B-129103, SEP. 7, 1956

B-129103: Sep 7, 1956

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED AUGUST 29. A DECISION IS REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE MATERIAL READVERTISED. STODDARD SUBMITTED BIDS AS TO ITEMS 30 AND 38 AND THE BID WAS ACCEPTED ON JULY 9. THE CONTRACTOR CLAIMED AN ERROR IN BIDDING IN THAT HIS BID ENTERED FOR ITEM 38 WAS INTENDED FOR ITEM 39. THE CONTRACTING OFFICER REPORTED THAT A REVIEW OF THE BIDS RECEIVED INDICATED THAT WHILE THE BID OF $311 WAS WITHIN THE RANGE OF THE BIDS RECEIVED FOR ITEM 39. NO CONFIRMATION OF THE CONTRACTOR'S BID WAS REQUESTED SINCE IT WAS NOT SO FAR OUT OF LINE WITH THE OTHER BIDS FOR ITEM 38 AS TO INDICATE A POSSIBLE ERROR. THE CONTRACTING OFFICER IS ALSO OF THE OPINION THAT THE CONTRACTOR HAS NOT SATISFACTORILY EXPLAINED HIS ERROR AND THAT THEREFORE HIS REQUEST FOR CANCELLATION SHOULD BE DENIED.

B-129103, SEP. 7, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED AUGUST 29, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE NAVY (MATERIAL), RELATING TO A MISTAKE IN BID ALLEGED BY MR. A. L. STODDARD, VALLEJO, CALIFORNIA, UNDER CONTRACT NO. N228S-16473 (SALES CATALOG NO. B-283 56), ISSUED BY THE NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA. IN VIEW OF THE FACTS SET FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 29, A DECISION IS REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE MATERIAL READVERTISED.

THE RECORD SHOWS THAT BY INVITATION NO. B-283-56, DATED JUNE 4, 1956, THE DISPOSAL DIVISION, NAVAL SUPPLY CENTER, OAKLAND, CALIFORNIA, OFFERED FOR SALE CERTAIN MISCELLANEOUS GOVERNMENT-OWNED PROPERTY CONSISTING OF TRUCKS, TRAILERS, BOATS, LANDING CRAFT, ETC., THE BIDS TO BE OPENED AT :30 A.M. ON JUNE 26, 1956. IN RESPONSE TO THE INVITATION, MR. A. L. STODDARD SUBMITTED BIDS AS TO ITEMS 30 AND 38 AND THE BID WAS ACCEPTED ON JULY 9, 1956, AS TO ITEM 38 IN THE AMOUNT OF $311. BY LETTER OF JULY 15, 1956, THE CONTRACTOR CLAIMED AN ERROR IN BIDDING IN THAT HIS BID ENTERED FOR ITEM 38 WAS INTENDED FOR ITEM 39, WHICH HE HAD INSPECTED. TO SUBSTANTIATE HIS CLAIM OF ERROR, THE CONTRACTOR FURNISHED AN ENVELOPE UPON WHICH HE HAD ENTERED HIS INTENDED BIDS.

RESPECTING THE CONTRACTOR'S ALLEGATION OF ERROR, THE CONTRACTING OFFICER REPORTED THAT A REVIEW OF THE BIDS RECEIVED INDICATED THAT WHILE THE BID OF $311 WAS WITHIN THE RANGE OF THE BIDS RECEIVED FOR ITEM 39, NO CONFIRMATION OF THE CONTRACTOR'S BID WAS REQUESTED SINCE IT WAS NOT SO FAR OUT OF LINE WITH THE OTHER BIDS FOR ITEM 38 AS TO INDICATE A POSSIBLE ERROR. THE CONTRACTING OFFICER IS ALSO OF THE OPINION THAT THE CONTRACTOR HAS NOT SATISFACTORILY EXPLAINED HIS ERROR AND THAT THEREFORE HIS REQUEST FOR CANCELLATION SHOULD BE DENIED.

IT IS WELL ESTABLISHED THAT THE ACCEPTANCE OF A BID CONSUMMATES A VALID AND BINDING CONTRACT UNLESS THE OFFICER ACCEPTING IT WAS ON NOTICE, EITHER ACTUAL OR CONSTRUCTIVE, OF SUCH CIRCUMSTANCES AS WOULD MAKE HIS ACCEPTANCE AN ACT OF BAD FAITH. INSOFAR AS THE PRESENT RECORD SHOWS, THE ACCEPTANCE OF THE BID IN THIS CASE WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. ACCORDINGLY, THE ACCEPTANCE OF THE BID CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND OBLIGATIONS 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.

THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO AN INVITATION TO BID IS UPON THE BIDDER. SEE FRAZIER DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF AN ERROR WAS MADE IN THE PREPARATION OF THE BID, AS ALLEGED, IT PROPERLY MAY BE ATTRIBUTED SOLELY TO THE CONTRACTOR'S NEGLIGENCE AND SINCE THE ERROR WAS UNILATERAL, NOT MUTUAL, THE CONTRACTOR IS NOT ENTITLED TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259, AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S STATEMENT DATED AUGUST 8, 1956, ARE RETURNED HEREWITH.