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B-168258, MAR 25, 1971

B-168258 Mar 25, 1971
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PROTESTANT SUBMITS NO EVIDENCE SUFFICIENT TO OVERCOME THE VERACITY OF THE ADMINISTRATIVE REPORT WHICH SHOWS THAT NO ALLEGATION OF MISTAKE WAS MADE UNTIL AFTER THE AWARD OF CONTRACT. A LETTER FROM PROTESTANT TO THE CONTRACTING OFFICER FOUR DAYS AFTER THE SALE INDICATES THAT THE MISTAKE WAS NOT DISCOVERED BY PROTESTANT UNTIL AFTER THE SALE. THE REQUEST FOR RELIEF IS DENIED. TO SURPLUS TIRE SALES: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24. DENYING YOUR REQUEST FOR RELIEF FROM A MISTAKE IN BID MADE IN RESPONSE TO A LOCAL SPOT BID SALE WHICH WAS THE BASIS OF CONTRACT NO. 44- 0030-004. THE PREVIOUS DECISIONS DENIED YOUR REQUEST FOR RELIEF BECAUSE THE RECORD DID NOT SHOW THAT ANY ALLEGATION OF MISTAKE WAS MADE UNTIL AFTER AWARD OF THE ABOVE-CITED CONTRACT AND BECAUSE ACCEPTANCE OF YOUR BID BY THE CONTRACTING OFFICER WITHOUT NOTICE OF THE ALLEGED MISTAKE RESULTED IN A VALID AND BINDING CONTRACT.

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B-168258, MAR 25, 1971

BID PROTEST - MISTAKE IN BID - RELIEF DENIED DECISION SUSTAINING PRIOR ACTION WHICH DENIED RELIEF DUE TO ALLEGED MISTAKE IN BID MADE IN RESPONSE TO A LOCAL SPOT BID SALE RESULTING IN A CONTRACT AWARDED BY DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA. PROTESTANT SUBMITS NO EVIDENCE SUFFICIENT TO OVERCOME THE VERACITY OF THE ADMINISTRATIVE REPORT WHICH SHOWS THAT NO ALLEGATION OF MISTAKE WAS MADE UNTIL AFTER THE AWARD OF CONTRACT. ALSO, A LETTER FROM PROTESTANT TO THE CONTRACTING OFFICER FOUR DAYS AFTER THE SALE INDICATES THAT THE MISTAKE WAS NOT DISCOVERED BY PROTESTANT UNTIL AFTER THE SALE. ACCEPTANCE OF THE BID THEREFORE RESULTED IN A VALID AND BINDING CONTRACT, AND THE REQUEST FOR RELIEF IS DENIED.

TO SURPLUS TIRE SALES:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 24, 1970, REQUESTING RECONSIDERATION OF THE DECISIONS OF JANUARY 23, 1970, AND DECEMBER 9, 1969, DENYING YOUR REQUEST FOR RELIEF FROM A MISTAKE IN BID MADE IN RESPONSE TO A LOCAL SPOT BID SALE WHICH WAS THE BASIS OF CONTRACT NO. 44- 0030-004, AWARDED BY DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

THE PREVIOUS DECISIONS DENIED YOUR REQUEST FOR RELIEF BECAUSE THE RECORD DID NOT SHOW THAT ANY ALLEGATION OF MISTAKE WAS MADE UNTIL AFTER AWARD OF THE ABOVE-CITED CONTRACT AND BECAUSE ACCEPTANCE OF YOUR BID BY THE CONTRACTING OFFICER WITHOUT NOTICE OF THE ALLEGED MISTAKE RESULTED IN A VALID AND BINDING CONTRACT.

BY DECISION NO. 14858, JUNE 29, 1970, THE ARMED SERVICES BOARD OF CONTRACT APPEALS (BOARD) CONSIDERED AND DENIED YOUR CLAIM FOR RESCISSION OF THE CONTRACT BECAUSE OF YOUR ALLEGED MISTAKE IN BID. IN ITS DECISION THE BOARD STATED THAT:

"BOTH BEFORE THE COMPTROLLER GENERAL AND SUBSEQUENTLY HERE, APPELLANT HAS CONTENDED THAT THE SALES CONTRACTING OFFICER WAS IN FACT DIRECTLY INFORMED OF THE MISTAKE BEFORE AWARD. THAT CONTENTION IS CONTRARY TO THE RECORD MADE, INCLUDING THE STATEMENT BY APPELLANT MOST NEARLY CONTEMPORANEOUS WITH THE SALE TO THE EFFECT THAT THE ERROR WAS NOT DISCOVERED BY APPELLANT UNTIL AFTER THE SALE. APPELLANT HAS ALSO CONTENDED HERE THAT NO CONTRACT CAME INTO EXISTENCE AS TO ITEM 160, A PROPOSITION WHICH THE RECORD IN NO WAY SUPPORTS.

"CONCLUSIONS. IN ANY EVENT, WHATEVER THE MERITS OF APPELLANT'S CONTENTIONS, THE BOARD IS WITHOUT AUTHORITY TO AFFORD APPELLANT THE RELIEF REQUESTED. SEE GORDON ENTERPRISES, ASBCA NO. 12793, 67-2 BCA PAR. 6720."

IN YOUR LETTER OF SEPTEMBER 24, 1970, YOU CHALLENGED THE DECISIONS OF OUR OFFICE AND THAT OF THE BOARD, WHEREIN IT WAS STATED THAT THE ONLY NOTICE OF THE ALLEGED MISTAKE IN YOUR BID WAS YOUR LETTER SENT TO THE CONTRACTING OFFICER AUGUST 31, 1969, SEVERAL DAYS AFTER THE DATE OF THE SALE. IN YOUR SEPTEMBER 24 LETTER YOU FURTHER STATED THAT:

"IMMEDIATELY FOLLOWING THE END OF THE SALE, AND PRIOR TO ANY WRITTEN CONTRACTS BEING EXECUTED, I NOTIFIED THE SALES CONTRACTING OFFICER WHO WAS CONDUCTING THE SALE, THAT MY BID FOR ITEM NO. 160 WAS A MISTAKE IN BID." ADDITIONALLY, YOU HAVE STATED THAT THE NOTIFICATION WHICH YOU GAVE THE SALES CONTRACTING OFFICER TOOK PLACE IN THE SAME ROOM IN WHICH THE SALE WAS BEING CONDUCTED.

THE RECORD BEFORE OUR OFFICE, WHICH WE CONFINE OURSELVES TO IN RENDERING DECISIONS, INCLUDES A LETTER FROM YOU TO THE CONTRACTING OFFICER DATED AUGUST 31, 1969, WHEREIN YOU STATED THAT:

"WITH RESPECT TO ITEM 160.

"I INADVERTENTLY SUBMITTED AN EXCESS BID FOR THIS ITEM AS A RESULT OF CONFUSION ON MY PART DUE TO THE HURRIED EXAMINATION I MADE OF THE PROPERTY ON THE MORNING OF THE SALE. IN RECHECKING MY REPORT AFTER THE SALE CLOSED, I DISCOVERED THAT I HAD ESTIMATED THIS LOT TO BE VALUED AT $33.41 INSTEAD OF THE $166.66 THAT I BID. THE CONFUSION RESULTED FROM A PRELIMINARY FIGURE I HAD PUT DOWN ON MY BID SHEET AS BEING THE VALUE OF ITEM 161, THE DRILLING MACHINE." IT IS ONLY IN CORRESPONDENCE TO OUR OFFICE SUBSEQUENT TO THE ABOVE-QUOTED LETTER THAT YOU ALLEGE THAT YOU GAVE NOTIFICATION OF YOUR MISTAKE TO THE CONTRACTING OFFICER ON THE DAY OF THE SALE, AUGUST 27, 1969.

THE ADMINISTRATIVE REPORT PERTAINING TO YOUR REQUEST FOR RELIEF STATES THAT WHEN YOUR HIGH BID WAS ANNOUNCED AT THE SALE NO ALLEGATION OF ERROR WAS MADE BY YOU AND NONE WAS MADE UNTIL AFTER THE CONTRACT WAS AWARDED TO YOU. EVEN YOUR LETTER OF AUGUST 31, 1969, WRITTEN A FEW DAYS AFTER THE SPOT BID SALE, CONTAINS NO STATEMENT THAT NOTICE OF ERROR WAS GIVEN PRIOR TO AWARD.

CLEARLY THERE IS A CONFLICT BETWEEN YOUR ALLEGATIONS AS TO THE NOTIFICATION YOU GAVE THE CONTRACTING OFFICER OF YOUR MISTAKE AND WHAT THE RECORD INDICATES. IN VIEW OF THE LACK OF ANY EVIDENCE SUBMITTED BY YOU SUFFICIENTLY CONVINCING TO OVERCOME THE VERACITY OF THE ADMINISTRATIVE REPORT AND THE RECORD CONTAINED THEREIN, YOUR CLAIM MUST BE DENIED. ACCORDINGLY, THE DECISIONS DATED JANUARY 23, 1970, AND DECEMBER 9, 1969, ARE SUSTAINED.

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