B-154926, AUG. 21, 1964

B-154926, AUG. 21, 1964

TO COLUMBIA MERCHANDISE COMPANY:

YOUR LETTER OF JULY 30, 1964, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF JULY 29, 1964, WHICH DISALLOWED YOUR CLAIM FOR ADJUSTMENT OF THE PURCHASE PRICE OF MEN'S OVERCOATS SOLD TO YOU UNDER SPOT BID SALE INVITATION NO 35-S-64-20, ISSUED NOVEMBER 12, 1963, BY THE DEFENSE SURPLUS SALES OFFICE, PUEBLO ARMY DEPOT, PUEBLO, COLORADO.

THE INVITATION, WHICH SOLICITED BIDS ON 102 ITEMS OF SURPLUS GOVERNMENT PROPERTY, CAUTIONED BIDDERS THAT THE PROPERTY WAS OFFERED FOR SALE "AS IS" "WHERE IS," WITH NO WARRANTY EXPRESSED OR IMPLIED AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OR ITS FITNESS FOR ANY USE OR PURPOSE. IN ADDITION, BIDDERS WERE INVITED, URGED, AND CAUTIONED TO INSPECT THE PROPERTY PRIOR TO SUBMITTING BIDS AND WERE WARNED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUNDS FOR WITHDRAWAL OF A BID AFTER OPENING.

CONTRACT NO. DSA 35-S-1710 WAS AWARDED TO YOU ON DECEMBER 3, 1963, FOR ITEM NO. 36, WHICH YOU HAD NOT INSPECTED BEFORE SUBMITTING YOUR BID. THE ITEM WAS DESCRIBED IN THE INVITATION AS FOLLOWS:

"36. OVERCOAT, MAN'S COTTON, WIND RESISTANT, SATEEN, OLIVE GREEN, VARIOUS SIZES, LARGE, LONG AND REGULAR. UNUSED, GOOD. NOT PACKED. EST SWT: 432 LBS. ACQ COST $2,484.00 (LOC: BLDG 111, INSIDE) (C 8405) QTY 108 EA "

AFTER YOU HAD ACCEPTED DELIVERY OF THE ITEM, YOU COMPLAINED TO THE SALES OFFICE THAT THE PROPERTY WAS IN USED CONDITION RATHER THAN "UNUSED" AS INDICATED IN THE SALES DESCRIPTION. ACCORDINGLY, YOU CLAIM THAT YOU ARE ENTITLED TO AN ADJUSTMENT OF $284.04, OR $2.63 ON EACH OF THE OVERCOATS, FOR WHICH YOU PAID A UNIT PRICE OF $5.13.

IN SUPPORT OF YOUR CLAIM YOU FORWARDED TO THE SALES OFFICE A PIECE OF BURLAP MARKED "CLASS-CS," WHICH WAS ALLEGEDLY TAKEN FROM ONE OF THE BALES IN WHICH THE PROPERTY WAS PACKED. YOU STATE THAT ANYONE FAMILIAR WITH THE PURCHASE OF GOVERNMENT SURPLUS PROPERTY WOULD KNOW THAT THE BALE WAS COMBAT SERVICEABLE AND THAT HAD THE ITEM BEEN UNUSED THE BALE WOULD HAVE BORNE A "CLASS A" LEGEND.

WHILE ORDINARILY IN THE SALE OF PERSONAL PROPERTY BY DESCRIPTION THERE IS AN IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND TO THE DESCRIPTION, NO SUCH WARRANTY MAY BE IMPLIED WHERE, AS HERE, THE SALES CONTRACT CONTAINS AN EXPRESS DISCLAIMER OF WARRANTY. THE PURPOSE AND EFFECT OF THE DISCLAIMER OF WARRANTY PROVISIONS ARE TO IMPOSE ALL RISKS OF MISTAKE UPON THE PURCHASER. ALSO, SUCH PROVISIONS PRECLUDE A SUCCESSFUL SUIT FOR DAMAGES ON THE THEORY OF MUTUAL MISTAKE. UNITED STATES V. HATHAWAY, 242 F.2D 897; AMERICAN SANITARY RAG CO. V. UNITED STATES, 142 CT.CL. 293. ADDITION, A PURCHASER'S FAILURE TO INSPECT THE PROPERTY OFFERED FOR SALE HAS BEEN REGARDED AS AN ADDITIONAL REASON FOR DENYING RELIEF TO HIM BECAUSE THE PROPERTY DOES NOT MEET EXPECTATIONS. TRIAD CORPORATION V. UNITED STATES, 63 CT.CL. 151.

IF, AS YOU POINT OUT, ANYONE FAMILIAR WITH SURPLUS GOVERNMENT PROPERTY SALES COULD HAVE ASCERTAINED FROM THE MARKING "CS" ON THE BALES IN WHICH THE OVERCOATS WERE PACKED THAT THE PROPERTY WAS NOT IN UNUSED CONDITION, IT IS OBVIOUS THAT HAD YOU INSPECTED THE PROPERTY BEFORE BIDDER, YOU, TOO, WOULD HAVE NOTED THAT THERE WAS A MISDESCRIPTION. HAVING ELECTED TO BID WITHOUT SUCH INSPECTION, HOWEVER, YOU ASSUMED THE RISK THAT IT MIGHT NOT CORRESPOND TO THE SALES DESCRIPTION IN THE INVITATION.

UNDER THE RULES UNIFORMLY ADHERED TO BY THE COURTS, WHICH WE MUST FOLLOW, THERE IS NO LEGAL BASIS FOR ADJUSTMENT OF THE PURCHASE PRICE, AND OUR SETTLEMENT DISALLOWING YOUR CLAIM IS SUSTAINED.