A-94598, MAY 24, 1938, 17 COMP. GEN. 976

A-94598: May 24, 1938

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SALES - MISTAKES - BIDS - PRICE DIFFERENCES AS CONSTRUCTIVE NOTICE OF ERROR WHERE AFTER THE OPENING OF BIDS IN CONNECTION WITH THE SALE OF USED GOVERNMENT MATERIAL "AS IS. " "WHERE IS. " AND "IF IS. THERE IS NO BASIS FOR GRANTING RELIEF FROM THE BID WHICH CONTAINED NOTHING TO PUT THE CONTRACTING OFFICER ON NOTICE OF MISTAKE AND WAS ACCEPTED IN GOOD FAITH. NOTWITHSTANDING THE BIDDER'S PRICE ON THE PARTICULAR LOT WAS MUCH HIGHER THAN THAT OF THE OTHER BIDS AND THE ESTIMATED VALUE OF THE MATERIAL. THE WIDE DIFFERENCES IN PRICES BID FOR THE DIFFERENT ITEMS OF PROPERTY INVOLVED BEING BUT FURTHER INDICATION THAT A DIFFERENCE IN BID PRICES IN CONNECTION WITH SALES OF USED GOVERNMENT MATERIAL IS NOT NECESSARILY SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON GOVERNMENT PURCHASES OF EQUIPMENT.

A-94598, MAY 24, 1938, 17 COMP. GEN. 976

SALES - MISTAKES - BIDS - PRICE DIFFERENCES AS CONSTRUCTIVE NOTICE OF ERROR WHERE AFTER THE OPENING OF BIDS IN CONNECTION WITH THE SALE OF USED GOVERNMENT MATERIAL "AS IS," "WHERE IS," AND "IF IS," WITHOUT RECOURSE, AND AWARD TO THE HIGHEST BIDDER ON ONE LOT, THE SAID BIDDER ALLEGED ERROR IN THAT IT HAD MISPLACED THE DECIMAL POINT IN THE BID PRICE, THERE IS NO BASIS FOR GRANTING RELIEF FROM THE BID WHICH CONTAINED NOTHING TO PUT THE CONTRACTING OFFICER ON NOTICE OF MISTAKE AND WAS ACCEPTED IN GOOD FAITH, NOTWITHSTANDING THE BIDDER'S PRICE ON THE PARTICULAR LOT WAS MUCH HIGHER THAN THAT OF THE OTHER BIDS AND THE ESTIMATED VALUE OF THE MATERIAL, THE WIDE DIFFERENCES IN PRICES BID FOR THE DIFFERENT ITEMS OF PROPERTY INVOLVED BEING BUT FURTHER INDICATION THAT A DIFFERENCE IN BID PRICES IN CONNECTION WITH SALES OF USED GOVERNMENT MATERIAL IS NOT NECESSARILY SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON GOVERNMENT PURCHASES OF EQUIPMENT, SUPPLIES, ETC.

ACTING COMPTROLLER GENERAL ELLIOTT TO THE CHIEF, BUREAU OF SUPPLIES AND ACCOUNTS, NAVY DEPARTMENT, MAY 24, 1938:

THERE HAS BEEN RECEIVED YOUR LETTER OF APRIL 12, 1938, AS FOLLOWS:

SUBJECT: SEALED BID SALE OF MARCH 22, 1938, BOSTON SALES CATALOG 103-B, LOT 138, BOSTON JUNK COMPANY.

ENCLOSURES:

(A) BOSTON JUNK COMPANY OF BOSTON, LETTER DATED MARCH 26, 1938, TO THE NAVY YARD, BOSTON.

(B) COMDT. NAVY YARD, BOSTON, LETTER L11-4/SE), MARCH 29, 1938, TO GENERAL ACCOUNTING OFFICE, VIA BU. OF S. AND A.

(C) COPY OF SALES CATALOG 103-B.

(D) COPY OF ABSTRACT OF BIDS, SALE OF MARCH 22, 1938.

1. ENCLOSURES (A) AND (B) ARE FORWARDED FOR APPROPRIATE ACTION.

2. ON MARCH 22, 1938, BIDS WERE OPENED BY THE SUPPLY OFFICER, NAVY YARD, BOSTON, FOR THE SALE OF SURVEYED MATERIAL AS COVERED BY CATALOG 103-B, ENCLOSURE (C). BIDS WERE RECEIVED AS FOLLOWS ON LOT 138 COVERING 4,000 POUNDS OF SCRAP ARMATURES:

TABLE

BIDDER: PRICE BID PER CWT.

NEW ENGLAND IRON AND STEEL CO------------------------ $0.75

H. COHEN AND CO., INC.------------------------------ 1.10

BAY STATE SMELTING CORP------------------------------ .90

VALE SALVAGE CO-------------------------------------- 1.01

BOSTON JUNK CO--------------------------------------- 16.25

NATIONAL METALS CO., INC---------------------------- .55

DAVID FEINBURG CO------------------------------------ .60

CHARLES A LACH--------------------------------------- .75

SIMON MYERS------------------------------------------ .91

3. IT SEEMS APPARENT FROM A COMPARISON OF THE BIDS SUBMITTED THAT THE BOSTON JUNK COMPANY MADE AN OBVIOUS ERROR IN SUBMITTING A BID OF $16.25 PER CWT., THAT THE DECIMAL POINT WAS MISPLACED, AND THAT THE BID WAS ACTUALLY INTENDED TO BE $1.625 PER CWT. AS AWARD HAS ALREADY BEEN MADE BASED ON THE BID, IT IS RECOMMENDED THAT AUTHORITY BE GIVEN TO CORRECT THE BID AND TO AMEND THE AWARD TO CORRESPOND WITH THE CORRECTED BID.

THE BIDS HERE IN QUESTION WERE ON SURVEYED MATERIAL SOLD "AS IS, WHERE IS, AND IF IS" WITHOUT RECOURSE AS DISTINGUISHED FROM BIDS FOR THE PERFORMANCE OF WORK OR THE FURNISHING OF SUPPLIES, EQUIPMENT, ETC. CONSEQUENTLY, THERE MIGHT BE EXPECTED A WIDE RANGE IN THE BIDS WHICH WOULD BE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANCES OF RESALE THEREOF. THE MERE DIFFERENCE IN THE PRICES BID FOR SUCH PROPERTY WOULD NOT NECESSARILY PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED.

THE "CONDITIONS AND TERMS OF SALE" IN THIS INSTANCE CONTAINED, AMONG OTHERS, THE FOLLOWING PROVISIONS:

ALL MATERIAL LISTED IN THIS CATALOGUE IS OFFERED BY SEALED BID SALE "AS IS," "WHERE IS," AND ,IF IS" WITHOUT RECOURSE. THE DESCRIPTION IS BASED ON THE BEST AVAILABLE INFORMATION, BUT NO WARRANTY OR GUARANTY IS GIVEN BY THE NAVY AS TO THE EXACT QUANTITY, QUALITY, CONDITION, WEIGHT, SIZE, OR DESCRIPTION, OR THAT IT IS IN CONDITION, TO BE USED OR DESIRED TO BE USED BY THE PURCHASER. IN EVERY CASE WHERE SAMPLES OF THE LOTS ARE SHOWN THESE SAMPLES, TO THE BEST OF THE NAVY'S BELIEF, ARE TRUE AND FAIR, BUT THE BIDDERS ARE CAUTIONED THAT THEY SHOULD MAKE AN EXAMINATION OF THE LOTS BEFORE THE SALE, AS NO ALLOWANCE WILL BE MADE ON ACCOUNT OF ANY DIFFERENCE BETWEEN THE SAMPLE AND THE LOT. THIS IS NOT A SALE BY SAMPLE.

THE FACTS OF RECORD DISCLOSE THAT THE BID OF THE BOSTON JUNK COMPANY ON LOT NO. 138, COVERING 4,000 POUNDS OF SCRAP ARMATURES, AS RECEIVED, CANVASSED, AND ABSTRACTED, WAS CLEAR AND UNAMBIGUOUS. SAID BID WAS ACCEPTED BY THE CONTRACTING OFFICER AND, UPON RECEIPT OF NOTICE OF AWARD, DATED MARCH 25, 1938, THE SAID BIDDER ADVISED IN LETTER OF MARCH 26, 1938, AS FOLLOWS:

I AM IN RECEIPT OF YOUR NOTICE OF AWARD DATED MARCH 25, 1938, IN WHICH YOU HAVE AWARDED ME LOT NO. 138, OF CATALOGUE NO. 103-B, AT $16.25 PER HUNDRED POUNDS.

IN MAKING MY ENTRY UNDER THIS LOT, I INTENDED TO BID $1.625 PER HUNDRED POUNDS. THROUGH AN ERROR ON MY PART I PUT THE DECIMAL POINT IN THE WRONG PLACE. AS I WAS NOT PRESENT AT THE OPENING OF BIDS, BEING OUT OF TOWN, I WAS UNABLE TO NOTIFY THE OFFICER WHO OPENED THE BIDS THAT MY BID WAS IN ERROR. I CALLED THE SUPPLY OFFICE THE NEXT DAY AFTER I NOTICED THE ERROR. FOR YOUR INFORMATION, I FIGURED THE SCRAP ARMATURES TO CONTAIN 17 PERCENT COPPER AT $7.50 PER 100 POUNDS--- $1.275 AND 83 PERCENT IRON AT ?40 PER 100 POUNDS, ?332------ .332

1.607

INCIDENTALLY, YOU MAY BE INTERESTED TO KNOW THAT I HAVE RECENTLY PURCHASED FROM THE PULLMAN COMPANY THEIR SCRAP ARMATURES AT $1.55 PER 100 POUNDS ON PUBLIC BID.

IN VIEW OF THE ABOVE, I RESPECTFULLY REQUEST THAT STEPS BE TAKEN TO RELIEVE ME OF TAKING LOT NO. 138 AT $16.25 PER 100 POUNDS.

WHILE THE PRICES QUOTED BY THE BOSTON JUNK COMPANY ON THE SAID LOT WERE MUCH HIGHER THAN THE OTHER BIDS RECEIVED THEREON AND THE ESTIMATED VALUE OF SCRAP ARMATURES, THERE WAS NOTHING THEREIN TO PUT THE CONTRACTING OFFICER ON NOTICE OF MISTAKE AND THE BID WAS ACCEPTED IN GOOD FAITH. THIS CONNECTION IT IS TO BE NOTED THAT THE SALE CONSISTED OF OVER 100 SEPARATE AND DISTINCT LOTS OF MATERIAL AND THAT THIS BIDDER SUBMITTED BIDS ON SEVERAL OF THE LOTS WITH RESPECT TO WHICH THERE WAS CONSIDERABLE DIFFERENCE IN THE PRICES, TENDING TO SHOW, AS HEREINBEFORE STATED, THAT DIFFERENCES IN BID PRICES IS NO BASIS FOR PRESUMING ERROR. FOR INSTANCE, THE BOSTON JUNK COMPANY ON LOT 23 SUBMITTED A BID OF $38.75, WHEREAS OTHER BIDS RECEIVED THEREON WERE $55.25, $160.27, $137.77, $25.05, AND $40. LOT 33 THE BOSTON JUNK COMPANY SUBMITTED A BID OF $40.55, THE OTHER BIDS BEING $45, $5.05, $55, $10, $4, $35, AND $25.78. ON LOT 41 THE BOSTON JUNK COMPANY SUBMITTED A BID OF $68.77, THE OTHER BIDS BEING $18.05, $35, $50, $61, AND $45. ON LOT 52 THE BOSTON JUNK COMPANY SUBMITTED A BID OF $14.02, THE OTHER BIDDERS BEING $16.26, $1.55, $20, $14, $13, $20.50. LOT 142 THE BOSTON JUNK COMPANY SUBMITTED A BID OF $42.25, THE OTHER BIDS BEING $113.55, $101.35, $127.50, $50, $115.75, $86.285, $105, $211.00, $87.77, $51, $35, $111.50, $77.77.

THE ACCEPTANCE OF THE BID OF THE BOSTON JUNK COMPANY AS SUBMITTED CONSUMMATED A CONTRACT AND FIXED THE RIGHTS AND OBLIGATIONS OF THE PARTIES THERETO. THE OBLIGATION OF THE UNITED STATES AS SO FIXED CAN NOT NOW BE CHANGED BY ANY ACTION OF THE GOVERNMENT OFFICERS EXCEPT FOR ITS OWN BENEFIT OR UPON SOME NEW AND VALUABLE CONSIDERATION PASSING TO THE GOVERNMENT. PACIFIC HARDWARE CO. V. UNITED STATES, 49 CT.CLS. 327.

FROM THE FACTS OF RECORD IT MUST BE HELD THAT THERE IS NO BASIS FOR GRANTING RELIEF TO THE BOSTON JUNK COMPANY FROM ITS ACCEPTED BID. SEE 16 COMP. GEN. 596. 17 COMP. GEN. 601.