B-132618, AUG. 16, 1957

B-132618: Aug 16, 1957

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INC.: FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16. YOU ALLEGED THAT IN PREPARING THE BID THE ESTIMATED COST OF REFINING THE METALS WAS ERRONEOUSLY ADDED TO THE COMPUTED MARKET VALUE INSTEAD OF SUBTRACTING IT AS YOU INTENDED. THE CONTRACTING OFFICER SHOULD HAVE KNOWN YOUR BID WAS ERRONEOUS. THE ADMINISTRATIVE REPORT IN THIS MATTER SHOWS THAT THE FOUR BIDS RECEIVED ON THIS ITEM WERE. 661.63 WAS DULY ACCEPTED. ALTHOUGH THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT-HIGHEST BID IS CONSIDERABLE. THERE WAS A SIMILAR DIFFERENCE BETWEEN THE LOWEST AND THE NEXT-LOWEST BIDS. THE CONTRACTING OFFICER CANNOT BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR SINCE THERE WAS NO MORE REASON TO PRESUME YOUR BID WAS IN ERROR THAN THERE WAS TO PRESUME THE LOWEST BID WAS IN ERROR.

B-132618, AUG. 16, 1957

TO ATTLEBORO REFINING COMPANY, INC.:

FURTHER REFERENCE IS MADE TO YOUR LETTER OF JULY 16, 1957, REQUESTING AN ADJUSTMENT IN THE PRICE YOU BID AND PAID TO THE UNITED STATES MINT AT PHILADELPHIA FOR THE PURCHASE OF 308 BARS OF LOW GRADE UNPARTED BULLION. YOU ALLEGED THAT IN PREPARING THE BID THE ESTIMATED COST OF REFINING THE METALS WAS ERRONEOUSLY ADDED TO THE COMPUTED MARKET VALUE INSTEAD OF SUBTRACTING IT AS YOU INTENDED; AND THAT, FROM A COMPARISON WITH THE OTHER BIDS AND WITH THE GROSS MARKET VALUE OF THE SILVER AND COPPER CONTENT OF THE BARS, THE CONTRACTING OFFICER SHOULD HAVE KNOWN YOUR BID WAS ERRONEOUS.

THE ADMINISTRATIVE REPORT IN THIS MATTER SHOWS THAT THE FOUR BIDS RECEIVED ON THIS ITEM WERE, RESPECTIVELY, $5,116.94; $6,835.48; $6,900; AND $8,661.63. YOUR BID OF $8,661.63 WAS DULY ACCEPTED. ALTHOUGH THE DIFFERENCE BETWEEN YOUR BID AND THE NEXT-HIGHEST BID IS CONSIDERABLE, THERE WAS A SIMILAR DIFFERENCE BETWEEN THE LOWEST AND THE NEXT-LOWEST BIDS. HENCE, IN COMPARISON OF THE BIDS, THE CONTRACTING OFFICER CANNOT BE CHARGED WITH CONSTRUCTIVE NOTICE OF ERROR SINCE THERE WAS NO MORE REASON TO PRESUME YOUR BID WAS IN ERROR THAN THERE WAS TO PRESUME THE LOWEST BID WAS IN ERROR.

WHILE THE REPORT OF THE ADMINISTRATIVE OFFICE SHOWS THAT THE MARKET VALUE OF THE SILVER AND COPPER IN THE BARS ON THE DATE OF THE AWARD, BASED ON THE MINT ASSAYS, IS NOW CALCULATED TO HAVE BEEN LESS THAN THE AMOUNT OF YOUR BID, IT IS NOTED, HOWEVER, THAT THE INVITATION FOR BIDS CONTAINED A STATEMENT THAT THE ACCURACY OF THE MINT ASSAYS WAS NOT GUARANTEED AND THAT THE BARS ALSO CONTAINED NICKEL AND MANGANESE, THE QUANTITIES OF THE LATTER METALS BEING UNDETERMINED. SINCE THE EXACT VALUE OF ALL THE METALS IN THE BARS WAS NOT DETERMINABLE, THE DIFFERENCE BETWEEN YOUR BID AND THE PRESENTLY COMPUTED VALUE OF THE SILVER AND COPPER CONTAINED IN THE BARS AS BASED ON THE MINT ASSAYS WAS NOT SUFFICIENT TO JUSTIFY CHARGING THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE THAT YOU HAD MADE AN ERROR IN A BID WHICH APPEARED NORMAL AND REGULAR ON THE FACE OF IT.

THE ESTABLISHED RULE IS THAT, WHEN A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES OF IT UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR SO APPARENT THAT IT MUST BE PRESUMED THAT THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE OF IT. THE FACTS IN THIS CASE DO NOT COMPEL A PRESUMPTION OF BAD FAITH ON THE PART OF THE CONTRACTING OFFICER IN THE ACCEPTANCE OF YOUR BID. ANY ERROR THAT MAY HAVE BEEN MADE WAS DUE SOLELY TO YOUR OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.

NO ERROR WAS ALLEGED BY YOU UNTIL AFTER THE CONTRACT HAD BEEN COMPLETELY EXECUTED BY PAYMENT OF THE FULL PURCHASE PRICE AND DELIVERY OF THE MATERIAL. IT IS FUNDAMENTAL THAT NO OFFICER OF THE GOVERNMENT HAS THE AUTHORITY TO GIVE AWAY OR SURRENDER ANY RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. SEE AMERICAN SALES CORPORATION V. UNITED STATES, 27 F.2D 389, AFFIRMED 32 F.2D 141, CERTIORARI DENIED, 280 U.S. 574.

IN THE CIRCUMSTANCES, THEREFORE, WE ARE UNABLE TO FIND ANY LEGAL BASIS FOR GRANTING THE RELIEF ..END :