B-140479, MAR. 15, 1960

B-140479, MAR. 15, 1960

TO MORGAN HUNTER, ESQUIRE:

REFERENCE IS MADE TO YOUR LETTER DATED FEBRUARY 16, 1960, WITH ENCLOSURE, WHEREIN YOU REQUEST RECONSIDERATION OF OUR DECISION DATED DECEMBER 28, 1959, B-140479, WHICH DISALLOWED THE CLAIM OF WM. A. SMITH CONTRACTING CO., INC., KANSAS CITY, KANSAS, FOR RELIEF FROM ITS OBLIGATION TO PURCHASE ITEM NO. 1 ON SALE CONTRACT BASED ON ITS BID SUBMITTED IN RESPONSE TO INVITATION NO. 59-9 ISSUED BY THE ALASKA RAILROAD.

THE TABULATION OF BIDS SIGNED BY THE CONTRACTING OFFICER, COPY OF WHICH WAS FORWARDED WITH YOUR LETTER, WAS IN THE FILE TRANSMITTED BY THE ALASKA RAILROAD TO OUR OFFICE AND WAS GIVEN CONSIDERATION IN OUR DECISION OF DECEMBER 28, 1959.

IN YOUR LETTER YOU REITERATE THE CONTENTION OF WM. A. SMITH CONTRACTING CO., INC., THAT BECAUSE ITS HIGH BID OF $6,000 ON ITEM NO. 1 IS MORE THAN FIVE TIMES THE SECOND HIGH BID OF $1,161.91 ON THAT ITEM AND, ALSO, BECAUSE THE OTHER BIDDERS BID MORE FOR ITEM NO. 2 THAN FOR ITEM NO. 1 WHEREAS THE SMITH BID FOR ITEM NO. 1 IS TWICE AS HIGH AS ITS BID FOR ITEM NO. 2, THE ERROR AS ALLEGED WAS APPARENT IN THE SMITH BID ON THOSE ITEMS AND THE CONTRACTING OFFICER SHOULD HAVE BEEN AWARE OF THE PROBABILITY OF ERROR AND SHOULD NOT HAVE ACCEPTED ITS BID ON ITEM NO. 1 IMMEDIATELY BUT SHOULD HAVE REQUESTED IT TO CHECK AND VERIFY ITS BID.

YOU ALSO CITE SEVERAL COMPTROLLER GENERAL DECISIONS IN SUPPORT OF YOUR CONTENTION. SINCE DECISIONS B-21190, B-90669, B-132571, AND B 138424, CITED BY YOU, DEAL WITH CONTRACTS SOLELY FOR THE PERFORMANCE OF WORK OR FOR THE FURNISHING TO THE GOVERNMENT OF NEW EQUIPMENT, SUPPLIES, ETC., WE DO NOT THINK THEY ARE APPLICABLE TO THE PRESENT CASE INVOLVING THE SALE OF GOVERNMENT SURPLUS PROPERTY. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AND AUTHORITIES CITED THEREIN. ALSO, OUR DECISION B-132440 COVERING A SURPLUS PROPERTY SALE BY THE GOVERNMENT, CITED BY YOU, DOES NOT APPEAR CONTROLLING IN THE INSTANT CASE IN THE LIGHT OF THE COURT'S HOLDING IN THE REFERRED-TO SABIN METAL CORPORATION CASE. IN THAT CASE, AT PAGE 688, THE COURT STATED, IN PERTINENT PART, AS FOLLOWS:

"THIS BEING A SALE OF SURPLUS ENGINE PARTS, THE CONTRACTING OFFICER HAD NO METHOD OF KNOWING THAT THERE WAS AN ERROR IN THE DEFENDANT'S BID. THE GOVERNMENT WAS INTERESTED ONLY IN GETTING THE HIGHEST POSSIBLE PRICE FOR THE MATERIAL TO BE SOLD; IT WAS NOT IN THE METAL TRADE. THERE IS NO REASON WHY THE SPREAD IN BIDS SHOULD HAVE APPEARED PALPABLE TO THE GOVERNMENT. THE ADMINISTRATIVE AGENCY WAS NOT REQUIRED TO EMPLOY OR UTILIZE EXPORTS FOR THE BENEFIT OF THE DEFENDANT, NOR TO ASSUME THE BURDEN OF EXAMINING EVERY LOW BID FOR POSSIBLE ERROR BY THE BIDDER.'

FURTHERMORE, IT HAS BEEN HELD ALSO IN THE DECISIONS OF OUR OFFICE CITED IN THAT COURT CASE AND IN MANY OTHER DECISIONS AS WELL, THAT IN VIEW OF THE WIDE RANGE IN BIDS RECEIVED ON SURPLUS PROPERTY--- BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANGE OF RESALE THEREOF--- A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF AN ERROR AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT.

ACCORDINGLY AND SINCE NO NEW EVIDENCE OR INFORMATION HAS BEEN PRESENTED WHICH WOULD WARRANT A ..END :