B-134183, NOV. 1, 1957

B-134183, NOV. 1, 1957

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED OCTOBER 21, 1957, WITH ENCLOSURES, FROM THE DIRECTOR, PURCHASE OPERATIONS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR THAT THE CENTRAL TIRE AND SALVAGE CO., 9101 SOUTH ALAMEDA STREET, LOS ANGELES, CALIFORNIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. N216S-19256, DATED SEPTEMBER 24, 1957, WAS AWARDED.

THE RECORD SHOWS THAT IN RESPONSE TO INVITATION NO. B-14-58-216, DATED AUGUST 28, 1957, ISSUED BY THE UNITED STATES NAVAL AIR STATION, CORPUS CHRISTI (FLOUR BLUFF), TEXAS, THE CENTRAL TIRE AND SALVAGE CO., SUBMITTED ITS UNDATED BID OFFERING TO PURCHASE UNDER ITEM 24, 62 UNITS OF BEACHING GEAR, AIRCRAFT DUAL WHEELS, SIZE 12.50 - 14, AT A UNIT PRICE OF $36.36 FOR THE SUM OF $2,254.32 AND ITEM 25, 36 UNITS OF BEACHING GEAR, AIRCRAFT DUAL WHEELS, SIZE 900 - 6, AT A UNIT PRICE OF $36.36 FOR THE SUM OF $1,308.96 OR FOR THE TOTAL AMOUNT OF $3,563.28. THE BID, ACCOMPANIED BY A BID DEPOSIT OF $715 WAS ACCEPTED AND AWARD WAS MADE TO THE BIDDER THEREBY CONSUMMATING A VALID AND BINDING CONTRACT BETWEEN THE PARTIES. BY LETTERS DATED SEPTEMBER 30 AND OCTOBER 7, 1957, THE BIDDER ALLEGED ERROR AND REQUESTED THAT THE AWARD BE RESCINDED AND THE BID DEPOSIT REFUNDED. THE BIDDER CONTENDS THAT IT BID THE IDENTICAL SUM ON BOTH ITEMS THINKING THEY WERE THE SAME ITEM.

THE GOVERNMENT CONTENDS THAT THE DEPOSIT OF $715 FURNISHED WITH THE BID WAS 20 PERCENT OF THE TOTAL AMOUNT BID ON BOTH ITEMS, INDICATING THAT A BID ON BOTH ITEMS WAS INTENDED; THAT IN PREPARATION OF SALES INVITATIONS IT IS THE GENERAL PRACTICE OF THE GOVERNMENT NOT TO LIST THE SAME ITEM UNDER TWO SEPARATE LOTS ON THE SAME INVITATION; THAT THE FACT THAT THE ITEMS WERE LOTTED SEPARATELY IS THE PRIME INDICATION A DIFFERENCE EXISTED; THAT THE STIPULATED SIZES AND ACQUISITION COSTS WERE OTHER DEFINITE INDICATIONS OF DIFFERENCES, AND THAT, SINCE THE BIDDER STATES THAT THE FIRM IS A DEALER IN GOVERNMENT SURPLUS PROPERTY, IT IS BELIEVED IT WOULD HAVE POSSESSED KNOWLEDGE OF THE ABOVE PRACTICE. ALSO, IT IS REPORTED THAT A REPRESENTATIVE OF THE PURCHASER HAD INSPECTED BOTH ITEMS PRIOR TO SUBMISSION OF BID AND THAT HE EXPRESSED A KEEN INTEREST IN BOTH SIZES OF BEACHING GEAR AT THE TIME.

THE PRIMARY QUESTION INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE THEREOF. THE RESPONSIBILITY FOR PREPARING THE BID SUBMITTED IN RESPONSE TO THE INVITATION WAS UPON THE BIDDER. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 163. IF AN ERROR WAS MADE IN THE BID, IT IS CLEAR THAT SUCH ERROR WAS DUE SOLELY TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. SUCH ERROR AS MAY HAVE BEEN MADE WAS UNILATERAL--- NOT MUTUAL--- AND THEREFORE AFFORDS NO BASIS FOR GRANTING RELIEF TO THE BIDDER. SEE SALIGMAN ET AL. V. UNITED STATES, 56 F.SUPP. 505, OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. SEE ALSO UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683. THERE WAS NOTHING ON THE FACT OF THE BID TO CHARGE THE CONTRACTING OFFICER WITH CONSTRUCTIVE NOTICE OF THE ALLEGED ERROR.

ACCORDINGLY, ON THE PRESENT RECORD, THERE APPEARS TO BE NO LEGAL BASIS FOR RESCINDING OR CANCELING THE CONTRACT AND FOR REFUNDING THE BID DEPOSIT.