B-144265, NOV. 28, 1962

B-144265, NOV. 28, 1962

TO ALEX ZEEVE AND COMPANY, INC.:

RECEIPT IS ACKNOWLEDGED OF A LETTER DATED NOVEMBER 1, 1962, WITH ENCLOSURES, FROM THE ABOVE ATTORNEY REQUESTING, IN YOUR BEHALF, RECONSIDERATION OF OUR DECISION DATED OCTOBER 26, 1962, SUSTAINING THE DISALLOWANCE OF YOUR CLAIM FOR REFUND OF $856.99 REPRESENTING THE PURCHASE PRICE FOR ITEM NO. 12 UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. 63066S- 5347.

A SUBSTANTIAL PART OF MR. FISHBEIN'S LETTER IS IN SUPPORT OF HIS BASIC CONTENTION THAT A COMPLETELY DIFFERENT KIND OF MACHINE FROM THAT ADVERTISED IN INVITATION NO. B-105-62-63066 WAS SHIPPED TO YOU. MR. FISHBEIN SETS FORTH DETAILED EXPLANATIONS AND FURNISHES CERTAIN EXHIBITS TO SHOW THE DIFFERENCE IN USE, DESIGN AND COST BETWEEN THE RADIAL DRILL, WHICH HE CONTENDS IS THE MACHINE THE GOVERNMENT OFFERED FOR SALE UNDER THE INVITATION, AND THE SENSITIVE DRILL WHICH YOU ALLEGEDLY RECEIVED. STATES FURTHER THAT IF THE GOVERNMENT DISPUTES THE FACT THAT THE MACHINE YOU RECEIVED WAS A DIFFERENT KIND FROM THE ONE DESCRIBED UNDER ITEM NO. 12 OF THE INVITATION YOU SHOULD BE GRANTED A HEARING WITH THE OPPORTUNITY TO OFFER EVIDENCE IN SUPPORT OF YOUR CLAIM. REGARDING MR. FISHBEIN'S LATTER STATEMENT, WE BELIEVE A FURTHER REFERENCE TO OUR DECISION DATED OCTOBER 26, 1962, TO YOU WILL SHOW THAT WE HAVE NOT DISPUTED YOUR CONTENTION THAT A DIFFERENT KIND OF DRILL PRESS FROM THAT ADVERTISED FOR SALE MIGHT HAVE BEEN DELIVERED TO YOU. THIS BEING THE CASE, WE WILL BRIEFLY REVIEW HERE THE LEGAL PRINCIPLES INVOLVED ON THE BASIS OF THE FACTS REPORTED TO US SINCE A CONFERENCE ON SUCH APPARENT UNDISPUTED FACTS WOULD APPEAR TO SERVE NO USEFUL PURPOSE.

THE PRINCIPAL QUESTION IN THIS AS WELL AS ALL OTHER CASES INVOLVING THE SALE OF GOVERNMENT SURPLUS PROPERTY IS WHETHER THE GOVERNMENT DELIVERED TO THE PURCHASER THE BASIC PRODUCT THAT WAS ADVERTISED FOR SALE. IN THIS REGARD, THE PERTINENT PART OF ITEM NO. 12 OF INVITATION NO. B-105-62-63066 WAS DESCRIBED AS "DRILL PRESS: MFG. BY GOSIGERMACHINE CO. ELECTRIC MOTOR DRIVEN, 60-CYCLE, 220V, AC, 3-HP," ET CETERA. THUS, AS STATED IN OUR DECISION DATED OCTOBER 26, 1962, TO YOU, THERE CAN BE NO DOUBT THAT THE BASIC PRODUCT OFFERED FOR SALE HERE WAS A DRILL PRESS AND A DRILL PRESS IS EXACTLY WHAT YOU RECEIVED. THE DESCRIPTIVE TERMS USED FOR ITEM NO. 12 DID NOT REFER TO THE BASIC PRODUCT AS A "RADIAL DRILL," BUT EVEN IF SOME OF THE DETAILS USED IN DESCRIBING THE ITEM WERE SUCH AS TO BE INHERENTLY ASSOCIATED WITH A "RADIAL DRILL," AS CONTENDED BY MR. FISHBEIN, IT IS OBVIOUS THAT SUCH A PIECE OF EQUIPMENT IS NOTHING MORE THAN A PARTICULAR TYPE OF DRILL PRESS, IF INDEED IT MIGHT BE OF THE HEAVY DUTY VARIETY. UNDER THESE CIRCUMSTANCES, WE CANNOT ACCEPT MR. FISHBEIN'S PRIMARY CONTENTION THAT A COMPLETELY DIFFERENT KIND OF MACHINE WAS DELIVERED TO YOU FROM THAT ADVERTISED FOR SALE SINCE YOU DID RECEIVE A DRILL PRESS AND NOT A LATHE, PLANER, ET CETERA, BUT WE ARE WILLING TO AGREE THAT APPARENTLY YOU DID RECEIVE A DIFFERENT KIND OF DRILL PRESS. HOWEVER, SINCE THE VARIATION IN THE BASIC PRODUCT, THE DRILL PRESS, RECEIVED BY YOU --- REGARDLESS OF WHETHER SUCH VARIATION INVOLVED ONLY MINOR DETAILS OR WAS OF A MORE SUBSTANTIAL NATURE--- RESULTED SOLELY FROM NOTHING MORE THAN AN HONEST ERROR IN DESCRIPTION, WHICH ERROR IS COMPLETELY COVERED BY THE DISCLAIMER OF WARRANTY CLAUSE SET FORTH IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION, WE FIND NO LEGAL LIABILITY ON THAT PART OF THE GOVERNMENT IN CONNECTION WITH THE SALE TRANSACTION. FURTHER REGARD TO THE APPLICABILITY OF THE DISCLAIMER OF WARRANTY CLAUSE TO THESE FACTS THERE IS NOTED MR. FISHBEIN'S CONTENTION THAT SUCH A CLAUSE PLAINLY INDICATES AN INTENT THAT THE PRODUCT SOLD IS TO BE TAKEN AS DESCRIBED IRRESPECTIVE OF ITS CONDITION THEREBY IMPLYING, OF COURSE, THAT THE DISCLAIMER OF WARRANTY CLAUSE GOES ONLY TO THE CONDITION OF THE PROPERTY SOLD. THIS INTERPRETATION IS NOT UNDERSTOOD SINCE THE SAME DISCLAIMER OF WARRANTY, AS INCLUDED IN ARTICLE 2 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION, REFERRED TO BY MR. FISHBEIN AS DISCLAIMING ANY WARRANTY AS TO THE CONDITION OF THE PROPERTY ALSO EXPRESSLY DISCLAIMS ALL WARRANTIES AS TO THE KIND OF PROPERTY--- IN THIS CASE THE KIND OF DRILL PRESS--- BEING SOLD.

IN VIEW OF THE FOREGOING OUR DECISION DATED OCTOBER 26, 1962, IS AFFIRMED.