B-121714, NOV 4, 1954

B-121714, NOV 4, 1954

PRECIS-UNAVAILABLE

MR. SECRETARY:

I HAVE YOUR LETTER OF OCTOBER 7, 1954, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR ALLEGED BY BUILDERS METALS, INC., TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. N251S-6183-A DATED JUNE 22, 1954, IS BASED.

BY INVITATION NO. B-48-54, DATED JUNE 1, 1954. PUGET SOUND NAVAL SHIPYARD, BREMERTON, WASHINGTON, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF THE MATERIAL HANDLING EQUIPMENT AND VEHICLES DESCRIBED UNDER LOTS 1 THROUGH 63. IN RESPONSE TO THE INVITATION, BUILDERS METALS, INC., SUBMITTED A BID IN WHICH IT QUOTED A PRICE OF $500 FOR LOT 32. THE COMPANY'S BID WAS ACCEPTED ON JUNE 22, 1954, AS THE HIGHEST RECEIVED FOR THE SAID LOT.

BY LETTER OF JUNE 25, 1954, AFTER RECEIPT OF NOTICE OF AWARD, BUILDERS METALS, INC., ALLEGED ERROR IN ITS BID. ASSERTING THAT IT HAD NOT INTENDED TO QUOTE A PRICE FOR LOT 32 AND THAT THE PRICE ERRONEOUSLY ENTERED OPPOSITE THAT LOT WAS INTENDED AS ITS BID PRICE FOR LOT 31, THE COMPANY REQUESTED THAT THE AWARD BE CANCELLED AND ITS BID DEPOSIT RETURNED.

THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY BUILDERS METALS, INC., TO INDICATE THAT IT WAS NOT AS INTENDED. A WIDE RANGE OF PRICES BID FOR USED EQUIPMENT, BASED UPON THE CONTEMPLATED USE OR UPON SPECULATION AS TO RESALE, IS NOT UNUSAL. THEREFORE, A MERE DIFFERENCE IN THE PRICES QUOTED FOR SUCH EQUIPMENT WOULD NOT NECESSARILY PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. SEE 28 COMP. GEN. 550. THUS, IN THE PRESENT CASE, ALTHOUGH THERE WAS CONSIDERABLE DIFFERENCE BETWEEN THE PRICE OF $500 QUOTED BY BUILDERS METALS, INC., AND THE NEXT HIGH BID OF $217 FOR LOT 32, SUCH DIFFERENCE WOULD NOT NECESSARILY INDICATE ERROR IN THE COMPANY'S BID. FURTHERMORE, THE DIFFERENCE OF $283 BETWEEN THE COMPANY'S BID AND THE NEXT HIGH BID ON LOT 32 IS MUCH LESS THAN THE VARIANCE OF $1,388 BETWEEN THE COMPANY'S BID PRICE, IF REGARDED AS ITS BID ON LOT 31, AND THE HIGHEST BID OF $1,888 THEREON. THEREFORE, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE ALLEGED ERROR PRIOR TO THE AWARD.

UNDER THE CIRCUMSTANCES, IT MUST BE CONCLUDED THAT THE ACCEPTANCE OF THE BID OF BUILDERS METALS, INC., CONSUMMATED A VALID AND BINDING CONTRACT CONFERRING RIGHTS AND OBLIGATIONS UPON THE CONTRACTING PARTIES WHICH NEITHER THIS OFFICE NOR ANY OFFICER OF THE GOVERNMENT IS AUTHORIZED TO VARY TO THE DETRIMENT OF THE UNITED STATES. MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. IF BUILDERS METALS, INC., DID NOT INTEND TO QUOTE A PRICE FOR LOT 32, THE ERROR WAS DUE SOLELY TO NEGLIGENCE OR OVERSIGHT ON THE PART OF THE COMPANY AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT, THAT IS, THE ERROR WAS UNILATERIAL - NOT MUTUAL - AND DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN & DOUGHERTY V. UNITED STATES, 102 C. CLS. 249, 259, AND SALIGMAN ET AL. V. UNITED STATES, 56 F. SUPP. 505, 507.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR RELEASING BUILDERS METALS, INC., FROM THE TERMS OF CONTRACT NO. N251S-6183-A.

THE PAPERS ARE RETURNED HEREWITH.