B-129105, SEP. 10, 1956

B-129105: Sep 10, 1956

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED AUGUST 29. DECISION IS REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE MATERIAL READVERTISED. THE CONDITION OF THE MATERIAL WAS DESCRIBED AS "APPARENTLY UNUSED-GOOD.'. AN AWARD WAS MADE TO THE F. THE CONTRACTOR ALLEGED THAT IT MADE AN ERROR IN ITS BID BY ASSUMING THAT ITEM 2 INCLUDED CERTAIN ARTICLES WHICH WERE IN FACT A PART OF ITEM 3. WERE. A REFUND WAS REQUESTED IN THE AMOUNT OF $735. P. SMITH EQUIPMENT COMPANY SUBMITTED A SKETCH OR DRAWING INDICATING THAT A PORTION OF THE MATERIAL COVERED BY ITEM 3 WAS LOCATED GENERALLY WITHIN THE SPACE OCCUPIED BY ITEM 2. THAT IT IS APPARENT THE BIDDER ERRED IN FAILING TO NOTE THE DELINEATION OF THE BOUNDARY LINE BETWEEN ITEM 2 AND ITEM 3.

B-129105, SEP. 10, 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 THE F. P. SMITH EQUIPMENT COMPANY, SUISUN, CALIFORNIA, UNDER CONTRACT NO. N62583S-12213, (SALES INVITATION NO. B-1-57) ISSUED BY THE NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA. DECISION IS REQUESTED AS TO WHETHER THE CONTRACT PROPERLY MAY BE CANCELLED AND THE MATERIAL READVERTISED, IN VIEW OF THE FACTS SET FORTH IN THE ENCLOSURES TO THE LETTER OF AUGUST 29.

THE RECORD SHOWS THAT BY INVITATION NO. B-1-57, DATED JUNE 18, 1956, THE U.S. NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA, OFFERED FOR SALE CERTAIN GOVERNMENT-OWNED PROPERTY CONSISTING OF AUTOMOTIVE AND CONSTRUCTION EQUIPMENT REPAIR PARTS AND ENGINES, THE BIDS TO BE OPENED AT 1:00 P.M. ON JULY 12, 1956. IN RESPONSE TO THE INVITATION, THE F.P. SMITH EQUIPMENT COMPANY SUBMITTED A BID IN THE AMOUNT OF $3,330 ON ITEM 2 CONSISTING OF MISCELLANEOUS AUTOMOTIVE AND CONSTRUCTION EQUIPMENT REPAIR PARTS HAVING AN ACQUISITION COST OF $2,987. THE CONDITION OF THE MATERIAL WAS DESCRIBED AS "APPARENTLY UNUSED-GOOD.' UNDER DATE OF JULY 17, 1956, AN AWARD WAS MADE TO THE F. P. SMITH EQUIPMENT COMPANY UNDER CONTRACT NO. N62853S-12213.

BY LETTER OF JULY 17, 1956, THE CONTRACTOR ALLEGED THAT IT MADE AN ERROR IN ITS BID BY ASSUMING THAT ITEM 2 INCLUDED CERTAIN ARTICLES WHICH WERE IN FACT A PART OF ITEM 3, BUT WERE, ACCORDING TO ITS STATEMENT, ON DISPLAY IN THE AREA OCCUPIED BY ITEM 2. A REFUND WAS REQUESTED IN THE AMOUNT OF $735. IN SUPPORT OF THE CLAIM OF ERROR, MR. FRANCIS P. SMITH OF THE F. P. SMITH EQUIPMENT COMPANY SUBMITTED A SKETCH OR DRAWING INDICATING THAT A PORTION OF THE MATERIAL COVERED BY ITEM 3 WAS LOCATED GENERALLY WITHIN THE SPACE OCCUPIED BY ITEM 2, AND MR. SMITH STATED THAT IN HIS APPRAISAL OF LOT 2 HE FAILED TO NOTE THE MARKINGS OF LOT 3. RESPECTING THE CONTRACTOR'S ALLEGATION OF ERROR, THE CONTRACTING OFFICER REPORTS THAT AN INVESTIGATION FAILED TO REVEAL ANY DISCREPANCY BETWEEN THE MATERIAL DESCRIBED IN ITEM 2 OF INVITATION NO. B-1-57 AND THE MATERIAL DISPLAYED AND AVAILABLE FOR INSPECTION AS THAT ITEM, AND THAT IT IS APPARENT THE BIDDER ERRED IN FAILING TO NOTE THE DELINEATION OF THE BOUNDARY LINE BETWEEN ITEM 2 AND ITEM 3.

IT IS APPARENT THAT THE REPORTED ERROR IN THIS CASE WAS DUE SOLELY TO THE FAULT OR NEGLIGENCE OF THE BIDDER. THE ACCEPTANCE OF THE BID WAS IN GOOD FAITH, NO ERROR HAVING BEEN APPARENT ON THE FACE OF THE BID OR ALLEGED UNTIL AFTER AWARD, AND SUCH ACCEPTANCE CONSUMMATED A VALID AND BINDING OBLIGATION 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. ACCORDINGLY, THERE IS NO LEGAL BASIS FOR ALLOWING THE CLAIM OR FOR MODIFICATION OR CANCELLATION OF THE CONTRACT BECAUSE OF THE ALLEGED MISTAKE IN BID.

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