B-133644, SEP. 9, 1957

B-133644: Sep 9, 1957

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO LETTER OF AUGUST 29. AUTO COMPANY TO HAVE BEEN MADE ON ITEM NO. 10 OF ITS BID DATED MAY 8. A DECISION IS REQUESTED AS TO WHETHER THE COMPANY SHOULD BE HELD TO THE TERMS OF ITS ACCEPTED BID AND. IT IS ADMINISTRATIVELY RECOMMENDED THAT THE CONTRACTOR NOT BE RELIEVED. THE BID WAS ACCEPTED AS TO ITEMS NOS. 10. THE COMPANY WAS ADVISED OF THE ACCEPTANCE ON MAY 14. THE COMPANY STATES FURTHER THAT IT INSPECTED ITEM NO. 18 BUT NOT ITEM NO. 10 PRIOR TO SUBMITTING ITS BID AND FAILED TO NOTICE THAT THERE WERE TWO SIMILAR COMPRESSORS OFFERED FOR SALE. IN AN UNDATED STATEMENT THE CONTRACTING OFFICER STATES THAT IT WAS NOTED AT THE CONCLUSION OF THE BID OPENING THAT THE BID OF COHN BROS.

B-133644, SEP. 9, 1957

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO LETTER OF AUGUST 29, 1957, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), RELATIVE TO A CLAIM FOR REFUND DUE TO AN ERROR ALLEGED BY COHN BROS. AUTO COMPANY TO HAVE BEEN MADE ON ITEM NO. 10 OF ITS BID DATED MAY 8, 1957. A DECISION IS REQUESTED AS TO WHETHER THE COMPANY SHOULD BE HELD TO THE TERMS OF ITS ACCEPTED BID AND, IN THAT CONNECTION, IT IS ADMINISTRATIVELY RECOMMENDED THAT THE CONTRACTOR NOT BE RELIEVED.

THE BELLE MEAD GENERAL DEPOT, BY INVITATION NO. 28-009-S-57-58, REQUESTED BIDS--- TO BE OPENED MAY 8, 1957--- FOR THE SALE OF VARIOUS ITEMS OF EQUIPMENT. IN RESPONSE THERETO, COHN BROS. AUTO COMPANY SUBMITTED A BID DATED MAY 8, 1957, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 10, A RECIPROCATING, MOTOR DRIVEN COMPRESSOR, FOR $689.89. THE BID WAS ACCEPTED AS TO ITEMS NOS. 10, 14 AND 16, CONSUMMATING CONTRACT NO. O.I. 859-S-57, AND THE COMPANY WAS ADVISED OF THE ACCEPTANCE ON MAY 14, 1957.

AFTER RECEIPT OF THE NOTICE OF AWARD, THE CONTRACTOR, BY LETTER DATED MAY 24, 1957, NOTIFIED THE PROPERTY DISPOSAL OFFICER (CONTRACTING OFFICER) THAT IT HAD MADE AN ERROR IN ITS BID, STATING THAT IT HAD INADVERTENTLY BID ON ITEM NO. 10 INSTEAD OF ITEM NO. 18, A SIMILAR PIECE OF EQUIPMENT. THE COMPANY STATES FURTHER THAT IT INSPECTED ITEM NO. 18 BUT NOT ITEM NO. 10 PRIOR TO SUBMITTING ITS BID AND FAILED TO NOTICE THAT THERE WERE TWO SIMILAR COMPRESSORS OFFERED FOR SALE.

THE ABSTRACT OF BIDS SHOWS THAT EIGHT OTHER BIDDERS SUBMITTED BIDS ON ITEM NO. 10, RANGING FROM $35 TO $301. IN AN UNDATED STATEMENT THE CONTRACTING OFFICER STATES THAT IT WAS NOTED AT THE CONCLUSION OF THE BID OPENING THAT THE BID OF COHN BROS. AUTO COMPANY ON ITEM NO. 10 APPEARED TO BE HIGH WHEN COMPARED WITH THE OTHERS RECEIVED BUT, UPON ASCERTAINING THAT A REPRESENTATIVE OF THE COMPANY HAD VISITED THE DEPOT TO INSPECT THE PROPERTY PRIOR TO BIDDING, IT WAS CONCLUDED THAT THE BID WAS SUBMITTED ON THE BASIS OF SUCH INSPECTION. IT IS REPORTED FURTHER THAT, WHILE REQUESTED TO DO SO, THE CONTRACTOR HAS FAILED TO FURNISH ANY EVIDENCE TO SUPPORT HIS ALLEGATION THAT HE BID ON THE WRONG ITEM.

WHILE, AS NOTED BY THE CONTRACTING OFFICER, THE BID PRICE OF $689.89SUBMITTED BY COHN BROS. AUTO COMPANY ON ITEM NO. 10 WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON THIS ITEM, SUCH DIFFERENCE IN ITSELF WOULD NOT NECESSARILY INDICATE THAT AN ERROR HAD BEEN MADE IN THE BID FOR THE REASON THAT A WIDE RANGE IN BIDS ON THE SALE OF WASTE OR SALVAGE PROPERTY IS NOT UNUSUAL. A MERE DIFFERENCE IN THE PRICES BID ON USED EQUIPMENT WOULD NOT ORDINARILY PLACE A CONTRACTING OFFICER ON NOTICE OF AN ERROR AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT TO BE FURNISHED THE GOVERNMENT. SEE UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, CITING WITH APPROVAL 16 COMP. GEN. 596; 17 ID. 388; AND ID. 601.

UNDER THE CIRCUMSTANCES APPEARING, AND SINCE THE ERROR WAS NOT ALLEGED UNTIL AFTER AWARD, THERE IS NOTHING IN THE RECORD TO INDICATE THAT THE ACCEPTANCE OF THE BID WAS MADE IN OTHER THAN GOOD FAITH. SUCH AN ACCEPTANCE OF THE BID 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.

MOREOVER, THE RESPONSIBILITY FOR THE PREPARATION OF A BID SUBMITTED IN RESPONSE TO THE INVITATION ISSUED IN THE PRESENT CASE WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 163. IF THE COHN BROS. AUTO COMPANY MADE AN ERROR BY BIDDING ON ITEM NO. 10 INSTEAD OF ITEM NO. 18, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. ANY ERROR THAT WAS MADE IN THE BID WAS UNILATERAL--- NOT MUTUAL--- AND, THEREFORE, DOES NOT ENTITLE THE BIDDER TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507.

IN THE CIRCUMSTANCES, WE FIND NO LEGAL BASIS FOR REFUNDING TO THE COHN BROS. AUTO COMPANY ANY PORTION OF THE AMOUNT PAID BY IT FOR THE CONTRACT ITEM IN QUESTION.

ONE SET OF THE PAPERS IN THE CASE IS BEING RETAINED. THE OTHER PAPERS ARE RETURNED.