B-132658, AUG. 12, 1957

B-132658: Aug 12, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JULY 22. ALLEGES WAS MADE IN ITS BID ON WHICH CONTRACT O.I. NO. 388-57 WAS AWARDED. ITEM 31 WAS DESCRIBED ON THE CONSOLIDATED BID SHEET AS "TAPE. " AND THE NUMBER OF UNITS OFFERED FOR SALE WAS LISTED AS BEING 21. THE TOTAL ACQUISITION COST OF WHICH WAS STATED IN THE INVITATION TO BE $16. WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1. WAS ACCEPTED AS TO ITEM 31 AND OTHER ITEMS ON JUNE 3. NO PRICE IS SHOWN IN THE RETAINED BID FOR ITEM 31. THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE COMPANY TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 31 WAS INTENDED FOR ANOTHER ITEM. ALTHOUGH THE BID OF THE LEARNER COMPANY WAS CONSIDERABLY HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 31.

B-132658, AUG. 12, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JULY 22, 1957, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH THE LEARNER COMPANY, OAKLAND, CALIFORNIA, ALLEGES WAS MADE IN ITS BID ON WHICH CONTRACT O.I. NO. 388-57 WAS AWARDED.

BY INVITATION NO. AVI-04-170-S-57-28, THE SACRAMENTO SIGNAL DEPOT, SACRAMENTO, CALIFORNIA, REQUESTED BIDS--- TO BE OPENED MAY 27, 1957--- FOR THE PURCHASE FROM THE GOVERNMENT OF MISCELLANEOUS SURPLUS MATERIALS. ITEM 31 WAS DESCRIBED ON THE CONSOLIDATED BID SHEET AS "TAPE, FACSIMILE EQUIP," AND THE NUMBER OF UNITS OFFERED FOR SALE WAS LISTED AS BEING 21, THE TOTAL ACQUISITION COST OF WHICH WAS STATED IN THE INVITATION TO BE $16,800. RESPONSE THE LEARNER COMPANY SUBMITTED A BID DATED MAY 22, 1957, OFFERING TO PURCHASE, AMONG OTHERS, THE EQUIPMENT COVERED BY ITEM 31 AT A PRICE OF $155.50 EACH OR FOR A TOTAL PRICE OF $3,265.50. THE ABSTRACT OF BIDS SHOWS THAT, OF THE EIGHT OTHER BIDDERS QUOTING ON ITEM 31, SEVEN BIDDERS QUOTED PRICES RANGING FROM $16.69 EACH TO $2 EACH, AND THAT THE OTHER BIDDER QUOTED A LOT PRICE OF $107.77 ($5.13142 EACH). THE BID OF THE COMPANY, WHICH WAS ACCOMPANIED BY A BID GUARANTEE IN THE AMOUNT OF $1,508, WAS ACCEPTED AS TO ITEM 31 AND OTHER ITEMS ON JUNE 3, 1957.

BY LETTER DATED JUNE 5, 1957, IN WHICH IT REFERRED TO ITS TELEPHONE CONVERSATION OF THE SAME DATE, THE LEARNER COMPANY ADVISED THE PROPERTY DISPOSAL OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD INTENDED TO BID ON ITEM 30 (ONE LOT OF MISCELLANEOUS MACHINE SCREWS) INSTEAD OF ITEM 31 BUT HAD INADVERTENTLY PLACED ITS BID PRICE ON ITEM 31. THE COMPANY STATED THAT A REPRESENTATIVE FROM ITS SACRAMENTO BRANCH HAD, PRIOR TO SUBMISSION OF ITS BID, INSPECTED THE MATERIALS OFFERED FOR SALE AT THE DEPOT AND THAT SUCH REPRESENTATIVE ADVISED THE COMPANY'S OAKLAND OFFICE OF THE ITEMS, WHICH INCLUDED ITEM 30, THAT SHOULD BE BID UPON BY THE COMPANY AND OF THE SUGGESTED BID AMOUNTS. THE COMPANY ALSO STATED THAT IN THE TRANSCRIBING OF THE REPORT OF THE SACRAMENTO OFFICE, THE OAKLAND OFFICE ERRONEOUSLY ENTERED A BID ON ITEM 31 IN PLACE OF ITEM 30; AND THAT A REVIEW OF ITS PAST BIDS WOULD INDICATE THAT IT HAD NEVER BID ON THE TYPE OF MATERIAL COVERED BY ITEM 31 BUT THAT IT HAD BID ON THE TYPE OF MATERIAL COVERED BY ITEM 30. IN SUPPORT OF ITS ALLEGATION OF ERROR, THE COMPANY SUBMITTED A COPY OF THE INTER-OFFICE MEMORANDUM PREPARED BY A REPRESENTATIVE OF ITS SACRAMENTO BRANCH OFFICE AND A COPY OF ITS RETAINED BID WHICH SHOWS A LOT PRICE OF $155.50 ENTERED OPPOSITE ITEM 30. NO PRICE IS SHOWN IN THE RETAINED BID FOR ITEM 31.

THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE COMPANY TO INDICATE THAT THE PRICE QUOTED THEREIN FOR ITEM 31 WAS INTENDED FOR ANOTHER ITEM. ALTHOUGH THE BID OF THE LEARNER COMPANY WAS CONSIDERABLY HIGHER THAN THE OTHER BIDS RECEIVED ON ITEM 31, IT DOES NOT APPEAR THAT THE DIFFERENCE WAS SO GREAT AS TO HAVE PLACED THE CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN THE BID OF THE COMPANY ON THE ITEM. IN VIEW OF THE WIDE RANGE OF PRICES ORDINARILY RECEIVED ON WASTE, SALVAGE, AND SURPLUS PROPERTY, A MERE DIFFERENCE IN THE PRICES BID WOULD NOT NECESSARILY PLACE A CONTRACTING OFFICER ON NOTICE OF THE PROBABILITY OF ERROR IN A BID FOR THE PURCHASE OF SUCH PROPERTY FROM THE GOVERNMENT,AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO THE GOVERNMENT. SEE 16 COMP. GEN. 596; 17 ID. 388; ID. 601; ID. 976; 28 ID. 261; ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF THE LEARNER COMPANY WAS IN GOOD FAITH, NO ERROR HAVING BEEN ALLEGED UNTIL AFTER AWARD. CONSEQUENTLY, IT MUST BE HELD THAT SUCH ACTION CONSUMMATED A VALID AND BINDING CONTRACT. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION CO. V. UNITED STATES, 100 C.CLS. 120, 163. IF, AS STATED IN ITS LETTER OF JUNE 5, 1957, THE LEARNER COMPANY INADVERTENTLY INSERTED THE PRICE INTENDED FOR ITEM 30 OPPOSITE ITEM 31, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SEE GRYMES V. SANDERS ET AL., 93 U.S. 55, 61. ANY ERROR THAT WAS MADE IN THE BID OF THE COMPANY WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE COMPANY TO RELIEF FROM ITS OBLIGATION UNDER THE CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

ACCORDINGLY, THERE APPEARS TO BE NO LEGAL BASIS FOR MODIFYING THE PRICE OF ITEM 31 OR FOR RELIEVING THE LEARNER COMPANY FROM LIABILITY UNDER THE TERMS OF CONTRACT O.I. NO. 388-57, WHICH IS IN ACCORDANCE WITH ITS ACCEPTED BID.