detailed and serving and it is our view that they do not extend to captains, or officers of lesser grade, who have been administratively assigned as Assistant Judge Advocate General of the Navy and who have been denied the grade of rear admiral (lower half) or brigadier general. The matter is entirely too doubtful for this Office to conclude that Congress intended that the pay provisions of 37 U.S.C. 202 (7) should apply to officers so administratively assigned but at the same time intended to deny them the benefits specifically provided by 10 U.S.C. 5149 (b) or (c) as to rank and grade for an officer "detailed" to so

serve.

After most careful consideration of all the information presented and without considering whether it is appropriate to detail two Navy officers to serve as Assistant Judge Advocate General of the Navy (instead of one Navy officer and one Marine Corps officer), we must conclude that neither of the officers involved is entitled to the pay of a rear admiral (lower half) under the provisions of 37 U.S.C. 202 (1) on the basis of the present record.

The rule to be derived from past decisions of the Comptroller General relating to claims for alleged misdescription of surplus property where no guarantee provisions were incorporated in the invitation is that the holding authority, including the property disposal officer, should be held to the use of the best information available, the accuracy of which may be relied on if not internally inconsistent, but if the information is contradictory or inconsistent, the holding activity has the duty to select on some reasonable basis the descriptive information to be used. If no information is available, the holding activity has the duty to develop a description of the property on a reasonable basis, taking into consideration the circumstances and effort in relation to the probable value. Errors in judgment or typographical errors by the holding activity would not per se violate the rule. Sales-Disclaimer of Warranty-Erroneous Description-Relief Generally

Under invitation for bids to dispose of surplus property on an "as is" and "where is" basis, bidders advised that the estimated weight of the items offered were not guaranteed and urged to inspect the property are not entitled to a price adjustment for weight shortages if the descriptive information used by the holding activity was the best available, or if not available, the weight estimate was based on a visual inspection of the property because it would not have been feasible to weigh the individual items. However, relief may be granted where the contracting officer had actual or constructive notice of the misdescription before award, or the holding activity unexplainedly almost tripled the weight which had been accurately shown in a rough draft of the sales writeup.

To the Director, Defense Supply Agency, July 15, 1970:

Reference is made to the letters of April 9, 1970, and May 1, 1970, with attachments, from the Assistant Counsel, Defense Supply Agency (DSA), reference: DSAH-G, concerning our decision B-167926, Jan

uary 15, 1970, and certain claims received by your agency for alleged misdescription of surplus items sold where there is no recourse under the "guarantee" provisions. It is suggested that our decisions B-160014, October 27, 1966, and B-166611, May 15, 1969, may be inconsistent with B-167926, January 15, 1970.

The decision, B-160014, October 27, 1966, concerned a claim for an alleged misdescription of an item in a surplus sales invitation. A subitem of the item stated that the handle socket of certain hard tools were sliding T-type, 1/4-inch drive. The handle sockets were actually 32inch drive. It was found that the description was taken from the best available information as set out in the turn-in document from the holding activity and there was no indication in the record before our Office of bad faith on the part of Government employees drawing the invitation or that such employees had any information that the subitem was other than as described in the invitation. The "Guaranteed Descriptions" clause was not included with the "Sale By Reference" conditions incorporated in that invitation. Since the sale was on an "as is" and "where is" basis, it was concluded that there was no warranty and that the rule of caveat emptor prevailed.

In B-166611, May 15, 1969, an automobile was described as a sedan, 1965 Dodge-6, 2-door, and the serial number of the car was set forth in the purchase description. The vehicle was actually a 1964 Dodge, the misdescription in the invitation resulting from a typographical error by the reporting agency. No guarantee provisions were incorporated as terms and conditions of that sale. The contention was that the catalog description was not based on the best available information. Our Office rejected this argument since the sales officer based the description on the best and sole information available to him, that furnished by the reporting agency.

The administrative reports refer to language in B-160014, October 27, 1966, which states that "*** Sales personnel generally rely upon the records certified to them by the holding activities in preparing the property descriptions which are inserted in disposal invitations and are under no duty to make any inspection of items themselves in preparing for the sale. Relief can only be granted where the misdescription is the result of some act on the part of the sales personnel themselves. The rule of careat emptor applies with respect to misdescriptions resulting from the fault of employees of the holding activities * *

In B-166611, May 15, 1969, we said:

* In surplus sales the officials of the Government are required only to act in good faith, which the sales officer did. **

In B-167926, January 15, 1970, the turn-in document contained inconsistent descriptive language. Only the more favorable language was

included in the purchase description. In that case it was held that the property disposal officer could not simply select the more favorable information but had to carefully evaluate the situation to insure that the selection of one part of the description over another inconsistent part was based on the best available information.

In B-151239, May 31, 1963, the property disposal officer knowingly changed the description of the property shown in the turn-in document. In B-151239, which was cited in B-167926, it was also found that the property disposal officer did not fulfill his duty.

We think the rule to be derived from the foregoing cases is that the holding activity which includes the property disposal officer, should be held to the use of the best information available to it. Where the information is contradictory or inconsistent the holding activity has a duty to select the descriptive information to be used on some reasonable basis. However, where the description of the item available to the holding activity is not internally inconsistent, it has a right to rely on the accuracy of the information. Where no information is available, the holding activity has a duty to develop a description of the property on a reasonable basis taking into consideration the circumstances and the effort justified in relation to the probable value. Errors in judgment or typographical errors by the holding activity would not per se violate the standard. We believe that our holdings on the point are consistent with this rule.

The five factual situations presented for our consideration are set out individually below.

The Capco Alloy Steel Company's (Capco) claim concerned a shortage in the estimated total weight of item No. 11, contract No. 44-0048097, which was described as follows:

TUBING: 2-1⁄4'' outside dimension, corrosion resisting steel. FSN 4710–278– 9453. Outside, Area E-Unpacked-Unused-Fair Condition. Total cost $2085. Est. Total wt. 3400 Lbs. 778 FEET.

The above-quoted description of item No. 11 appeared in invitation for bids No. 44-0048, which incorporated by reference the instructions, terms, and conditions, in the "Sale By Reference" pamphlet of March 1969. This pamphlet provided that the sale was on an "as is" and "where is" basis, that the description of the property was based on the best information available and the bidder was urged to inspect the property. It was further provided that the estimated total weight of the property was not guaranteed.

Subparagraph (a)(1) of clause 27 in the "Sale By Reference," March 1969 pamphlet provided that the contract price would not be adjusted or property deleted from the contract pursuant to the "GUARANTEED DESCRIPTIONS" clause unless the purchaser furnished the sales contracting officer written notice within 20 calendar

days of removal of the property that he considered the property to have been misdescribed; further, the property must be held sufficiently intact to permit identification by the Government.

Capco paid $0.7869151 per foot for the 778 feet of tubing and removed the item on November 20, 1969. By letter of November 24, 1969, subsequent to the removal of the property, Capco advised the procuring activity that the item delivered consisted of 1,093 pounds and a request was made for a price decrease of $415.26.

The turn-in document to the holding activity indicated that the total weight of the property was 3,400 pounds. This information was used by personnel at the holding activity to prepare the property list which was submitted to the sales office. The descriptions in the property list were used in the invitation for bids.

The facts of the Capco claim indicate that the purchase description. was taken from the turn-in document without any changes by the selling activity. This case falls within the general rule that relief is denied where the selling activity acts in good faith on the basis of the best available information. Therefore, since there was no warranty with the respect to the weight of the property, Capco's claim must be denied.

The claim of Western Alloy Metals Corporation (Western) concerns a shortage in the estimated total weight of items Nos. 105 through 116 under invitation for bids No. 44-9130, issued by the Defense Surplus Sales Office, Oakland, California. Item No. 105 was described as follows:

BATTERY, STORAGE: Nickel, alkaline, 30 cell, 11 plate, Edision, Model 30C5. Total cost $2956

Est. Total wt. 4200 lbs. 2 EACH

Article: Dangerous Property Applicable.

Items Nos. 106 through 115 were described as "same as" item No. 105. Item No. 116 was described as follows:

116 BATTERY, STORAGE: Edision, consisting of:

2 Ea.-Model 10D6A, 6 cell

1 Ea.-Model unknown, 6 cell, dimensions: 261⁄4'' x 13'' x 23".

1 Ea.-Model unknown, 30 cell, dimensions: 361⁄2" x 311⁄2'' x 211⁄4".

Outside Lot 505-33-Unpacked-Used-Poor Condition

Total cost $2200

Est. Total wt. 4800 lbs. 1 LOT

Article EQ: Dangerous Property Applicable.

The estimated weight of the total quantity described in items Nos. 105 through 116 was 51,000 pounds. Western was the high bidder at $5,403 and award was made to that concern on May 23, 1969.

On June 27, 1969, subsequent to removal of the property, a representative of Western advised the contracting officer by telephone of a shortage in weight in items Nos. 105 through 116 and of Western's intention to file a claim. By letter of November 4, 1969, Western

advised the contracting officer that there was a shortage of 23,560 pounds and a refund of $2,905.64 was requested. The batteries were removed from Government control on June 25, 1969. Western filed its written claim for relief on November 4, 1969.

Spaces in the turn-in document for describing the type of container, the total weight, the number of containers, and the total cube were left blank. The report from the sales contracting officer states that the writer of the sales description estimated the total weight from visual inspection and these weights were included in the property listing referred to the sales office. The sales office apparently relied on this listing in including the purchase description in the invitation. The invitation which is the subject of Western's claim incorporated the instructions terms and conditions contained in the "Sale By Reference" pamphlet of April 1968. The provisions in this pamphlet that the sale was on an "as is" and "where is" basis; that the description of the property was based on the best information available and urging the bidder to inspect the property were the same as the provisions in the March 1969 "Sale By Reference" pamphlet. The April 1968 pamphlet stated that the estimated total weight was not guaranteed. Paragraph (a)(1) of clause 27 in the April 1968 "Sale By Reference" pamphlet is the same as the corresponding clause in the March 1969 "Sale By Reference" pamphlet, summarized above.

The facts of Western's claim indicate that the misdescription was due to a visual inspection by the writer of the purchase description who was part of the holding activity. The sales office described the property in accordance with the information reported to it by the holding activity. We have been advised that in view of the mix of batteries it would have been necessary to individually weigh the batteries to insure that the weight was accurate; that this was not feasible; that, therefore, a visual inspection was made and the weight was described as an estimate. In our opinion the holding activity acted reasonably in the circumstances; consequently, there is no basis for granting relief to Western.

The letter of May 1, 1970, from your agency, presents claims from Ashland Metals under two separate contracts-contracts Nos. 160061-116 and 25-0066-115.

Contract No. 16-0061-116 was awarded to Ashland Metals for item No. 103, contained in sales invitation No. 16-0061, issued by the Defense Surplus Sales Office, Newport, Rhode Island. This item was described as follows:

103. CABLE, POWER ELECTRICAL: Shipboard, consisting of:

1790 Feet-(on 4 reels). Type MDGT-30, 30 conductor, AWG-3 conductor, 600 volts, O/D 2.750, FSN 6145-184-2526.