B-129402, OCT. 10, 1956

B-129402: Oct 10, 1956

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

B-129402, OCT. 10, 1956

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO LETTER DATED OCTOBER 1, 1956, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY (MATERIAL), REQUESTING A DECISION WHETHER, AS RECOMMENDED BY THE CONTRACTING OFFICER, RELIEF PROPERLY SHOULD BE DENIED TO THE FIRM OF OLDHAM AND SUTHERLAND, JUNCTION CITY, KENTUCKY, FOR AN ERROR IN BID IT ALLEGED AFTER AWARD OF SALES CONTRACT NO. N67001-444.

SEVENTY-TWO BIDDERS RESPONDED TO THE INVITATION WHICH REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS AUTOMOTIVE VEHICLES LISTED UNDER ITEMS 1 TO 23, INCLUSIVE. THE ABSTRACT OF BIDS SHOWS THAT THE BIDS RECEIVED ON ITEM 22, ROCK CRUSHERS IN FAIR CONDITION, WERE AS FOLLOWS:

TABLE

LOT 1 LOT 2 LOT 3 LOT 4 BID NO. 23, OLDHAM AND SUTHERLAND $1,113.00 $2,620.00 $2,620.00

35 $1,500.00

62 529.00 1,098.00 1,098.00

24 663.00

6 389.91

8 441.89

31 390.97 412.97

46 251.50

61134.00 389.00

48 252.98

41 206.00

51 51.5151.51 51.58

OLDHAM AND SUTHERLAND SUBMITTED WITH ITS BID A DEPOSIT SLIGHTLY MORE THAN 20 PERCENT OF THE TOTAL PRICE SHOWN ON ITEM 22 AND SEVERAL OTHER ITEMS ON WHICH IT BID. BY NOTICE OF AWARD DATED JUNE 27, 1956, THE BID OF OLDHAM AND SUTHERLAND WAS ACCEPTED. BY LETTER DATED JULY 14, 1956, THE PURCHASER ALLEGED THAT AN ERROR OCCURRED WHEN IT HASTILY TRANSPOSED ITS BID FROM ITS WORKING COPY TO THE SUBMITTED BID FORM, SINCE INSTEAD OF BIDDING ON ITEM 22, LOTS 1, 2 AND 3, IT INTENDED TO BID $2,620 ON ITEM 22, LOT 4, WHICH WAS AN ALTERNATE BID CONSISTING OF ALL THE MATERIAL LISTED AND DESCRIBED IN ITEM 22, LOT 1 THRU 3, INCLUSIVE. BY LETTER DATED JULY 19, 1956, THE CONTRACTING OFFICER ADVISED THE PURCHASER THAT ITS BID PRICES DID NOT APPEAR EXCESSIVE CONSIDERING THAT THE CONDITION OF THE ROCK CRUSHERS WAS FAIR AND THAT THE GOVERNMENT'S ACQUISITION COST WAS $2,500 FOR LOT 1, $4,900 FOR LOT 2 AND $4,900 FOR LOT 3. ON SEPTEMBER 11, 1956, THE PURCHASER FORWARDED PHOTOGRAPHS OF ITS WORKING COPY OF THE BID FORM. STATEMENT BY A. H. ALLEN, APPARENTLY AN EMPLOYEE OF THE CONTRACTING OFFICE, DESCRIBES THE WORK SHEET AS FOLLOWS:

"* * * ALTHOUGH THE FIGURES "$2620.00" APPEAR OPPOSITE LOT NUMBER 4, ITEM 22, THE SAME FIGURES APPEAR BETWEEN LOT 1 AND LOT 2 AND IN ADDITION THE FIGURES "$1113.00" APPEAR OPPOSITE LOT 1. THERE ARE ALSO NOTATIONS UPON THE WORK SHEET OPPOSITE LOTS 1, 2 AND 3 WHICH READ "VERY GOOD" ,EXCELLENT" "VERY GOOD.' THERE IS NO COMBINATION OF FIGURES FOR LOTS 1, 2 AND 3 WHICH WOULD TOTAL $2620.00 WHICH IS ALLEGED TO BE THE INTENDED BID FOR LOT 4 COVERING ALL THE ITEMS IN LOTS 1, 2 AND 3. THE MOST THAT CAN BE INFERRED FROM STUDYING THESE WORK SHEETS IS THAT THE PRICES APPEARING THEREON ARE CONFUSING AND IT IS EVIDENT THAT A MISTAKE COULD EASILY HAVE BEEN MADE IN TRANSPOSING THESE FIGURES TO THE FINAL BID. HOWEVER, SUCH CONFUSION RESULTS FROM THE BIDDER'S OWN NOTATIONS AND INDICATES ITS CARELESSNESS IN PREPARING THE BID. * * *"

IN ADDITION, THE WORK SHEET IS UNSUBSTANTIAL AND IRREGULAR INASMUCH AS IT INDICATES THAT IT WAS ALTERED OR AMENDED. IN THE TOTAL BID PRICE COLUMN OPPOSITE A DESCRIPTION OF LOTS 2 AND 3 THERE APPEARS A NOTATION "2220" WHICH HAS BEEN ALTERED TO "2620.' JUST BELOW THIS ALTERATION THERE APPEARS THE SYMBOL "AT," COMMONLY USED TO INDICATE "EACH," WHICH HAS BEEN ALTERED TO "LOT.'

THE QUESTION FOR CONSIDERATION IS WHETHER A VALID CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE PURCHASER'S BID.

ALTHOUGH THERE IS A WIDE VARIANCE BETWEEN THE BID OF THE PURCHASER AND THE OTHER BIDDERS, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER WAS PLACED ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE PURCHASER AND THAT HE SHOULD HAVE REQUESTED THE BIDDER TO VERIFY ITS BID. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON SURPLUS, SALVAGE AND WASTE PROPERTY, A MERE PRICE DIFFERENCE WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR, AS WOULD SIMILAR PRICE DIFFERENCES ON NEW EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. PRICES OFFERED TO THE GOVERNMENT FOR ITS PROPERTY ARE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY IS TO BE PUT BY THE PARTICULAR BIDDER OR UPON THE RISK OF RESALE THE BIDDER MIGHT WISH TO TAKE. SEE 16 COMP. GEN. 576; 17 ID. 388; ID. 601; 1D. 976; 28 ID. 261; AND ID. 550. THUS, SINCE NO ERROR WAS ALLEGED UNTIL AFTER AWARD, THE ACCEPTANCE OF THE BID WAS MADE IN GOOD FAITH AND CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES 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.

FURTHERMORE, THE RESPONSIBILITY FOR PREPARATION OF A BID IS UPON THE BIDDER, SINCE THE GOVERNMENT IS NOT LIABLE FOR ANY LOSS WHICH RESULTS FROM AN IMPROVIDENT QUOTATION. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. THE MISTAKE WAS DUE TO THE BIDDER'S NEGLIGENCE, CARELESSNESS OR OVERSIGHT; IT WAS NOT INDUCED BY THE GOVERNMENT, AND THERE WAS NOTHING TO MAKE THE CONTRACTING OFFICER SUSPECT THAT THE QUOTATION WAS NOT AS INTENDED. SEE GRYMES V. SANDERS, ET AL., 93 U.S. 55, 61; AND 3 WILLISTON ON SALES 654. THE ERROR THAT WAS MADE WAS UNILATERAL; THEREFORE, THE PURCHASER IS NOT ENTITLED TO ANY REDRESS. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; AND 3 WILLISTON ON SALES 656.

INASMUCH AS THE BID WAS REGULAR ON ITS FACE, THE DIFFERENCE IN BID PRICES WAS NOT SUFFICIENT TO AMOUNT TO CONSTRUCTIVE NOTICE OF ERROR, AND THE ERROR WAS ALLEGED AFTER AWARD, THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS MATTER. ACCORDINGLY, THE PURCHASER SHOULD BE CALLED UPON TO MAKE PAYMENT OF THE BALANCE OF THE PURCHASE PRICE AND TO REMOVE THE PROPERTY FROM THE GOVERNMENT SITE. IF THE PURCHASER DEFAULTS IN THIS RESPECT, THE GOVERNMENT'S RIGHT TO RETAIN LIQUIDATED DAMAGES AS PROVIDED IN PARAGRAPH 18 OF THE GENERAL TERMS AND CONDITIONS OF THE SALE SHOULD BE ..END :