B-135051, FEB. 21, 1958

B-135051: Feb 21, 1958

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER DATED JANUARY 24. N244S-52243 WAS AWARDED. AWARD WAS MADE NOVEMBER 5. IN A REPLY THE BIDDER WAS REQUESTED TO FURNISH EVIDENCE IN SUPPORT OF HIS CLAIM THAT HIS BID ON ITEM 17 WAS IN ERROR. THE BIDDER HAVING FAILED TO FURNISH SUCH INFORMATION WAS NOTIFIED BY LETTER OF DECEMBER 16. THE PRIMARY QUESTION HERE INVOLVED IS NOT WHETHER AN ERROR WAS MADE IN THE BID. 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. IF AN ERROR WAS MADE IN THE BID. IT IS CLEAR THAT SUCH ERROR WAS DUE TO THE BIDDER'S OWN NEGLIGENCE OR OVERSIGHT AND WAS IN NO WAY INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT.

B-135051, FEB. 21, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER DATED JANUARY 24, 1958, WITH ENCLOSURES, FROM CAPTAIN R. A. WILLIAMS, ASSISTANT CHIEF FOR PURCHASING, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR THAT MILTON C. BLAIR, SAN FERNANDO, CALIFORNIA, ALLEGES HE MADE IN HIS BID ON WHICH CONTRACT NO. N244S-52243 WAS AWARDED.

THE UNITED STATES NAVAL SUPPLY DEPOT, SAN DIEGO, CALIFORNIA, BY INVITATION NO. B-31-58-244 DATED OCTOBER 14, 1957, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT, AMONG OTHERS, OF ITEM 17 DESCRIBED AS A UNIVERSAL ARMATURE MACHINE, PEERLESS HEAVY DUTY TYPE H. IN RESPONSE THERETO MR. MILTON C. BLAIR SUBMITTED HIS BID, OFFERING TO PURCHASE ITEM 17 FOR THE PRICE OF $250. AWARD WAS MADE NOVEMBER 5, 1957.

BY LETTER DATED NOVEMBER 19, 1957, THE BIDDER CLAIMED AN ERROR IN HIS BID AND STATED THAT HE INTENDED TO BID ON ITEMS 16 AND 16A, IN LIEU OF ITEM 17.

IN A REPLY THE BIDDER WAS REQUESTED TO FURNISH EVIDENCE IN SUPPORT OF HIS CLAIM THAT HIS BID ON ITEM 17 WAS IN ERROR. THE BIDDER HAVING FAILED TO FURNISH SUCH INFORMATION WAS NOTIFIED BY LETTER OF DECEMBER 16, 1957, OF THE ESTABLISHMENT OF A DEADLINE AS OF DECEMBER 31, 1957, FOR AN ANSWER TO THE DEPOT'S LETTER OF NOVEMBER 27, 1957, OR FOR THE PAYMENT OF THE BALANCE DUE AND THE REMOVAL OF THE MATERIAL. IN A LETTER OF DECEMBER 17, 1957, MR. BLAIR REQUESTED REFUND OF HIS BID DEPOSIT IN THE SUM OF $50. THE CONTRACTING OFFICER HAS RECOMMENDED THAT NO RELIEF BE GRANTED.

THE PRIMARY QUESTION HERE 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 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, AND 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 FACE OF THE BID TO PUT THE CONTRACTING OFFICER ON NOTICE OF A POSSIBLE MISTAKE IN BID AND THEREFORE IT MUST BE CONSIDERED THAT THE BID WAS ACCEPTED IN GOOD FAITH.

ACCORDINGLY, THERE APPEARS NO LEGAL BASIS FOR REFUNDING $50 OF THE $250 PURCHASE PRICE.