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M. BERGER CO. v. UNITED STATES

October 24, 1961

M. BERGER COMPANY, a corporation, Plaintiff,
v.
UNITED STATES of America, Defendant



The opinion of the court was delivered by: MARSH

Plaintiff did not allege or prove at the hearing on the motion or in any of the administrative proceedings that the adverse decision of the Board was fraudulent, capricious, arbitrary, or grossly erroneous, but contended that it was not supported by substantial evidence.

 Pursuant to the 'Disputes' clause in the contract involved and to § 321, Title 41 U.S.C.A., the Board's findings of fact are conclusive and binding on the parties and this court unless it is shown that they are not supported by substantial evidence. Hoffmann v. United States, 10 Cir., 1960, 276 F.2d 199, 201; Wells & Wells, Inc. v. United States, 8 Cir., 1959, 269 F.2d 412, 415; Lowell O. West Lumber Sales v. United States, 9 Cir., 1959, 270 F.2d 12, at pages 18-19; United States Nat. Bank of Portland v. United States, D.C.D.Or.1959, 178 F.Supp. 910.

 An examination of the record discloses that the Board's findings are fully supported by undisputed evidence, and, in my opinion, its decision adverse to plaintiff based on those findings is correct under the law.

 A resume of the record reveals that about May 14, 1959, the Disposal Department of the Naval Supply Center, Oakland, California, issued its standard sale invitation and contract soliciting bids for the purchase of 34 items of medical, surgical, and dental materials located at the Naval Supply Annex, Stockton, California.

 The sale invitation contained the following pertinent clauses:

 'INSPECTION. -- Bidders are invited and urged to inspect the property to be sold prior to submitting bids. Property will be available for inspection at the places and times specified in the Invitation. The Government will not be obliged to furnish any labor for such purpose. In no case will failure to inspect constitute grounds for a claim or for the withdrawal of a bid after opening.

 'CONDITION OF PROPERTY. -- All property listed herein is offered for sale 'as is' and 'where is', and without recourse against the Government. If it is provided herein that the Government shall load, then 'where is' means f.o.b. conveyance at the point specified in the Invitation. The description is based on the best available information, but the Government makes no guaranty, warranty, or representation, expressed or implied, as to quantity, kind, character, quality, weight, size, or description of any of the property, or its fitness for any use or purpose, and no claim will be considered for allowance or adjustment or for rescission of the sale based upon failure of the property to correspond with the standard expected; this is not a sale by sample.

 'DISPUTES. -- Except as otherwise specifically provided in this contract, all questions of fact involved in disputes arising under this contract shall be decided by the contracting officer, whose decision upon said facts shall be final and conclusive upon the parties, subject to written appeal by the Purchaser within thirty (30) days to the head of the department or his duly authorized representative, whose decision on said facts shall be final and conclusive upon the parties hereto. In the meantime, the Purchaser shall diligently proceed with performance.'

 'ITEM 8 -- NSA

 BANDAGE, compress, white, 4 x 4', sterilized, Mfrs. Handy Pad Supply Co., and Mine Safety Appliance Co.

 Acquisition: $ 17,373.28. Apparently unused -- in good condition.

 Approx. wt. 14,575 lbs. -- cu. 700 -- in boxes. Packed for ...


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