B-144312, DEC. 19, 1960

B-144312, DEC. 19, 1960

TO SAM FERTITTA CONSTRUCTION COMPANY:

REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 8, 1960, REQUESTING RELIEF IN CONNECTION WITH YOUR BID ON ITEM NO. 77, SPOT BID SALE 16 027-S-60-3 AT FORT POLK, LOUISIANA, WHICH WAS ACCEPTED ON OCTOBER 7, 1959.

THE DECISION OF THE ARMED SERVICES BOARD OF CONTRACT APPEALS, ASBCA NO. 6408, DATED OCTOBER 13, 1960, COVERING THE SAME QUESTION, SHOWS THAT ALL THE FACTS AND CIRCUMSTANCES SET FORTH IN YOUR LETTER WERE PRESENTED TO AND CONSIDERED BY THE BOARD AND, THEREFORE, NEED NOT BE REPEATED HERE. HOWEVER, THE DECISION DISCLOSES THAT YOU INSPECTED THE POLES BEFORE YOU BID. IT IS APPARENT THAT THE INACCURACIES IN THE INVITATION AS TO THE NUMBER AND SIZE OF THE POLES WOULD HAVE BEEN REVEALED IF YOU HAD MADE AN ADEQUATE INSPECTION, EVEN WITHOUT MOVING THE POLES. ALSO, THE EXCESSIVE ACQUISITION COST STATED IN THE INVITATION, AND OF WHICH YOU NOW COMPLAIN, WAS AS APPARENT BEFORE YOU BID AS AFTER.

THE CONCLUSION REACHED BY THE BOARD, IN OUR OPINION, IS CORRECT AND IS IN ACCORDANCE WITH NUMEROUS DECISIONS OF THE COURTS, THE ARMED SERVICES BOARD OF CONTRACT APPEALS, AND OF THIS OFFICE. IT CONSISTENTLY HAS BEEN HELD THAT LANGUAGE AS SET FORTH IN PARAGRAPH 2 OF THE GENERAL SALES TERMS AND CONDITIONS, QUOTED ON PAGE 2 OF THE ASBCA DECISION, CONSTITUTES AN EXPRESS DISCLAIMER OF WARRANTY; THAT THERE IS ESPECIALLY FOR APPLICATION THE PRINCIPLE THAT THE PURCHASER BUYS ENTIRELY AT HIS RISK; AND THAT RECOVERY CANNOT BE HAD AGAINST THE VENDOR ON THE GROUND THAT THE PURCHASER WAS MISTAKEN AS TO KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE. 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. THUS IT MUST BE CONSIDERED THAT THE ACCEPTANCE OF YOUR BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO.

THE BOARD HELD THAT THE CONTRACT SHOULD BE CONSIDERED AS A CONTRACT FOR THE NUMBER OF POLE ACTUALLY IN THE LOT RATHER THAN A LUMP SUM BID FOR THE LOT. THEREFORE, YOU WILL RECEIVE SOME RELIEF IF THE NUMBER OF POLES INVOLVED IS LESS THAN AS INDICATED IN THE NOTICE OF SALE.

IT IS A WELL ESTABLISHED RULE THAT AGENTS AND OFFICERS OF THE GOVERNMENT HAVE NO AUTHORITY TO GIVE AWAY THE MONEY OR PROPERTY OF THE UNITED STATES, TO WAIVE CONTRACTUAL RIGHTS WHICH HAVE ACCRUED TO THE UNITED STATES, OR TO MODIFY EXISTING CONTRACTS WITHOUT A COMPENSATING BENEFIT TO THE GOVERNMENT. SEE UNITED STATES V. AMERICAN SALES COMPANY, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; PACIFIC HARDWARE COMPANY V. UNITED STATES, 49 CT.CL. 327; AND BAUSCH AND LOMB OPTICAL CO. V. UNITED STATES, 78 CT.CL. 584.

ACCORDINGLY, YOU ARE ADVISED THAT THERE IS NO BASIS UPON WHICH WE COULD GRANT YOU FURTHER RELIEF FROM LIABILITY UNDER THE CONTRACT OF SALE HERE INVOLVED.