B-127457, APR. 10, 1956

B-127457: Apr 10, 1956

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TO THE HONORABLE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER OF MARCH 26. FOR RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. N228S-13789 WAS AWARDED. THE CONTRACT OF SALE WAS AWARDED IT ON JANUARY 11. THE COMPANY ADVISED THE ADMINISTRATIVE AGENCY THAT ITS BID WAS SUBMITTED UNDER THE ASSUMPTION THAT THE TOTAL QUANTITY AS LISTED IN THE TOTAL QUANTITY COLUMN CONSISTED ENTIRELY OF TRIA-9 CABLE. THAT THE QUANTITIES LISTED ON THE REVERSE SIDE OF THE PAGE WERE NOT CONSIDERED DESPITE THE FACT THAT THEY WERE INCLUDED WITHIN THE LOT. THE ITEM IN QUESTION WAS OFFERED FOR SALE AS CABLE. - WAS PLAINLY SHOWN ON PAGE 13 OF THE SALES INVITATION. " ALSO WERE PLAINLY INDICATED AT THE BOTTOM OF THE FIRST DESCRIPTION.

B-127457, APR. 10, 1956

TO THE HONORABLE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER OF MARCH 26, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN WITH RESPECT TO THE REQUEST OF THE M. B. ELECTRICAL SUPPLY COMPANY, NEW YORK, NEW YORK, FOR RELIEF IN CONNECTION WITH AN ERROR ALLEGED TO HAVE BEEN MADE IN ITS BID ON WHICH CONTRACT NO. N228S-13789 WAS AWARDED.

BY INVITATION NO. B-112-56 DATED NOVEMBER 29, 1955, THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS USABLE MATERIAL LOCATED AT THE SAN FRANCISCO NAVAL SHIPYARD, SAN FRANCISCO, CALIFORNIA. IN RESPONSE TO THE INVITATION THE M. B. ELECTRICAL SUPPLY COMPANY SUBMITTED A BID, ACCOMPANIED BY A DEPOSIT OF $1,500, OFFERING TO PURCHASE ITEM 20 CONSISTING OF 41,432 FEET OF MISCELLANEOUS CABLE AT A UNIT PRICE OF ?07111 PER FOOT OR A TOTAL PRICE OF $2,946.23. THE ABSTRACT OF BIDS SHOWS THAT THE 11 OTHER BIDS RECEIVED ON ITEM 20 RANGED IN PRICE FROM ?044 TO ?00368 PER FOOT. THE BID OF M. B. ELECTRICAL SUPPLY COMPANY BEING THE HIGHEST BID RECEIVED, THE CONTRACT OF SALE WAS AWARDED IT ON JANUARY 11, 1956. THEREAFTER, BY TELEPHONE AND CONFIRMED BY LETTER DATED JANUARY 19, 1956, THE COMPANY ADVISED THE ADMINISTRATIVE AGENCY THAT ITS BID WAS SUBMITTED UNDER THE ASSUMPTION THAT THE TOTAL QUANTITY AS LISTED IN THE TOTAL QUANTITY COLUMN CONSISTED ENTIRELY OF TRIA-9 CABLE, THE FIRST ITEM LISTED IN THE LOT, AND THAT THE QUANTITIES LISTED ON THE REVERSE SIDE OF THE PAGE WERE NOT CONSIDERED DESPITE THE FACT THAT THEY WERE INCLUDED WITHIN THE LOT.

THE ITEM IN QUESTION WAS OFFERED FOR SALE AS CABLE, APPARENTLY UNUSED, IN GOOD CONDITION, AND THE AMOUNT OF TRIA-9 CABLE--- 5,940 FEET--- WAS PLAINLY SHOWN ON PAGE 13 OF THE SALES INVITATION, WITH THE REMAINDER OF THE LISTED MATERIAL SHOWN ON THE FOLLOWING PAGE. THE WORDS "ITEM NO. 20 CONTINUED ON PAGE 14," ALSO WERE PLAINLY INDICATED AT THE BOTTOM OF THE FIRST DESCRIPTION, AS WELL AS THE WORDS "CAUTION: INSPECT THE PROPERTY.' IN THAT CONNECTION, A NORMAL INSPECTION WOULD HAVE REVEALED THE VAST QUANTITY DIFFERENCE BETWEEN THE AMOUNT OF CABLE ADVERTISED AND THE AMOUNT OF TRIA-9 CABLE AVAILABLE.

IT THUS WOULD SEEM CLEAR THAT THE MATERIAL OFFERED FOR SALE WAS EXPLICITLY AND ADEQUATELY DESCRIBED IN THE INVITATION. MOREOVER, THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE ERROR ON ITEM 20, AND THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE CONTRACTING OFFICER WAS ON NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE ERROR IN THE COMPANY'S BID PRIOR TO AWARD. THUS, SO FAR AS THE RECORD SHOWS, THE ACCEPTANCE OF THE BID ON ITEM 20 WAS MADE IN GOOD FAITH, NO ALLEGATION OF ERROR HAVING BEEN MADE UNTIL AFTER AWARD. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. SUCH ACCEPTANCE VESTED IN THE GOVERNMENT THE RIGHT TO HAVE PERFORMANCE IN STRICT ACCORDANCE WITH THE TERMS OF THE ACCEPTED BID AND NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN THE GOVERNMENT OR ACQUIRED BY IT UNDER A CONTRACT. SEE UNITED STATES V. AMERICAN SALES CORPORATION, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574; BAUSCH AND LOMB OPTICAL COMPANY V. UNITED STATES, 78 C.CLS. 584, 607, CERTIORARI DENIED, 292 U.S. 645; AND PACIFIC HARDWARE AND STEEL COMPANY V. UNITED STATES, 49 C.CLS. 327, 335.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR RELEASING THE M. B. ELECTRICAL SUPPLY COMPANY FROM THE TERMS OF THE CONTRACT.

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