B-168258, DEC. 9, 1969

B-168258, DEC. 9, 1969

SALES--BIDS--MISTAKES--ERROR ALLEGED AFTER AWARD HIGH BID FOR SURPLUS MARINE PARTS (SEVEN TIMES HIGHER THAN NEXT BID) DOES NOT ENTITLE BIDDER TO RELIEF FOR MISTAKE IN BID ALLEGED AFTER AWARD SINCE RELIEF WILL NOT BE GRANTED BIDDER ALLEGING UNILATERAL MISTAKE UNLESS ERROR IS SO APPARENT THAT CONTRACTING OFFICER SHOULD HAVE KNOWN OF MISTAKE AND IN VIEW OF WIDE RANGE OF PRICES ON SURPLUS PROPERTY, MERE DIFFERENCE IN PRICE DOES NOT NECESSARILY PLACE CONTRACTING OFFICER ON NOTICE OF PROBABILITY OF ERROR, PRICES USUALLY BEING BASED ON PARTICULAR USE OR RESALE RISK WHICH BIDDER MAY WISH TO TAKE. BECAUSE ERROR WAS NOT ALLEGED UNTIL AFTER AWARD, ACCEPTANCE WAS MADE IN GOOD FAITH AND CONSUMMATED VALID AND BINDING CONTRACT.

TO SURPLUS TIRE SALES:

FURTHER REFERENCE IS MADE TO YOUR LETTERS OF OCTOBER 28 AND 31, 1969, REQUESTING RELIEF FOR A MISTAKE IN BID UNDER SURPLUS SALES CONTRACT NO. 44 -0030-004, AWARDED BY DEFENSE SURPLUS SALES OFFICE, OAKLAND, CALIFORNIA.

THE MISTAKE IS ALLEGED TO HAVE OCCURRED IN CONNECTION WITH YOUR BID ON ITEM NO. 160 OF LOCAL SPOT BID SALE NO. 44-0030 CONDUCTED AT SHARPE ARMY DEPOT, ROUGH AND READY ISLAND, STOCKTON, CALIFORNIA, ON AUGUST 27, 1969. YOU SUBMITTED THE HIGH BID ON ITEM 160, COMPRISED OF ONE LOT OF SHIP AND MARINE EQUIPMENT PARTS, IN THE AMOUNT OF $166.16. WE ARE ADVISED THAT YOU WERE IN ATTENDANCE AT THE SALE WHEN THE HIGH BID AND THE HIGH BIDDER WERE ANNOUNCED PRIOR TO MAKING THE AWARD AND IT IS ADMINISTRATIVELY REPORTED THAT NO ALLEGATION OF ERROR WAS MADE BY YOU AT THAT TIME. OTHER BIDS WERE RECEIVED RANGING FROM $23.11 TO $7.52.

THE ITEM WAS OFFERED AS USEABLE PROPERTY AND IT IS NOTED THAT ABBREVIATED DESCRIPTIONS ARE USED IN LOCAL SPOT BID SALES WHICH DO NOT INCLUDE ACQUISITION COST, CONDITION OF THE PROPERTY, OR WHETHER IT IS "USED" OR "UNUSED.' BY LETTER DATED AUGUST 31, 1969, OR SUBSEQUENT TO AWARD TO YOU AS HIGH BIDDER, YOU ALLEGED AN ERROR IN YOUR BID ON THE ITEM. IN YOUR LETTER OF OCTOBER 31, 1969, YOU STATE, INTER ALIA, AS FOLLOWS:

"* * * MY CLAIM THAT I MADE A MISTAKE IN BID IS A STATEMENT THAT ONLY I AM QUALIFIED AND COMPETENT TO MAKE, TO HAVE THE CONTRACTING OFFICER RULE THAT MY OFFER OF $166.16 IS NOT A MISTAKE IN BID, IN THE FACE OF A SECOND HIGH BID OF $23.11 FOR THE SAME ITEM, IS TO ACCEPT AN ARBITRARY AND CAPRICIOUS DECISION AS BEING FINAL AND ONE ARRIVED AT AFTER DUE DELIBERATION OF ALL THE FACTS INVOLVED IN THE MATTER. IT IS MY CONTENTION THAT ONLY I AM QUALIFIED TO DETERMINE IF I MADE A MISTAKE IN BID.'

THE GENERAL RULE IS THAT RELIEF WILL NOT BE GRANTED TO A BIDDER ALLEGING A UNILATERAL MISTAKE UNLESS THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE OF IT. SALIGMAN, ET AL. V UNITED STATES, 56 F.SUPP. 505 D.C., E.D. PA. 1944). WHERE THERE IS A MATERIAL DIFFERENCE IN THE PRICE QUOTED ON NEW SUPPLIES AND EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT, AS COMPARED WITH THE RANGE OF PRICES CONTAINED IN ALL THE OTHER BIDS, THE CONTRACTING OFFICER IS ON CONSTRUCTIVE NOTICE THAT THE BIDDER MAY HAVE MADE AN ERROR AND VERIFICATION MUST BE REQUESTED FROM THE BIDDER BEFORE A VALID AWARD MAY BE MADE. HOWEVER, IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON SURPLUS PROPERTY, A MERE DIFFERENCE IN THE BID PRICES WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR SUCH PROPERTY. PRICES OFFERED TO THE GOVERNMENT FOR ITS SURPLUS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE WHICH THE BIDDER MIGHT WISH TO TAKE. UNITED STATES V SABIN METAL CORPORATION, 151 F.SUPP. 683 (1957), AFFIRMED 253 F.2D 956 (1958), CITING WITH APPROVAL 16 COMP. GEN. 596 (1936) AND ID. 601 (1936). SEE, ALSO, B-160226, APRIL 26, 1967. IN THE SABIN CASE, THE PRICE DISPARITY IN BIDS RECEIVED FOR THE SALE OF SURPLUS PROPERTY RANGED FROM A LOW OF $337.28 TO A HIGH OF $9,351.30. AT PAGE 688, THE COURT SAID:

"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 EXPERTS FOR THE BENEFIT OF THE DEFENDANT, NOR TO ASSUME THE BURDEN OF EXAMINING EVERY LOW BID FOR POSSIBLE ERROR BY THE BIDDER.' SEE, ALSO, WENDER PRESSES, INC. V UNITED STATES, 343 F.2D 961 (1965).

ALTHOUGH YOUR BID PRICE ON ITEM 160 WAS SEVEN TIMES THE AMOUNT OF THE NEXT HIGHEST BID, SUCH FACT ALONE IN A SURPLUS SALE WOULD NOT HAVE PLACED THE SALES OFFICER ON NOTICE THAT AN ERROR HAD BEEN MADE.

IN VIEW OF THE FOREGOING, AND AS NO ERROR WAS ALLEGED UNTIL AFTER AWARD, IT MUST BE CONCLUDED THAT THE ACCEPTANCE OF YOUR BID WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. ANY ERROR THAT WAS MADE IN YOUR BID WAS UNILATERAL AND NOT MUTUAL, AND DOES NOT ENTITLE YOU TO RELIEF UNDER THE CONTRACT. SEE EDWIN DOUGHERTY AND M. H. OGDEN V UNITED STATES, 102 CT. CL. 249 (1944) AND SALIGMAN ET AL. V UNITED STATES, SUPRA.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR GRANTING ANY RELIEF IN THE MATTER.