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YOU CONTEND THAT THE ITEMS WERE INCORRECTLY DESCRIBED AND THAT THE BRAKE LINING ACTUALLY MEASURED 4 INCHES BY 3/4 INCH BY 19 3/16 INCHES. YOUR ATTENTION WAS DIRECTED TO THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION AND PARTICULARLY TO ARTICLES 1 AND 2 THEREOF. ARTICLE 2 ADVISED BIDDERS THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT DID NOT WARRANT OR GUARANTEE THAT THE SIZE OR DESCRIPTION OF THE PROPERTY WAS CORRECT. WAS UNAUTHORIZED AND CONFERRED NO RIGHTS ON THE PURCHASER. MANY CASES INVOLVING SALES OF PUBLIC PROPERTY BY THE GOVERNMENT UNDER CONTRACTS CONTAINING AN EXPRESS DISCLAIMER OF WARRANTY CLAUSE SIMILAR TO THAT INCORPORATED IN THE SALE AGREEMENT HERE INVOLVED HAVE BEEN CONSIDERED BY THE FEDERAL COURTS.

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B-153274, FEB. 27, 1964

TO HERZL COHEN AUTO PARTS COMPANY:

WE REFER TO YOUR LETTER OF DECEMBER 27, 1963, AND TO OUR INFORMAL DISCUSSION OF FEBRUARY 18, 1964, WITH RESPECT TO YOUR REQUEST FOR RECONSIDERATION OF OUR SETTLEMENT OF OCTOBER 22, 1963, WHICH DISALLOWED YOUR CLAIM FOR REFUND OF THE BID DEPOSIT OF $410.80 MADE BY YOU UNDER SALES INVITATION NO. 27-S-63-61.

THE DISPOSAL AGENCY ACCEPTED YOUR HIGH BIDS FOR ITEMS 82 AND 84 OF THE INVITATION, CONSISTING OF 596 BRAKE KITS DESCRIBED AS FOLLOWS:

"* * * 8 EACH LINING BRAKE 5 1/2 INCHES BY 3/4 INCH BY 19 3/16 INCHES * *

HOWEVER, YOU CONTEND THAT THE ITEMS WERE INCORRECTLY DESCRIBED AND THAT THE BRAKE LINING ACTUALLY MEASURED 4 INCHES BY 3/4 INCH BY 19 3/16 INCHES. YOU THEREFORE REQUEST THAT THE RESULTING CONTRACT BE CANCELED AND THAT REFUND BE MADE OF YOUR BID DEPOSIT OF $410.80. WE UNDERSTAND THAT YOU DID NOT PERSONALLY INSPECT THE ITEMS PRIOR TO BIDDING BUT RELIED UPON AN INSPECTION OF SAMPLES OF THE ITEMS BY ANOTHER PERSON AND UPON INFORMAL ADVICE FROM AN EMPLOYEE OF THE DISPOSAL ACTIVITY.

IN OUR SETTLEMENT OF OCTOBER 22, 1963, YOUR ATTENTION WAS DIRECTED TO THE GENERAL SALE TERMS AND CONDITIONS OF THE INVITATION AND PARTICULARLY TO ARTICLES 1 AND 2 THEREOF. ARTICLE 1 URGED AND CAUTIONED BIDDERS TO INSPECT THE PROPERTY TO BE SOLD PRIOR TO SUBMITTING A BID AND THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR WITHDRAWAL OF A BID AFTER OPENING. ALSO, ARTICLE 2 ADVISED BIDDERS THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT DID NOT WARRANT OR GUARANTEE THAT THE SIZE OR DESCRIPTION OF THE PROPERTY WAS CORRECT. ALSO, ARTICLE 12 OF THE INVITATION TERMS EXPRESSLY STATED THAT ANY ORAL STATEMENT OR REPRESENTATION BY ANY REPRESENTATIVE OF THE GOVERNMENT, CHANGING THE INVITATION CONDITIONS, WAS UNAUTHORIZED AND CONFERRED NO RIGHTS ON THE PURCHASER.

MANY CASES INVOLVING SALES OF PUBLIC PROPERTY BY THE GOVERNMENT UNDER CONTRACTS CONTAINING AN EXPRESS DISCLAIMER OF WARRANTY CLAUSE SIMILAR TO THAT INCORPORATED IN THE SALE AGREEMENT HERE INVOLVED HAVE BEEN CONSIDERED BY THE FEDERAL COURTS. THE DECISIONS IN THOSE CASES HAVE UNIFORMLY UPHELD THE USE OF SUCH DISCLAIMER CLAUSES AND CONCLUDED THAT THE RULE OF CAVEAT EMPTOR SHOULD BE APPLIED. SEE, IN THIS CONNECTION, THE COURT DECISIONS IN THE CASES OF SNYDER CORP. V. UNITED STATES, 68 CT.CL. 667; SACHS MERCANTILE CO. V. UNITED STATES, 78 CT.CL. 801; AMERICAN SANITARY RAG CO. V. UNITED STATES, 142 CT.CL. 293; PAXTON-MITCHELL CO. V. UNITED STATES, 145 CT.CL. 502; STAR WOOLEN CO. V. UNITED STATES, NO. 51-61 CT.CL. DECIDED NOVEMBER 7, 1962; AMERICAN AUTO PARTS CO., INC. V. UNITED STATES, NO. 120- 57 CT.CL., DECIDED JUNE 7, 1963; AMERICAN ELASTICS V. UNITED STATES, 187 F.2D 109, CERTIORARI DENIED, 342 US. 829; MILLER HARNESS CO., INC. V. UNITED STATES, 241 F.2D 781; UNITED STATES V. HATHAWAY, 242 F.2D 897; AND DADOURIAN EXPORT CORP. V. UNITED STATES, 291 F.2D 178. IT WILL BE NOTED THAT IN SOME OF THESE CASES THE COURTS CONSIDERED AND REJECTED CONTENTIONS TO THE EFFECT THAT COMPLETE INSPECTION WOULD HAVE BEEN DIFFICULT BECAUSE THE BULK OF THE MATERIAL OR ARTICLES OFFERED FOR SALE WAS PACKED IN BOXES OR CARTONS, WITH ONLY A REPRESENTATIVE QUANTITY OF THE PARTICULAR GOODS HAVING BEEN DISPLAYED AT THE GOVERNMENT WAREHOUSE. THUS, IN THE CASE OF MILLER HARNESS CO., INC., WHICH INVOLVED THE SALE OF SADDLE PARTS MOST OF WHICH WERE PACKED IN BOXES, THE UNITED STATES COURT OF APPEALS, SECOND CIRCUIT, STATED THAT:

"* * * A CURSORY AND PERFUNCTORY EXAMINATION OF A SMALL PART OF THE GOODS OFFERED UNDER AN ,INVITATION" SO LIMITED AND CIRCUMSCRIBED BY CONDITIONS AND WARNINGS IS PLAINLY INSUFFICIENT TO WARRANT ANY RECOVERY WHATEVER. HERE THERE WAS NO SALE BY DESCRIPTION, AND THE BUYER TOOK THE RISK THAT THE ALREADY IDENTIFIED BOXES DID NOT CONTAIN WHAT HE HOPED WAS IN THEM.'

IN THE CIRCUMSTANCES, WE MUST CONCLUDE THAT THERE IS NO LEGAL BASIS UPON WHICH WE WOULD BE WARRANTED IN AUTHORIZING PAYMENT OF ANY PART OF YOUR CLAIM. ACCORDINGLY, THE SETTLEMENT WHICH DISALLOWED THE CLAIM IS SUSTAINED.

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