B-125526, OCT. 20, 1955

B-125526: Oct 20, 1955

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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15. REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BEHRENS SALES COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. WAS BASED. THE COMPANY'S BID OF $0.005 PER SET WAS ACCEPTED AS TO ITEM NO. 33 COVERING 574. THE ITEM WAS DESCRIBED IN THE INVITATION. THE COMPANY CONTENDS THAT AT THE TIME THE BID PRICE FOR ITEM NO. 33 WAS COMPUTED. THE UNIT ON WHICH A BID PRICE WAS REQUESTED. WHEREAS THE DESCRIPTION IN THE INVITATION DIFFERED INSOFAR AS IT SPECIFIED THERE WERE TWO FORMS (WHITE. IT WAS ASSUMED FURTHER BY THE COMPANY THAT THE SAMPLE FURNISHED WAS ONE-THIRD OF A SET AND ITS BID WAS SUBMITTED ON THAT BASIS.

B-125526, OCT. 20, 1955

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO YOUR LETTER OF SEPTEMBER 15, 1955, WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY BEHRENS SALES COMPANY TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. N665S-23872 DATED JUNE 10, 1955, WAS BASED.

THE COMPANY'S BID OF $0.005 PER SET WAS ACCEPTED AS TO ITEM NO. 33 COVERING 574,380 SETS OF TABULATING FORMS. THE ITEM WAS DESCRIBED IN THE INVITATION, IN PERTINENT PART, AS FOLLOWS:

"FORM, TABULATING, 8 1/2 INCHES BY 11 INCHES, ONE SIDE LINED CONSISTING OF 32 LINES RUNNING PARALLEL WITH 21 PERFORATED HOLES ON THE LEFT SIDE TO EACH PAGE, 3 PARTS TO A SET, COMPOSED OF 2 FORMS WITH 2 SHEETS OF CARBON PAPER INSERTER, * * *.'

AFTER RECEIPT OF THE NOTICE OF AWARD THE COMPANY BY LETTERS DATED JUNE 13 AND 17, 1955, REQUESTED A CLARIFICATION OF THE DESCRIPTION OF ITEM NO. 33, INVITING ATTENTION TO A FAILURE OF THE DESCRIPTION IN THE INVITATION TO COINCIDE IN A CERTAIN PARTICULAR WITH A SAMPLE RECEIVED. BY TELEGRAM OF JUNE 20, 1955, TEN DAYS AFTER AWARD, AND BY CONFIRMING LETTERS OF SUBSEQUENT DATES, THE COMPANY ADVISED THAT IT HAD MADE AN ERROR IN ITS BID ON ITEM NO. 33 DUE TO AN ERRONEOUS CONCLUSION AS TO THE NUMBER OF FORMS AND SHEETS OF CARBON PAPER TO A SET. THE COMPANY CONTENDS THAT AT THE TIME THE BID PRICE FOR ITEM NO. 33 WAS COMPUTED, IT ASSUMED THAT THE GOVERNMENT MADE A TYPOGRAPHICAL ERROR IN THE DESCRIPTION OF WHAT CONSTITUTED A SET OF FORMS. THE UNIT ON WHICH A BID PRICE WAS REQUESTED, SINCE THE SAMPLE SET RECEIVED CONSISTED OF THREE FORMS WITH TWO SHEETS OF CARBON PAPER INSERTER, WHEREAS THE DESCRIPTION IN THE INVITATION DIFFERED INSOFAR AS IT SPECIFIED THERE WERE TWO FORMS (WHITE, RULED SHEETS), INSTEAD OF THREE, AND THAT IN VIEW OF THIS INCONSISTENCY, IT WAS ASSUMED FURTHER BY THE COMPANY THAT THE SAMPLE FURNISHED WAS ONE-THIRD OF A SET AND ITS BID WAS SUBMITTED ON THAT BASIS. IT ACCORDINGLY HAS REQUESTED THAT ITS BID BE REDUCED TO $0.001666 PER SET OR ONE-THIRD OF ITS BID PRICE.

WHILE THE DESCRIPTION OF THE ITEM IS NOT ENTIRELY CLEAR THERE APPEARS TO BE NO JUSTIFICATION FOR THE COMPANY'S INTERPRETATION OR THE ASSUMPTIONS ON WHICH IT INDULGED. IN ANY EVENT, IT MUST BE CONCLUDED THAT THE BID AND ACCEPTANCE THEREOF BY THE GOVERNMENT RESULTED IN A VALID AND BINDING CONTRACT. IN THE INVITATION THE CONTRACTOR NOT ONLY WAS SPECIFICALLY INVITED AND URGED TO INSPECT THE FORMS PRIOR TO THE FILING OF ITS BID, BUT WAS CAUTIONED THAT SUCH SURPLUS PROPERTY WAS BEING SOLD ON AN "AS IS" AND "WHERE IS" BASIS WITHOUT "GUARANTY, WARRANTY, OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY, OR ITS FITNESS FOR ANY USE OR PURPOSE.' ALSO, HE WAS ADVISED THAT "THIS IS NOT A SALE BY SAMPLE," AND IT WAS SPECIFICALLY WARNED THAT "IN NO CASE WILL FAILURE TO INSPECT CONSTITUTE GROUNDS FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING.' SUCH TERMS AND CONDITIONS PLACE THE BUYER ON NOTICE THAT IF HE RELIES SOLELY ON EITHER THE SAMPLE, OR THE DESCRIPTION IN THE INVITATION, OR BOTH, AND FAILS TO INSPECT, THE CONCLUSION IS WARRANTED THAT HE VOLUNTARILY INTENDED TO ASSUME THE RISK INVOLVED.

THE PERIOD OF 21 DAYS ALLOWED IN THE INVITATION SHOULD HAVE AFFORDED PROSPECTIVE PURCHASERS AMPLE TIME IN WHICH TO INSPECT THE PROPERTY AND THEREAFTER TO PREPARE THEIR BIDS. ALTHOUGH THE CONTRACTOR NOW CONTENDS IT TOOK NOTICE OF AN INCONSISTENCY IN THE DESCRIPTION OF THE ITEM, WHICH IT BELIEVED TO BE THE RESULT OF A TYPOGRAPHICAL ERROR BY THE GOVERNMENT, THE RECORD FAILS TO SHOW THAT THE CONTRACTOR EITHER INSPECTED THE SETS OF FORMS IT WAS PURCHASING, OR THAT IT REQUESTED A CLARIFICATION OF THE DESCRIPTION THEREOF BEFORE SUBMITTING ITS BID ON WHICH THE AWARD WAS BASED. IF THE CONTRACTOR HAD MADE AN INSPECTION OF THE ITEM, AS IT WAS URGED TO DO, INSTEAD OF BASING ITS BID ON MERE SUPPOSITION, IT READILY COULD HAVE DETERMINED THAT THE COMPONENT PARTS IN EACH SET OF FORMS WERE ARRANGED PRECISELY AS IN THE SAMPLE. HENCE, IT CANNOT NOW, AFTER THE SALE, CHARGE THE GOVERNMENT WITH THE CONSEQUENCES OF ITS OWN NEGLIGENCE. SEE W. E. HEDGER COMPANY V. UNITED STATES, 52 F.2D 31; AND TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151. THERE BEING NO EVIDENCE OF RECORD TENDING TO SHOW THAT ANY VARIANCE BETWEEN THE DESCRIPTION AND THE SAMPLE WAS INTENTIONAL, OR THAT THE GOVERNMENT FAILED TO ACT IN GOOD FAITH, IT FOLLOWS THAT THE ACCEPTANCE OF THE COMPANY'S BID VESTED IN THE UNITED STATES RIGHTS WHICH NO OFFICER OR AGENT OF THE GOVERNMENT MAY WAIVE OR GIVE AWAY. SEE PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327; BRAWLEY V. UNITED STATES, 96 U.S. 168, 173.

ACCORDINGLY, THERE IS NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT OF THE PRICE FIXED IN THE CONTRACT FOR ITEM NO. 33 OR FOR RELEASING THE BEHRENS SALES COMPANY FROM ITS OBLIGATIONS UNDER THE TERMS OF THE CONTRACT.

SEVERAL SHEETS OF THE PAPERS FORWARDED WITH YOUR LETTER OF SEPTEMBER 15, 1955, WHICH APPEAR TO HAVE NO RELATION TO THE MATTER HERE CONSIDERED, ARE RETURNED. THE REMAINDER OF THE PAPERS ARE BEING RETAINED IN OUR FILES.