B-136199, JUN. 10, 1958

B-136199: Jun 10, 1958

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THE SAID COMPANY WAS AWARDED ITEM NO. 48. THE BIDDER FURTHER ADVISED THAT ITS INTEREST WAS IN THE NAILS. THE BIDDER HAS FURNISHED A PHOTOSTATIC COPY OF ITS WORKSHEET WHICH CLEARLY EVIDENCES AN INTENTION TO BID ON THOSE LOTS OF NAILS AS ARE COVERED BY ITEMS NOS. 44. INASMUCH AS THE CONTRACTOR WAS NOT AWARDED ANY OF THE ITEMS NOS. 44 THROUGH 47. THE RECORD SHOWS THAT THE CONTRACTOR'S WAS THE ONLY BID RECEIVED ON ITEM NO. 48 OF THE INVITATION. THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO SUSPECT ERROR IN THE CONTRACTOR'S PROPOSAL AT THE TIME OF THE AWARD. IT WAS RECOMMENDED BY HIM THAT ITEM NO. 48 OF THE CONTRACT BE CANCELLED. IT IS THE GENERAL RULE THAT WHEN A BIDDER HAS MADE A MISTAKE IN THE PREPARATION OF HIS BID.

B-136199, JUN. 10, 1958

TO THE SECRETARY OF THE NAVY:

BY LETTER DATED MAY 19, 1958, R11-2 L8) L8/NT4-28, THE ASSISTANT CHIEF FOR PURCHASING, BUREAU OF SUPPLIES AND ACCOUNTS, REQUESTED A DECISION AS TO THE PROPRIETY OF CANCELLING ITEM NO. 48 OF SALES CONTRACT NO. N228S- 28338, DATED APRIL 16, 1958, WITH THE ACORN METAL AND MACHINERY COMPANY, SAN FRANCISCO, CALIFORNIA.

BY INVITATION NO. B-183-58-228, THE NAVAL SUPPLY CENTER, DISPOSAL DIVISION, OAKLAND, CALIFORNIA, SOLICITED PROPOSALS ON 63 ITEMS OF SURPLUS MATERIALS CONSISTING PRINCIPALLY OF ELECTRICAL SUPPLIES, KITCHEN EQUIPMENT, HARDWARE, PAINTS, CHEMICALS, REELS, ETC. IN A PROPOSAL DATED APRIL 11, 1958, THE ACORN METAL AND MACHINERY COMPANY BID ON SEVERAL OF THE ITEMS, INCLUDING ITEM NO. 48, DESCRIBED AS AN ASSORTMENT OF MISCELLANEOUS MATERIALS CONSISTING OF VARYING QUANTITIES, WEIGHING APPROXIMATELY 5,000 POUNDS, OF MAGNETIC INSPECTION POWDER, METAL CLEANER, CORROSION INHIBITOR, INSECTICIDE, LIME, PAINTS, SODIUM CHLORIDE, GREASE AND OTHER COMPOUNDS, AS TO WHICH IT QUOTED A LOT PRICE OF $129.33. APRIL 16, 1958, THE SAID COMPANY WAS AWARDED ITEM NO. 48, ALONG WITH ITEMS NOS. 2, 16 AND 34 OF THE INVITATION BY REASON OF ITS HIGH BID PRICES THEREON.

BY LETTER DATED APRIL 17, 1958, PRESUMABLY WRITTEN BEFORE RECEIPT OF NOTIFICATION OF THE AWARD, THE BIDDER ADVISED THE SALES AGENCY THAT IT ERRONEOUSLY HAD ENTERED ITS INTENDED BIDS FOR ITEMS NOS. 44, 45, 46 AND 47, CONSISTING OF VARYING QUANTITIES OF 40 AND 60 PENNY NAILS, INTO THE SPACES ALLOTTED IN THE BID SCHEDULE TO ITEMS NOS. 45, 46, 47 AND 48. THE BIDDER FURTHER ADVISED THAT ITS INTEREST WAS IN THE NAILS, AS DESCRIBED OPPOSITE ITEMS NOS. 44 THROUGH 47, AND THAT IT HAD NO INTENTION OF BIDDING ON THE MISCELLANEOUS ASSORTMENT OF MATERIALS AS COVERED BY ITEM NO 48. VIEW THEREOF, THE COMPANY REQUESTED THAT ITS BIDS ON ITEMS NOS. 45 THROUGH 48 BE WITHDRAWN.

TO SUPPORT ITS ALLEGATIONS, THE BIDDER HAS FURNISHED A PHOTOSTATIC COPY OF ITS WORKSHEET WHICH CLEARLY EVIDENCES AN INTENTION TO BID ON THOSE LOTS OF NAILS AS ARE COVERED BY ITEMS NOS. 44, 45, 46 AND 47 OF THE INVITATION. THE WORKSHEET EVIDENCES NO INTEREST BY THE CONTRACTOR IN ITEM NO. 48. INASMUCH AS THE CONTRACTOR WAS NOT AWARDED ANY OF THE ITEMS NOS. 44 THROUGH 47, ITS REQUEST FOR WITHDRAWAL NEED ONLY BE CONSIDERED AS APPLYING TO ITEM NO. 48.

THE RECORD SHOWS THAT THE CONTRACTOR'S WAS THE ONLY BID RECEIVED ON ITEM NO. 48 OF THE INVITATION. HENCE, THERE WAS NO REASON FOR THE CONTRACTING OFFICER TO SUSPECT ERROR IN THE CONTRACTOR'S PROPOSAL AT THE TIME OF THE AWARD. HOWEVER, IN THE CONTRACTING OFFICER'S STATEMENT OF FACTS AND RECOMMENDATIONS IN THIS CASE, HE DOES EXPRESS THE OPINION THAT THE ACORN METAL AND MACHINERY COMPANY DID MAKE A BONAFIDE ERROR IN THE PREPARATION OF ITS BID. ACCORDINGLY, IT WAS RECOMMENDED BY HIM THAT ITEM NO. 48 OF THE CONTRACT BE CANCELLED.

IT IS THE GENERAL RULE THAT WHEN A BIDDER HAS MADE A MISTAKE IN THE PREPARATION OF HIS BID, AND SUCH BID HAS BEEN ACCEPTED, HE MUST BEAR ITS CONSEQUENCES UNLESS THE MISTAKE WAS MUTUAL OR THE ERROR WAS SO APPARENT AS TO WARRANT THE PRESUMPTION THAT THE CONTRACTING OFFICER KNEW, OR SHOULD HAVE KNOWN, OF ITS EXISTENCE, AND SOUGHT TO TAKE ADVANTAGE OF IT. SEE ELLICOTT MACHINE COMPANY V. UNITED STATES, 44 C.CLS. 127; AMERICAN WATER SOFTENER COMPANY V. UNITED STATES, 50 ID. 209; 23 COMP. GEN. 596, 598.

HERE, THE RECORD SHOWS THAT THE CONTRACT HAD BEEN AWARDED BEFORE THE ERROR WAS ALLEGED. SEE 35 COMP. GEN. 50. FURTHERMORE, THERE WAS NOTHING SUGGESTIVE OF ERROR ON THE FACE OF THE CONTRACTOR'S PROPOSAL. IT MUST BE PRESUMED, THEREFORE, THAT THE CONTRACTOR'S PROPOSAL WAS ACCEPTED BY THE GOVERNMENT IN ENTIRE GOOD FAITH. CONSEQUENTLY, AND SINCE THE UNILATERAL MISTAKE HERE INVOLVED RESULTED SOLELY FROM THE BIDDER'S OWN NEGLIGENCE, AND SINCE IT WAS NOT INDUCED NOR CONTRIBUTED TO BY THE GOVERNMENT, THERE EXISTS NO LEGAL OR PROPER BASIS UPON WHICH TO BASE THE PROPOSED MODIFICATION OF THE INSTANT CONTRACT. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249; SALIGMAN ET AL. V. UNITED STAES, 56 F.SUPP. 505, 507; 29 COMP. GEN. 323, 324.