B-135111, FEBRUARY 25, 1958, 37 COMP. GEN. 542

B-135111, FEBRUARY 25, 1958, 37 COMP. GEN. 542

SALES - DELIVERY SHORTAGES - WITHDRAWAL OF MATERIAL - NOTICE WHERE A BIDDER SUBMITTED THE HIGH BID FOR THE PURCHASE OF SURPLUS PROPERTY WITHOUT KNOWLEDGE THAT THE GOVERNMENT HAD ISSUED AN AMENDMENT TO THE INVITATION ADVISING BIDDERS THAT SOME OF THE EQUIPMENT WHICH HAD BEEN DESCRIBED IN DETAIL IN THE INVITATION HAD BEEN WITHDRAWN FROM THE SALE AND THE FACTS WITH RESPECT TO THE DISTRIBUTION OF THE AMENDMENT DO NOT ESTABLISH THAT A COPY WAS PROPERLY ADDRESSED AND ACTUALLY MAILED TO THE BIDDER, NO CONTRACT WAS EFFECTED, AND REFUND OF THE PURCHASE PRICE SHOULD BE MADE.

TO THE SECRETARY OF THE NAVY, FEBRUARY 25, 1958:

REFERENCE IS MADE TO A LETTER DATED JANUARY 31, 1958, FILE R11.2-L8 L8- NT4-3, FROM THE ASSISTANT CHIEF OR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR WHICH WIMBISH AVIATION, GREENSBORO, NORTH CAROLINA, ALLEGES WAS MADE IN ITS BID ON WHICH CONTRACT NO. N189S 27047A (S) IS BASED.

UNDER LOT 3778 OF SALES INVITATION NO. B-52-58-189, THE NAVAL SUPPLY CENTER, NORFOLK, VIRGINIA, REQUESTED BIDS--- TO BE OPENED ON OCTOBER 9, 1957--- ON A MARTIN AIRCRAFT, MODEL PBM-5G. THE BODY OF THE DESCRIPTION CONTAINED THE STATEMENT THAT "THE FOLLOWING RADIO GEAR IS INSTALLED: ARN- 6, APR-15, ART-13, APN-1 AND ARC-5. THIS GEAR WAS IN OPERATING CONDITION WHEN RECEIVED.'

SUBSEQUENT TO THE RELEASE OF THE SALES INVITATION TO THE GENERAL PUBLIC, THE BUREAU OF AERONAUTICS ADVISED THE COMMANDING OFFICER AT THE SUPPLY CENTER BY DISPATCH AND CONFIRMED BY SPEEDLETTER, DATED SEPTEMBER 20, 1957, THAT RADIO GEAR ART-13 AND ARN-6 SHOULD BE REMOVED IN COMPLIANCE WITH BUAER 282156Z. THIS ACTION WAS EFFECTED BY THE NAVAL AIR STATION AND ON SEPTEMBER 23, 1957, THE SALES INVITATION WAS AMENDED BY A MEMORANDUM MAILED TO ALL BIDDERS THAT THESE ITEMS HAD BEEN WITHDRAWN.

BIDS WERE OPENED ON OCTOBER 9, 1957, AND AWARD WAS MADE TO THE HIGH BIDDER, WIMBISH AVIATION, AT $3,655.55. THE THREE OTHER BIDS RECEIVED WERE: $2,811.89, $1,979.51, AND $25. FULL PAYMENT WAS REMITTED BY LETTER FROM THE CLAIMANT ON OCTOBER 21, 1957, AT WHICH TIME HE ADVISED THAT HE WOULD PERSONALLY CALL AT THE NAVAL SUPPLY CENTER TO MAKE ARRANGEMENTS FOR REMOVAL OF THE AIRCRAFT. ON DECEMBER 3, 1957, MR. WIMBISH VISITED THE CONTRACTING OFFICER AND ADVISED HIM THAT HE HAD NOT RECEIVED THE AMENDMENT NOTIFYING HIM OF THE WITHDRAWAL OF THE TWO ITEMS OF RADIO GEAR, NOR WAS HE AWARE AT THE TIME OF BIDDING THAT THESE ITEMS WERE NOT TO BE INCLUDED AT TIME OF DELIVERY. BY NOTARIZED LETTER OF DECEMBER 13, 1957, THE BIDDER RELATED IN FULL HIS LACK OF KNOWLEDGE OF THE WITHDRAWAL OF THESE ITEMS AND STATED THAT THE AMENDMENT ADVISING BIDDERS OF THIS FACT WAS NEVER RECEIVED BY HIM.

SINCE THE TWO ITEMS OF RADIO EQUIPMENT WERE A PART OF THE AIRPLANE WHEN THE INVITATION WAS ISSUED, THE DESCRIPTION CONTAINED IN THE INVITATION WAS CORRECT SO FAR AS THESE ITEMS WERE CONCERNED. THERE IS NOT INVOLVED HERE THEN ANY QUESTION CONCERNING THE APPLICATION OF THE DISCLAIMER-OF-WARRANTY AND INSPECTION CLAUSES OF THE INVITATION. RATHER THE ISSUE PRESENTED IS WHETHER A CONTRACT RESULTED FROM THE ACTION OF THE PARTIES. IN ORDER TO DETERMINE THIS, IT IS FIRST NECESSARY TO ESTABLISH WHETHER THE BIDDER RECEIVED THE AMENDMENT OR, IN THE ABSENCE OF SUCH PROOF, TO DETERMINE WHETHER SUFFICIENT FACTS EXIST TO RAISE A PRESUMPTION THAT THE AMENDMENT WAS RECEIVED.

IN ROSENTHAL V. WALKER, 111 U.S. 185, 193, IT WAS SAID: " THE RULE IS WELL SETTLED THAT IF A LETTER PROPERLY DIRECTED IS PROVED TO HAVE BEEN EITHER PUT INTO THE POST OFFICE, OR DELIVERED TO THE POSTMAN, IT IS PRESUMED, FROM THE KNOWN COURSE OF BUSINESS IN THE POST OFFICE DEPARTMENT, THAT IT REACHED ITS DESTINATION AT THE REGULAR TIME, AND WAS RECEIVED BY THE PERSON TO WHOM IT WAS ADDRESSED.' IN ORDER TO RAISE THIS PRESUMPTION OF FACT IT IS FIRST NECESSARY TO SHOW THAT THE LETTER WAS PROPERLY ADDRESSED AND DEPOSITED IN THE MAIL. ERNST HENRY SCHULTZ, JR., ET AL. V. UNITED STATES, 132 C.1CLS. 618, 621.

THE CONTRACTING OFFICER STATES THAT THE NOTICE OF AMENDMENT WAS MAILED TO ALL BIDDERS WHO RECEIVED THE SALES INVITATION. HE FURTHER STATES:

* * * THESE ENVELOPES ARE MECHANICALLY RUN OFF BY AN ADDRESSOGRAPH MACHINE WHICH IS IN GOOD OPERATING CONDITION, HOWEVER, IT IS CERTAINLY POSSIBLE THAT THIS PARTICULAR PLATE DID NOT REPRODUCE, IN WHICH EVENT NO ENVELOPE WOULD HAVE BEEN ADDRESSED TO WIMBISH AVIATION, AND THE AMENDMENT WOULD OF COURSE NOT HAVE BEEN MAILED THE CLAIMANT. THIS OFFICE HAS AT INFREQUENT INTERVALS RECEIVED COMPLAINTS FROM OTHER BIDDERS INDICATING THAT AMENDMENT NOTICES HAD NOT BEEN RECEIVED, HOWEVER FROM THE TREMENDOUS VOLUME OF CATALOGS AND AMENDMENTS MECHANICALLY ADDRESSED AND RELEASED FOR MAILING FROM THIS CENTER, IS (SIC) IS REASONABLE TO EXPECT A CERTAIN MARGIN OF ERRORS. IN THIS PARTICULAR INSTANCE IT IS IMPOSSIBLE TO STATE THAT AN AMENDMENT NOTIFYING THE CLAIMANT WAS ACTUALLY MAILED, AND HE HAS FURNISHED A NOTARIZED AFFIDAVIT INDICATING THAT IT WAS NOT RECEIVED. ITALICS SUPPLIED.)

IN OUR OPINION THE FACTS THUS REPORTED ARE NOT SUFFICIENT TO ESTABLISH THAT THE AMENDMENT WAS PROPERLY ADDRESSED AND MAILED TO THE CONTRACTOR. ACCORDINGLY, AND SINCE THE AIRCRAFT IS STILL ON GOVERNMENT PROPERTY, THE CONTRACTOR MAY HAVE THE CONTRACT CANCELED WITHOUT LIABILITY AND MAY BE REFUNDED HIS PURCHASE PRICE ON THE BASIS THAT HE PLACED HIS BID IN GOOD FAITH WITHOUT KNOWLEDGE OF THE GOVERNMENT'S ACTION IN REMOVING THE NECESSARY RADIO GEAR.