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TO SEALTITE INSULATION MANUFACTURING CORPORATION: REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5. WAS DISALLOWED PRIMARILY UNDER THE TERMS OF THE "DISCLAIMER OF WARRANTY" CLAUSE THAT WAS UNEQUIVOCALLY AGREED TO BY YOU AS ONE OF THE PROVISIONS OF THE APPLICABLE CONTRACT. REGARDING YOUR OBSERVATION THAT THE GOVERNMENT WOULD REFUSE TO ACCEPT SUCH PROPERTY AND INSIST UPON A REFUND OF THE PURCHASE PRICE IF THE PARTIES IN THIS CASE WERE REVERSED. BE NO MORE LEGAL BASIS FOR THE GOVERNMENT'S REFUSAL TO ACCEPT THE PROPERTY BY REASON OF A MERE HONEST MISDESCRIPTION OF SOME PART THEREOF THAN THERE IS FOR A PRIVATE CONTRACTOR TO ATTEMPT TO DISREGARD SUCH A LEGAL OBLIGATION THAT HAS BEEN FULLY RECOGNIZED BY THE COURTS.

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B-147111, OCT. 18, 1961

TO SEALTITE INSULATION MANUFACTURING CORPORATION:

REFERENCE IS MADE TO YOUR LETTER DATED OCTOBER 5, 1961, IN REGARD TO OUR DECISION OF SEPTEMBER 29, 1961, THAT SUSTAINED THE DISALLOWANCE OF YOUR CLAIM FOR $167 UNDER CONTRACT NO. AF 33/604/S-1185, DATED APRIL 20, 1961.

YOUR CLAIM, WHICH RESULTED FROM THE GOVERNMENT'S ALLEGED DELIVERY TO YOU OF A DIFFERENT TYPE OF ELECTRIC MOTOR THAN THE MOTOR ADVERTISED FOR SALE UNDER INVITATION NO. 33-604-S-61-32, WAS DISALLOWED PRIMARILY UNDER THE TERMS OF THE "DISCLAIMER OF WARRANTY" CLAUSE THAT WAS UNEQUIVOCALLY AGREED TO BY YOU AS ONE OF THE PROVISIONS OF THE APPLICABLE CONTRACT.

REGARDING YOUR OBSERVATION THAT THE GOVERNMENT WOULD REFUSE TO ACCEPT SUCH PROPERTY AND INSIST UPON A REFUND OF THE PURCHASE PRICE IF THE PARTIES IN THIS CASE WERE REVERSED, WE MAY ONLY STATE THAT IF IN THE PROCUREMENT OF SOME PARTICULAR TYPE OF PROPERTY THE GOVERNMENT, AS A PURCHASER, HAD AGREED TO THE SELLER'S USE OF A SIMILAR "DISCLAIMER OF WARRANTY" CLAUSE THERE WOULD, OF COURSE, BE NO MORE LEGAL BASIS FOR THE GOVERNMENT'S REFUSAL TO ACCEPT THE PROPERTY BY REASON OF A MERE HONEST MISDESCRIPTION OF SOME PART THEREOF THAN THERE IS FOR A PRIVATE CONTRACTOR TO ATTEMPT TO DISREGARD SUCH A LEGAL OBLIGATION THAT HAS BEEN FULLY RECOGNIZED BY THE COURTS. WE DO NOT QUESTION YOUR STATEMENT THAT THE GOVERNMENT'S DESCRIPTION OF THE ELECTRIC MOTORS DID NOT FIT THE MOTOR DELIVERED TO YOU IN EVERY DETAIL. HOWEVER, WE BELIEVE THAT ANY VARIATION IN THE DESCRIPTION DETAILS OF THE MOTOR COVERED BY ITEM NO. 3 OF THE SUBJECT INVITATION RESULTED SOLELY FROM AN HONEST MISTAKE. THIS BEING THE CASE, THE "DISCLAIMER OF WARRANTY" CLAUSE FULLY PROTECTS THE SELLER IN THE EVENT OF JUST SUCH A MISTAKE. AS YOU WERE ADVISED IN OUR DECISION DATED SEPTEMBER 29, 1961, WE FIND NOTHING IN THE RECORD BEFORE US TO INDICATE THAT ANY MOTOR OTHER THAN THE ONE ADVERTISED FOR SALE UNDER ITEM NO. 3 WAS SHIPPED TO YOU. LIKEWISE, WE FIND NOTHING IN THE CIRCUMSTANCES ATTENDING THE SALE TRANSACTION WHICH WOULD SUPPORT YOUR ALLEGATION THAT THE GOVERNMENT WAS GUILTY OF FRAUD.

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