B-126964, MAR. 8, 1956

B-126964: Mar 8, 1956

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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED FEBRUARY 8. H665S-26434 WAS AWARDED. BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO SUBMITTING BIDS AND WERE ADVISED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUND FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING. BIDDERS WERE ADVISED THAT THE PROPERTY WAS BEING OFFERED FOR SALE "AS IS" AND "WHERE IS. THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MADE NO GUARANTY. 375.00 CDV-1810-56-56" THE BID OF THE COMPANY WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $78.71 WAS ACCEPTED AS TO ITEMS 2. WE WERE AWARDED SEVERAL ITEMS.

B-126964, MAR. 8, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED FEBRUARY 8, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (MATERIAL), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING ERRORS THE CINBAR HARDWARE COMPANY ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. H665S-26434 WAS AWARDED.

BY INVITATION NO. B-125-56, THE U.S. NAVAL SUPPLY DEPOT CLEAR FIELD, OGDEN, UTAH, REQUESTED BIDS, TO BE OPENED NOVEMBER 14, 1955, FOR THE PURCHASE OF SURPLUS PROPERTY FROM THE GOVERNMENT AS DESCRIBED UNDER ITEMS 1 TO 57, INCLUSIVE. BIDDERS WERE INVITED AND URGED TO INSPECT THE PROPERTY OFFERED FOR SALE PRIOR TO SUBMITTING BIDS AND WERE ADVISED THAT IN NO CASE WOULD FAILURE TO INSPECT CONSTITUTE GROUND FOR A CLAIM OR FOR THE WITHDRAWAL OF A BID AFTER OPENING. ALSO, BIDDERS WERE ADVISED THAT THE PROPERTY WAS BEING OFFERED FOR SALE "AS IS" AND "WHERE IS," AND WITHOUT RECOURSE; THAT THE DESCRIPTION WAS BASED ON THE BEST AVAILABLE INFORMATION BUT THAT THE GOVERNMENT MADE NO GUARANTY, WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED, AS TO THE EXACT QUANTITY, KIND, CHARACTER, QUALITY, WEIGHT, SIZE, OR DESCRIPTION OF ANY OF THE PROPERTY OR ITS FITNESS FOR ANY USE OR PURPOSE; AND THAT NO CLAIM WOULD BE CONSIDERED FOR ALLOWANCE OR ADJUSTMENT OR FOR RESCISSION OF THE SALE BASED UPON FAILURE OF THE PROPERTY TO CORRESPOND WITH THE STANDARD EXPECTED.

IN RESPONSE TO THE INVITATION, THE CINBAR HARDWARE COMPANY SUBMITTED A BID OFFERING TO PURCHASE VARIOUS ARTICLES AT CERTAIN SPECIFIED PRICES, INCLUDING THE FOLLOWING:

TABLE "ITEM DESCRIPTION AND QUANTITY UNIT OF PRICE BID

NO. LOCATION OF PROPERTY (NUMBER OF UNITS) MEASURE PER UNIT

2 CARRIERS INTRENCHING 1,400 EA. $ .092

SHOVEL O.D. MFG.

UNKNOWN D-7582-E-1 AND

D-7583-E-1

USED - GOOD TO USED - POOR

WT. 500 LBS.

PACKED IN CARTONS

COST: $1,260.00

CDV-1810-56-2

57 CARRIER, INTRENCHING 1,100 EA. $ .1133"

SHOVEL O.D. USED-GOOD TO

POOR D-1653-56-1,

D-1654-56-1 AND 2

WT. 502 LBS. BALES, CTNS.

COST: $1,375.00

CDV-1810-56-56"

THE BID OF THE COMPANY WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $78.71 WAS ACCEPTED AS TO ITEMS 2, 3, ("COVER, CANTEEN") AND 57, ON NOVEMBER 21, 1955.

AFTER DELIVERY OF THE CARRIERS COVERED BY ITEMS 2 AND 57, THE CINBAR HARDWARE COMPANY BY LETTER DATED DECEMBER 21, 1955, ADVISED AS FOLLOWS:

"ON INV. NO. B-125-56, CONTRACT NO. N665S-26434, WE WERE AWARDED SEVERAL ITEMS. ON ITEM NO. 2 WHICH READS: CARRIER INTRENCHING SHOVEL O.D., ETC. WE BID FOR A SHOVEL, WHICH IS THE WAY ITEM READS. IF YOU WILL REFER TO THE BID FORM, YOU WILL NOTICE THAT THE HEADING CONSISTS OF THREE WORDS; "CARRIER INTRENCHING SHOVEL.' NOT ONLY DID WE INTERPRET THE ITEM THIS WAY, BUT WE HAVE SUBSEQUENTLY SHOWN IT TO FOUR OR FIVE OTHER PEOPLE IN THE SURPLUS BUSINESS AND THEY TOO, READ IT AS AN "INTRENCHING SHOVEL.'

"HOWEVER, WE RECEIVED A CANVASS BAG WHICH IS A COVER FOR A SHOVEL. THIS ITEM HAS JUST ABOUT NO VALUE TO US. WE ARE CLAIMING THIS BECAUSE THE DESCRIPTION ISN-T CLEAR. WE ARE SURE THAT IF YOU LOOK INTO IT, YOU WILL AGREE WITH US THAT IT CAN SURELY BE MISTAKEN, IF WHAT THE GOVERNMENT MEANT WAS A CANVASS BAG. THIS APPLIES TO ITEM 57 AS WELL AS ITEM 2.

"WE TRUST THAT YOU WILL GIVE THIS MATTER YOUR EARLIEST ATTENTION.'

IN A LETTER DATED JANUARY 18, 1956, THE COMPANY STATED THAT IT WAS WILLING TO PAY $0.0125 EACH FOR THE CARRIERS COVERED BY ITEMS 2 AND 57 AND REQUESTED THAT IT BE REFUNDED $222.18 OF THE PURCHASE PRICE OF THOSE ITEMS.

IN FIRST INDORSEMENT DATED DECEMBER 29, 1955, THE PROPERTY DISPOSAL OFFICER STATES AS FOLLOWS:

"1. CONTENTION OF THE CINBAR HARDWARE COMPANY THAT DESCRIPTION OF ITEM NO. 2 AND ITEM NO. 47, INVITATION B-125-56, IS MISLEADING IS INCORRECT. INASMUCH AS MILITARY NOMENCLATURE ALWAYS STATES THE ITEM AS THE FIRST WORD IN A DESCRIPTION, AND THESE DESCRIPTIONS ARE UNIVERSALLY ACCEPTED BY SURPLUS DEALERS, WE CAN SEE NO REASON FOR CUSTOMER'S CLAIM. FURTHER, THE BID OF 9 CENTS ON ITEM NO. 2 AND 11 CENTS ON ITEM NO. 57 IS NOT EXCESSIVE FOR A CARRIER AND APPEARS TO BE EXTREMELY LOW FOR AN INTRENCHING SHOVEL.

"2. WE ARE OF THE OPINION THAT THE CUSTOMER CORRECTLY INTERPRETS THE WORD IN THE BID. RECOMMEND NO CONSIDERATION BE GIVEN CINBAR HARDWARE CO.'

THE DESCRIPTION OF ITEM 57 WAS CLEAR AND UNAMBIGUOUS AND LEFT NO ROOM FOR DOUBT THAT THE ARTICLE OFFERED FOR SALE THEREUNDER WAS A QUANTITY OF CARRIERS. AS TO ITEM 2, WHILE THE COPY OF THE INVITATION FORWARDED HERE DOES NOT SHOW A COMMA AFTER THE WORD "CARRIERS" IN THE DESCRIPTION OF THAT ITEM, THE USE OF THE LETTERS "O.D., " WHICH ARE COMMONLY ACCEPTED AS THE ABBREVIATION FOR THE COLOR "OLIVE DRAB," IN THE DESCRIPTION OF THAT ITEM; THE FACT THAT, BASED ON THE TOTAL WEIGHT SHOWN IN THE DESCRIPTION, EACH ARTICLE WOULD WEIGH APPROXIMATELY SIX OUNCES; THE FACT THAT THE GENERAL SUBJECT HEADING OF THE INVITATION WAS "WEARING APPAREL AND TEXTILES; " AND THE FACT THAT THE BIDDER MADE NO CLAIM THAT IT CONSTRUED ITEM 3,"COVER, CANTEEN" AS MEANING CANTEENS, ALL TEND STRONGLY TO INDICATE THAT THE COMPANY WAS ON NOTICE THAT THE ARTICLES OFFERED FOR SALE UNDER ITEMS 2 AND 57 WERE NOT SHOVELS AS CLAIMED TO HAVE BEEN ERRONEOUSLY BELIEVED. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. CONSEQUENTLY, IF THE CINBAR HARDWARE COMPANY SUBMITTED A BID UNDER THE ERRONEOUS BELIEF ASSERTED, WITHOUT INSPECTING ITEMS 2 AND 57, ITS ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE. ON THE BASIS OF THE RECORD PRESENTED IT MAY NOT BE CONCLUDED THAT SUCH ERRORS AS WERE MADE WERE INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. HENCE, ANY ERRORS MADE IN THE BID WERE UNILATERAL--- NOT MUTUAL--- AND DO NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE ABSTRACT OF BIDS SHOWS THAT THE SEVEN OTHER BIDS RECEIVED ON ITEM 2 RANGED FROM $0.05238 EACH TO $0.01 EACH AND THAT THE FOUR OTHER BIDS RECEIVED ON ITEM 57 RANGES FROM $0.021 EACH TO $0.011163 EACH. IT DOES NOT APPEAR THAT THE DIFFERENCES BETWEEN THE BIDS SUBMITTED BY THE COMPANY AND THE OTHER BIDS RECEIVED ON ITEMS 2 AND 57 WERE SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH NOTICE OF THE PROBABILITY OF ERROR. IN VIEW OF THE WIDE RANGE OF BIDS USUALLY RECEIVED ON SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES QUOTED WOULD NOT NECESSARILY PLACE THE CONTRACTING OFFICER ON NOTICE OF AN ERROR AS WOULD A LIKE DIFFERENCE IN BID PRICES QUOTED ON NEW MATERIALS OR EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. SEE 16 COMP. GEN. 598; 17 ID. 388; ID. 601; ID. 796; 28 ID. 550. HENCE, IT APPEARS THAT THE ACCEPTANCE OF THE COMPANY'S BID ON ITEMS 2 AND 57 WAS MADE IN GOOD FAITH--- NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD--- AND CONSUMMATED A VALID AND BINDING CONTRACT.

THE LAW IS CLEAR THAT WHERE SURPLUS MATERIALS ARE OFFERED FOR SALE BY THE GOVERNMENT ON AN "AS IS" BASIS, WITHOUT WARRANTY OR GUARANTY OF ANY KIND, A BIDDER WHO FAILS TO TAKE ADVANTAGE OF AN OPPORTUNITY TO INSPECT CANNOT SUBSEQUENTLY RECOVER ON THE GROUNDS THAT THE MATERIALS ARE OF AN INFERIOR QUALITY, OR THAT THEY WERE SOMETHING OTHER THAN WHAT HE THOUGHT HE WAS BUYING. THE UNITED STATES COURT OF CLAIMS AND THE SUPREME COURT OF THE UNITED STATES HAVE RENDERED NUMEROUS DECISIONS IN WHICH THESE PRINCIPLES ARE ASSERTED. SEE M. SAMUEL AND SONS V. UNITED STATES, 61 C.CLS. 373; TRIAD CORPORATION V. UNITED STATES, 63 C.CLS. 151; S. BRODY V. UNITED STATES, 64 C.CLS. 538; SILBERSTEIN AND SON V. UNITED STATES, 69 C.CLS. 412; SACHS MERCANTILE CO. V. UNITED STATES, 78 C.CLS. 801; LIPSHITZ AND COHEN V. UNITED STATES, 269 U.S. 90; MOTTRAM V. UNITED STATES, 271 U.S. 15; MAGUIRE AND CO. V. UNITED STATES, 273 U.S. 67. SEE, ALSO, 29 COMP. GEN. 310; AND 32 ID. 181.

ACCORDINGLY, ON THE BASIS OF THE FACTS AND EVIDENCE PRESENTLY OF RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR AUTHORIZING ANY ADJUSTMENT IN THE PRICES FIXED IN THE CONTRACT FOR THE MATERIAL INVOLVED OR FOR RESCISSION OF THE CONTRACT. THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT DATED JANUARY 30, 1956, AND A COPY OF THE ABSTRACT OF BIDS, ARE RETURNED.