B-136308, JUN. 11, 1958

B-136308, JUN. 11, 1958

TO THE SECRETARY OF THE ARMY:

REFERENCE IS MADE TO A LETTER DATED MAY 28, 1958, FROM THE ASSISTANT SECRETARY OF THE ARMY (LOGISTICS) REQUESTING A DECISION AS TO THE ACTION TO BE TAKEN RELATIVE TO AN ERROR THE VICTORY SALVAGE COMPANY, LOS ANGELES, CALIFORNIA, ALLEGES IT MADE IN ITS BID ON WHICH CONTRACT NO. 04-519-01-/S/ -271-58 WAS AWARDED.

THE PROPERTY DISPOSAL OFFICE, BENICIA ARSENAL, BENICIA, CALIFORNIA, BY INVITATION NO. AVI-04-519-S-58-22 DATED FEBRUARY 6, 1958, REQUESTED BIDS FOR THE PURCHASE FROM THE GOVERNMENT, AMONG OTHER THINGS, OF ONE LOT OF PISTONS AS DESCRIBED UNDER ITEM 16 AND ONE LOT OF MISCELLANEOUS AUTO PARTS AS DESCRIBED UNDER ITEM 17. IN RESPONSE THE VICTORY SALVAGE COMPANY SUBMITTED ITS BID DATED FEBRUARY 25, 1958, OFFERING TO PURCHASE THE PISTONS AND AUTO PARTS FOR THE PRICE OF $168.99 AND $469.99, RESPECTIVELY. SIX OTHER BIDS RECEIVED FOR ITEM 16 RANGED FROM $26.93 TO $126.66 AND SIX OTHER BIDS RECEIVED FOR ITEM 17 RANGED FROM $12 TO $151. THE ACQUISITION COST OF ITEM 16 WAS $817.50 AND FOR ITEM 17 WAS $3,241.89. THE HIGH BID OF THE VICTORY SALVAGE COMPANY WAS ACCEPTED ON MARCH 10, 1958.

BY LETTER DATED MARCH 24, 1958, THE COMPANY CLAIMED AN ERROR IN ITS BID ALLEGING IT INTENDED TO BID ON ITEMS 19 AND 20 AND DID NOT INTEND TO BID ON THESE TWO LOTS AND THAT IN COPYING THE FIGURES FROM THE ORIGINAL WORKING BID TO THE FRONT BID SHEET, AND BEING IN A HURRY TO FILE ITS BID IN TIME, THE FIGURES WERE INSERTED ON THE WRONG LINE. THE ONLY EVIDENCE SUBMITTED BY THE COMPANY IN SUPPORT OF ITS CONTENTION IS THE ABOVE REFERRED-TO LETTER AND A PHOTO COPY OF ITS ALLEGED WORK SHEET ATTACHED THERETO.

THE QUESTION FOR CONSIDERATION HERE IS NOT WHETHER THE COMPANY MADE AN ERROR IN ITS BID, BUT WHETHER A VALID AND BINDING CONTRACT WAS CONSUMMATED BY THE ACCEPTANCE OF THE COMPANY'S BID. THERE WAS NOTHING ON THE FACE OF THE BID TO INDICATE AN ERROR THEREIN AND NO ALLEGATION WAS MADE UNTIL AFTER AWARD. ALSO, THE ACTING PROPERTY DISPOSAL OFFICER HAS STATED THAT IT DID NOT APPEAR TO THE CONTRACTING OFFICER AT THE TIME OF BID OPENING THAT A MISTAKE IN BID HAD BEEN MADE. THE ACCEPTANCE OF THE COMPANY'S BID, UNDER THE CIRCUMSTANCES INVOLVED, CONSUMMATED A VALID AND BINDING CONTRACT WHICH FIXED THE RIGHTS AND LIABILITIES OF THE PARTIES THERETO, AND VESTED IN THE GOVERNMENT RIGHTS WHICH NO OFFICER OR AGENT IS AUTHORIZED TO WAIVE OR RELEASE. SEE UNITED STATES V. PURCELL ENVELOPE COMPANY, 249 U.S. 313; AND AMERICAN SMELTING AND REFINING COMPANY V. UNITED STATES, 259 U.S. 75. MOREOVER, THE INVITATION FOR BIDS WAS CLEAR AND UNAMBIGUOUS AND THE RESPONSIBILITY FOR THE PREPARATION OF THE BID SUBMITTED IN RESPONSE THERETO WAS UPON THE COMPANY. SEE FRAZIER-DAVIS CONSTRUCTION COMPANY V. UNITED STATES, 100 C.CLS. 120, 153.

SUCH ERROR AS WAS MADE WAS DUE SOLELY TO THE COMPANY'S NEGLIGENCE, OR THAT OF ITS AGENTS, AND WAS NOT INDUCED OR CONTRIBUTED TO BY THE GOVERNMENT. HENCE, THE ERROR WAS UNILATERAL--- NOT MUTUAL--- AND DOES NOT ENTITLE THE COMPANY TO RELIEF. SEE OGDEN AND DOUGHERTY V. UNITED STATES, 102 C.CLS. 249, 259; AND SALIGMAN, ET AL. V. UNITED STATES, 56 F.SUPP. 505, 507; UNITED STATES V. SABIN METAL CORPORATION, 151 F.SUPP. 683, AFFIRMED BY THE U.S. COURT OF APPEALS, 2ND CIRCUIT, ON APRIL 14, 1958.