B-163005, APRIL 2, 1968, 47 COMP. GEN. 509

B-163005, APRIL 2, 1968, 47 COMP. GEN. 509

SALES - DISCLAIMER OF WARRANTY - ERRONEOUS DESCRIPTION - MATERIAL CONTENT A BUYER OF SURPLUS NICKEL UNDER AN "AS IS" SOLICITATION WHO UPON RECEIVING DELIVERY OF DEFECTIVE METAL ALLEGES THAT THE DISCLAIMER OF WARRANTY PROVISION IS UNCONSCIONABLE AND SHOULD NOT BE ENFORCED, AND THAT THE AGREEMENT AFTER CONTRACT AWARD FOR ANALYSIS OF THE NICKEL IS AN EXPRESS WARRANTY OF THE COMPOSITION OF THE MATERIAL, IS NOT ENTITLED TO REPLACEMENT OF THE DEFECTIVE NICKEL OR TO REIMBURSEMENT FOR THE COST OF REMOVING THE IMPURITIES. THE ANALYSIS AGREEMENT CONTAINING NO WARRANTIES BY THE GOVERNMENT IS NOT AN EXPRESS WARRANTY SUBJECT TO SECTION 2-316 OF THE UNIFORM COMMERCIAL CODE PROTECTING BUYERS FROM UNEXPECTED AND UNBARGAINED DISCLAIMER LANGUAGE, AND THE EXPRESS DISCLAIMER OF THE "AS IS" PROVISION IMPLYING NO WARRANTY THE PROPERTY DELIVERED WOULD CORRESPOND TO THE SOLICITATION DESCRIPTION, RELIEF MAY NOT BE GRANTED TO THE BUYER, ABSENT WILLFUL MISDESCRIPTION OR BAD FAITH BY THE CONTRACTING OFFICER.

TO JACOB SIEGAL, APRIL 2, 1968:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF NOVEMBER 28, 1967, WITH ENCLOSURES, SUBMITTING ON BEHALF OF M. PASHELINSKY AND SONS A CLAIM OF $16,398.20 ARISING OUT OF ITEM 7 UNDER CONTRACT NO. GS-OOP/S/ 27342/SCM).

ON JUNE 9, 1966, THE GENERAL SERVICES ADMINISTRATION (GSA), DEFENSE MATERIALS SERVICE, ISSUED, PURSUANT TO STATUTORY AUTHORITY, SOLICITATION NO. DMS-MET-126, FOR THE SALE OF APPROXIMATELY 10,389,000 POUNDS OF NICKEL IN VARIOUS FORMS. PAGE 2 OF THE SOLICITATION GAVE A BREAK DOWN OF THE 10,389,000 POUNDS AS FOLLOWS:

2,404,000 POUNDS NICKEL INGOTS

452,000 POUNDS NICHEL RONDELLES

7,533,000 POUNDS REFINED NICKEL PIGS IMMEDIATELY AFTER THE ABOVE BREAK DOWN THE FOLLOWING NOTATION WAS CONSPICUOUSLY PLACED IN BOLD CAPITAL LETTERS: "THIS IS AN -AS IS' SALE.' DIRECTLY BENEATH THE "AS IS" PROVISION, THE SOLICITATION PROVIDED THAT OFFERERS WERE AUTHORIZED TO INSPECT THE ITEMS OFFERED FOR SALE AT THE VARIOUS STORAGE DEPOTS.

WITH RESPECT TO ITEM 7, THE ITEM IN QUESTION, PAGE 12 OF THE SOLICITATION PROVIDED AS FOLLOWS: REFINED NICKEL PIGS PRODUCED BY FALCONBRIDGE NICKEL MINES LIMITED AND SOCIETE LE NICKEL, S.A., WEIGH APPROXIMATELY 40 POUNDS EACH AND ARE 4-1/2 INCHES BY 16 INCHES BY 3 INCHES IN SIZE. THE FOLLOWING ARE TWO ANALYSES OF THE REFINED NICKEL PIGS:

PERCENTAGE--- BY WEIGHT NICKEL PLUS COBALT

98.73 98.94 COBALT 0.96 1.34 SULFUR

0.05 0.03 CARBON 0.03

0.01 IRON 0.30 0.30 THE FOREGOING DATA WERE COMPILED FROM GSA RECORDS AND ARE BELIEVED TO BE CORRECT, BUT NO WARRANTIES ARE MADE AS TO THESE ANALYSES. TO BE SHIPPED LOOSE. ITEM QUANTITY--- IN POUNDS LOCATION INFORMATION

7 7,533,000 COLUMBUS DEFENSE

CONSTRUCTION SUPPLY

CENTER, COLUMBUS, OHIO.

(RAIL--- SERVED BY B-AND-O,

NYC, AND PRR).

BY LETTER OF JUNE 20, 1966, M. PASHELINSKY SUBMITTED OFFERS OF $0.7650 PER POUND FOR 11,319 POUNDS OF NICKEL INGOTS UNDER ITEM 6 AND $0.7250 PER POUND FOR 200,000 POUNDS OF NICKEL PIG UNDER ITEM 7 WITH A MINIMUM QUANTITY OF 60,000 POUNDS. ON JUNE 29, 1966, GSA ACCEPTED THESE OFFERS AND THE FORMAL CONTRACT OF SALE, NO. GS-OOP/S/-27342/SCM), WAS EXECUTED BY M. PASHELINSKY ON JULY 6, 1966. THE SALES CONTRACT CONSPICUOUSLY INDICATED THAT "THIS IS AN -AS IS' SALE" AND THAT ALL THE TERMS AND CONDITIONS OF SOLICITATION NO. DMS-MET-126, WERE MADE PART OF THE SALES CONTRACT. DELIVERIES UNDER THE CONTRACT WERE MADE ON AUGUST 31, 1966, AND SEPTEMBER 6, 1966.

BY LETTER OF SEPTEMBER 20, 1966, M. PASHELINSKY REQUESTED GSA TO EITHER REPLACE THE MATERIAL DELIVERED OR TO MAKE AN ADJUSTMENT TO OFFSET COSTS WHICH ALLEGEDLY WOULD HAVE TO BE INCURRED TO REMOVE CERTAIN IMPURITIES IN THE ITEMS SENT BY GSA. M. PASHELINSKY'S COMPLAINT WAS INVESTIGATED BY A GSA MATERIALS QUALITY CONTROL SPECIALIST WHO, IN A MEMORANDUM OF OCTOBER 6, 1966, REPORTED THAT THE MATERIAL DELIVERED, MADE UP OF FULL AND BROKEN PIGS AND SMALL IRREGULAR CHUNKS AND PIECES, MANIFESTED A DULL GRAY, SLAG- LIKE APPEARANCE AND SHOWED CONSIDERABLE POROSITY APPARENTLY CAUSED BY ENTRAPPED GASES. BY LETTER OF OCTOBER 17, 1966, THE PROJECT MANAGER, METALS INDUSTRY MATERIALS DIVISION, STRATEGIC AND CRITICAL MATERIALS DISPOSAL, HEREAFTER REFERRED TO AS THE CONTRACTING OFFICER, ADVISED M. PASHELINSKY THAT NO ADJUSTMENT FOR ITEM 7 WOULD BE MADE.

GSA HAS ADVISED US OF AN AGREEMENT REACHED AT A MEETING HELD ON OCTOBER 25, 1966, BETWEEN GSA AND M. PASHELINSKY'S REPRESENTATIVES THAT IT WOULD BE HELPFUL TO OBTAIN AN ANALYSIS OF THE NICKEL PLUS COBALT CONTENT IN SAMPLES SELECTED FROM THE UNUSED PORTION OF THE NICKEL PIGS REMAINING AT M. PASHELINSKY'S PLANT. IT WAS ALSO AGREED THAT THE ANALYSIS WOULD NOT BE BINDING ON THE GOVERNMENT. AT THE TIME THE SAMPLE WAS TAKEN, THE CONTRACTOR HAD CONSUMED ALL BUT 23,000 POUNDS OF THE MATERIAL UNDER ITEM 7.

ON NOVEMBER 10, 1966, M. PASHELINSKY SUBMITTED THE FIRST ANALYSIS. THE CONTRACTING OFFICER FOUND THE ANALYSIS TO BE INCOMPLETE AND A REANALYSIS WAS MADE WHICH WAS SUBMITTED TO THE CONTRACTING OFFICER ON DECEMBER 19, 1966. ON JANUARY 26, 1967, IT WAS AGREED THAT THE CONTRACTING OFFICER WOULD RENDER A DECISION ON M. PASHELINSKY'S CLAIM AND ON MARCH 30, 1967, THE CLAIM WAS DENIED BY THE CONTRACTING OFFICER. THIS DECISION WAS APPEALED TO THE GENERAL SERVICES ADMINISTRATION'S BOARD OF CONTRACT APPEALS. ON SEPTEMBER 29, 1967, THE BOARD DISMISSED THE APPEAL ON THE BASIS THAT THE CLAIM WAS ONE FOR BREACH OF CONTRACT AND SINCE THE CONTRACT DID NOT PROVIDE ANY MEANS FOR THE BOARD TO GRANT THE RELIEF REQUESTED, IT WOULD NOT SERVE ANY PURPOSE TO HEAR THE APPEAL.

TWO MAJOR BASES ARE PRESENTED IN SUPPORT OF THE CLAIM WHICH WAS SUBMITTED TO OUR OFFICE ON NOVEMBER 28, 1967. THE FIRST IS THAT IT IS UNCONSCIONABLE TO APPLY THE DISCLAIMER OF WARRANTY PROVISION TO ITEM 7 OF YOUR CLIENT'S CONTRACT SINCE YOUR CLIENT WAS IN AN UNEQUAL BARGAINING POSITION. IN THIS CONNECTION YOU HAVE CITED HENNINGSEN V BLOOMFIELD MOTORS, INCORPORATED, 32 N.J. 358, 161 A.2D 69 (1960); WILLIAMS V WALKER- THOMAS FURNITURE COMPANY, 350 F.2D 445 (D.C. CIR., 1965); LUING V PETERSON 143 MINN. 6, 172 N.W. 692 (1919); AND SECTION 2-302 OF THE UNIFORM COMMERCIAL CODE (UCC). IT IS COLLATERALLY URGED THAT THE MATERIALS DELIVERED UNDER ITEM 7 CONSTITUTED A TOTAL FAILURE OF CONSIDERATION; THEREFORE, THE DISCLAIMER OF WARRANTY SHOULD HAVE NO EFFECT. HERE YOU CITE ROCKY MOUNTAIN SEED COMPANY V KNORR, 92 COLO. 320, 20 P.2D 304 (1933); AND MYERS V LAND, 314 KY. 514, 235 S.W.2D 988 (1951). YOU ALSO ALLEGE THAT AN ADEQUATE INSPECTION COULD NOT BE MADE BECAUSE OF THE ENORMITY OF THE MASS OFFERED FOR SALE.

THE SECOND BASIS URGED IN SUPPORT OF THE CLAIM IS THAT THE ANALYSES OF ITEM 7 IN THE SOLICITATION CONSTITUTED AN EXPRESS WARRANTY WHICH WAS NOT NEGATED BY THE "AS IS" PROVISION AND IN THIS CONNECTION YOU CITE GENERALLY THE OFFICIAL COMMENTARY IN SECTION 2-316 OF THE UCC. THIS SECTION DEALS WITH THE EXCLUSION OR MODIFICATION OF WARRANTIES. THE COMMENTARY STATES THAT THE SECTION IS DESIGNED PRINCIPALLY TO DEAL WITH THOSE FREQUENTLY USED CLAUSES IN SALES CONTRACT WHICH SEEK TO EXCLUDE "ALL WARRANTIES, EXPRESS OR IMPLIED.' IT SEEKS TO PROTECT A BUYER FROM UNEXPECTED AND UNBARGAINED LANGUAGE OF DISCLAIMER BY DENYING EFFECT TO SUCH LANGUAGE WHEN INCONSISTENT WITH LANGUAGE OF EXPRESS WARRANTY AND BY PERMITTING THE EXCLUSION OF IMPLIED WARRANTIES ONLY BY CONSPICUOUS LANGUAGE OR OTHER CIRCUMSTANCES WHICH PROTECT THE BUYER FROM SURPRISE.

WE WILL FIRST DISCUSS THE AUTHORITY CITED BY YOU IN CONNECTION WITH THE CONTENTION THAT IT WOULD BE UNCONSCIONABLE TO GIVE EFFECT TO THE DISCLAIMER OF WARRANTY PROVISION IN YOUR CONTRACT.

IN THE WILLIAMS CASE, SUPRA, A STEREO SET WAS SOLD BY A FURNITURE COMPANY TO AN INDIVIDUAL IN APRIL OF 1962, WITH PAYMENTS TO BE MADE BY INSTALLMENTS. THE CONTRACT TERMS FOR THE STEREO SET AND PRIOR INSTALLMENT PURCHASES BY THE INDIVIDUAL WERE CONTAINED IN PRINTED FORM CONTRACTS. PURSUANT TO AN OBSCURE PROVISION IN THESE PRINTED FORM CONTRACTS, A BALANCE DUE ON EVERY ITEM PURCHASED WAS KEPT UNTIL THE BALANCE DUE ON ALL ITEMS, WHENEVER PURCHASED, WAS LIQUIDATED. WHEN THE INDIVIDUAL DEFAULTED ON AN INSTALLMENT PAYMENT ON THE STEREO SET, THE FURNITURE COMPANY ATTEMPTED TO REPLEVY ALL THE ITEMS PURCHASED BY THE INDIVIDUAL SINCE DECEMBER 1957, EVEN THOUGH THE BALANCE DUE ON THESE ITEMS HAD BEEN SUBSTANTIALLY REDUCED. THE COURT CONCLUDED THAT SUCH A CONTRACT WAS UNCONSCIONABLE AND SHOULD NOT BE ENFORCED.

THE HENNINGSEN CASE, SUPRA, INVOLVED A SALES CONTRACT FOR THE PURCHASE OF AN AUTOMOBILE FROM AN AUTOMOBILE DEALER BY AN INDIVIDUAL PURCHASER. THE SALES CONTRACT CONTAINED A DISCLAIMER OF WARRANTY PROVISION TO THE EFFECT THAT DEFECTIVE PARTS IN THE AUTOMOBILE WOULD BE REPLACED IN EXCHANGE FOR THE ELIMINATION OF ALL OTHER WARRANTY OBLIGATIONS BY THE MANUFACTURER AND DEALER. THE WARRANTY PROVISION WAS COUCHED IN SUCH TERMS THAT AN AVERAGE PURCHASER WOULD NOT REALIZE ITS IMPORT AND WAS INCONSPICUOUSLY PLACED AMONG A MAZE OF OTHER PROVISIONS SO THAT IT WOULD RECEIVE ONLY A MINIMUM OF ATTENTION FROM AN AVERAGE PURCHASER. A SHORT TIME AFTER DELIVERY OF THE CAR THE PURCHASER'S WIFE WAS INJURED WHILE OPERATING THE AUTOMOBILE WHEN IT VEERED OUT OF CONTROL FOR NO EXPLAINABLE REASON. THE QUESTION WAS WHETHER THE PURCHASER COULD RECOVER ON A WARRANTY THEORY FOR THE INJURIES SUSTAINED DESPITE THE DISCLAIMER PROVISION. IN THE CIRCUMSTANCES, THE COURT HELD THAT THE DISCLAIMER OF WARRANTY PROVISION WAS VOID.

IN LUING V PETERSON, SUPRA, CITED IN WILLIAMS V WALKER-THOMAS FURNITURE COMPANY, SUPRA, A MOTHER APPLIED FOR A LOAN TO COVER MEDICAL TREATMENT FOR HER SON OFFERING A MORTGAGE ON CERTAIN REAL ESTATE AS SECURITY. THE LENDER AGREED TO MAKE THE LOAN BUT ONLY IF THE MOTHER GAVE ANOTHER MORTGAGE ON THE SAME REAL ESTATE TO SECURE CERTAIN DEBTS OF HER SON TO THE LENDER. THE MOTHER AT THE TIME OF THE LOAN WAS 89 YEARS OLD AND APPARENTLY NOT INCOMPETENT. SUBSEQUENT TO THESE TRANSACTIONS A GUARDIAN WAS APPOINTED FOR THE MOTHER'S ESTATE AND HE BROUGHT THIS ACTION TO SET ASIDE THE NOTES AND MORTGAGES. THE COURT HELD THAT THE MAKING OF THE LOAN TO THE MOTHER WAS NOT SUFFICIENT CONSIDERATION FOR THE COLLATERAL PROMISE OF THE MOTHER TO PAY THE DEBTS OF HER SON IN THE LENDER'S HANDS; AND THAT THE NOTES AND MORTGAGES WHICH SHE GAVE THEREFOR WERE VOID AND UNENFORCEABLE OBLIGATIONS.

SECTION 2-302 OF THE UCC, CITED BY YOU, DEALS WITH THE UNENFORCEABILITY OF UNCONSCIONABLE CONTRACT PROVISIONS. THE QUESTION IS WHETHER THE "AS IS" PROVISION IN YOUR CLIENT'S CONTRACT IS AN UNCONSCIONABLE PROVISION.

THE SITUATION IN THE INSTANT CASE IS ONE WHERE A BUSINESSMAN BUYS SOME SURPLUS PROPERTY FROM THE GOVERNMENT. WE HAVE REVIEWED THE SOLICITATION AND WE FIND NOTHING THEREIN WHICH SHOWS THAT THE GOVERNMENT WAS ATTEMPTING TO CLANDESTINELY TAKE ADVANTAGE OF UNWARY OFFERERS AS YOUR LETTER SUGGESTS. RATHER WE THINK THE GOVERNMENT VERY CLEARLY ADVISED OFFERERS THAT THE SALE WOULD BE "AS IS" . A PROSPECTIVE OFFEROR AFTER REVIEWING THE SOLICITATION COULD DECIDE WHETHER OR NOT TO SUBMIT AN OFFER. THIS CASE FALLS FAR SHORT OF THOSE CITED BY YOU WHERE IT WAS CLEAR THAT THE SELLERS ATTEMPTED TO HIDE THE DISCLAIMER OF WARRANTY PROVISIONS FROM PROSPECTIVE PURCHASERS AND THE PROSPECTIVE PURCHASERS COULD NOT MATCH WITS WITH THE SELLERS. THE ABSENCE OF MEANINGFUL CHOICE ON THE PART OF ONE OF THE PARTIES DISCUSSED IN THE WILLIAMS CASE IS NOT A SIGNIFICANT FACTOR HERE. PURSUANT TO THE FACTS PRESENTED WE DO NOT FIND THAT THE PROVISIONS OF THE INSTANT CONTRACT ARE UNCONSCIONABLE.

YOU HAVE ALSO CITED THE ROCKY MOUNTAIN SEED COMPANY CASE, SUPRA, AS AUTHORITY FOR THE POSITION THAT THE DISCLAIMER OF WARRANTY PROVISION SHOULD NOT BE ENFORCED. IN THE ROCKY MOUNTAIN CASE THE QUESTION WAS THE EFFECT WHICH WAS TO BE GIVEN TO A DISCLAIMER OF WARRANTY PROVISION IN A CONTRACT FOR THE SALE OF ALFALFA SEEDS WHERE THE SELLER DELIVERED SWEET CLOVER SEEDS CAUSING THE BUYER TO GROW A WORTHLESS CROP. THE COURT HELD THAT SINCE THE SELLER DELIVERED A DIFFERENT KIND OF SEED FROM THAT CALLED FOR BY THE CONTRACT, THERE WAS A BREACH OF CONTRACT DESPITE THE DISCLAIMER OF WARRANTY PROVISION. THE COURT SPECIFICALLY POINTED OUT THAT IT WAS NOT A SITUATION WHERE AN INFERIOR KIND OF ALFALFA SEED HAD BEEN DELIVERED TO THE BUYER. WE THINK CASES INVOLVING SEEDS PRESENT UNIQUE ASPECTS NOT APPLICABLE HERE. IN ADDITION, THE ROCKY MOUNTAIN CASE IS DISTINGUISHABLE IN THAT IT INVOLVED A DELIVERY WHICH WAS DIFFERENT IN KIND FROM THAT CALLED FOR BY THE CONTRACT RATHER THAN A DIFFERENCE IN THE EXPECTED DEGREE OF QUALITY OF THE MATERIAL DELIVERED WHICH IS THE CASE HERE.

IN THE MYERS V LAND CASE, SUPRA, THERE WAS A CONTRACT OF SALE FOR A MACHINE FOR THE MANUFACTURE OF CONCRETE BLOCKS. HOWEVER, THE MACHINE DELIVERED DID NOT MANUFACTURE A MERCHANTABLE PRODUCT AND WAS WORTHLESS FOR THE PURPOSE FOR WHICH IT WAS SOLD. THE BACK OF THE PURCHASE ORDER WAS MADE PART OF THE CONTRACT AND AMONG NUMEROUS PROVISIONS WAS ONE WHICH STATED THAT THE SELLER'S LIABILITY FOR DEFECTS WAS LIMITED TO MAKING GOOD AT ITS FACTORY ANY DEFECTIVE PARTS. THE QUESTION WAS WHETHER THIS PROVISION WOULD PRECLUDE THE PURCHASER FROM MAINTAINING AN ACTION FOR BREACH OF CONTRACT. THE COURT FOUND FOR THE PURCHASER ON THE BASIS THAT THERE WAS NO DELIVERY OF THAT WHICH HAD BEEN BOUGHT. SINCE YOUR CLIENT HAS USED ALL OR ALMOST ALL OF THE MATERIAL DELIVERED UNDER ITEM 7 WE FIND IT DIFFICULT TO AGREE WITH THE CONTENTION THAT THE MATERIAL DELIVERED TO YOUR CLIENT WAS WORTHLESS. IT IS AXIOMATIC THAT BEFORE THERE CAN BE AN EXPRESS WARRANTY THERE MUST BE SOME UNDERSTANDING BETWEEN THE PARTIES THAT AN EXPRESS WARRANTY WAS INTENDED. LOOKING AT ITEM 7, QUOTED ABOVE, AS IT APPEARED IN THE SOLICITATION, WE FIND THAT IT CLEARLY STATED THAT NO WARRANTIES WERE MADE WITH RESPECT TO THE ANALYSES SET FORTH FOR ITEM 7. IN THESE CIRCUMSTANCES THERE WOULD BE NO BASIS FOR A PURCHASER TO CONSTRUE THE ANALYSES AS INDICATING AN INTENTION ON THE PART OF THE GOVERNMENT TO GIVE AN EXPRESS WARRANTY OF THE COMPOSITION OF THE MATERIAL UNDER ITEM 7. SINCE THERE IS NO EXPRESS WARRANTY, SECTION 2-316 OF THE UCCWOULD NOT BE APPLICABLE TO THIS SITUATION.

IN B-149182, JULY 23, 1962, A SALES INVITATION DESCRIBED AN ITEM AS CONSISTING OF 645 POUNDS OF MONEL TAPERED PINS. IN A CLAIM TO OUR OFFICE IT WAS ALLEGED BY THE CONTRACTOR THAT 221 POUNDS OF THE PINS DELIVERED WERE NOT MADE OF MONEL METAL AS ADVERTISED BUT INSTEAD WERE MADE FROM STAINLESS STEEL. THE PINS WERE PACKED IN SMALL SEPARATE CARTONS WHICH WERE UNMARKED AS TO METAL CONTENT. IT WAS ALLEGED THAT AN INSPECTION WOULD NOT HAVE DISCLOSED THAT STAINLESS STEEL PINS WERE INCLUDED WITH THE MONEL NICKEL PINS SINCE THE HOLDING ACTIVITY WOULD NOT ALLOW PROSPECTIVE PURCHASERS TO OPEN EACH AND EVERY PACKAGE. THE SALES INVITATION CONTAINED AN EXPRESS DISCLAIMER OF WARRANTY PROVISION. THE HOLDING WAS THAT WHERE THERE IS AN EXPRESS DISCLAIMER OF WARRANTY THERE IS NO IMPLIED WARRANTY THAT THE PROPERTY WILL CORRESPOND TO THE DESCRIPTION. THERE WAS NO INFORMATION IN THE RECORD OF WILLFUL MISREPRESENTATION OR OF BAD FAITH; CONSEQUENTLY, THERE WAS NO LEGAL BASIS FOR ALLOWING THE CLAIM. WITH REGARD TO INSPECTION IT WAS STATED AS FOLLOWS:

IN REGARD TO YOUR STATEMENT THAT HAD YOU ATTEMPTED TO MAKE AN INSPECTION OF THE MATERIAL THE DISPOSAL AGENCY WOULD NOT HAVE PERMITTED YOU TO OPEN ALL OF THE CARTONS, IT MAY BE STATED THAT EVEN IF THE AGENCY DID NOT PERMIT YOU TO OPEN ALL OF THE CARTONS AND YOU STILL SUBMITTED A BID, THERE WOULD BE APPLICABLE THE RULE ESTABLISHED BY THE DECISIONS OF THIS OFFICE THAT WHERE A BIDDER FAILS TO MAKE INSPECTION UNDER SUCH A CONTRACT OF SALE --- WHETHER SUCH FAILURE WAS DUE TO THE BIDDER'S OPINION THAT INSPECTION WAS NOT NECESSARY OR WHETHER THE INSPECTION WAS IMPRACTICAL, IF NOT IMPOSSIBLE--- THE BIDDER HAS ELECTED TO ASSUME ANY RISK WHICH MIGHT EXIST BY REASON OF A VARIANCE BETWEEN THE DESCRIPTION OF THE PROPERTY SET FORTH IN THE INVITATION AND THE PROPERTY ACTUALLY DELIVERED. THE BIDDER'S RESPONSIBILITIES IN THIS CONNECTION APPEAR TO BE CLEARLY SET FORTH IN PAXTON-MITCHELL COMPANY V UNITED STATES, 172 F.SUPP. 463, WHERE IT WAS HELD THAT, NOTWITHSTANDING THE DIFFICULTIES ATTENDANT UPON AN INSPECTION, IT IS INCUMBENT UPON THE BIDDER TO MAKE THE SORT OF INSPECTION THAT IS EFFECTUAL.

IN THE INSTANT CASE THE "AS IS" PROVISION MUST BE CONSIDERED AS AN EXPRESS DISCLAIMER OF WARRANTY. IT THEREFORE FOLLOWS THAT THERE WAS NO IMPLIED WARRANTY THAT THE PROPERTY DELIVERED WOULD CORRESPOND TO THE DESCRIPTION IN THE SOLICITATION. PURSUANT TO OUR REVIEW WE FIND NOTHING WHICH WOULD SHOW THAT ITEM 7 WAS WILLFULLY MISDESCRIBED OR THAT THE CONTRACTING OFFICER ACTED IN OTHER THAN GOOD FAITH. AS INDICATED IN B- 149182 THE ONLY REQUIREMENT IN THIS TYPE OF SITUATION IS THAT THE CONTRACTING OFFICER ACT IN GOOD FAITH; CONSEQUENTLY, THERE IS NO LEGAL BASIS FOR ALLOWING YOUR CLAIM. CONSIDERING THE QUOTED PORTION OF B- 149182, RELATING TO INSPECTION, WE FIND THAT EVEN IF IT WERE CONCEDED THAT YOU COULD NOT MAKE AN ADEQUATE INSPECTION, THIS WOULD NOT CONSTITUTE A BASIS FOR ALLOWING YOUR CLAIM IN THE CIRCUMSTANCES PRESENTED.