B-128999, AUG. 30, 1956

B-128999: Aug 30, 1956

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO LETTER DATED AUGUST 13. WHICH WAS EXECUTED PRIOR TO RECEIPT OF NOTICE OF ERROR. AWARD WAS MADE TO DE FUSCO BROTHERS FOR TWENTY-FIVE SOLID RUBBER TIRES. NOR WAS SUCH BID PRICE INTENDED FOR ANY OTHER ITEM OFFERED BY SSL-8-56. WHILE THE BIDDERS HAVE FAILED TO COMPLY WITH THE REQUEST OF THE CONTRACTING OFFICER TO FURNISH DOCUMENTARY EVIDENCE OF THE ERROR. THEY HAVE CONSISTENTLY CONTENDED THAT THEY HAVE NO USE FOR SOLID TIRES IN THEIR BUSINESS. THAT SUBMISSION OF A BID THEREON WAS A MISTAKE. THE RULE IS WELL ESTABLISHED THAT SUCH EVIDENCE MUST SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE. IT MUST LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE ERROR IN THE BID. 11 ID. 476.

B-128999, AUG. 30, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED AUGUST 13, 1956, FROM THE ASSISTANT SECRETARY (MATERIAL), FORWARDING AN ALLEGATION OF ERROR IN THE BID SUBMITTED BY DE FUSCO BROTHERS UNDER SITE SALES LETTER NO. SSL 8-56, AND REQUESTING OUR DECISION AS TO WHETHER THE BIDDER MAY BE RELIEVED FROM PERFORMANCE UNDER CONTRACT N127S-4308, WHICH WAS EXECUTED PRIOR TO RECEIPT OF NOTICE OF ERROR.

THE ENCLOSURES SUBMITTED WITH YOUR LETTER INDICATE THAT SITE SALES LETTER NO. SSL-8-56 INVITED BIDS ON EIGHTY-FOUR ITEMS OF SURPLUS PROPERTY LOCATED AT NAS, QUONSET POINT, RHODE ISLAND, AND THAT DE FUSCO BROTHERS SUBMITTED BIDS ON ITEMS NUMBERED 1 THROUGH 17 AND 55 THROUGH 83. AWARD WAS MADE TO DE FUSCO BROTHERS FOR TWENTY-FIVE SOLID RUBBER TIRES, CONSTITUTING ITEM 16, AT THEIR HIGH BID PRICE OF $263. AFTER RECEIPT OF NOTICE OF AWARD, THE BIDDERS ALLEGED THAT THEY HAD NOT INTENDED TO SUBMIT A BID AT ANY PRICE ON ITEM 16, NOR WAS SUCH BID PRICE INTENDED FOR ANY OTHER ITEM OFFERED BY SSL-8-56. WHILE THE BIDDERS HAVE FAILED TO COMPLY WITH THE REQUEST OF THE CONTRACTING OFFICER TO FURNISH DOCUMENTARY EVIDENCE OF THE ERROR, THEY HAVE CONSISTENTLY CONTENDED THAT THEY HAVE NO USE FOR SOLID TIRES IN THEIR BUSINESS, THAT SUBMISSION OF A BID THEREON WAS A MISTAKE, AND THAT THEY INTEND NEITHER TO REMOVE NOR TO PAY FOR THE TIRES.

THE RESCISSION OF AN EXECUTED CONTRACT BASED ON AN ALLEGATION OF ERROR IN BID PRESUPPOSES THE ESTABLISHMENT OF ERROR BY COMPETENT EVIDENCE SUBMITTED BY THE BIDDER IN SUPPORT OF HIS ALLEGATION, AND THE RULE IS WELL ESTABLISHED THAT SUCH EVIDENCE MUST SHOW CONCLUSIVELY THAT A MISTAKE WAS MADE, IN WHAT IT CONSISTS, AND HOW IT OCCURRED. 9 COMP. GEN. 339; 10 ID. 182; 23 ID. 596. IT MUST LEAVE NO ROOM FOR DOUBT THAT THERE WAS IN FACT A BONA FIDE ERROR IN THE BID. 11 ID. 476; 17 ID. 532. THE MERE UNSUPPORTED STATEMENT OF THE BIDDER THAT A MISTAKE HAS BEEN MADE IS NOT THE FURNISHING OF EVIDENCE WHICH WILL PERMIT CONTRACT RESCISSION. SEE 14 COMP. GEN. 78.

ON THE BASIS OF THE PRESENT RECORD IT IS OUR OPINION THAT A BONA FIDE ERROR IN THE BID SUBMITTED BY DE FUSCO BROTHERS HAS NOT BEEN ESTABLISHED AND, IN THE ABSENCE OF SUCH ERROR--- AND, IN ADDITION, CIRCUMSTANCES SUFFICIENT TO CHARGE THE CONTRACTING OFFICER WITH NOTICE, ACTUAL OR CONSTRUCTIVE, OF THE PROBABILITY OF ERROR--- THERE IS NO LEGAL BASIS ON WHICH TO RELIEVE THE CONTRACTOR FROM THE CONTRACTUAL OBLIGATIONS ARISING FROM BONA FIDE ACCEPTANCE OF THE BID. SEE 28 COMP. GEN. 261 AND CASES CITED THEREIN.