B-136097, MAY 22, 1958

B-136097: May 22, 1958

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TO THE SECRETARY OF THE NAVY: REFERENCE IS MADE TO A LETTER OF MAY 9. TO HAVE BEEN MADE IN ITS BID OPENED APRIL 1. THE BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $1. THE CONTRACTING OFFICER STATES THAT THE BID OF $761.50 ON ITEM 41 IS NOT CONSIDERED EXCESSIVE FOR THE MATERIAL AND HE RECOMMENDS THAT NO RELIEF BE GRANTED. 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-136097, MAY 22, 1958

TO THE SECRETARY OF THE NAVY:

REFERENCE IS MADE TO A LETTER OF MAY 9, 1958, WITH ENCLOSURES, R11.2L8/L8/NT4-15, FROM THE DIRECTOR, PURCHASE OPERATIONS DIVISION, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTING A DECISION IN REGARD TO AN ERROR ALLEGED BY THE SCHNITZER STEEL PRODUCTS CO., PORTLAND, OREGON, TO HAVE BEEN MADE IN ITS BID OPENED APRIL 1, 1958.

IN RESPONSE TO INVITATION TO BID NO. B-190-58-665 (CONTRACT NO. N665S- 37019) DATED MARCH 11, 1958, THE SCHNITZER STEEL PRODUCTS CO., SUBMITTED ITS UNDATED BID, OFFERING TO PURCHASE, AMONG OTHERS, ITEM NO. 41 CONSISTING ONE (1) LOT OF CONTROLLERS, WESTINGHOUSE CLASS SP-CL8585 B1.230V DC, 15 HP SO. 41542 DWG. NA-B4857 COMPLETE W/RHEOSTAT AND PUSHBUTTON STEEL DRIPPROOF ENCLOSURE FOR THE PRICE OF $761.50 FOR THE ENTIRE LOT. THE BID WAS ACCOMPANIED BY A BID DEPOSIT IN THE SUM OF $1,000.

BY LETTER DATED APRIL 14, 1958, THE COMPANY ADVISED RECEIPT OF THE AWARD AND THAT IT HAD FOUND AN ERROR IN BIDDING ON LOT 41; THAT IT INTENDED BIDDING ON LOT NO. 40 AND IN COMPOSING ITS BID IT INADVERTENTLY PLACED THE FIGURE UNDER ITEM 41; AND THAT THE COMPANY HAS NO USE FOR THESE CONTROLLERS, HAS NEVER BID ON CONTROLLERS AND WOULDN-T KNOW WHAT TO DO WITH THEM. IT REQUESTED THAT ITEM 41 BE CANCELLED DUE TO ERROR AND IF POSSIBLE, TO BE AWARDED ITEM 40; OTHERWISE THAT ITEM 41 BE "THROWN OUT" BECAUSE OF AN HONEST ERROR ON THE PART OF THE COMPANY.

THE ABSTRACT OF BIDS SHOWS THAT FIVE (5) OTHER BIDS RECEIVED RANGED FROM $9.17 TO $357.10. IN THE STATEMENT OF FACTS DATED APRIL 23, 1958, THE CONTRACTING OFFICER STATES THAT THE BID OF $761.50 ON ITEM 41 IS NOT CONSIDERED EXCESSIVE FOR THE MATERIAL AND HE RECOMMENDS 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. SEEALSO 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 CANCELLING THE AWARD.

THE LETTER OF APRIL 14, 1958, FROM THE BIDDER IS RETAINED AND ALL OTHER PAPERS ARE RETURNED HEREWITH.