B-144023, OCT. 12, 1960

B-144023, OCT. 12, 1960

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED SEPTEMBER 19, 1960, WITH ENCLOSURES, FROM THE ASSISTANCE CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR ALLEGED BY THE AMERICAN CORD AND WEBBING CO., INC., NEW YORK, NEW YORK, IN ITS BID ON WHICH CONTRACT NO. N665A 49702 IS BASED.

THE U.S. NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, ONE LOT OF RISER ASSEMBLIES, ITEM 3. IN RESPONSE THE AMERICAN CORD AND WEBBING CO., INC., SUBMITTED A BID DATED JULY 8, 1960, OFFERING TO PURCHASE, AMONG OTHERS, ITEM 3 AT A LOT PRICE OF $4,800. ON JULY 19, 1960, THE CORPORATION ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID ON ITEM 3 IN THAT THE WRONG AMOUNT WAS INADVERTENTLY TYPED ON THE BID FORM OPPOSITE THAT ITEM; THAT THE TYPE OF MATERIAL COVERED BY ITEM 3, WHICH HAS A GROSS ESTIMATED WEIGHT OF 15,000 POUNDS, IS NORMALLY BOUGHT ON A WEIGHT BASIS; THAT THE FACT THAT THE CORPORATION QUOTED A TOTAL PRICE OF $3,219.72 FOR 40,000 POUNDS OF THE SAME TYPE OF MATERIAL UNDER ITEM 7 SUBSTANTIATES THAT ITS BID PRICE OF $4,800 FOR 15,000 POUNDS OF MATERIAL UNDER ITEM 3 IS ERRONEOUS. IN A LETTER DATED AUGUST 23, 1960, THE CORPORATION STATED THAT IT HAD ESTIMATED THAT THE FREIGHT ON ITEM 3 WOULD COST $480 AND THAT ITS TYPIST INADVERTENTLY TYPED THAT FIGURE AS $4,800 AS ITS BID ON THAT ITEM; AND THAT IT INTENDED TO QUOTE A LOT PRICE OF $1,240.60 FOR ITEM 3. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE CORPORATION SUBMITTED ITS WORKSHEET.

THE ABSTRACT OF BIDS SHOWS THAT THE 11 OTHER BIDDERS ON ITEM 3 QUOTED PRICES RANGING FROM $2,300 TO $269.99. ALTHOUGH THE BID OF THE AMERICAN CORD AND WEBBING CO., INC., WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 3, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE CORPORATION ON THAT ITEM. ALSO, THE FACT THAT THE CORPORATION QUOTED A LOWER PRICE FOR ITEM 7, WHICH COVERED A LARGER QUANTITY OF THE SAME TYPE OF MATERIAL AS ITEM 3, IS NOT MATERIAL IN THE CIRCUMSTANCES. A COMPARISON OF THE PRICE ON ONE ITEM WITH THE PRICES OF OTHER ITEMS COVERING SIMILAR MATERIALS QUOTED BY THE SAME BIDDER WOULD NOT BE REQUIRED, GENERALLY, OF THE CONTRACTING OFFICER TO DETERMINE WHETHER A BIDDER HAS MADE AN ERROR IN ANY ITEM OF HIS BID.

IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601. SEE, ALSO, 17 COMP. GEN. 976; 28 ID. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF AMERICAN CORD AND WEBBING CO., INC., WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S.C 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 CT.CL. 120, 163. IF, AS STATED IN ITS LETTER OF AUGUST 23, 1960, THE CORPORATION INADVERTENTLY USED THE WRONG FIGURE FOR ITS BID PRICE, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT. ANY ERROR THAT WAS MADE IN THE BID OF THE CORPORATION WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFOR, DOES NOT ENTITLE THE CORPORATION TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 CT.CL. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507. ..END :