B-125580, OCT. 6, 1955

B-125580: Oct 6, 1955

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TO THE HONORABLE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 21. IT IS REPORTED THAT THE NEXT HIGHEST BID WAS .0555 PER POUND. BIDS WERE OPENED MARCH 4. THE BID OF NUSSBAUM AND SONS WAS ACCEPTED. CLAIMING IT WAS NOT THE MATERIAL ORIGINALLY INSPECTED. THE BIDDER ASKED TO BE RELIEVED OF THE CONTRACT FOR THE STATED REASON THAT ITS BID WAS APPROXIMATELY .07 PER POUND HIGHER THAN THE NEXT HIGH BID. THE FIRST CLAIM OF ERROR IN ITS BID WAS MADE BY THE BIDDER IN ITS LETTER OF MAY 10. - IT BEING STATED THAT "WE FIND THAT WE HAVE MADE A CLERICAL ERROR ALSO INASMUCH AS OUR BID SHOULD HAVE READ .0129 INSTEAD OF .12019.'. NO OTHER PROOF OR EXPLANATION OF THE ALLEGED ERROR IS FOUND IN THE FILE.

B-125580, OCT. 6, 1955

TO THE HONORABLE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED SEPTEMBER 21, 1955, FROM THE ASSISTANT SECRETARY (LOGISTICS), WITH ENCLOSURES, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO AN ERROR ALLEGED BY KARL NUSSBAUM AND SONS, INC., IN ITS BID FOR SCRAP MATERIAL UNDER DEPARTMENT OF THE ARMY INVITATION NO. 15-010-S-55-13, DATED FEBRUARY 11, 1955.

IN RESPONSE TO THE INVITATION, THE BIDDER SUBMITTED A BID DATED MARCH 1, 1955, OFFERING TO PURCHASE 12,000 POUNDS OF MIXED METALS SCRAP DESCRIBED IN ITEM NO. 2 FOR .12019 PER POUND, A TOTAL PRICE OF $1,442.28. IT IS REPORTED THAT THE NEXT HIGHEST BID WAS .0555 PER POUND. BIDS WERE OPENED MARCH 4, 1955, AND THE BID OF NUSSBAUM AND SONS WAS ACCEPTED, BECOMING THE BASIS FOR CONTRACT NO. 15-010-55-172. ON MARCH 17, THE BIDDER'S REPRESENTATIVE ARRIVED AT THE DEPOT TO PICK UP THE MATERIAL BUT REFUSED TO TAKE IT, CLAIMING IT WAS NOT THE MATERIAL ORIGINALLY INSPECTED, AND REFERRING TO THE LOWER PRICES OFFERED BY OTHER BIDDERS AS CONFIRMATORY OF THAT FACT. IN ITS LETTER DATED MARCH 17, 1955, THE BIDDER ASKED TO BE RELIEVED OF THE CONTRACT FOR THE STATED REASON THAT ITS BID WAS APPROXIMATELY .07 PER POUND HIGHER THAN THE NEXT HIGH BID. THE FIRST CLAIM OF ERROR IN ITS BID WAS MADE BY THE BIDDER IN ITS LETTER OF MAY 10, 1955--- MORE THAN TWO MONTHS AFTER THE OPENING OF BIDS--- IT BEING STATED THAT "WE FIND THAT WE HAVE MADE A CLERICAL ERROR ALSO INASMUCH AS OUR BID SHOULD HAVE READ .0129 INSTEAD OF .12019.' NO OTHER PROOF OR EXPLANATION OF THE ALLEGED ERROR IS FOUND IN THE FILE, AND IT APPEARS THAT THE ALLEGED INTENDED BID IS AS MUCH OUT OF LINE WITH OTHER BIDS RECEIVED AS IS THE BID SUBMITTED.

IN THE CONTRACTING OFFICER'S FINDING OF FACT, IT IS STATED THAT "PAST SALES EXPERIENCE HAS PROVED THAT BIDS FOR THE TYPE PROPERTY REPRESENTED ARE OFTEN AS HIGH OR HIGHER.' THEREFORE, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS CHARGEABLE WITH NOTICE OF PROBABLE ERROR IN THE BID, PARTICULARLY SINCE BIDS SUBMITTED FOR SCRAP METAL OFTEN VARY GREATLY.

IN VIEW OF THE FACTS AS REPORTED AND SHOWN IN THE FILE, AND IN THE ABSENCE OF ANY EVIDENCE IN SUPPORT OF THE CONTRACTOR'S ALLEGATIONS, THERE IS NOT PERCEIVED ANY PROPER BASIS FOR RELIEVING KARL NUSSBAUM AND SONS FROM LIABILITY UNDER THE CONTRACT.