B-135816, APR. 25, 1958

B-135816: Apr 25, 1958

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B. HAGERMAN: I HAVE YOUR LETTER OF APRIL 10. TO HAVE BEEN MADE IN ITS BID OPENED FEBRUARY 18. THE BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $103.40. IT APPEARS THAT THE NOTICE OF AWARD WAS MAILED FEBRUARY 25. THE BID DEPOSIT SUBMITTED WITH THE PURCHASER'S BID IS APPROXIMATELY THE REQUIRED TWENTY (20) PERCENT OF ITS TOTAL BID USING $51.10 AS ITS UNIT PRICE FOR ITEM 7. THAT THERE WAS ANYTHING ON THE FACE OF THE BID THAT SHOULD HAVE PUT YOU ON NOTICE OF A PROBABLY MISTAKE. 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.

B-135816, APR. 25, 1958

TO CAPTAIN D. B. HAGERMAN:

I HAVE YOUR LETTER OF APRIL 10, 1958, WITH ENCLOSURES, FILE MRPRN/ANTON, REQUESTING A DECISIONS IN REGARD TO AN ERROR ALLEGED BY THE BOSTON TIRE EXCHANGE, BOSTON, MASSACHUSETTS, TO HAVE BEEN MADE IN ITS BID OPENED FEBRUARY 18, 1958.

IN RESPONSE TO INVITATION TO BID NO. 30-635-S-58-13, DATED JANUARY 24, 1958, THE BOSTON TIRE EXCHANGE SUBMITTED AN UNDATED BID OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 7, CONSISTING OF TEN (10) NET TONS OF AUTO, TRUCK AND AIRCRAFT TIRES FOR THE PRICE OF $51.10 PER NET TON. THE BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $103.40.

IT APPEARS THAT THE NOTICE OF AWARD WAS MAILED FEBRUARY 25, 1958, AND THAT THE BOSTON TIRE EXCHANGE IN ITS TWO LETTERS DATED MARCH 6 AND APRIL 3, 1958, ALLEGED THAT A MISTAKE OCCURRED IN ITS OFFICE IN THAT ITS BOOKKEEPER ERRONEOUSLY "TOOK THE PER TON FIGURE OF $51.10 FOR ITEM 7" INSTEAD OF THE AMOUNT OF $21.10 AS PER ITS WORKSHEET. THE BID DEPOSIT SUBMITTED WITH THE PURCHASER'S BID IS APPROXIMATELY THE REQUIRED TWENTY (20) PERCENT OF ITS TOTAL BID USING $51.10 AS ITS UNIT PRICE FOR ITEM 7. THE PRESENT RECORD DOES NOT INDICATE, AND YOU DO NOT SO STATE, THAT THERE WAS ANYTHING ON THE FACE OF THE BID THAT SHOULD HAVE PUT YOU ON NOTICE OF A PROBABLY MISTAKE.

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, 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 DAUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259. SEE ALSO UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683.

ACCORDINGLY, THERE IS NO LEGAL BASIS TO GRANT ANY RELIEF IN THIS MATTER.

THE PAPERS, WITH THE EXCEPTION OF LETTERS DATED MARCH 6 AND APRIL 3, 1958, AND THE WORKSHEET, ARE RETURNED.