B-132641, AUG. 6, 1957

B-132641: Aug 6, 1957

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INC.: REFERENCE IS MADE TO YOUR LETTER OF JULY 10. - WERE SOLICITED ON 19 ITEMS OF SURPLUS GOVERNMENT PROPERTY. WHERE IS-AS IS.'. YOUR BID DID NOT INCLUDE A PRICE EXTENSION BUT WAS ACCOMPANIED BY DEPOSIT IN A SUFFICIENT AMOUNT BASED ON YOUR BID PRICE. THE OTHER BIDS RECEIVED ON THIS ITEM WERE IN THE AMOUNTS OF $0.0062 AND $0.056 PER POUND. AWARD WAS MADE TO YOU AS THE HIGHEST BIDDER ON ITEM NO. 4. IT IS REPORTED THAT. 020 AND HAVE BEEN REFUNDED $1. YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE COST OF 20. ENCLOSING AN UNDATED WORKSHEET PURPORTING TO SHOW THAT YOUR BID WAS INTENDED TO BE $0.02808 INSTEAD OF $0.2808. IT WAS STATED IN 17 COMP. GEN. 976: "THE BIDS HERE IN QUESTION WERE ON SURVEYED MATERIAL SOLD "AS IS.

B-132641, AUG. 6, 1957

TO K. HETTLEMAN AND SONS, INC.:

REFERENCE IS MADE TO YOUR LETTER OF JULY 10, 1957, IN EFFECT REQUESTING RECONSIDERATION OF GENERAL ACCOUNTING OFFICE SETTLEMENT DATED JUNE 24, 1957, WHICH DISALLOWED YOUR CLAIM IN THE AMOUNT OF $4,496 FOR PARTIAL REFUND OF AN AMOUNT PAID BY YOU FOR SURPLUS PROPERTY PURCHASED FROM THE OLMSTED AIR FORCE BASE, PENNSYLVANIA, UNDER CONTRACT NO. AF 36/600/S-3864, DATED OCTOBER 5, 1956, YOUR CLAIM BEING BASED ON AN ALLEGED ERROR IN YOUR BID.

BY INVITATION NO. 36-600-S-57-13, DATED SEPTEMBER 4, 1956, BIDS--- TO BE OPENED OCTOBER 2, 1956--- WERE SOLICITED ON 19 ITEMS OF SURPLUS GOVERNMENT PROPERTY, THE PROPERTY INCLUDED IN ITEM NO. 4 BEING DESCRIBED AS FOLLOWS:

"INSULATION PADS, EXHAUST CONE, AIRCRAFT. WHERE IS-AS IS.'

IN RESPONSE TO THE INVITATION, YOU SUBMITTED A BID OF $0.2808 PER POUND ON THE ESTIMATED 20,000 POUNDS DESCRIBED IN ITEM NO. 4. YOUR BID DID NOT INCLUDE A PRICE EXTENSION BUT WAS ACCOMPANIED BY DEPOSIT IN A SUFFICIENT AMOUNT BASED ON YOUR BID PRICE. THE OTHER BIDS RECEIVED ON THIS ITEM WERE IN THE AMOUNTS OF $0.0062 AND $0.056 PER POUND. ON OCTOBER 5, 1956, AWARD WAS MADE TO YOU AS THE HIGHEST BIDDER ON ITEM NO. 4. IT IS REPORTED THAT, INCLUDING YOUR BID DEPOSIT, YOU PAID A TOTAL OF $7,020 AND HAVE BEEN REFUNDED $1,440.50 AS THE EXCESS OVER THE PRICE OF 19,870 POUNDS DELIVERED TO YOU AT YOUR BID PRICE OF $0.2808 PER POUND. YOUR CLAIM IS FOR THE DIFFERENCE BETWEEN THE COST OF 20,000 POUNDS AT YOUR BID PRICE AND THE COST OF 20,000 POUNDS AT THE NEXT HIGH BID PRICE OF $0.056 PER POUND.

IN YOUR LETTER DATED OCTOBER 16, 1956, YOU ALLEGED AN ERROR IN YOUR BID AND REQUESTED RESCISSION OF THE CONTRACT OR, IN THE ALTERNATIVE, THAT THE PURCHASE PRICE BE REDUCED TO THE NEXT HIGH BID, $0.056 PER POUND, STATING THAT YOU HAD ALLEGED ERROR IN YOUR BID ON OCTOBER 12, 1956, BEFORE ACCEPTING DELIVERY OF THE PROPERTY, AND ENCLOSING AN UNDATED WORKSHEET PURPORTING TO SHOW THAT YOUR BID WAS INTENDED TO BE $0.02808 INSTEAD OF $0.2808.

BIDS SUBMITTED FOR SURPLUS MATERIAL OFTEN VARY GREATLY. IN THAT CONNECTION, IT WAS STATED IN 17 COMP. GEN. 976:

"THE BIDS HERE IN QUESTION WERE ON SURVEYED MATERIAL SOLD "AS IS, WHERE IS, AND IF IS," WITHOUT RECOURSE AS DISTINGUISHED FROM BIDS FOR THE PERFORMANCE OF WORK OR THE FURNISHING OF SUPPLIES, EQUIPMENT, ETC. CONSEQUENTLY, THERE MIGHT BE EXPECTED A WIDE RANGE IN THE BIDS WHICH WOULD BE BASED MORE OR LESS UPON THE USE TO WHICH THE PROPERTY WAS TO BE PUT BY THE PARTICULAR BIDDER OR THE CHANCES OF RESALE THEREOF. THE MERE DIFFERENCE IN THE PRICES BID FOR SUCH PROPERTY WOULD NOT NECESSARILY PUT THE CONTRACTING OFFICER ON NOTICE OF A MISTAKE AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED.'

SEE ALSO 28 COMP. GEN. 550; 17 ID. 338; ID. 601; 16 ID. 596. IN THE INSTANT MATTER, IT IS REPORTED THAT ERROR IN YOUR BID WAS NOT IN FACT SUSPECTED BY THE CONTRACTING OFFICER, SINCE PAST EXPERIENCE "INDICATED THAT THE END USE OF AN ITEM DETERMINES THE NET WORTH TO A PROSPECTIVE ER.' IT IS REPORTED, ALSO, THAT THE SAME TYPE OF PROPERTY AS THAT COVERED BY ITEM NO. 4 OF THE INVITATION HAD BEEN SOLD AT THE OLMSTEAD AIR FORCE BASE FOR A PRICE OF $0.225 PER POUND.

IN 20 COMP. GEN. 652, IS WAS STATED:

"THE ESTABLISHED RULE IS THAT WHERE A BIDDER HAS MADE A MISTAKE IN THE SUBMISSION OF A BID AND THE BID HAS BEEN ACCEPTED, HE MUST BEAR THE CONSEQUENCES THEREOF UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT THAT IT MUST BE PRESUMED THE CONTRACTING OFFICER KNEW OF THE MISTAKE AND SOUGHT TO TAKE ADVANTAGE THEREOF. 26 COMP. DEC. 286; 6 COMP. GEN. 526; 8 ID. 362.'

IN THE INSTANT MATTER, NO SATISFACTORY EVIDENCE HAS BEEN FURNISHED THAT THERE WAS AN ERROR IN YOUR BID OF A KIND FOR WHICH RELIEF MAY BE GRANTED. ALTHOUGH THE BID MAY HAVE BEEN ERRONEOUS, THE ERROR WAS NOT MUTUAL AND IT WAS NOT SO APPARENT AS TO PLACE THE CONTRACTING OFFICER ON NOTICE OF THE POSSIBILITY OF ERROR. NEITHER WAS THE ERROR INDUCED OR CONTRIBUTED TO IN ANY MANNER BY THE GOVERNMENT. ACCORDINGLY, THE ESTABLISHED RULE ABOVE QUOTED FROM 20 COMP. GEN. 652 IS FOR APPLICATION HERE. THE ACCEPTANCE OF YOUR BID UNDER THE CIRCUMSTANCES 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; AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

IN THE ABSENCE OF A STATUTE SPECIFICALLY SO PROVIDING, NO OFFICER OF THE GOVERNMENT HAS AUTHORITY TO GIVE AWAY OR SURRENDER A RIGHT VESTED IN OR ACQUIRED BY THE GOVERNMENT UNDER A CONTRACT. 14 COMP. GEN. 468; 20 ID. 703 AND COURT CASES CITED.

FOR THE REASONS ABOVE SET FORTH, THE SETTLEMENT OF JUNE 25, 1957, APPEARS CORRECT AND HEREBY IS SUSTAINED.