B-124250, JUL. 14, 1955

B-124250, JUL. 14, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF JUNE 6, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN REGARDING AN ERROR THE WM. T. FOSTER METALS CORPORATION ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. N665S-227 WAS AWARDED.

BY SALES INVITATION NO. B-290-55, THE NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, APPROXIMATELY 491,890 FEET OF UNUSED ELECTRICAL CABLE IN GOOD CONDITION. IN RESPONSE THERETO, THE WM. T. FOSTER METALS CORPORATION SUBMITTED A BID OFFERING TO PURCHASE, AMONG OTHERS, THE ELECTRICAL CABLE COVERED BY ITEM 34 FOR $2,451.95. THE CORPORATION LIMITED THE PERIOD OF ACCEPTANCE OF ITS BID TO FIVE DAYS FROM DATE OF OPENING, SCHEDULED FOR APRIL 8, 1955, THUS ESTABLISHING APRIL 13, 1955, AS THE FINAL ACCEPTANCE DATE THEREUNDER. THE DATE OF ACCEPTANCE OF THE BID OF THE WM. T. FOSTER METALS CORPORATION AS TO ITEM 34 ONLY IS SHOWN ON THE INVITATION, BID AND ACCEPTANCE FORM AS APRIL 13, 1955. BY AN UNDATED LETTER, ENCLOSING A COPY OF THE CONTRACT, THE CORPORATION WAS NOTIFIED THAT ITS BID AS TO THAT ITEM HAD BEEN ACCEPTED. THE ABSTRACT OF BIDS SHOWS THAT THE SEVEN OTHER BIDDERS ON ITEM 34 SPECIFIED PRICES RANGING FROM $1,000.70 TO $101.

BY LETTERS DATED APRIL 18, 1955, THE WM. T. FOSTER METALS CORPORATION ADVISED THAT IT HAD MADE AN ERROR IN ITS BID BY REASON OF A MISPLACED DECIMAL POINT, IN THAT IT INTENDED TO BID $245.195 AND NOT $2,451.95 FOR THE ELECTRICAL CABLE COVERED BY ITEM 34, AND REQUESTED THAT THE CONTRACT BE CANCELLED. IN A CONFERENCE HELD IN OUR OFFICE ON JUNE 22, 1955, MR. S. GREENGROSS, A REPRESENTATIVE OF THE WM. T. FOSTER METALS CORPORATION, CONTENDS THAT THE BID OF THE CORPORATION WAS NOT ACCEPTED WITHIN THE TIME SPECIFIED IN ITS BID AND IN SUPPORT THEREOF, MR. GREENGROSS SUBMITTED THE UNDATED LETTER OF AWARD, THE COPY OF THE CONTRACT, AND THE ENVELOPE IN WHICH THEY WERE TRANSMITTED. THE ENVELOPE, SENT BY AIR MAIL, SHOWS POSTAGE METER NO. 109681 AND BEARS THE POSTMARK "OGDEN, UTAH, APR. 15 - 55.' MR. GREENGROSS, ALSO, STATED THAT THE CORPORATION HAS TAKEN NO ACTION TOWARDS THE REMOVAL OF THE ELECTRICAL CABLE COVERED BY ITEM 34.

WHILE THE EVIDENCE OF RECORD WOULD NOT APPEAR TO AFFORD ANY LEGAL BASIS FOR RELIEVING THE CORPORATION FROM THE TERMS OF ITS BID, IF ACCEPTED WITHIN THE TIME SPECIFIED THEREIN, AN AUTHORITATIVE DECISION THEREON IS UNNECESSARY IF, IN FACT, A VALID AND BINDING CONTRACT WAS NOT CONSUMMATED. AS A GENERAL RULE, THE "TIME OF ACCEPTANCE" BY THE GOVERNMENT OF A BIDDER'S OFFER IS, UNLESS EXPRESSLY PROVIDED OTHERWISE, THE TIME THE SIGNED NOTICE OF AWARD IS MAILED. SEE STEBEL V. UNITED STATES, 108 C.CLS. 35, 44; AND BURTON V. UNITED STATES, 202 U.S. 344,385. THE ENVELOPE, IN WHICH THE LETTER OF AWARD WAS MAILED, SHOWS THAT IT WAS POSTED ON APRIL 15, 1955, AND IN THE ABSENCE OF EVIDENCE TO THE CONTRARY, THAT DATE, RATHER THAN APRIL 13, 1955, THE DATE SHOWN ON THE CONTRACT MUST BE ACCEPTED AS THE DATE OF THE ACCEPTANCE OF THE CORPORATION'S BID.

ACCORDINGLY, ON THE BASIS OF THE PRESENT RECORD FROM WHICH IT APPEARS THAT THE BID OF THE CORPORATION WAS NOT ACCEPTED WITHIN THE TIME LIMIT SPECIFIED THEREIN, NOR APPARENTLY WAS THE LIMITATION EXTENDED, NOR HAS THE BIDDER OTHERWISE EVIDENCED ACCEPTANCE OF THE INTENDED AWARD, IT MUST BE CONCLUDED THAT A VALID AND BINDING CONTRACT DOES NOT EXIST AND THAT THE BID DEPOSIT OF THE WM. T. FOSTER METALS CORPORATION SHOULD BE REFUNDED. SEE 14 COMP. GEN. 612 AND 16 ID. 699.

THE PAPERS, WITH THE EXCEPTION OF THOSE MENTIONED AS INFORMALLY SUBMITTED BY THE CORPORATION'S REPRESENTATIVE, ARE RETURNED.