B-153381, APR. 15, 1964

B-153381, APR. 15, 1964

TO WOLVERINE METAL COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 29, 1964, REQUESTING FURTHER CONSIDERATION OF OUR DECISION DATED FEBRUARY 25, 1964, DISALLOWING YOUR CLAIM FOR $777.81 ALLEGED TO BE DUE UNDER DEFENSE SUPPLY AGENCY CONTRACT NO. DSA-39-S-490, DATED FEBRUARY 28, 1963.

IN YOUR LETTER DATED FEBRUARY 29, 1964, YOU REFER TO UNITED STATES COURT OF CLAIMS FILE NO. 310-58 AS INVOLVING THE SAME SITUATION PRESENTED IN THIS CASE. IN ADDITION, YOU RESTATE YOUR PREVIOUS BASIC CONTENTIONS THAT SINCE THE METAL COVERED BY ITEM NO. 15 CONTAINED A NICKEL CONTENT OF ONLY 12 TO 20 PERCENT, INSTEAD OF THE 70 TO 75 PERCENT ADVERTISED, THERE CAN BE NO QUESTION THAT THE ALLOY SOLD TO YOU WAS NOT "INCONEL" AND, THEREFORE, WAS NOT WITHIN THE CATEGORY OF ,GROUP 8," AS DESCRIBED. THUS, YOU TAKE THE POSITION THAT THE GOVERNMENT OFFERED ONE TYPE OF METAL FOR SALE AND DELIVERED TO YOU AN ENTIRELY DIFFERENT TYPE.

WITH RESPECT TO THE CASE IDENTIFIED AS UNITED STATES COURT OF CLAIMS FILE NO. 310-58 (GEORGE J. KARMAN, ET AL. V. UNITED STATES), THE JUDGMENT IN THAT CASE DID NOT RESULT FROM A DECISION OF THE COURT BUT FROM A STIPULATION OF SETTLEMENT BY THE PARTIES. REPRESENTATIVES OF THE DEPARTMENT OF JUSTICE HAVE ADVISED US THAT IT WAS CONSIDERED THERE WAS A VALID LEGAL DEFENSE TO THE SUIT, BUT THAT THE SETTLEMENT WAS AGREED UPON FOR OTHER REASONS, AND THAT THE CASE WAS NOT TO BE CONSIDERED AS A PRECEDENT IN FUTURE CASES.

AS POINTED OUT IN OUR PRIOR DECISION THE BASIC PRODUCT ADVERTISED FOR SALE UNDER ITEM NO. 15 OF CONTRACT NO. DSA-39-S-490 WAS A CERTAIN QUANTITY OF HIGH TEMPERATURE ALLOY AND THAT IS EXACTLY WHAT WAS SOLD AND DELIVERED TO YOU. ANY ERROR THAT MIGHT HAVE BEEN MADE IN SETTING FORTHIN THE INVITATION SOME OF THE DESCRIPTIVE DETAILS OF THE ALLOY, SUCH AS THE PERCENTAGE OF THE NICKEL CONTENT, AND THE REFERENCE TO THE TYPE OF METAL AS BEING "GROUP 8, INCONEL," WAS AN HONEST ERROR AND, THERE CAN BE NO DOUBT, FROM THE NUMEROUS COURT CASES ON THE SUBJECT, THAT THE DISCLAIMER OF WARRANTY CLAUSE INCLUDED IN THE CONTRACT PROTECTS THE SELLER IN THE EVENT OF SUCH AN ERROR IN A CONTRACT OF SALE OF THIS KIND. MOREOVER, IT ALSO MIGHT BE POINTED OUT THAT INVITATION NO. 39-S-63-35 EMPHASIZED THE FACT THAT NO WARRANTY OR GUARANTY WAS MADE AS TO THE METAL CONTENT OF ITEM NO. 15; ON PAGE 15 OF THE INVITATION IMMEDIATELY FOLLOWING ITEM NO. 17 THERE APPEARS THE FOLLOWING PROVISION:

"NOTE: THE ESTIMATED METAL CONTENTS OF AIR FORCE GROUPS GIVEN

IN ITEMS 15, 16, AND 17 ARE FOR INFORMATION ONLY AND ARE

NOT GUARANTEED BY THE GOVERNMENT.'

IN VIEW OF THE DISCLAIMER OF WARRANTY PROVISIONS AS WELL AS THE INSPECTION CONDITIONS, AS SET FORTH IN PARAGRAPH 1 OF THE GENERAL SALE TERMS AND CONDITIONS OF THE CONTRACT, WE FIND NO LEGAL BASIS FOR HOLDING THE GOVERNMENT LIABLE FOR THE MISDESCRIPTION OF THE HIGH TEMPERATURE ALLOY OFFERED FOR SALE UNDER THIS ITEM.