B-134970, FEB. 10, 1958

B-134970: Feb 10, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED JANUARY 2" 1958. ALLEGES IT MADE IN ITS BID WHICH WAS ACCEPTED ON OCTOBER 29. THE CORPORATION WAS NOTIFIED THAT IT HAD BEEN AWARDED ITEMS 94 AND 95. THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE CORPORATION TO INDICATE THAT THE PRICES QUOTED THEREIN FOR ITEMS 94 AND 95 WERE INTENDED FOR ITEMS 89 AND 90. WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEMS 94 AND 95. 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 CORPORATION ON THOSE ITEMS. WAS IN GOOD FAITH. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED WAS UPON THE BIDDER.

B-134970, FEB. 10, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 2" 1958, WITH ENCLOSURES, FROM THE DEPUTY ASSISTANT SECRETARY (LOGISTICS), REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN CONCERNING AN ERROR WHICH MOTT HAVEN TRUCK PARTS, INC., BRONX, NEW YORK, ALLEGES IT MADE IN ITS BID WHICH WAS ACCEPTED ON OCTOBER 29, 1957.

THE PROPERTY DISPOSAL OFFICE, FORT BELVOIR, VIRGINIA, BY INVITATION NO. 44-008-S-58-46, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT OF, AMONG OTHER ITEMS, TWO USED GENERATOR SETS POWERED BY GASOLINE ENGINES, ITEMS 94 AND 95. IN RESPONSE MOTT HAVEN TRUCK PARTS, INC., SUBMITTED A BID DATED OCTOBER 21, 1957, OFFERING TO PURCHASE, AMONG OTHERS, ITEMS 94 AND 95 AT AN IDENTICAL PRICE OF$476.77 EACH. ON OCTOBER 29, 1957, THE CORPORATION WAS NOTIFIED THAT IT HAD BEEN AWARDED ITEMS 94 AND 95.

BY LETTER DATED OCTOBER 31, 1957, MOTT HAVEN TRUCK PARTS, INC., ADVISED THE PROPERTY DISPOSAL OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT HAD INTENDED TO BID ON THE DIESEL-POWERED GENERATOR SETS COVERED BY ITEMS 89 AND 90, INSTEAD OF ITEMS 94 AND 95. THE CORPORATION STATED THAT ITEMS 89 AND 90 CONSIST OF SIMILAR GENERATOR SETS HAVING THE SAME ORIGINAL ACQUISITION COSTS AND, THEREFORE, JUSTIFY ITS INTENDED BID BEING THE SAME PRICE FOR EACH ITEM, WHEREAS ITEMS 94 AND 95 COVER TWO COMPLETELY DISSIMILAR ITEMS HAVING ACQUISITION COSTS OF $5,000 AND $2,000, RESPECTIVELY. THE CORPORATION REQUESTED THAT THE AWARD TO IT OF ITEMS 94 AND 95 BE CANCELLED.

THERE WAS NOTHING ON THE FACE OF THE BID SUBMITTED BY THE CORPORATION TO INDICATE THAT THE PRICES QUOTED THEREIN FOR ITEMS 94 AND 95 WERE INTENDED FOR ITEMS 89 AND 90. THE LIST OF BIDS SHOWS THAT SEVEN OTHER BIDDERS QUOTED PRICES RANGING FROM $237.11 TO $51.51 FOR ITEM 94 AND THAT FOR ITEM 95, TWENTY-ONE OTHER BIDDERS QUOTED PRICES RANGING FROM $296 TO $51. ALTHOUGH THE BID OF MOTT HAVEN TRUCK PARTS, INC., WAS SOMEWHAT HIGHER THAN THE OTHER BIDS RECEIVED ON ITEMS 94 AND 95, 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 CORPORATION ON THOSE ITEMS. 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, AS WOULD A LIKE DIFFERENCE IN THE PRICES QUOTED ON NEW EQUIPMENT, SUPPLIES, ETC., TO BE FURNISHED TO 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. SEE, ALSO, 28 COMP. GEN. 261; AND ID. 550. THE PRESENT RECORD INDICATES THAT THE ACCEPTANCE OF THE BID OF MOTT HAVEN TRUCK PARTS, INC., 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 OCTOBER 31, 1957, MOTT HAVEN TRUCK PARTS, INC., INADVERTENTLY INSERTED THE PRICES INTENDED FOR ITEMS 89 AND 90 OPPOSITE ITEMS 94 AND 94, SUCH ERROR WAS DUE SOLELY TO ITS OWN NEGLIGENCE OR OVERSIGHT AND WAS INNO 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 CORPORATION WAS UNILATERAL--- NOT MUTUAL-- - AND, THEREFORE, DOES NOT ENTITLE THE CORPORATION 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.

THE PAPERS, WITH THE EXCEPTION OF THE CONTRACTING OFFICER'S UNDATED STATEMENT, ARE RETURNED.