B-130133, JUL. 15, 1957

B-130133, JUL. 15, 1957

TO THE EVEREADY SUPPLY COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED MAY 20, 1957, REQUESTING REVIEW OF SETTLEMENT DATED MAY 7, 1957, WHICH DISALLOWED YOUR CLAIM FOR $3,111, REPRESENTING THE PURCHASE PRICE OF ITEM NO. 104 UNDER CONTRACT NO. AF 33/600/-33161.

IN RESPONSE TO INVITATION NO. SS 1-147, ISSUED BY THE TUMPANE COMPANY, INC., AS AGENTS FOR THE UNITED STATES AIR FORCE, OFFUTT AIR FORCE BASE, NEBRASKA, YOU SUBMITTED A BID OFFERING TO PURCHASE SEVERAL OF THE ITEMS OFFERED FOR SALE. YOUR BID WAS ACCEPTED, AMONG OTHER ITEMS, AS TO ITEM 104, A GRINDING MACHINE. SEVERAL DAYS LATER, WHEN YOU WENT TO THE STORAGE SITE TO OVERSEE ARRANGEMENTS IN THE PREPARATION FOR SHIPMENT OF THE OTHER ITEMS, YOU ALLEGED THAT AN ERROR HAD BEEN MADE IN YOUR BID IN THAT THE AMOUNT BID ON ITEM 104 WAS INTENDED FOR ITEM 24 AND THAT YOU HAD NOT INTENDED TO BID ON ITEM 104. IN YOUR LETTER OF DECEMBER 17, 1956, TO THE AIR FORCE CLEARANCE OFFICER YOU STATED THAT THE ERROR WAS MADE BY YOUR SECRETARY IN TRANSFERRING THE AMOUNTS FROM YOUR WORK SHEET TO YOUR $3,111 AND THE NEXT HIGH BID OF $178 WAS SUFFICIENT TO PUT THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR AND THAT THE BID SHOULD NOT HAVE BEEN ACCEPTED WITHOUT VERIFICATION.

A WIDE RANGE OF PRICES BID FOR USED EQUIPMENT, BASED UPON THE CONTEMPLATED USE OR UPON SPECULATION AS TO RESALE, IS NOT UNUSUAL. THEREFORE, MERE DIFFERENCE IN THE PRICES QUOTED FOR SUCH EQUIPMENT WOULD NOT NECESSARILY PLACE THE CONTRACTING OFFICER ON NOTICE OF ERROR AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT TO BE FURNISHED TO THE GOVERNMENT. SEE 28 COMP. GEN. 550. THUS, IN THE PRESENT CASE, ALTHOUGH THERE WAS CONSIDERABLE DIFFERENCE BETWEEN THE PRICE OF $3,111 QUOTED BY YOU AND THE NEXT HIGH BID OF $178 FOR ITEM 104, SUCH DIFFERENCE WOULD NOT NECESSARILY INDICATE ERROR IN YOUR BID. FURTHERMORE, THERE WERE VARIOUS INSTANCES OF VARIATION IN THE BIDS RECEIVED ON THE INVITATION WHERE THE AMOUNTS BETWEEN THE HIGHEST AND THE NEXT HIGHEST BIDS WERE MUCH LARGER THAN THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT HIGHEST ON ITEM 104. FOR EXAMPLE, IT IS REPORTED THAT ON ITEM NO. 646, THE HIGH BID WAS $5,005 AND THE NEXT HIGHEST BID WAS ONLY $218.85. ALSO, THE MACHINE OFFERED UNDER ITEM 104 IS A NEW 1952 MODEL, AND THE REQUISITION COST TO THE GOVERNMENT IS SHOWN TO HAVE BEEN $9,368. THEREFORE, IT DOES NOT APPEAR THAT THE CONTRACTING OFFICER SHOULD HAVE BEEN ON CONSTRUCTIVE NOTICE OF THE ALLEGED ERROR PRIOR TO THE AWARD. SINCE THE RECORD SHOWS THAT YOUR BID WAS ACCEPTED IN GOOD FAITH THE ACCEPTANCE 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.

IF YOUR DID NOT INTEND TO QUOTE A PRICE FOR ITEM 104, THE ERROR WAS DUE SOLELY TO NEGLIGENCE OR OVERSIGHT ON YOUR PART AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. THUS, SUCH ERROR AS WAS MADE WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE YOU TO RELIEF. SEE SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507, AND OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259.