIGHT TO MAKE AN INSPECTION OF THE PROPERTY PRIOR TO THE SUBMISSION OF YOUR BID, HAVING BOUGHT THE PROPERTY WITHOUT INSPECTING IT. MORE THAN THAT, THE INVITATION EXPRESSLY PROVIDED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM. SINCE YOU FAILED TO TAKE ADVANTAGE OF THE OPPORTUNITY OFFERED YOU TO INSPECT, BUT PURCHASED THE TUBING WITHOUT DOING SO, YOU BOUGHT AT YOUR OWN RISK AND ARE NOT NOW ENTITLED TO THE RELIEF SOUGHT. SEE M. SAMUEL AND SONS V. UNITED STATES,61 C.CLS. 373; BRODY V. UNITED STATES, 64 C.CLS. 538; SACHS MERCANTILE COMPANY, INC. V. UNITED STATES, 78 C.CLS. 801; AND PAXTON-MITCHELL CO. V. UNITED STATES, C.CLS. NO. 109-58, DECIDED APRIL 8, 1959.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR THE ALLOWANCE OF YOUR CLAIM.