B-126629, FEB. 14, 1956

B-126629: Feb 14, 1956

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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JANUARY 11. N171-9177A WAS AWARDED. THE ORIGINAL ACQUISITION COST OF WHICH WAS STATED TO BE $11. THE BID OF THE COMPANY WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1. THE COMPANY WAS ADVISED THAT IT HAD BEEN AWARDED ITEM 12 AND THAT THE DIFFERENCE BETWEEN ITS BID DEPOSIT AND THE PURCHASE PRICE OF THAT ITEM WOULD BE REFUNDED TO IT IN THE NEAR FUTURE. IT IS REPORTED THAT MR. WAS PRESENT AT THE BID OPENING. YORK TELEPHONED ALLEGING THAT THE AWARD OF ITEM 12 TO THE COMPANY WAS A MISTAKE SINCE IT HAD NOT SUBMITTED A BID ON THAT ITEM BUT DID BID ON ITEM 13 (HORIZONTAL BORING MILL). YORK WAS INFORMED THAT IN THE COMPANY'S ORIGINAL BID.

B-126629, FEB. 14, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 11, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (MATERIAL), REQUESTING DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR THE DOYLESTOWN MACHINE COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. N171-9177A WAS AWARDED.

THE U.S. NAVAL GUN FACTORY, WASHINGTON, D.C., BY SALES INVITATION NO. B- 48-56, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, ONE DEEP HOLE DRILLING MACHINE, ITEM 12, THE ORIGINAL ACQUISITION COST OF WHICH WAS STATED TO BE $11,323. IN RESPONSE, THE DOYLESTOWN MACHINE COMPANY SUBMITTED A BID, SIGNED BY ITS GENERAL MANAGER, OFFERING TO PURCHASE, AMONG OTHER ITEMS, THE DRILLING MACHINE COVERED BY ITEM 12 FOR THE PRICE OF $1,161. THE BID OF THE COMPANY WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1,650. BY NOTICE OF AWARD DATED NOVEMBER 15, 1955, THE COMPANY WAS ADVISED THAT IT HAD BEEN AWARDED ITEM 12 AND THAT THE DIFFERENCE BETWEEN ITS BID DEPOSIT AND THE PURCHASE PRICE OF THAT ITEM WOULD BE REFUNDED TO IT IN THE NEAR FUTURE.

IT IS REPORTED THAT MR. YORK, GENERAL MANGER OF THE DOYLESTOWN MACHINE COMPANY, WAS PRESENT AT THE BID OPENING; THAT ON NOVEMBER 18, 1955, MR. YORK TELEPHONED ALLEGING THAT THE AWARD OF ITEM 12 TO THE COMPANY WAS A MISTAKE SINCE IT HAD NOT SUBMITTED A BID ON THAT ITEM BUT DID BID ON ITEM 13 (HORIZONTAL BORING MILL); THAT MR. YORK WAS INFORMED THAT IN THE COMPANY'S ORIGINAL BID, ITEM 12 WAS LEFT BLANK AND THAT FOR ITEM 13 IN ITS BID THE COMPANY HAD INSERTED A PRICE OF $1,161; AND THAT, IN REPLY, MR. YORK STATED THAT THE INSERTION OF A BID PRICE ON ITEM 12 BY THE COMPANY WAS AN ERROR AS IT WAS ITS INTENT TO BID ON ITEM 13 AND NOT ON ITEM 12. IN A IT WAS ITS INTENT TO BID ON ITEM 13 AND NOT ON ITEM 13. IN A CONFIRMING LETTER DATED NOVEMBER 18, 1955, THE COMPANY STATED THAT IT COULD NOT USE THE DRILLING MACHINE COVERED BY ITEM 12 AND REQUESTED THAT ITS BID DEPOSIT BE REFUNDED TO IT.

THE ABSTRACT OF BIDS SHOWS THAT THE NINE OTHER BIDDERS ON ITEM 12 QUOTED PRICES RANGING FROM $611 TO $5.75. ALTHOUGH THE BID OF THE DOYLSESTOWN MACHINE COMPANY WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 12, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY ON THE ITEM. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICE BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE 16 COMP. GEN. 596; 17 ID. 388; ID. 601; 976; 28 ID. 261; ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE DOYLESTOWN MACHINE COMPANY WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALIDAND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF NOVEMBER 18, 1955, THE DOYLESTOWN MACHINE COMPANY INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM 13 OPPOSITE ITEM 12, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT OF DECEMBER 29, 1955, ARE RETURNED.