B-126495, JAN. 12, 1956

B-126495, JAN. 12, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF JANUARY 3, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (MATERIAL), RELATIVE TO AN ERROR ALLEGED BY WALTER METALS COMPANY TO HAVE BEEN MADE IN ITS UNDATED BID ON ITEM NO. 49 OF SALES INVITATION NO. B-139-56 ISSUED BY NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH. YOU REQUEST A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE CONTRACTOR'S REQUEST FOR RELIEF FROM THE CONSEQUENCES OF THE ALLEGED ERROR.

THE BID OPENING WAS NOVEMBER 23, 1955. THE COMPANY'S BID ON ITEM NO. 49, COVERING A USED CATERPILLAR TRACTOR, WAS $6,211. ITS BID DEPOSIT WAS $6,785, BEING 20 PERCENT OF THE AGGREGATE OF ITS BIDS ON EIGHT ITEMS. ITS BID WAS ACCEPTED ON NOVEMBER 29, 1955, AS TO ITEM NO. 49 ONLY.

BY LETTER DATED DECEMBER 1, 1955, CONFIRMING TELEPHONE CONVERSATION OF THE SAME DATE, THE COMPANY ADVISED THAT AN ERROR WAS MADE ON ITEM NO. 49 IN TYPING THE BID AND THAT ITS INTENDED BID ON THE ITEM WAS $1,211 INSTEAD OF $6,211. ITS WORKSHEET, OR A RETAINED COPY OF THE BID FORM, NOT SWORN TO AS SUCH, WITH ITS QUOTATIONS ENTERED THEREON IN PENCIL WAS FORWARDED INSUBSTANTIATION OF ITS ALLEGATION OF ERROR AND, ON THE BASIS OF THIS SHOWING, IT REQUESTED A RELEASE FROM THE OBLIGATIONS OF THE CONTRACT.

THE CONTRACTING OFFICER REPORTS THAT HE WAS NOT ON NOTICE OF ANY ERROR IN THE COMPANY'S BID, SINCE THE PUBLISHED ACQUISITION COST OF THE TRACTOR WAS $15,600, AND THE DIFFERENCE BETWEEN THE COMPANY'S BID OF $6,211 AND THE NEXT HIGHEST BID OF $4,839.99 AFFORDED NO GROUND TO SUSPECT ERROR IN THE BID ON ITEM NO. 49, PARTICULARLY IN VIEW OF THE FACT THAT ITS FIGURES HAD BEEN CORRECTED BY THE BIDDER ON THE FACE OF THE BID FROM $6,811 AS ORIGINALLY TYPED, TO $6,211 AS SUBMITTED. MOREOVER, THE REQUIRED BID DEPOSIT OF 20 PERCENT AS SUBMITTED WAS CONSISTENT WITH THE TOTAL BID INCLUDING THE PRICE QUOTED ON ITEM NO. 49.

THE ABSTRACT OF BIDS SHOWS THAT THE ELEVEN OTHER BIDS RECEIVED ON ITEM NO. 49 RANGED FROM $4,839.99 TO $1,537.37, THE AVERAGE BEING APPROXIMATELY $2,400. WE AGREE WITH THE CONCLUSION OF THE CONTRACTING OFFICER THAT THE DIFFERENCE BETWEEN THE COMPANY'S BID OF $6,211 AND THE NEXT HIGHEST BID OF $4,839.99 WAS NOT SO GREAT AS TO SUGGEST THE PROBABILITY OF ERROR. A MERE DIFFERENCE IN THE PRICES BID IN A SALE OF SURPLUS PROPERTY GENERALLY WOULD NOT PLACE A CONTRACTING OFFICER ON NOTICE OF ERROR AS WOULD A LIKE DIFFERENCE IN PRICES QUOTED FOR NEW EQUIPMENT, OR SUPPLIES, TO BE FURNISHED TO THE GOVERNMENT. IT IS REASONABLE TO ASSUME THAT PRICES BID IN SUCH A SALE WOULD BE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE THE BIDDER MIGHT WISH TO TAKE. SEE 16 COMP. GEN. 596; 17 ID. 601; ID. 976; AND 28 ID. 550. WHILE, AFTER AWARD, THE CONTRACTOR ALLEGED ERROR AND FURNISHED AN UNVERIFIED WORKSHEET PURPORTING TO ESTABLISH THAT THE ERROR WAS MADE AS ALLEGED, THE ACCEPTANCE OF THE COMPANY'S BID APPEARS TO HAVE BEEN MADE IN GOOD FAITH, AND UNDER THE CIRCUMSTANCES, A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. IF AN ERROR WAS MADE AS THE PURCHASER NOW CONTENDS, THE ERROR WAS DUE SOLELY TO THE LACK OF PROPER CARE ON ITS PART, AND WAS NOT INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61. EVEN IF THE ALLEGED ERROR WERE ESTABLISHED CONCLUSIVELY BY COMPETENT EVIDENCE, SUCH AN ERROR WOULD BE UNILATERAL--- NOT MUTUAL--- AND THEREFORE WOULD NOT ENTITLE THE CONTRACTOR TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.

ACCORDINGLY, WE FIND NO LEGAL BASIS FOR RELEASING THE CONTRACTOR FROM HIS OBLIGATION UNDER THE TERMS OF THE CONTRACT.