B-136306, JUN. 12, 1958

B-136306: Jun 12, 1958

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TO THE SECRETARY OF THE ARMY: REFERENCE IS MADE TO A LETTER DATED APRIL 15. ON THE GROUNDS THAT A CLERICAL ERROR WAS MADE IN SUBMITTING A BID IN THE SUM OF $1. THE ACQUISITION COST OF WHICH WAS STATED TO HAVE BEEN $5. ALTHOUGH THE BID IS OUT OF LINE WITH OTHER BIDDERS. IT IS NOT UNCOMMON TO RECEIVE SUCH A BID. THAT OFTENTIMES A BIDDER WILL HAVE A POTENTIAL BUYER FOR AN ITEM PRIOR TO BID OPENING AND AS A RESULT WILL PLACE A HIGH BID TO MAKE CERTAIN HE OBTAINS THE PROPERTY. THAT WITH THE TREMENDOUS AMOUNT OF PROPERTY BEING DISPOSED OF AT THE INSTALLATION IT IS DIFFICULT TO ASCERTAIN IF THE MISTAKE IS LEGITIMATE. THE FACTS IN THE INSTANT CASE ARE SIMILAR IN ALL MATERIAL RESPECTS TO THOSE CONSIDERED IN UNITED STATES V.

B-136306, JUN. 12, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED APRIL 15, 1958, WITH ENCLOSURES, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS), REQUESTING A DECISION AS TO WHETHER RESCISSION OF CONTRACT NO. 04-170 01/S/402-58, MAY BE MADE, ON THE GROUNDS THAT A CLERICAL ERROR WAS MADE IN SUBMITTING A BID IN THE SUM OF $1,501 FOR THE LOT UNDER ITEM 29, INSTEAD OF $150.10.

THE SACRAMENTO SIGNAL DEPOT, SACRAMENTO, CALIFORNIA, DEPARTMENT OF THE ARMY, BY SALES INVITATION NO. AVI-04-170-S-58-27, DATED MARCH 10, 1958, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT MISCELLANEOUS MATERIALS DESCRIBED UNDER ITEMS 1 TO 55 INCLUSIVE. IN RESPONSE THERETO THE SURPLUS MATERIALS CORPORATION, STRYKER, OHIO, SUBMITTED ITS BID DATED MARCH 24, 1958, OFFERING TO PURCHASE, AMONG OTHER ARTICLES, ITEM NO. 29 CONSISTING OF UNUSED TELEPHONE CABLE AND CABLE ASSEMBLIES, THE ACQUISITION COST OF WHICH WAS STATED TO HAVE BEEN $5,914. BY LETTER DATED APRIL 4, 1958, THE BIDDER ADVISED THE CONTRACTING OFFICER THAT IT HAD MADE AN ERROR IN ITS BID IN THAT IT MEANT TO BID $150.10 PER LOT, BUT THAT DUE TO A CLERICAL ERROR IT PLACED THE DECIMAL POINT IN THE WRONG PLACE, THUS, MAKING ITS BID $1,501.00 PER LOT. IT REQUESTED PERMISSION TO ALTER ITS BID ON THIS ITEM TO $150.10 FOR THE LOT.

THE CONTRACTING OFFICER HAS REPORTED THAT, ALTHOUGH THE BID IS OUT OF LINE WITH OTHER BIDDERS, IT IS NOT UNCOMMON TO RECEIVE SUCH A BID; THAT OFTENTIMES A BIDDER WILL HAVE A POTENTIAL BUYER FOR AN ITEM PRIOR TO BID OPENING AND AS A RESULT WILL PLACE A HIGH BID TO MAKE CERTAIN HE OBTAINS THE PROPERTY; AND THAT WITH THE TREMENDOUS AMOUNT OF PROPERTY BEING DISPOSED OF AT THE INSTALLATION IT IS DIFFICULT TO ASCERTAIN IF THE MISTAKE IS LEGITIMATE.

THE FACTS IN THE INSTANT CASE ARE SIMILAR IN ALL MATERIAL RESPECTS TO THOSE CONSIDERED IN UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED BY UNITED STATES COURT OF APPEALS, SECOND CIRCUIT, ON APRIL 14, 1958, WHEREIN IT WAS HELD THAT WHERE THE GOVERNMENT HAD NO ACTUAL OR CONSTRUCTIVE NOTICE OF THE BIDDER'S UNILATERAL ERROR UNTIL IT ACCEPTED THE BID, THE BIDDER WOULD NOT BE RELIEVED OF ITS OBLIGATION UNDER THE CONTRACT. THERE IS NO SHOWING HERE THAT THE GOVERNMENT KNEW, OR HAD REASON TO KNOW, BECAUSE OF THE AMOUNT OF THE BID, OR OTHERWISE, THAT THE BIDDER MADE A MISTAKE. THE RESPONSIBILITY FOR THE PREPARATION OF THE BID WAS ENTIRELY THAT OF THE BIDDER.

IN VIEW OF THE FOREGOING THERE IS FOUND NO LEGAL BASIS FOR RESCINDING THE CONTRACT AND ACCORDINGLY, THE REQUEST FOR RESCISSION IS DENIED.